Association Of Battery Recyclers v. U.S. EPA

May 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1129, consolidated with 12-1130, 12-1134, 12-1135. On Consolidated Petitions for Review of Final Action of the U.S. EPA. The case considers challenges to EPA's revised emissions standards for secondary lead smelting facilities. The Appeals Court indicates that it finds petitioners' claims "unpersuasive, foreclosed by Circuit precedent, or otherwise barred from review" and denies in part and dismisses in part the petitions for review.

 

    By way of background, in 2012, acting pursuant to sections 112(d)(6) and 112(f)(2), EPA revised the 1995 emissions standards for secondary lead smelting facilities, reducing allowable emissions by 90% -- from the 2.0 milligrams per dry standard cubic meter (mg/dscm) previously permitted to 0.2 mg/dscm -- and requiring smelters to totally enclose certain "fugitive" emission sources. Several industry groups and environmental groups filed petitions for review. Environmental and industry petitioners intervened as respondents in one another's cases, and RSR Corporation intervened both as a petitioner and as a respondent.

 

    Industry petitioners first argue that the Secondary Lead Rule impermissibly regulates elemental lead as a HAP [hazardous air pollutants]. Secondly, they argue that the prevention of significant deterioration (PSD) program regulation of the substances is duplicative and unlawful. They also challenge EPA's methodology for estimating fugitive emissions and EPA's reliance on the estimates to conclude that total enclosure of fugitive emission sources was warranted; and they challenge the Rule's requirement of lead continuous emissions monitoring systems (CEMS). Industry petitioners also argued that EPA's decision to revise emissions standards under section 112(d)(6) was arbitrary and capricious, plus additional claims. All were rejected by the Appeals Court.

 

    The Appeals Court indicates that environmental petitioners' challenge fails on the merits. Their primary argument is that, when EPA revises emissions standards under section 112(d)(6), it must recalculate the maximum achievable control technology in accordance with sections 112(d)(2) and (d)(3). The Appeals Court said their argument is barred by a previous 2008 decision. Next, they argue that EPA impermissibly considered cost in revising emissions standards under section 112(d)(6). The Appeals Court said, however, ". . .given that EPA has no obligation to recalculate the MACT floor when revising standards, see supra at 8–9, and given that section 112(d)(2) expressly authorizes cost consideration in other aspects of the standard-setting process, we believe this clear statement rule is satisfied."

 

    Finally, the Appeals Court said, ". . .environmental petitioners have failed to show that EPA acted arbitrarily and capriciously when it decided not to impose more stringent emissions standards based on certain technological developments -- namely, high efficiency particulate air (HEPA) filters and wet electrostatic precipitators (WESP). EPA reasonably explained that further reductions were unwarranted due to concerns about the feasibility, utility, cost-effectiveness, and adverse collateral environmental impacts associated with this technology, and petitioners point to no 'clear error of judgment' reflected in this reasoning." Additionally, one Justice concurred but wrote separately "to explain more completely why it is appropriate for us to hold that intervenor RSR Corporation lacks prudential standing."

 

    Access the complete opinion (click here). [#Air, #Toxics, #CADC]

 

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Sierra Club v. Department of Agriculture

May 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5095. Appealed from the United States District Court for the District of Columbia. The Appeals Court explains that, "Intervenor Sunflower Electric Power Corporation appeals the grant of summary judgment to the Sierra Club based on violations of the National Environmental Policy Act by the U.S. Department of Agriculture's Rural Utilities Service. The district court ruled that the Service unlawfully failed to prepare an environmental impact statement (EIS) before granting approvals and financial assistance to Sunflower's expansion of its coal-fired power plant, and remanded the matter to the Service, enjoining it from granting further approvals until it completed an EIS. We dismiss the appeal for lack of jurisdiction. This court lacks jurisdiction under 28 U.S.C. § 1291 because Sunflower appeals a non-final remand order that is not immediately appealable by a private party. This court lacks jurisdiction under§ 1292(a)(1) because the injunction serves no purpose beyond the remand."

 

    The Appeals Court concludes, "Accordingly, because the injunction against the Service serves no function beyond the remand order, and pursuant to County of Los Angeles this court must ignore the injunction for jurisdictional purposes, we dismiss Sunflower's appeal for lack of jurisdiction. We thus can express no position on the merits of the injunction or Sunflower's contention that the Sierra Club's case was moot when filed. "If we lack jurisdiction, we cannot vacate the district court's order for lack of jurisdiction because we lack the power to do so." Defenders of Wildlife v. Perciasepe, ___ F.3d ___, 2013 WL 1729598, at *8 (D.C. Cir. April 23, 2013) [Note: See this decision below].

 

    Access the complete opinion (click here). [#Energy/Coal, #CADC]

 

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Mingo Logan Coal Company v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5150. The Mingo Logan Coal Company (Mingo Logan) applied to the United States Army Corps of Engineers (Corps) for a permit under section 404 of the Clean Water Act (CWA) to discharge dredged or fill material from a mountain-top coal mine in West Virginia into three streams and their tributaries. The Corps -- acting on behalf of the Secretary of the Army (Secretary) and without objection from the Administrator of U.S. EPA (Administrator, EPA), who has 'veto' authority over discharge site selection under CWA subsection 404(c) issued the permit to Mingo Logan, approving the requested disposal sites for the discharged material. Four years later, EPA invoked its subsection 404(c) authority to "withdraw" the specifications of two of the streams as disposal sites, thereby prohibiting Mingo Logan from discharging into them.

 

    Mingo Logan filed this action challenging EPA's withdrawal of the specified sites on the grounds that: (1) EPA lacks statutory authority to withdraw site specification after a permit has been issued; and (2) EPA's decision to do so was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The district court granted summary judgment to Mingo Logan on the first ground without reaching the second. The Appeals Court reversed the district court, concluding that EPA has "post-permit withdrawal authority," and remanded for further the case for proceedings.

 

    The Appeals Court importantly looks at the statute and Congressional intent and indicates, "Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps's specification but instead expressly empowers him to prohibit, restrict or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. 33 U.S.C. § 1344(c) (emphasis added). Using the expansive conjunction "whenever," the Congress made plain its intent to grant the Administrator authority to prohibit / deny / restrict / withdraw a specification at any time."

 

    The Appeals Court concludes, "For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks statutory authority under CWA section 404(c) to withdraw a disposal site specification post-permit. Because the district court did not address the merits of Mingo Logan's APA challenge to the Final Determination and resolution of the issue is not clear on the present record, we follow our usual practice and remand the issue to the district court to address in the first instance."

 

    At the time of the decision, environmental groups issued a release indicating, ". . .the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency's legal authority to veto a mining permit that the U.S. Army Corps of Engineers had issued. The decision reverses the lower court's contrary ruling, and is a major blow to the coal industry's attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia. The case will now go back to the D.C. District Court for briefing on other claims." Earthjustice, along with Appalachian Mountain Advocates, is representing West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council as amici curiae (or "friends of the court") in support of EPA's veto in this case.

 

    Access the complete opinion (click here). Access a release from environmental groups on the decision (click here).  [#Energy/Coal, #Water, #CADC]  [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.] 

 

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Defenders of Wildlife v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5112. Appeal from the United States District Court for the District of Columbia. As explained by the Appeals Court, Defenders of Wildlife and Sierra Club (collectively, Defenders) sued U.S. EPA based on EPA's alleged failure to promptly promulgate revisions to certain effluent limitations and effluent limitations guidelines under the Clean Water Act (CWA). When Defenders filed its complaint, it simultaneously filed a proposed consent decree -- signed by Defenders and EPA -- establishing a schedule for EPA to initiate notice-and comment rulemaking and make a formal decision whether to promulgate a new rule revising certain effluent limitations and effluent limitations guidelines. Utility Water Act Group (UWAG), an association of energy companies and three national trade associations of energy companies, moved to intervene but the district court denied UWAG's motion and entered the consent decree. UWAG appealed the denial of intervention and also asserts that -- "whatever our decision on the denial of intervention -- we should vacate the district court order entering the consent decree because the district court lacked subject matter jurisdiction. We disagree. We affirm the denial of intervention -- because UWAG lacks Article III standing -- and, as there is no appellant with standing, we dismiss the remainder of the appeal."

 

    Access the complete opinion (click here). [#Water, #CADC] [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.]

 

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Institution Of Cetacean Research v. Sea Shepherd Conservation Society

May 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35266. Appealed from the United States District Court for the Western District of Washington. This case which was decided in a 2-1 opinion on February 25, 2013 [See WIMS 2/27/13] is amended and the majority also denies Paul Watson's petition for rehearing en banc of the majority's April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc.

 

    In the original decision, the majority panel reversed the district court's orders denying a preliminary injunction and dismissing certain claims in an action under the Alien Tort Statute brought against environmental activists by Japanese researchers who hunt whales in the Southern Ocean pursuant to a permit issued under the International Convention for the Regulation of Whaling, art. VIII. The majority panel held that the district court abused its discretion in deferring to the judgment of an Australian court because the United States does not recognize Australia's claims of sovereignty over Antarctic waters. In addition, the unclean hands doctrine did not apply. The panel remanded the case with instructions that it be transferred to another district judge. The, concurring in part and dissenting in part, Justice concurred in both the reasoning and the judgment of the panel opinion, but dissented from the majority's decision to reassign the case to a different district judge.

 

    In their amendment, the majority adds, "Panels have broad discretion to reassign cases on remand when they feel justice or its appearance requires it. See United States v. Quach, 302 F.3d 1096, 1103–04 (9th Cir. 2002). The district judge has expressed strong and erroneous views on the merits of this high profile case. Without ourselves reaching any determination as to his ability to proceed impartially or impugning his integrity, to preserve the appearance of justice, we conclude reassignment is appropriate."

 

    Also, in denying Watson's petition, the majority said, "We are unpersuaded by Watson's belated claim that he and co-defendant-appellee Sea Shepherd developed 'divergent interests.' Watson had months to consider whether his interests diverge from Sea Shepherd's, yet claims to have discovered only recently that they do. He does not explain how or why. His bald assurance that 'serious grounds exist[]' is too little, too late. No further petitions for panel rehearing or rehearing en banc may be filed."

 

    Access the amended opinion (click here).  [#Wildlife, #CA9]

 

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Abraham v. St. Croix Renaissance Group

May 17: In the U.S. Court of Appeals, Third Circuit, Case No. 13-1725. Appealed from the District Court of the Virgin Islands. The St. Croix Renaissance Group, L.L.L.P. (SCRG) sought leave under the Class Action Fairness Act (CAFA), to appeal an order of the District Court of the Virgin Islands remanding a civil action to the Superior Court of the Virgin Islands. The Appeals Court granted SCRG's request saying it concluded, "that the civil action here is not a removable 'mass action' under CAFA. . ." The Appeals Court affirmed the order of the District Court.  

 

    SCRG purchased a former alumina refinery on the south shore of St. Croix in 2002. The plaintiffs alleged that "[f]or about thirty years, an alumina refinery located near thousands of homes on the south shore of the island of St. Croix was owned and/or operated by a number of entities." According to the complaint, the "facility refined a red ore called bauxite into alumina, creating enormous mounds of the by-product, bauxite residue, red mud, or red dust." In addition to these hazardous materials, friable asbestos was present. All of the substances described were dispersed by wind and disseminated as a result of erosion.

 

    The plaintiffs averred that the improper maintenance of the facility, inadequate storage and containment of the various hazardous substances, as well as failure to remediate the premises, caused them to sustain physical injuries, mental anguish, pain and suffering, medical expenses, damage to their property and possessions, loss of income and the capacity to earn income, and loss of the enjoyment of life. On December 7, 2012, the District Court granted the plaintiffs' motion to remand this action to the Superior Court of the Virgin Islands. The Appeals Court noted that the District Court considered several district court decisions that addressed whether an action qualified as a mass action.

 

    The Appeals Court said, "The issue in this case is one of statutory interpretation. We must determine the meaning of the phrase 'an event or occurrence' as it appears in the mass-action exclusion. The Appeals Court indicates, "In short, treating a continuing set of circumstances collectively as an 'event or occurrence' for purposes of the mass-action exclusion is consistent with the ordinary usage of these words, which do not necessarily have a temporal limitation. Giving the words 'event' or 'occurrence' their ordinary meaning is not at odds with the purpose of the statutory scheme of CAFA. . .

 

    "We conclude that the District Court did not err in its interpretation of the "event or occurrence" exclusion in § 1332(d)(11)(B)(ii)(I). Our broad reading of the words "event" and "occurrence" is consistent with their ordinary usage. Further, such a reading does not thwart Congress's intent, which recognized that some aggregate actions are inherently local in nature and better suited to adjudication by a State court. Accordingly, there is no reason to consider the legislative history of the CAFA to interpret the phrase 'event or occurrence' in the mass-action exclusion. . .

    "In light of our determination that the words "event" or "occurrence" in § 1332(d)(11)(B)(ii)(I) should be given their ordinary meaning, we turn to whether the plaintiffs' complaint falls within this exclusion for mass actions. . . We conclude that the complaint sufficiently alleges that all of the plaintiffs' claims arise from "an event or occurrence" in the Virgin Islands where the action was filed and that allegedly resulted in injuries there. . . We agree with the District Court that the complaint was not a removable mass action because "all of the claims in the action arose from an event or occurrence" that happened in the Virgin Islands and that resulted in injuries in the Virgin Islands. Accordingly, the District Court appropriately remanded the plaintiffs' action to the Superior Court of the Virgin Islands. . ."

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

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Center For Food Safety v. Vilsack (USDA)

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15052. Appealed from the United States District Court for the Northern District of California. The panel affirmed the district court's summary judgment in favor of Federal officials and intervenor-defendants, comprised of corporate seed manufacturers and industry trade groups, in an action brought by environmental groups and farmer organizations challenging the Record of Decision issued by the United States Department of Agriculture's (USDA's) Animal Plant and Health Inspection Service (APHIS) unconditionally deregulating Roundup Ready Alfalfa, a plant genetically engineered or modified by the Monsanto Company.

 

    The Appeals Court explains that the appeal represents another chapter in USDA's regulation of Roundup Ready Alfalfa (RRA). RRA is a plant genetically "engineered" or "modified" by the Monsanto Company and Forage Genetics International to be resistant to the herbicide glyphosate, which Monsanto sells under the trade name Roundup. Farmers do not normally apply an herbicide like Roundup to alfalfa fields because the herbicide kills not only the weeds, but also the alfalfa crop. RRA's tolerance to Roundup thus allows farmers to control weeds through herbicide application without harming the alfalfa plant. Monsanto markets RRA and Roundup together as a single crop system. From the outset, Monsanto and Forage Genetics's attempts to introduce RRA have been met with criticism and lawsuits from environmental groups concerned about the adverse effects that the plant may have on the environment and the organic food industry.

 

    Concerned about these environmental harms, the plaintiffs in this appeal argue that APHIS's unconditional deregulation of RRA was improper for three reasons: First, APHIS violated the Plant Protection Act (PPA) and the Administrative Procedure Act (APA) in concluding that RRA was not a plant pest and failing to consider if RRA was a noxious weed; second, because of these errors in statutory interpretation, APHIS violated the Endangered Species Act (ESA) when it failed to consult with the Fish and Wildlife Service (FWS) about RRA's effects on endangered and threatened species; and third, APHIS also violated the National Environmental Policy Act (NEPA) by unconditionally deregulating RRA without considering the option of partially deregulating the crop, an action that the agency had included in the EIS.

 

    After the plaintiffs filed this action against the government in the district court, Monsanto, Forage Genetics, the corporate seed manufacturers and industry trade groups intervened as defendants. The district court upheld the agency's deregulation decision in a published opinion. Ctr. for Food Safety v. Vilsack, 844 F. Supp. 2d 1006 (N.D. Cal. 2012). It held that RRA is not a "plant pest" within the meaning of the statute, and that the agency's deregulation of the plant therefore did not violate the ESA or NEPA, because the agency's jurisdiction did not extend to organisms that are not plant pests.

 

    The Appeals Court affirmed saying, "because the statute does not regulate the types of harms that the plaintiffs complain of, and therefore APHIS correctly concluded that RRA was not a 'plant pest' under the PPA. Once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. APHIS's lack of jurisdiction over RRA obviated the need for the agency to consult with the FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007). The district court thus properly entered summary judgment in favor of the defendants."

 

    Access the complete opinion (click here). [#Agriculture, #Toxics, #CA9]

 

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Illinois Union Insurance Co. v. NRG Energy Inc

May 16: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 12-30651, 12-30877 & 12-30879. Appealed from the United States District Court for the Middle District of Louisiana. The case concerns whether Illinois Union Insurance Company (ILU) has a duty to defend Louisiana Generating LLC (LaGen) in an underlying suit filed against it by U.S. EPA and the Louisiana Department of Environmental Quality (LDEQ) for alleged Clean Air Act (CAA) and state environmental law violations. The district court held that under the insurance policy at issue, there is a duty to defend. The Appeals Court affirmed the district court decision.

    In part, the Appeals Court rules, ". . .the underlying EPA suit includes allegations and prayers for relief that could potentially result in covered remediation costs. Government agencies acting under the authority of environmental laws allege that LaGen violated those laws, resulting in increased emissions of pollutants into the atmosphere, and seek to require LaGen to mitigate and remediate those emissions. The EPA complaint clearly alleges a covered 'pollution condition' at BCII when it asserts that 'significant amounts of NOx and SO2 pollution each year have been, and still are being, released [from BCII] into the atmosphere.' The policy states that ILU 'agrees to pay . . . [c]laims, remediation costs, and associated legal defense expenses' as a result of a pollution condition. 'Claims' and 'remediation costs' are thus two bases for coverage under the policy. In addition, a covered 'claim' includes 'government action(s) . . . alleging responsibility or liability on the part of [LaGen] for. . . remediation costs as a result of' a pollution condition. 'Remediation costs' are thus unquestionably covered, whether they are the relief sought by a claim or whether they are incurred independent of a claim, and ILU agreed to pay 'associated legal defense expenses' with regard to either situation. 'Remediation costs' are defined very broadly to include expenses incurred to redress pollution in compliance with environmental law, including, inter alia, costs associated with investigating, mitigating or abating pollution. . . These requests for mitigation, offsetting and remediation suggest a reasonable possibility of coverage under the policy. . . Because part of the suit is 'potentially within the protection purchased, the insurer is obligated to defend.'"

 

    Access the complete opinion (click here). [#Air, #CA5]

 

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Miccosukee Tribe Of Indians Of Florida v. USA

May 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-14271. Since 1995, the Miccosukee Tribe of Indians of Florida (Tribe or Miccosukee tribe) has had a running battle with the federal government over the government's management of the Central and Southern Florida Project for Flood Control (C&SF Project) in the Everglades. This case is the most recent chapter. The gist of the four-count complaint the Tribe filed in this case is that the project diverts excessive flood waters over tribal lands -- in part to protect other land owners whose properties are located within the project. The District Court dismissed three of the complaint's counts for failure to state a claim for relief and the fourth on summary judgment. The Tribe appeals these decisions. The Appeals Court affirmed the district court dismissals and judgment. 

 

    The operational area of the C&SF Project is massive, comprising 16,000 square miles. The project stretches from the Kissimmee River Basin, just south of Orlando, to the southern tip of Florida, at Everglades National Park. To aid in administering this vast system, the Corps of Engineers has divided the Everglades into three areas: the Everglades Agricultural Area, the Water Conservation Area, and the Everglades National Park. These areas are contiguous and follow one after another, beginning at Lake Okeechobee and proceeding southward. The appeal involves an alleged clash between the Tribe's rights to use and enjoy these lands and the Corps's operational duties.

 

    In this highly complex case with extensive history, the Appeals Court indicates, "We cannot undertake a review of the District Court's ruling without pausing to comment on the quality of the Tribe's complaint. Most of the complaint's allegations are general and are devoted to description of the Tribe's history, the importance of the Everglades to the livelihood of its members, the evolution and implementation of the C&SF Project, and the injury the members suffer when tribal lands are flooded. The remaining allegations of the complaint are a tangled morass of vague and conclusory statements; thus, the theory of liability that each count asserts is, but for the count's title, difficult to discern. . . We find that the District Court, itself, had difficulty discerning the predicates for the theories of liability asserted. . .

 

    "The Corps should have moved the District Court to order the Tribe to provide it with a "more definite statement" under Federal Rule of Civil Procedure 12(e), but it did not do so. . . because we believe that we can discern enough from the complaint's allegations to dispose of this appeal with confidence." The final decision includes rulings on several individual counts too complicated to adequately explain here.

    Access the complete opinion (click here). [#Water, #CA11]

 

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Ohio Valley Environmental Coalition v. USACE

May 15: In the U.S. Court of Appeals, Fourth Circuit , Case No. 12-1999. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. The Appeals Court rejects a challenge from environmental groups regarding mountaintop mining.

 

    In connection with a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, West Virginia, the West Virginia Department of Environmental Protection (WVDEP) issued Highland Mining Company a permit under the Surface Mining Control and Reclamation Act (SMCRA) to do the mining, finding that the proposed mine would not cause material damage to the hydrologic regime. The WVDEP also issued a water quality certification under § 401 of the Clean Water Act (CWA), concluding that the proposed mine would not cause or contribute to violations of the State's EPA-approved water quality standards, as well as a National Pollutant Discharge Elimination System (NPDES) permit under CWA § 402, finding that the proposed sediment pond for the mine would not have significant adverse effects. Finally, the U.S. Army Corps of Engineers (USACE, or Corps) issued a fill permit under CWA § 404, authorizing Highland Mining to place rock overburden into the adjacent valley of Reylas Fork as part of the mining process. The Corps issued the permit without an environmental impact statement, finding that the fill would not have a substantial cumulative impact on the water quality in the relevant watershed.

 

    Four environmental groups (collectively, the Environmental Coalition) commenced this action to challenge the fill permit issued under CWA § 404. The Environmental Coalition contends that the Corps, in conducting its analysis for the § 404 permit, "materially misapprehended" the baseline conditions in the relevant watershed, thus corrupting its analysis of the cumulative impact that the mine would have on the streams in the watershed. It also contends that the Corps acted arbitrarily and capriciously in determining that the valley fill would not have a significant cumulative impact on the water quality in the relevant watershed.

 

    The district court evaluated the data considered by the Corps, the Corps' analysis, and the Corps' conclusions and found that the Corps did not misapprehend the baseline conditions in the relevant watershed. Ohio Valley Envtl. Coalition, Inc. v. U.S. Army Corps of Eng'rs (OVEC), 883 F. Supp. 2d 627, 642-44 (S.D. W. Va. 2012). It also found that the Corps analyzed a "wide array of evidence about water quality" to reach a reasoned decision that the individual and cumulative environmental impacts of the Corps' CWA § 404 permit would not rise to the level of significance required to trigger the need for an environmental impact statement. Id. at 645. As the district court concluded, "[t]he Corps has analyzed the cumulative impacts, 'articulated a satisfactory explanation for its conclusion,' and thus has not acted arbitrarily or capriciously." Id. (quoting Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 209 (4th Cir. 2009)).

 

    The Appeals Court observed, "The Corps devoted four years to the effort, meeting repeatedly with the parties to resolve concerns, prompting the district court to observe: "The administrative record documents the extensive interaction among the Corps, the EPA, the WVDEP and Highland to resolve the EPA's concerns. Though Highland and the WVDEP disputed the EPA's position on conductivity and cumulative water quality impacts of valley fills, the Corps focused on site specific factors which provide at least a rational basis for its decision." The Appeals Court said, "In response to the EPA's concerns, the Corps adopted measures agreeable to the EPA as conditions of its § 404 permit, involving reduction of the fill and post-permit monitoring and other mitigation requirements. These special conditions incorporated a series of best management practices designed to minimize increases in conductivity and total dissolved solids associated with the mining activities of Highland Mining."

 

    The Appeals Court concludes, "The Corps' predictive judgment in this case was based on facts and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP, and we conclude that this process satisfies NEPA's procedural requirement to take a 'hard look'. . . Because the Corps' analysis satisfied NEPA's procedural requirements, the Corps' finding of cumulative insignificance is neither arbitrary nor capricious. . . Accordingly, we affirm the judgment of the district court."

 

    Access the complete opinion (click here). [#Energy/Coal, #CA4]

 

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Ned Comer, et al v. Murphy Oil USA, Inc., et al

May 14: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-60291.Appealed from the United States District Court for the Southern District of Mississippi. A group of Mississippi Gulf Coast residents and property owners (Plaintiffs) alleged that emissions by energy companies (Defendants) contributed to global warming, which intensified Hurricane Katrina, which, in turn, damaged their property. The district court dismissed their claims with prejudice. A panel of Fifth Circuit reversed, in part, the district court's dismissal [See WIMS 10/21/09]. The Appeals Court indicates that before mandate could issue, a majority of the Appeals Court's active, unrecused judges voted for rehearing en banc. After the en banc vote, but before rehearing, an additional judge was recused. The Appeals Court determined that it lacked quorum to proceed, and dismissed the appeal. The Supreme Court denied Plaintiffs' petition for a writ of mandamus.

    The same group of Gulf Coast residents and property owners (Appellants) filed what they concede are essentially several of the same claims, against many of the same energy companies (Appellees), in the same district court. The district court held, among other things, that the doctrine of res judicata barred their claims. The Fifth Circuit affirmed on the basis of res judicata [i.e. A matter that has been adjudicated by a competent court and may not be pursued further by the same parties].

 

    The case involves Plaintiffs alleging that emissions by energy companies (i.e. dozens of major oil and power generating companies) Defendants caused global warming which, increased the "destructive [c]apacity" of Hurricane Katrina, which, in turn, damaged the class members' property. Plaintiffs asserted claims of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy against the companies.

 

    Access the complete opinion (click here). [#Energy, #Climate, #CA5]

 

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Blue Ridge Env. Defense League v. NRC

May 14: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1106. On Petition for Review of Orders of the United States Nuclear Regulatory Commission (NRC). The case arises from actions taken by the NRC (or Commission) approving (1) an application by Southern Nuclear Operating Company (Southern) for combined licenses to construct and operate new Units 3 and 4 of the Vogtle Nuclear Power Plant; and (2) an application by Westinghouse Electric Company (Westinghouse) for an amendment to its already-approved AP1000 reactor design on which the Vogtle application relied. In approving the applications, NRC applied the regulatory scheme incorporated in 10 C.F.R. Part 52 covering the licensing of commercial nuclear power reactors. See Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169, 1170 (D.C. Cir. 1992) (en banc) (upholding two-part regulatory scheme in 10 C.F.R. Part 52). Among other assertions, the petitioners argued that the EIS violated NEPA because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Japanese Fukushima nuclear accident. The Appeals Court did not find merit in this or any of the contentions and denied the petitions for review.

 

    Explaining further, the Appeals Court indicates that in 2009, after a contested evidentiary hearing in which Petitioners participated, NRC granted Southern an early site permit for Vogtle Units 3 and 4. In 2008, Southern applied for combined licenses. A second contested proceeding was held in which Petitioners participated. The application for the early site permit was supported by an Environmental Impact Statement (EIS); the application for combined licenses was supported by the initial EIS and an updated EIS. After the close of the combined-license hearing record, Petitioners sought to reopen the hearing to litigate contentions relating to the nuclear accident at the Fukushima Dai-ichi complex in Japan on March 11, 2011. In the wake of the Fukushima accident, NRC commissioned a Task Force to reevaluate nuclear safety regulations in the United States. Petitioners unsuccessfully sought to forestall the licensing of the Vogtle reactors and the approval of the modified AP1000 design until NRC had fully considered and implemented the Task Force recommendations.

    After the Task Force recommendations were issued and approved by NRC, Petitioners pursued various actions to compel the agency to supplement its EIS and to delay any action on the combined license and AP1000 design rulemaking proceedings until after the agency had implemented the Task Force recommendations. Petitioners contended, inter alia, that Vogtle's EIS violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Fukushima. NRC ruled that Petitioners' challenges were premature, that the agency's existing procedural mechanisms were sufficient to ensure licensees' compliance with not-yet-enacted regulatory safeguards, and that the licensing and rulemaking proceedings could continue without delay. NRC further held that Petitioners had failed to satisfy the contention-specificity requirements of 10 C.F.R. § 2.309(f)(1), which state that the proponents of contentions must indicate with specificity the claims they wish to litigate. See Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir. 1990). NRC also held that Petitioners had failed to identify any environmentally significant information from the Task Force recommendations suggesting a deficiency in the Vogtle EIS. NRC thus declined to reopen the combined-license hearing record under 10 C.F.R. § 2.326.

    In late 2011, NRC issued its rule approving the AP1000 amended design, and in 2012 it authorized issuance of the combined licenses. Petitioners then filed the petitions for review giving rise to this action. Petitioners raise three principal contentions for consideration by the court. First, Petitioners claim that NRC abused its discretion in refusing to reopen the hearing record in the Vogtle licensing proceeding. Second, Petitioners assert that NRC unreasonably denied them a right to participate in a mandatory hearing at which NRC technical staff confirmed that the Fukushima accident had not presented new and significant information that would require a supplemental EIS for Vogtle. Finally, Petitioners argue that NRC abused its discretion in approving the AP1000 reactor design without first supplementing the AP1000 Environmental Assessment (EA) that contained important information regarding "Severe Accident Mitigation Design Alternatives" applicable to Vogtle.

    The Appeals Court concluded, "Petitioners have failed to demonstrate that NRC acted less than reasonably in declining to order a supplemental EA for the AP1000 design certification amendment. We therefore defer to the Commission's conclusion that such a supplement was unnecessary. . . the petition for review is denied." [#Energy/Nuclear, #CADC]

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Supreme Court Won't Hear NPDES Permit Case

May 13: The U.S. Supreme Court denied a request to hear the case Upper Blackstone Water Pollution Abatement Dist. v. U.S. EPA, Case No. 12-797, appealed from the First Circuit decision supporting a U.S. EPA decision regarding certain effluent limitations imposed by EPA in a National Pollutant Discharge Elimination System and a model the EPA incorporated into its analysis of the nitrogen-fueled cultural eutrophication [See WIMS 8/6/12].

 

    In the case, the Appeals Court ruled, "Where the agency follows the proper procedures and acts with a reasonable basis, both its choice of scientific data and interpretation and application of that data to real world conditions are entitled to deference. . . Where the EPA did rely on the MERL model, the record reflects that it fully accounted for the model's shortcomings. . . The District's argument that the MERL model should have been excluded from consideration entirely is without merit. . . The EPA also followed the proper procedures for ensuring that the model received scrutiny not only from the permittee, but from the scientific community and the public. . . The EPA's determination, based on its analysis of the evidence before it as a whole, that a nitrogen limit of 5.0 mg/L was necessary to achieve Rhode Island's water quality standards was not a 'hunch[] or wild guess[]' but a rational exercise of judgment."

 

    Access the Supreme Court Order (click here). Access the Supreme Court docket (click here). Access the complete First Circuit opinion (click here). [#Water, #CA1, #SupCt]

 

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REDOIL v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-70518. On Petition for Review of an Order of the EPA Environmental Appeals Board. In summary, the panel denied a petition for review by Resisting Environmental. Destruction on Indigenous Lands (REDOIL), and upheld a decision of EPA granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The panel upheld the EPA's statutory and regulatory interpretations. The case involves Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. (collectively Shell) who purchased lease blocks in the Chukchi and Beaufort Seas off the North Slope of Alaska for oil and gas exploration which has now been suspended by the company.

 

    The Appeals Court explains that since 1990, EPA has been responsible for regulating air pollution from offshore sources on the Outer Continental Shelf (OCS) under the Clean Air Act (the Act). "We consider here whether the EPA's Environmental Appeals Board (EAB) properly upheld two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The petition for review challenges two aspects of the permits: (1) the determination that support vessels, unlike the drillship itself, do not require the best available control technology (BACT) to control emissions; and (2) the exemption of the area within a 500-meter radius of the drillship from ambient air quality standards.

 

    "The application of BACT to support vessels requires us to reconcile conflicting provisions of the Act. In doing so, under Chevron U.S.A., Inc. v. NRDC, Inc., we defer to the EAB's reasonable interpretation of those provisions and related regulations. 467 U.S. 837 (1984). Likewise, we evaluate whether the EAB's decision on the ambient air boundary is a permissible application of the EPA's regulations. In both cases, we uphold the EPA's statutory and regulatory interpretations, and we deny the petition."

 

    Two permits are at issue, one for operation in the Chukchi Sea and the other for the Beaufort Sea. The permits allow Shell, subject to conditions, to construct and operate its Discoverer drillship and use its associated fleet for exploratory drilling activities between July 1 and November 30 each year. The Chukchi permit underwent two rounds of notice-and-comment before it was issued in March 2010. The Beaufort permit underwent one round of notice-and-comment before it was issued in April 2010. The EAB addressed the two permits together in the administrative proceedings that followed.

 

    The Appeals Court ruled in part, "The EPA's regulations in turn define 'marine engine' as 'a nonroad engine that is installed or intended to be installed on a marine vessel.'. .  Reading § 7627 within the context of the PSD provisions points to the conclusion that PSD requirements should apply to stationary sources on the OCS, but not mobile marine vessels. We agree with the EAB ruling that this distinction between stationary and mobile sources is consistent with application of BACT to installations attached to the seabed but not to vessels, such as those in the associated fleet, moving freely in the waters above the OCS. . . Whether Congress expressed an intention that BACT were to apply to associated vessels that are not attached to an OCS source is, at the very least, ambiguous. . . In sum, we conclude that while the BACT requirement clearly applies to an OCS source, the statute is ambiguous as to application of BACT to associated vessels within 25 miles of an OCS source. We defer to the EPA's reasonable construction of the statute, as adopted by the EAB, that BACT does not apply to mobile support vessels unattached to the drillship."

 

    Additionally on the other matter, of the 500-meter radius "ambient air" exemption, the Appeals Court ruled, "The EAB's assessment that the agency 'requires some leeway' in determining how to apply 'the regulation and the interpretive letter to an "overwater" situation' is just common sense. Id. Constructing a fence in the Arctic Ocean would make little sense, and the EPA has previously recognized a safety zone established by the Coast Guard as evidence of sufficient ownership or control over open water areas to qualify as a boundary for defining ambient air. Here, as in that precedent, the EPA imposed conditions that approximated the criteria in the Costle letter -- control of property and limited public access -- for a marine environment. We conclude that the EPA's grant of an ambient air exemption to Shell conditioned on an effective safety zone excluding the public is a permissible interpretation of its ambient air regulation and earlier letter ruling."

 

    Access the complete opinion (click here). [#Energy/OCS, #Air, #CA9]

 

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