Wednesday, May 29, 2013
Tuesday, May 28, 2013
Monday, May 20, 2013
"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]
Friday, May 17, 2013
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). [#Water, #CA11]
Thursday, May 16, 2013
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].
Wednesday, May 15, 2013
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]