Monday, September 30, 2013

WIMS Environmental News Blogs

WIMS Environmental News Blogs - Sep 30: WIMS is relocating our offices and is taking a temporary leave from all of our publications and blogs. We will return on January 6, 2014.

In the meantime it is a great opportunity to check out our Environmental News Blogs. The blogs are continuously, automatically updated with the latest news and information from various RSS feed sources selected by WIMS.



Friday, September 27, 2013

Minard Run Oil Company v. U.S. Forest Service

Sep 26: In the U.S. Court of Appeals, Third Circuit, Case No. 12-4160. Appealed from the United States District Court for the Western District of Pennsylvania. In this non-precedential opinions, The Appeals Court explains that the Allegheny Defense Project and Sierra Club (collectively Appellants) appealed from the District Court's order granting summary judgment for the Minard Run Oil Company and Pennsylvania Independent Oil and Gas Association (collectively Appellees), essentially converting a preliminary injunction into a declaratory judgment. "The issue raised on appeal is whether the District Court properly applied the law of the case doctrine to preclude arguments raised by Appellants in their cross-motion for summary judgment. . . we will affirm the District Court's order."
    This case arises from a dispute over the split-estate property rights of the Federal surface owner and private mineral rights owners in the Allegheny National Forest (ANF). The United States acquired the surface estates that now constitute the ANF pursuant to the Weeks Act of 1911. While the U.S. Forest Service manages the surface of the ANF, the mineral rights in most of the ANF are privately owned. From 1980 until recently, the Service and private mineral rights owners utilized a cooperative process to manage access to and use of the surface to drill for oil and gas.
    Under the "cooperative process," sixty days prior to any planned drilling, mineral rights owners would provide notice to the Service, and the Service would then issue a Notice to Proceed (NTP), acknowledging receipt of the owners' notice and memorializing any agreements relating to the planned drilling. In 2008, a number of environmental groups, including the Sierra Club, filed a lawsuit against the Service, stating that its policy of issuing NTPs constituted a "major federal action[" significantly affecting the quality of the human environment," under the National Environmental Policy Act of 1969 (NEPA), and therefore an NTP could not lawfully be issued before the appropriate environmental analysis under NEPA was conducted. In 2009, the parties to that litigation entered into a Settlement Agreement, requiring that the Service conduct the appropriate NEPA analysis prior to issuing further NTPs. Subsequently, the Service issued a statement to oil and gas companies operating in the forest, stating that no new drilling would be authorized until the forest-wide EIS was completed.
    Appellees, filed a complaint in the District Court arguing that the de facto ban on drilling in the ANF exceeded the authority of the Service because a NEPA analysis was not required as a matter of law. The District Court granted their motion for a preliminary injunction, and on appeal, the Third Circuit affirmed in a precedential opinion. Thereafter, the mineral rights owners moved for summary judgment in the case before the District Court, requesting entry of judgment in their favor, conversion of the preliminary injunction order into a final declaratory judgment, and a permanent injunction against the Service. Appellants filed a cross-motion for summary judgment seeking vacation of the preliminary injunction order and judgment in their favor. The District Court granted the mineral rights owners' motion in part (it denied the request for a permanent injunction). The Court vacated the Settlement Agreement, and converted its preliminary injunction order into a final declaratory judgment on the merits. It is this order that is challenged on appeal.

    In its concluding comments the Appeals Court said, "We may revisit a legal question which has already been resolved where any of the following 'extraordinary circumstances' exist: '(1) there has been an intervening change in the law; (2) new evidence has become available; or (3) reconsideration is necessary to prevent clear error or a manifest injustice.' Mukasey, 534 F.3d at 188 (quoting Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999)). Appellants contend that the third exception to the application of the law of the case is implicated here. They state that this Court's ruling that Section 9 of the Weeks Act provides that reserved mineral rights are subject only to regulations in the instrument of conveyance, was clearly erroneous. In Minard Run III, however, Judge Roth provided ample reasoning for the Court's statutory interpretation, which Judge McLaughlin quoted at length in Minard Run IV. See Minard Run IV, 894 F. Supp. 2d at 657-58 (quoting Minard Run III, 670 F.3d at 251-52). To the extent that Appellants simply disagree with the conclusion reached, they could have sought en banc review. This panel will not disturb the well-reasoned legal conclusion reached by the prior panel."

    Access the complete opinion (click here). [#Energy, #Land, #CA3]

Thursday, September 19, 2013

Rocky Mountain Farmers Union v. Corey (CARB)

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15131 & 12-15135. Appeal from the United States District Court for the Eastern District of California. In this partially split decision, the panel affirmed in part and reversed in part the district court's summary judgment, and vacated the district court's preliminary injunction and remanded in an action which alleged that California's Low Carbon Fuel Standard, violated the dormant Commerce Clause and was preempted by Section 211(o) of the Clean Air Act, 42 U.S.C. § 7545(o). There were many parties in the case and a number of states including Michigan filed an amicus brief opposing the California standard. The court staff summarized the opinion as follows:
    The panel held that the Fuel Standard's ethanol provisions were not facially discriminatory, and reversed that portion of the district court's decision and remanded for entry of partial summary judgment in favor of California Air Resources Board ("CARB"). The panel also reversed the district court's decision that the Fuel Standard was an impermissible
extraterritorial regulation and the panel directed that an order of partial summary judgment be entered in favor of CARB on those grounds. The panel remanded the case for the district court to determine whether the ethanol provisions discriminate in purpose or effect and, if not, to apply the balancing test established in Pike v. Bruce Church, Inc., 397
U.S. 137 (1970).
    The panel affirmed the district court's conclusion that the Fuel Standard's crude oil provisions (the 2011 Provisions), were not facially discriminatory, but reversed the district court's holding that the 2011 Provisions were discriminatory in purpose and effect. The panel directed the district court to enter an order of partial summary judgment in favor of CARB on those issues. The panel remanded to the district court to apply the Pike balancing test to the 2011 Provisions.
    The panel affirmed the district court's conclusion that Section 211(c)(4)(b) of the Clean Air Act does not insulate California from scrutiny under the dormant Commerce Clause.
    The panel remanded to the district court with instructions to vacate the preliminary injunction. The panel expressed no opinion on plaintiffs' claim that the Fuel Standard is preempted by the federal Renewable Fuel Standard (RFS). The panel also expressed no opinion on CARB's claim that the savings clause in the Energy Independence and Security Act of 2007 precludes implied preemption by the RFS.
    Concurring in part and dissenting in part, Judge Murguia agreed with the majority's conclusions concerning the crude oil regulations and preemption under the Clean Air Act. She dissented from the majority's conclusion that ethanol regulations do not facially discriminate against interstate commerce.
    In part, the Appeals Court stated: "California should be encouraged to continue and to expand its efforts to find a workable solution to lower carbon emissions, or to slow their rise. If no such solution is found, California residents and people worldwide will suffer great harm. We will not at the outset block California from developing this innovative, nondiscriminatory regulation to impede global warming. If the Fuel Standard works, encouraging the development of alternative fuels by those who would like to reach the California market, it will help ease California's climate risks and inform other states as they attempt to confront similar challenges."

    Tim O'Connor, Director of Environmental Defense Fund's (EDF's) California Climate Initiatives commented on the decision saying, "This is a great day for public health and the economy of California. The court clearly upheld a groundbreaking policy that will protect consumers and the environment by diversifying our fuel mix and providing more choices for a clean energy future."

    Natural Resources Defense Council (NRDC) Senior Attorney, David Pettit said, "Today's victory ensures Californians are given better, cleaner choices at the fuel pump, which is something everyone can support. This policy will spur American ingenuity to produce cleaner fuels with fewer impacts to our environment. The standard is working to reduce pollution while decreasing the state's reliance on oil. "We're already on track to achieve these goals, and today's ruling reaffirms California as a national leader for common sense actions to curb climate change."
    Access the complete opinion and partial dissent (click here). Access a release from NRDC (click here). Access a release from EDF (click here). [#Energy/Fuel, #Climate, #MIEnergy/Fuel, #MIClimate, #CA9]


Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-72104. Appealed from the Northwest Power and Conservation Council. The panel affirmed the Sixth Northwest Power Plan, adopted by the Northwest Electric Power and Conservation Council (NPCC), concerning a "due consideration" challenge to the accommodation of fish and wildlife interests with hydropower interests in the Columbia River Basin, and remanded on a limited basis for additional consideration.
    The Appeals Court explains that the present case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest Electric Power Planning and Conservation Act (the Power Act), 16 U.S.C. §§ 839–839h. That statute established the Northwest Power and Conservation Council (the Council), an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington that Congress tasked with promulgating both "a regional conservation and electric power plan" and "a program to protect, mitigate, and enhance fish and wildlife." 16 U.S.C. § 839b(d)(1), 839b(h)(1)(A).
    The case presents a challenge by an environmental group, the Northwest Resource Information Center (NRIC), to the Sixth Northwest Power Plan (the Plan) that the Council adopted in May 2010. NRIC's key complaint is that the Council failed to give due consideration to the accommodation of fish and wildlife interests when it adopted the Plan. The Appeals Court rules, ". . .we affirm the Plan with respect to NRIC's "due-consideration" challenge, but remand the Plan to the Council for the limited purposes of (1) allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and (2) reconsidering the inclusion in the Plan of a market-price-based estimate of the cost of accommodating fish and wildlife interests."
    Access the complete opinion (click here). [#Energy, #Wildlife, #CA9]

Monday, September 16, 2013

Louisiana Department Of Environmental Quality v. U.S. EPA

Sep 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-60482. A Petition for Review of an Order of the Environmental Protection Agency. In short summary, the Louisiana Department of Environmental Quality (LDEQ) petitioned for judicial review of a U.S. EPA objection to three title V air permits issued by LDEQ to Nucor Steel Louisiana (Nucor). The Appeals Court dismissed the petition saying it lacked subject matter jurisdiction.
    In some detail, the Appeals Court explains, "LDEQ and Nucor's counter-arguments fail to persuade. They first argue that, because the EPA failed to object during § 7661d(b)(2)'s 60-day window for granting or denying a petition, § 7661d(c)'s limitation on judicial review does not apply. Nucor offers no support for that interpretation of § 7661d(b)(2), other than legislative history indicating that Congress intended the title V petition process to be timely, and its argument ignores the plain language of § 7661d(b)(2). Section 7661d(b)(2) does not prohibit the EPA from issuing an objection after the 60-day window has expired, and § 7661d(c) does not distinguish between timely and late objections in defining the point at which judicial review may be sought. Nor did Congress provide a remedy for an untimely objection. In such cases, courts are not to supply loss of jurisdiction as a consequence of a late objection.26
    "LDEQ and Nucor next argue that the Objection is not an 'objection' within the meaning of § 7661d and therefore not subject to § 7661d(c)'s requirement that the Administrator take final action to issue or deny a permit before it can be subject to judicial review. LDEQ and Nucor point to no text supporting the distinction they attempt to draw, nor do they provide any workable rule for determining what constitutes an actual 'objection.' They essentially argue that because the Objection is improper, it is not an actual objection and is therefore subject to judicial review. But that same argument would apply in any action challenging an EPA objection. Accepting the argument would eviscerate § 7661d(c)'s limitation on judicial review of EPA objections, would require determination of the merits of the challenge to the Objection before determining jurisdiction, and is in tension with the necessity for subject matter jurisdiction to decide the merits of a challenge. Whatever may be the outer limits of an objection, relabeling the EPA action does not change its substance.
    "We hold that this Court lacks subject matter jurisdiction to review the Objection, but we do not determine whether LDEQ and Nucor may pursue other avenues of judicial review, such as an action in district court under 42 U.S.C. § 7604(a)(2). We conclude that review in this forum is not proper until the Administrator takes final action issuing or denying a permit."
    Access the complete opinion (click here). [#Air, #CA5]

Thursday, September 12, 2013

Wild Fish Conservancy v. Jewell

Sep 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35303. Appealed from the United States District Court for the Eastern District of Washington. The panel dismissed an action brought by the Wild Fish Conservancy challenging the United States' diversion of water from Icicle Creek, a tributary of the Wenatchee River and the Columbia River, to the Leavenworth National Fish Hatchery.
    The Appeals Court explains that this appeal concerns the control of water necessary to sustain native fish populations in Icicle Creek, a tributary of the Wenatchee River, which is itself a tributary of the Columbia. The Wild Fish Conservancy and Harriet S. Bullitt (collectively, the Conservancy) allege that the United States is improperly diverting water from Icicle Creek to the Leavenworth National Fish Hatchery (the Hatchery) and otherwise violating Washington State law. The Appeals Court says, "We conclude that the Conservancy lacks prudential standing to bring its claim that the Hatchery operation violates the Washington water code, and that we lack jurisdiction to consider the Convervancy's other claims because they either do not challenge final agency action or rest on provisions of Washington law that are not incorporated into federal reclamation law. Therefore, on de novo review, we dismiss this action."
    In its summary the Appeals Court indicates, "As we have often acknowledged, '[s]almon and hydropower are the two great natural resources of the Columbia River Basin,' and ardent desires to promote one or the other have yielded a century of conflict. . . This iteration does not present the 'classic struggle between environmental and energy interests' . . .but instead a more nuanced conflict between two entities seeking to repair the damage that dams have done to the Basin's fisheries. Unlike the many cases we have decided concerning the fate of fish in the Columbia River Basin, the claims before us are not susceptible to federal judicial review. . ."
    Access the complete opinion (click here). [#Water, #Wildlife, #Energy, #CA9]

Wednesday, September 11, 2013

9th Circuit Sides With Enviros & EPA On AZ Haze Control

Sep 9: A release from Earthjustice indicates that the Ninth Circuit Court of Appeals denied a request from the State of Arizona and four utility companies to delay installing modern pollution controls on three large coal-fired power plants. The State and power companies were seeking a delay until litigation is complete concerning U.S. EPA's regional haze requirements for the Cholla, Coronado, and Apache power plants. 

    The decision by the Ninth Circuit Court of Appeals denies the requested stay of EPA's requirements for the three coal plants, while at the same time sending a positive signal that EPA's decision stands on solid legal ground. The coal plants must now move forward with installing updated pollution controls that limit nitrogen oxides pollution, which causes haze, ozone, and other air pollution. Earthjustice attorney Michael Hiatt, representing National Parks Conservation Association (NPCA) and Sierra Club in the litigation said, "The court's ruling prevents the state of Arizona and the utility companies' attempts to further delay installing long overdue pollution controls. Modern pollution controls at Cholla, Coronado, and Apache will result in cleaner air for Arizonans to breathe and will help restore the iconic scenic views at the Grand Canyon and other natural areas." 

    NPCA Arizona Senior Program Manager Kevin Dahl said, "Despite the promises of the 1977 Clean Air Act, 18 prized national parks have spent decades living in the shadow of the haze caused by air pollution from these plants. The cleanup plan the EPA has set in motion is rightfully sustained by this decision and once enforced will be an important turning point for those iconic places, by clearing the air and restoring the health and beauty these national parks deserve." Sandy Bahr, chapter director for the Sierra Club's Grand Canyon Chapter said, "Reducing pollution at three of our state's dirtiest coal plants is way past due. Moving forward with limiting these emissions protects both the skies of our iconic national parks and wilderness areas and our health."

    Access a release from Earthjustice (click here). [#Air, #CA9]

Thursday, September 5, 2013

Martin Whiteman v. Chesapeake Appalachia

Sep 4: In the U.S. Court of Appeals, Fourth Circuit, Case No. 12-1790. Appealed from the United States District Court for the Northern District of West Virginia, at Wheeling. The Appeals Court summarized, "The plaintiffs below, Martin and Lisa Whiteman (Whitemans), appeal from a final order of the United States District Court for the Northern District of West Virginia that granted summary judgment to the defendant, Chesapeake Appalachia, L.L.C. (Chesapeake), upon the Whitemans' claim for common law trespass. We find no error in the district court's decision and affirm for the reasons that follow."
    The Whitemans own the surface rights to approximately 101 acres in Wetzel County, West Virginia, pursuant to a general warranty deed dated March 2, 1992. See JA at 93-94. Chesapeake owns lease rights to minerals beneath the Whitemans' surface property. See JA at 608. The property rights of both the Whitemans and Chesapeake ultimately flow from two severance deeds that originally split the surface and mineral estates of the 101 acres relevant here. The two severance deeds effected severance by granting the respective surface estates to grantees while "reserving and excepting" the mineral estate to the grantor.
    The Whitemans live on and farm their 101 acres, primarily raising sheep and, relatedly, using part of the land to produce hay for the sheep. Conversely, Chesapeake operates three natural gas wells on approximately ten acres of the Whitemans' property that was formerly used for hay production. The Whitemans can no longer produce hay on those ten acres because Chesapeake's well operations and permanent drill waste disposal on the surface have rendered that portion of the Whitemans' property unusable for any suitable purpose.
    For each of their gas wells located on the Whitemans' surface property, Chesapeake obtained valid well work and pit waste discharge permits from the West Virginia Department of Environmental Protection (WVDEP). As part of the permitting process, Chesapeake gave the Whitemans notice of Chesapeake's intent to drill and dispose of drill waste in on-site waste pits. Chesapeake disposed of the drill cuttings in accord with the waste disposal method listed on their well work and pit waste discharge permit applications, namely by depositing the drill cuttings into open pits located near the wellheads on the Whitemans' surface property.
    The Appeals  Court indicates that the drill cuttings consist of earth, rock, and other debris necessarily removed from the ground when the drill bores the well, as well as drilling mud ranging from water-based fluid mixed with minerals to oil-based fluid with a composition similar to diesel fuel to synthetic oil-based fluid with a composition similar to food-grade mineral oil.
    In their complaint, the Whitemans asked for an injunction and damages based on claims arising from the drilling and operation by Chesapeake of three natural gas wells on surface property owned by the Whitemans. The complaint alleged claims under West Virginia common law only, namely nuisance, trespass, negligence, strict liability, recklessness or gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.
    The Appeals  Court concluded, ". . .the district court was correct to hold that creating drill waste pits was reasonably necessary for recovery of natural gas and did not impose a substantial burden on the Whitemans' surface property, that creation of the pits was consistent with Chesapeake's rights under its lease, was a practice common to natural gas wells in West Virginia, and consistent with requirements of applicable rules and regulations for the protection of the environment. Accordingly the decision of the district court is affirmed."
    Access the complete opinion (click here). [#Energy/NatGas, #Agriculture, #Land, #Haz, #CA4]

Drakes Bay Oyster Company v. Jewell

Sep 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-15227. Appealed from the United States District Court for the Northern District of California. In a split decision the panel affirmed the district court's order denying a preliminary injunction challenging the Secretary of the Interior's discretionary decision to let Drakes Bay Oyster Company's permit for commercial oyster farming at Point Reyes National Seashore expire on its own terms.
Drakes Bay challenges the Secretary of the Interior's discretionary decision to let Drakes Bay's permit for commercial oyster farming expire according to its terms. The permit, which allowed farming within Point Reyes National Seashore, was set to lapse in November 2012. Drakes Bay requested an extension pursuant to a Congressional enactment; however, the Secretary declined to extend the permit, and Drakes Bay sought a preliminary injunction.
    The majority ruled, "Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary's discretion, without imposing any mandatory considerations. . . any asserted errors in the NEPA review were harmless. . . Drakes Bay's disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision. We, therefore, affirm the district court's order denying a preliminary injunction."
    The dissenting Judge said, "I think Congress, by including the 'notwithstanding' clause in § 124, intended to do more than that. In particular, it sought to override the Department of the Interior's misinterpretation of the Point Reyes Wilderness Act. . . I think Drakes Bay is likely to prevail on its claim that the Secretary's decision is arbitrary, capricious, or otherwise not in accordance with law. . . Because the other preliminary injunction factors also weigh in Drakes Bay's favor, injunctive relief preserving the status quo should have been granted here. . ."
    Access the complete opinion and dissent (click here). [#Wildlife, #Land, #Water, #CA9]

Wednesday, September 4, 2013

U.S. v. EME Homer City Generation, L.P. & Other Cases

Aug 21: In the U.S. Court of Appeals, Third Circuit, Case No. 11-4406. Appealed from the United States District Court for the Western District of Pennsylvania. The Appeals Court summarizes, "The owners of a coal-fired power plant failed both to obtain a preconstruction permit and to install certain pollution-control technology before making changes to the plant. The Environmental Protection Agency and several states say the owners were required to do so. But the EPA did not cry foul until more than a decade after the changes, well after the owners had sold the plant. Now the EPA wants to force the former owners to obtain the missing preconstruction permit and to install the missing pollution controls on a plant they no longer own or operate. And they seek damages and an injunction against the current owners who neither owned nor operated the plant when it was allegedly modified illegally. The relief now sought would require us to distort plain statutory text to shore up what the EPA views as an incomplete remedial scheme. That we cannot do, and so we will affirm the District Court's dismissal of their claims."
    Access the complete opinion (click here). [#Air, #Energy/Coal, #CA3]
Quick Summaries Of  Additional Cases During The Break
  • Trinity Industries, Inc. v. Chicago Bridge & Iron Company - Aug 20: In the U.S. Court of Appeals, Third Circuit, Case No. 12-2059. Appealed from the United States District Court for the Western District of Pennsylvania. The case involves the assignment of liability for environmental cleanup under two federal statutes: CERCLA and RCRA. The Appeals Court considers the extent to which a settlement of state liability for environmental contamination affects the contribution scheme provided by CERCLA, and whether injunctive relief under RCRA is available when a remediation plan is already underway. The Appeals Court affirms in part and vacates and remands in part. Access the complete opinion (click here). [#Remed, #CA3]

  • Bell v. Cheswick Generating Station - Aug 20: In the U.S. Court of Appeals, Third Circuit, Case No. 12-4216. Appealed from the United States District Court for the Western District of Pennsylvania. Plaintiffs in a class action complaint against Cheswick Generating Station, GenOn Power Midwest, L.P. (GenOn). The Class is made up of at least 1,500 individuals who own or inhabit residential property within one mile of GenOn's 570-megawatt coal-fired electrical generation facility in Springdale, PA, complaining of ash and contaminants settling on their property.

    The Appeals Court addresses a matter of first impression: whether the Clean Air Act preempts state law tort claims brought by private property owners against a source of pollution located within the state. Based on the plain language of the Clean Air Act and controlling Supreme Court precedent, the Appeals Court concludes that "such source state common law actions are not preempted. Accordingly, we reverse the decision of the District Court and remand the case for further proceedings." Access the complete opinion (click here). [#Air, #CA3]

  • U.S. v. Manne - Aug 27: In the U.S. Court of Appeals, Second Circuit, Case No. 12-3079. Appealed from an order of the District Court for the Southern District of New York. The Appeals Court vacates a district court decision relating to a consent decree that resolved an environmental enforcement action and rules, ". . .that under the circumstances the statutory exception to the Anti-Injunction Act which permits a federal court to enjoin state proceedings 'where necessary in aid of its jurisdiction' does not apply. We therefore conclude that the Anti-Injunction Act's general prohibition against a federal injunction of state proceedings precludes the district court from enjoining appellant's state suit." Access the complete opinion (click here). [#Remed, #CA2]

  • Town Of Nags Head v. Toloczko - Aug 27: In the U.S. Court of Appeals, Fourth Circuit, Case No. 12-1537. Appealed from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. The case involves a "slew of federal and state law claims" concerning the legality of efforts by the Town of Nags Head, North Carolina to declare beachfront properties that encroach onto "public trust lands" a nuisance, and regulate them accordingly. The Appeals Court reverses the district court's decision to abstain and remands the case for further proceedings consistent with the opinion. Access the complete opinion (click here). [#Land, #CA4]

Tuesday, September 3, 2013

National Association of Clean Water Agencies v. U.S. - EPA & Other Cases

Aug 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1131. The Appeals Court explains that in March 2011, U.S. EPA issued a final rule establishing emission standards for sewage sludge incinerators under § 129 of the Clean Air Act, 42 U.S.C. § 7429. See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units, 76 Fed. Reg. 15,372 (Mar. 21, 2011). Determining that sewage sludge incinerators were "solid waste incineration unit[s]" as defined in § 129(g)(1), EPA promulgated "maximum achievable control technology" (MACT) standards for two subcategories of sewage sludge incinerators [See WIMS 1/21/11].
    The Appeals states, "The Clean Air Act cabins EPA's discretion in setting MACT standards, requiring EPA to base the standards on the emissions achieved by the best-performing existing incinerators. See 42 U.S.C. § 7429(a)(2). But acting under pressure of a court order to establish the MACT standards by a set deadline, EPA took a targeted approach to collecting emissions data and used several different methods to estimate the emissions levels achieved by existing incinerators. See 76 Fed. Reg. at 15,386.
    The petitioners challenge several different aspects of the rulemaking. Petitioners National Association of Clean Water Agencies and Hatfield Township Municipal Authority (collectively, NACWA) challenge EPA's authority to regulate sewage sludge incinerators under §129, asserting that sewage sludge incinerators do not fall within the scope of § 129(g)(1)'s definition of 'solid waste incineration unit.'"
    Petitioners NACWA and Sierra Club seek review of the sewage sludge incinerator emission standards, challenging several aspects of EPA's methodology for estimating the emission levels achieved by the best performing units. In addition to these petitioners, MaxWest Environmental Systems, developer of a proprietary biosolids management process, intervenes to challenge EPA's treatment of its
technology in the sewage sludge incinerator rule.
    The Appeals rules, ". . .we deny NACWA's petition for review as to EPA's authority to regulate sewage sludge incinerators under §129. As to the petitioners' challenges to EPA's methodology in setting emission standards, we agree that in some respects EPA has not adequately established that its estimations are reasonable, and so remand parts of the sewage sludge incinerator rule to EPA for further proceedings without vacating the current standards. We otherwise deny the petitions for review, and will not consider intervenor MaxWest's arguments as they are not within the scope of issues raised by the petitioners."
    The Appeals Court notes in the opinion that in the final rule, EPA candidly noted that its MACT floor methodology -- including the emissions testing dataset from less than 12 percent of incinerators -- was motivated in part by the impending court-ordered deadline to establish emission standards. EPA explained that "given the court-ordered deadline for EPA to issue the final [sewage sludge incinerator] rule, it was not possible to undertake the time-consuming process of sending an [information collection request] to all the affected [sewage sludge incinerators] consistent with the requirements of the [Paperwork Reduction Act]."
    The Appeals Court explains, "while both NACWA's and Sierra Club's arguments on this point share a similar element -- EPA's alleged failure to account for sewage sludge variability makes its MACT floor methodology arbitrary and capricious -- Sierra Club focuses on EPA's assumption about control technology installed on the incinerator, while NACWA focuses on EPA's assumptions about the effect of sewage sludge characteristics on emission levels." The Appeals Court addresses the concerns separately.
    The Appeals Court concludes, ". . .we remand to EPA portions of its rule for further explanation without vacating the current MACT standards. Specifically, we direct EPA to clarify why its Clean Water Act Part 503 regulations control for other non-technology factors. We also direct EPA to clarify issues related to its upper prediction limit and variability analysis. In particular, EPA should explain why the upper prediction
limit represents the "average emissions limitation achieved by the best performing 12 percent of" incinerators; why the upper prediction limit reasonably estimates the worst foreseeable operating conditions; and why the upper prediction limit can account for more than intra-unit variability, as EPA claimed it could on petition for review. Finally, we direct EPA to elaborate on how it can use a statistical method to determine whether a limited dataset is representative of incinerators for which it has no data, and to explain why it chose the variables it did for that statistical analysis.
    In all other respects, we uphold EPA's rule against the petitioners' challenges. Because the issues MaxWest raised in its intervenor brief are outside the scope raised by the petitioners, we do not consider its arguments."
    Access the complete opinion (click here). [#Air, #Water, #CADC]
Quick Summaries Of  Additional Cases During The Break
  • Anderson Brothers, Inc. v. St. Paul Fire and Marine Insurance Co. - Aug 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35454. Appealed from the United States District Court for the District of Oregon. The panel affirmed the district court's judgment in favor of an insured, holding that the insurer breached its duty to defend when it refused to provide a defense after the insured received letters from the Environmental Protection Agency, notifying the insured of its potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act for environmental contamination of the Portland Harbor Superfund Site. Access the complete opinion (click here). [#Remed, #CA9]

  • Northwest Environmental Defense Center v. Brown - Aug 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. On Remand From The United States Supreme Court [See WIMS 3/21/13]. The Appeals Court said, "The Court left intact our holding that "when stormwater runoff is collected in a system of ditches, culverts, and channels and is then discharged into a stream or river, there is a 'discernable, confined and discrete conveyance' of pollutants, and there is therefore a discharge from a point source" within the meaning of the Clean Water Act's basic definition of a point source in 33 U.S.C. § 1362(14). Brown, 640 F.3d at 1070–71; see Decker, 133 S. Ct. at 1338. . . We vacate the decision of the district court and remand to that court for proceedings consistent with the Supreme Court's opinion."  Access the complete opinion (click here). [#Water, #CA9]

  • In Re: Deepwater Horizon - Aug 29: In the U.S. Court of Appeals, Firth Circuit, Case No. 12-30230. Appealed from the United States District Court for the Eastern District of Louisiana. The original opinion in this case was filed on March 1, 2013.1 Because this case involves important and determinative questions of Texas law as to which there is no controlling Texas Supreme Court precedent, the panel, upon the petition for rehearing, unanimously withdraws the previous opinion and substitutes the [specified] certified questions to the Supreme Court of Texas." Access the complete opinion (click here). [#Energy/OilSpill] 

  • Land O'Lakes, Inc.  v.  Employers Insurance Company - Aug 29: In the U.S. Court of Appeals, Eighth Circuit, Case No. 12-1752. Appealed from the U.S. District Court for the District of Minnesota - Minneapolis. The Appeals Court ruled that the district court did not err in concluding that a letter the U.S. EPA sent the insured in 2011 informing it that the EPA considered it a Potentially Responsible Party in connection with an environmental cleanup constituted a suit for purposes of determining whether the insured's breach of contract action against the insurer was barred by the applicable statute of limitations; the insured's costs to remediate the site fall within the "owned-property" exclusion in the policy at issue. Access the complete opinion (click here). [#Remed] 

  • Chinatown Neighborhood Association v. State of California - Aug 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-15188, unpublished opinion. Appealed from the United States District Court for the Northern District of California. The Appeals Court upheld the district court's denial of a preliminary injunction against the enforcement of sections 2021 and 2021.5 of the California Fish and Game Code (the Shark Fin Law). Subject to certain exceptions, the Shark Fin Law makes it "unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin" in California. Access the complete opinion (click here). [#Wildlife]

  • More Summaries - Subscribers Note: There were additional U.S. Appeals Court cases during the break. WIMS will include more summaries in tomorrow's report.

Monday, August 26, 2013

Subscribers & Readers Notice

Subscribers & Readers Notice:
WIMS is on our late Summer publication break continuing through Labor Day. We will resume publication on Tuesday, September 3, 2013.

Friday, August 16, 2013

Alaska Wilderness League v. U.S. EPA

Aug 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-71506. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. In its summary of the opinion the Appeals Court indicates, "42 U.S.C. § 7661c(e) is ambiguous as to whether 'increment' requirements are 'applicable' to a temporary source like Shell Offshore, Inc.'s (Shell) drill vessel Kulluk. Accordingly, we defer to the EPA Environmental Appeals Board's (EAB) reasonable interpretation of § 7661c(e). See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The EAB reasonably concluded that Shell need not analyze the Kulluk's potential impact on increment before obtaining an oil exploration permit. We also deny the petition for review of the Environmental Protection Agency's (EPA) exemption of a 500-meter radius surrounding the Kulluk from ambient air quality standards, because the decision was 'a permissible application of the EPA's regulations.' See Resisting Envtl. Destruction on Indigenous Lands, REDOIL v. EPA, 716 F.3d 1155, 1158, 1160–61 (9th Cir. 2013)."
    To comply with Title V of the Clean Air Act, Shell sought and obtained three related permits in 2011. At Shell's request, the EPA subsequently consolidated the permits into one permitting document (the Permit). The Permit allows Shell to construct, operate, and conduct "pollutant emitting activities" associated with the Kulluk in the Beaufort Sea off Alaska's
North Slope. Before issuing the Permit, the EPA released a Statement of Basis. The Statement of Basis provided that the EPA would not require Shell to analyze the effect its emissions would have on the "increment for the Kulluk's area of operation." EPA concluded that increment analysis was unnecessary, because, under § 7661c(e) and the other relevant statutes, no increment requirements were "applicable" to the Kulluk.
    Alaska Wilderness raised the increment and ambient air issues, among others, in its challenge of the Permit before the EAB. Alaska Wilderness contended that the EPA misinterpreted "applicable increment" under § 7661c(e). Alaska Wilderness argued that EPA's "source-based" interpretation erred by applying increment standards to temporary sources only if the PSD would impose increment standards on a similar stationary source. Alaska Wilderness maintained a "geography based" interpretation -- that increment requirements are "applicable" to all sources any time they are established for the geographic area. Alaska Wilderness also argued that the "ambient air" exemption was inconsistent with the Costle Letter, because Shell did not own and could not, by physical barrier, exclude the public from accessing the space. In a 100-page decision (the EAB Decision), the EAB rejected both challenges.
    The Appeals Court rules, "As a threshold matter, we reject Alaska Wilderness's argument that the EAB Decision is not entitled to Chevron deference. . . Section 7661c(e) is ambiguous, and the EPA's interpretation is reasonable under the applicable statutes' plain language. Thus, we owe Chevron deference to the EAB Decision not to require a preconstruction increment analysis for the Kulluk. Similarly, as we held in REDOIL, the EPA permissibly granted a 500-meter exemption to the Kulluk from "ambient air" standards. Petition denied."
    Access the complete opinion (click here). [#Air, #CA9]

Thursday, August 15, 2013

Entergy Nuclear Vermont Yankee, LLC v. Gov. Shumlin

Aug 14: In the U.S. Court of Appeals, Second Circuit, Case No. 12-707. Appealed from U.S. District Court for the District of Vermont. A summary indicates that the owners of the nuclear power plant brought action against officials of the State of Vermont, seeking a declaratory judgment and permanent injunction that three Vermont statutes are preempted by the Atomic Energy Act, and that Vermont's efforts to require a below-market power purchase agreement is preempted by the Federal Power Act and violates the dormant Commerce Clause. Following a bench trial, the United States District Court for the District of Vermont ruled in plaintiffs' favor on the Atomic Energy Act preemption claim and the dormant Commerce Clause claim, and found that the Federal Power Act preemption claim was not ripe. The Appeals Court affirmed We the district court as to the Atomic Energy Act and Federal Power Act preemption claims, and reversed the district court as to the dormant Commerce Clause claim. One Judge issued a separate and "reluctantly" concurring opinion.
    Without getting into the complete details, at the heart of the litigation are two relatively new Vermont laws which would have limited or prohibited the continued operation of the Vermont Yankee nuclear power plant. Act 74, which was enacted on June 21, 2005, had two principal effects. First, Entergy would only need to seek a "certificate of public good" (CPG) from the Board before constructing storage facilities for new spent nuclear fuel, rather than the Vermont Legislature as had been required by section 6501(a). However, the CPG would remain in effect only until March 21, 2012. The second effect of Act 7 74 was that after March 21, 2012, the storage of any new spent nuclear fuel in Vermont would require an affirmative vote by the Vermont Legislature. If no such affirmative vote occurred, storage of nuclear waste generated from operations after March 21, 2012, would not be permitted. Thus, Vermont Yankee would have to shut down. Act 160 was passed on May 18, 2006, and provides that "a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly."
    In its conclusion the Appeals Court said, ". . .we affirm the district court's grant of a declaratory judgment that Act 74 and Act 160 are facially preempted by the Atomic Energy Act. We reverse the district court's determination that Vermont's efforts to condition a new Certificate of Public Good for Vermont Yankee on the execution of a favorable power purchase agreement violate the dormant Commerce Clause. We affirm the district court's determination that Entergy's challenge under the Federal Power Act is unripe. We affirm the district court's grant of a permanent injunction enjoining the defendants from enforcing sections 6522(c)(2) or 6522(c)(4) in title 10 of the Vermont Statutes, as enacted by Act 74, or sections 248(e)(2), 248(m), or 254 in title 30 of the Vermont Statutes, as enacted by Act 160. Finally, we vacate the district court's permanent injunction enjoining the defendants from conditioning the issuance of a Certificate of Public Good on the execution of a below-wholesale-market power purchase agreement between Entergy and Vermont utilities or otherwise requiring Vermont Yankee to sell power to Vermont utilities at preferential rates."
    Judge Susan Carney issued a separate concurring opinion stating in part, "I concur, reluctantly, in the majority's detailed and carefully reasoned opinion striking down Vermont Acts 74 and 160. My reluctance stems not from any flaw in the majority's analysis, but rather from my concern that Congress, in enacting the Atomic Energy Act (AEA), did not intend the result we reach. Rather, we are led to our conclusion principally by an expansive gloss on the preemptive scope of the AEA first set forth in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983) (Pacific Gas). There, the Supreme Court instructed that '[a] state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field' and would therefore be preempted. Id. at 213 (emphasis added)."
    Access the complete opinion and concurrence (click here). [#Energy/Nuclear, #CA2]

Tuesday, August 13, 2013

In Re: Aiken County (Yucca Mountain Case)

Aug 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1271. On Petition for Writ of Mandamus. In this split decision, the Majority explains that this case raises significant questions about the scope of the Executive's authority to disregard Federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. Petitioners include the States of South Carolina and Washington, as well as entities and individuals in those States. Nuclear waste is currently stored in those States in the absence of a long-term storage site such as Yucca Mountain.
    The Majority says, "The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress. Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process. We therefore grant the petition for a writ of mandamus."
    The Majority reminds that the Nuclear Waste Policy Act, which was passed by Congress and then signed by President Reagan in 1983, provides that the Nuclear Regulatory Commission "shall consider" the Department of Energy's license application to store nuclear waste at Yucca Mountain and "shall issue a final decision approving or disapproving" the application within three years of its submission. 42  U.S.C. § 10134(d). The statute allows the Commission to extend the deadline by an additional year if it issues a written report explaining the reason for the delay and providing the estimated time for completion. Id. § 10134(d), (e)(2).
    The Majority indicates that, ". . .the statutory deadline for the Commission to complete the licensing process and approve or disapprove the Department of Energy's application has long since passed. Yet the Commission still has not issued the decision required by statute. Indeed, by its own admission, the Commission has no current intention of complying with the law. Rather, the Commission has simply shut down its review and consideration of the Department of Energy's license application."
    The Majority concludes, "At the behest of the Commission, we have repeatedly gone out of our way over the last several years to defer a mandamus order against the Commission and thereby give Congress time to pass new legislation that would clarify this matter if it so wished. In our decision in August 2012, the Court's majority made clear, however, that mandamus likely would have to be granted at some point if Congress took no further action. See Order, In re Aiken County, No. 11-1271 (D.C. Cir. Aug. 3, 2012). Since then, Congress has taken no further action on this matter. At this point, the Commission is simply defying a law enacted by Congress, and the Commission is doing so without any legal basis.
    "We therefore have no good choice but to grant the petition for a writ of mandamus against the Commission. This case has serious implications for our constitutional structure. It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission. Our decision today rests on the constitutional authority of Congress, and the respect that the Executive and the Judiciary properly owe to Congress in the circumstances here. To be sure, if Congress determines in the wake of our decision that it will never fund the Commission's licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money. And Congress, of course, is under no obligation to appropriate additional money for the Yucca Mountain project. Moreover, our decision here does not prejudge the merits of the Commission's consideration or decision on the Department of Energy's license application, or the Commission's consideration or decision on any Department of Energy attempt to withdraw the license application. But unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process. The petition for a writ of mandamus is granted."
    Chief Judge Garland issued a dissenting opinion stating in part, "Mandamus is a 'drastic and extraordinary remedy reserved for really extraordinary causes.' Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal quotation marks omitted). Even if a petitioner can show that it has a 'clear and indisputable' right to the writ, issuing the writ remains 'a matter vested in the discretion of the court.' Id. at 381, 391. Likewise, 'mandamus does not necessarily follow a finding of a [statutory] violation.' In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (second alteration in original) (quoting In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C.Cir. 1991)). To the contrary, this court has not hesitated to deny the writ even when an agency has missed a statutory deadline by far more than the two years that have passed in this case. See id. at 546, 551 (declining to issue the writ, notwithstanding that the agency missed an 'express' statutory deadline by 8 years in 'clear violation' of the statute). Finally, and most relevant here, '[c]ourts will not issue the writ to do a useless thing, even though technically to uphold a legal right.' United States ex rel. Sierra Land & Water Co. v. Ickes, 84 F.2d 228, 232 (D.C. Cir. 1936).
    "Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do 'a useless thing.' The NRC has not refused to proceed with the Yucca Mountain application. Rather, by unanimous votes of both the Commission and its Atomic Safety and Licensing Board, it has suspended the application proceeding until there are sufficient funds to make meaningful progress. . . " Judge Garland explains that Congress has refused to provide adequate funding to pursue the project and it has been packed up and dismantled. He concludes his dissent, "In short, given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again. This exercise will do nothing to safeguard the separation of powers, which my colleagues see as imperiled by the NRC's conduct. . . And because '[i]t is within our discretion not to order the doing of a useless act,' Sierra Land & Water, 84 F.2d at 232, I respectfully dissent."
       Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL) issued a statement welcoming the court's decision, which they said "affirms that the NRC has the statutory duty to complete the license review using the funds appropriated by Congress." They said, "We welcome this long-awaited decision. Today's action by the court is a significant milestone for Yucca Mountain and a clear rebuke of the Nuclear Regulatory Commission's failure to implement the Nuclear Waste Policy Act. The Obama administration rejected the law and prematurely terminated the Yucca Mountain repository program, but Congress and the courts have spoken out to prevent billions of taxpayer dollars and three decades of research from being squandered. Last month, 335 House members, including the majority of Democrats, voted to boost funding for the license review in the energy and water appropriations bill.

    "Our great system of checks and balances will ensure the law is carried out, and we will soon know once and for all whether Yucca Mountain is safe. Ultimately, our goal continues to be the safe permanent storage of spent nuclear fuel, giving states and communities the certainty they need. This decision will help re-start the important work toward a resolution. We will continue our oversight of the Commission to ensure the license review is swiftly resumed and the NRC's independent, technical conclusions about the safety of Yucca Mountain are made available to the public. Let the science be the deciding factor on Yucca Mountain, not politics."
    Christopher Guith, vice president of policy at the U.S. Chamber's Institute for 21st Century Energy, issued a statement saying, "Today's ruling by the D.C. Circuit Court has reaffirmed what Congress determined long ago, but that the Executive Branch has been attempting to undermine. The Nuclear Waste Policy Act explicitly set out the nation's nuclear waste plan nearly 30 years ago. The Court's ruling reminds us that until the law is changed, Yucca Mountain is the nation's used fuel and nuclear waste repository. It's time for the NRC to implement the law of the land."
    Access the complete opinion and dissent and a separate concurrence (click here). Access the statement from Reps. Upton & Shimkus (click here). Access the U.S. Chamber statement (click here). [#Haz/Nuclear, #CADC]

Monday, August 12, 2013

Greg Herden v. United States

Aug 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3530. Appealed from United States District Court for the District of Minnesota in Minneapolis. In an split, en banc decision, the Appeals Court explains that Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged their cattle operation suffered damage because of a seed mixture an employee of the United States Department of Agriculture (USDA) directed them to plant on their land. The district court dismissed the Herdens' claims, concluding the Federal employee's conduct fell within the FTCA's discretionary-function exception. The Appeals Court indicates that, "After a divided panel of this court reversed the district court, the en banc court granted the government's petition for rehearing. We now affirm the district court."
    The case involves the Herdens who operate a three-generation cattle farm in northern Minnesota. In May 2004, the Herdens chose to participate in the Environmental Quality Incentives Program (EQIP). EQIP is a program run by the USDA through the Natural Resource Conservation Service (NRCS). In this case, the Herdens agreed to plant a mix of grasses and legumes on some of their pasture lands, and the government agreed to reimburse the Herdens 90% of the costs associated with planting the seed mixture chosen by the NRCS. In Minnesota, William Hunt served as the NRCS's State Conservationist. Hunt delegated seed mixture planting decisions to his staff, including State Grazing Specialist Howard Moechnig. Moechnig was the particular staff member who visited the Herdens' ranch to select a seed mixture.

    After Moechnig chose the seed mixture for the pasture in Section 11, Greg Herden said he complained to Moechnig about the high amount of Alsike Clover in the mixture because the clover can create toxic hay for cattle. Moechnig does not recall Herden complaining about Alsike Clover toxicity, but does remember Herden asking for permission to plant a mix containing alfalfa. Moechnig denied permission to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and therefore would neither meet NRCS's environmental goals nor be a good investment for the government. The Herdens chose to comply with Moechnig's seed mixture decision because failure to do so would have resulted in losing the federal funding under EQIP.
    The Herdens claim toxic hay began to injure their cattle in the spring of 2007. Several calves were stillborn, and others died shortly after birth. Adult cattle also died. The Herdens attribute the illnesses and deaths of their cattle to the Alsike Clover in the hay harvested from the Section 11 pasture. They claim the losses to their cattle herd have virtually destroyed their multi-generational farming operation. The NRCS contests the Herdens' claims and instead believes mold in improperly stored hay caused the problems with the cattle herd.

    The Majority reasoned that, "On one hand, the Herdens believed a seed mixture containing alfalfa would have better advanced the statutory goal of agricultural production, as well as one of Code 512's stated purposes of improving or maintaining livestock nutrition and/or health. On the other hand, Moechnig believed a seed mixture containing Alsike Clover would better advance the statutory goal of environmental quality, and at least one of Code 512's stated purposes of reducing soil erosion by wind and/or water. The fact that Moechnig was required to balance those competing interests in order 'to optimize environmental benefits,' 16 U.S.C. § 3839aa, clearly demonstrates the decision he ultimately made was susceptible to policy analysis and thus the type of decision Congress meant to shield from judicial second-guessing. A federal employee implementing EQIP at the local, operational level must have the discretion to balance environmental protection and cattle production in order for the program to be worth the government's significant investment. . . Moechnig's job required him to balance protecting the environment with providing nutritious cattle forage, while at the same time being cognizant of the cost to the Herdens and the federal government. We therefore conclude this case involves the type of discretionary decision Congress meant to shield from judicial second-guessing."
    Three Justices dissented saying, ". . .Moechnig's decision in this case is not the type of decision Congress intended to shield from suit. Decisions are not shielded from suit merely because it is possible to identify policy issues behind the government program at issue. Rather, there must be 'real and competing policy considerations implicated,' C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 802 (8th Cir. 1993), at the general level of decision-making challenged in the lawsuit. This 'is what separates' protected from unprotected conduct. Id. It is our task to carefully distinguish those cases involving meaningful policy considerations from cases like this, that bear only the superficial trappings of such considerations. . . Moechnig's limited authority did not extend to the type of discretion Congress intended to shield from suit."
    Access the complete opinion and dissent (click here). [#Agriculture, #Land, #CA8]