Sahu, et al. v. Union Carbide Corp., et al.

Jun 27: In the U.S. Court of Appeals, Second Circuit, Case No. 12-2983. Appealed from the June 27, 2012 judgment of the United States District Court for the Southern District of New York. The Appeals Court issued a 9-page, non-precedential Summary Order.

 

    The Appeals Court states, "Plaintiff Janki Bai Sahu and several others similarly situated (referred to together as Sahu) bring this tort suit to recover from injuries allegedly caused by exposure to soil and drinking water polluted by hazardous wastes produced by the Union Carbide India Limited (UCIL) pesticide plant (Bhopal plant or plant) in Bhopal, India. Sahu seeks monetary damages and an injunction requiring remediation and medical monitoring from the Union Carbide Corporation (Union Carbide), which was formerly a majority owner of UCIL, and from Warren Anderson (together with the Union Carbide Corporation, UCC), Union Carbide's former CEO. Sahu now appeals from an order of the District Court granting summary judgment to UCC."

 

    The Appeals Court concludes, "Sahu and many others living near the Bhopal plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity. Accordingly, and for the reasons set out above, we affirm the June 27, 2012 judgment of the District Court."

 

    Access the complete Summary Order (click here). Access the Sahu v. Union Carbide website by EarthRights International for extensive background information on this case (click here). [#Toxics]

 

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Koontz v. St. Johns River Water Management District

Jun 25: In the U.S. Supreme Court, case No. 11-1447, appealed from the Supreme Court of Florida. Background information indicates that for over eleven years, a Florida land use agency refused to issue any of the permits necessary for Coy A. Koontz, Sr., to develop his commercial property. The reason was because Koontz would not accede to a permit condition requiring him to dedicate his money and labor to make improvements to 50 acres of government-owned property located miles away from the project-a condition that was determined to be wholly unrelated to any impacts caused by Koontz's proposed development. A Florida trial court ruled that the agency's refusal to issue the permits was invalid and effected a temporary taking of Koontz's property, and awarded just compensation. After the appellate court affirmed, the Florida Supreme Court reversed, holding that, as a matter of Federal takings law, a landowner can never state a claim for a taking where: (1) permit approval is withheld based on a landowner's objection to an excessive exaction, and (2) the exaction demands dedication of personal property to the public.

 

    According to the docket, the questions presented are: 1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and 2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a

land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

 

    In a 5-4 decision in which Justices Alito, Roberts, Scalia, Kennedy and Thomas were the majority and Kagan, Ginsburg, Breyer and Sotomayor dissented, the majority ruled to overturn the Florida Supreme Court ruling. In the majority opinion, the Justices said, "Our decisions in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994), provide important protection against the misuse of the power of land-use regulation. In those cases, we held that a unit of government may not condition the approval of a land-use permit on the owner's relinquishment of a portion of his property unless there is a 'nexus' and 'rough proportionality' between the government's demand and the effects of the proposed land use. In this case, the St. Johns River Water Management District(District) believes that it circumvented Nollan and Dolan because of the way in which it structured its handling of a permit application submitted by Coy Koontz, Sr., whose estate is represented in this Court by Coy Koontz, Jr. blessed this maneuver and thus effectively interred those important decisions. Because we conclude that Nollan and Dolan cannot be evaded in this way, the Florida Supreme Court's decision must be reversed."

 

    The dissenting opinion indicates, "Our core disagreement concerns the second question the Court addresses. The majority extends Nollan and Dolan to cases in which the government conditions a permit not on the transfer of real property, but instead on the payment or expenditure of money. That runs roughshod over Eastern Enterprises v. Apfel, 524 U. S. 498 (1998), which held that the government may impose ordinary financial obligations without triggering the Takings Clause's protections. The boundaries of the majority's new rule are uncertain. But it threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny. I would not embark on so unwise an adventure, and would affirm the Florida Supreme Court's decision. I also would affirm for two independent reasons establishing that Koontz cannot get the money damages he seeks. . ."

 

    Access the complete opinion and dissent (click here). Access the SupCt docket (click here). Access the SCOTUS blog for briefs and additional information on the case (click here). [#Land, #SupCt]

 

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Supreme Court Denies Hearing Controversial E15 Waivers Case

Jun 24: The U.S. Supreme Court denied a request to hear the controversial challenge of U.S. EPA's E15 ethanol waivers. The Plaintiffs had sought a hearing of the D.C. Circuit's 2-1 decision [See WIMS 8/17/12], followed by a denial for an en banc hearing [See WIMS 1/16/13]. Plaintiffs including, Grocery Manufacturers Association, American Fuel & Petrochemical Manufacturers, Alliance of Automobile Manufacturers, et al; had sought to overturn two EPA decisions approving the introduction of E15 -- a blend of gasoline and 15 percent ethanol -- for use in select motor vehicles and engines [See WIMS 8/17/12]. In the highly controversial decision, the original majority Appeals Court ruled 2-1, "Because we hold that no petitioner has standing to bring this action, we dismiss all petitions for lack of jurisdiction."

 

    The Renewable Fuels Association (RFA) President and CEO Bob Dinneen commented on decision not to take up the case saying, "I am pleased that today's Supreme Court action ends a long and drawn out petroleum industry effort to derail the commercialization of E15. The uncertainty created by this lawsuit has chilled commercial activity that would provide American consumers more affordable choices at the pump. With this decision, E15 can finally become a meaningful option for more Americans."

 

    The American Fuel & Petrochemical Manufacturers (AFPM) expressed disappointment in the decision. AFPM President Charles Drevna said, "The Supreme Court's decision denies the petitioners their day in court and will have negative repercussions for consumers.  It is unfortunate that EPA's decision to place politics ahead of science will stand." AFPM indicated that EPA's waiver allows gasoline containing 15 percent ethanol, called E15, a fifty per cent increase over a safe and efficient product to be sold into the general fuel supply. AFPM challenged the legality of EPA's decision because E15 has been shown to cause engine damage in most automobiles, boats and outdoor power equipment, such as chainsaws and lawnmowers.

    The D.C. Circuit Court, which first considered AFPM's case, ruled that the refining industry lacked standing to challenge EPA's decision. The court reached this conclusion despite the fact that refiners are forced to produce new gasoline blendstocks, invest in the infrastructure necessary to carry two types of fuels, and face potential liabilities from engine damage because of EPA's decision. In a dissenting opinion, Judge Kavanaugh of the D.C. Circuit found EPA "ran roughshod over the relevant statutory limits." AFPM petitioned the Supreme Court to reconsider the district court's ruling, arguing that the DC Circuit's decision incorrectly limits the ability of injured parties to seek judicial review of federal agency actions.

    AFPM said it continues to assert that EPA overstepped its authority under the Clean Air Act when it granted partial waivers to allow the use of E15 in certain engines, including vehicles model year 2001 and newer. Objective tests have shown that E15 may cause engine damage in vehicles and therefore should not be an approved fuel under the Clean Air Act that can be sold in the general gasoline supply.

    Access the denial order (click here, page 7). Access the SupCt docket (click here). Access the RFA statement (click here). Access the AFPM release (click here). [#Energy/E15]

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Supreme Court Will Hear Appeals Of Cross State Air Pollution Rule

Jun 24: The U.S. Supreme Court agreed to hear the controversial cases challenging the D.C. Circuit's decision to vacate U. S. EPA's Cross State Air Pollution Rule (CSAPR) and leave in place the existing Clean Air Interstate Rule (CAIR) pending EPA's further action. On August 21, 2012, the Appeals Court, in a split 2-1 decision, dealing with U.S. EPA's controversial CSAPR, vacated the Transport Rule and the Transport Rule FIPs and remand the proceeding to EPA [See WIMS 8/21/12]. On January 24, 2013, the D.C. Circuit denied a request by EPA and others for an en banc (full panel) rehearing of the case [See WIMS 1/24/13]. The High Court, in its order to hear the case said specifically, "The petitions for writs of certiorari are granted limited to the questions presented by the petition in No. 12-1182. The cases are consolidated and a total of one hour is allotted for oral argument."

 

    The two petitions granted were: Environmental Protection Agency, et al., Petitioners v. EME Homer City Generation, L.P., et al. (No. 12-1182), and American Lung Association, et al., Petitioners v. EME Homer City Generation, L.P., et al. (No. 12-1183).

 

    According to the EPA petition, the questions presented are: (1) Whether the court of appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that "contribute significantly" to air pollution problems in other states until after the EPA has adopted a rule quantifying each state's inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term "contribute significantly" so as to define each upwind state's "significant" interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state's physically proportionate responsibility for each downwind air quality problem.

    Howard Learner, Executive Director of the Environmental Law & Policy Center (ELPC) said, "The U.S. Supreme Court is likely taking this case in order to reverse the D.C. Circuit panel's decision that is contrary to law and would further delay long-needed clean air standards necessary to protect our public health.  The Supreme Court has twice upheld EPA's statutory responsibility to reduce dangerous air pollution.  The D.C. Circuit panel's ruling is contrary to consistent Supreme Court decisions and should be reversed. We believe that the Supreme Court will uphold the EPA's scientific and technical expertise in moving forward to clean up the air we breathe, reduce asthma and protect public health, especially for children and the elderly."

    The American Lung Association (ALA) issued a brief statement saying it applauds the decision by the U.S. Supreme Court to hear the appeal by the U.S. Environmental Protection Agency on the Cross State Air Pollution Rule. "This Rule follows the 'good neighbor' principle established in the Clean Air Act to cut pollution that spreads across the borders of 28 eastern states. For too long, ozone smog and particle pollution have traveled far from their sources, threatening lives and health across far away state borders. If the Court upholds the Cross State Air Pollution Rule, these protections would save up to 34,000 lives each year. We look forward to sharing with the Court information about the health benefits of this important decision."

    Environmental Defense Fund (EDF), the American Lung Association, the Clean Air Council, Natural Resources Defense Council, and the Sierra Club. Other parties filed briefs in support of EPA's request, including numerous states and cities that are adversely affected by interstate pollution, and two major power companies. the Supreme Court decision means the High Court will hear an appeal of the lower court's decision during its next term, which begins in the fall. EDF general counsel Vickie Patton said, "This is welcome news for the millions of Americans afflicted by harmful air pollution from power plants."

    Access the order (click here, page 6). Access the SupCt dockets (click here) and (click here). Access the SCOTUS blog for No. 12-1182 (click here). Access the SCOTUS blog for No. 12-1183 (click here). Access the ELPC statement (click here). Access the statement from ALA (click here). Access a release from EDF (click here). Access EPA's CSAPR website for background and further details (click here). [#Air]

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Evergreen Partnering Group v. Pactiv Corporation

Jun 19: In the U.S. Court of Appeals,  First Circuit, Case No. 12-1730. Appealed from the U.S. District Court of Massachusetts, Boston. Plaintiff Evergreen Partnering Group, Inc. (Evergreen) appealed from a judgment of the United States District Court for the District of Massachusetts dismissing its Second Amended Complaint (complaint). The complaint alleges that defendants-appellees, polystyrene food service packaging manufacturers and two trade associations, refused in concert to deal with Evergreen in a recycling business method for polystyrene food service products. Evergreen also appeals the district court's refusal to grant it leave to amend its complaint. The Appeals Court ruled, "After careful consideration, we vacate the judgment of dismissal and remand for further proceedings." The lengthy opinion provides fascinating insight into the inner workings of the polystyrene recycling business and its major players.

 

    Evergreen, founded in 2002 by Michael Forrest (Forrest), is the first company to develop a business model to recycle polystyrene products by using a post-consumer polystyrene resin (PC-PSR) to create trademark products known as "Poly-Sty-Recycle." Polystyrene food service products must be "food-grade" as deemed by the Food and Drug Administration (FDA), and Evergreen's Poly-Sty-Recycle was the first recycled polystyrene product to be so deemed.

 

    The complaint paints a picture of the polystyrene industry increasingly coming under criticism from environmental advocacy groups, local governments, and dissatisfied customers prior to and during the period of the alleged conduct. Past efforts to make polystyrene products more environmentally friendly resulted in failure, and the producer defendants have maintained that their products are non-recyclable because production of recyclable polystyrene is not economically feasible. This has resulted in movements to ban polystyrene products -- including city-wide bans in 30 California cities -- as well as to discourage their use through implementing producer-responsibility mandates and product surcharges.

 

    The five polystyrene producer defendants -- Pactiv Corporation (Pactiv), Genpak, LLC (Genpak), Dart Container Corporation (Dart), Dolco Packaging, a Tekni-Plex Company (Dolco"), and Solo Cup Company (Solo) -- are alleged to control an estimated 90 percent of the market for single-service polystyrene food service packaging and tableware.Defendant American Chemistry Council (ACC) is a trade association that engages in advocacy, trade and lobbying for the chemical and plastic industry. The Plastics Food Service Packaging Group (PFPG) is a business group within the ACC. In or about late 2005 or 2006, the PFPG met to address criticisms of the polystyrene industry, and at that meeting, the complaint alleges, John McGrath of Pactiv announced to PFPG members that recycling polystyrene products was not an option in the industry's battles with polystyrene's critics.

 

    The complaint alleges that, following the meeting, the named defendants "combined and conspired to unreasonably restrain trade and commerce in the market for single[-]service polystyrene food service products by refusing in concert to deal with Evergreen in a sole-source closed-loop recycling business method for polystyrene food service products" until at least 2009. The purpose of the concerted refusal to deal was to:

"ensure that polystyrene products will remain non-recyclable and without post-consumer content recycled material so that the Defendants' existing market shares will not be disrupted, the status quo will be maintained, and the Defendants will be able to offer higher-priced products such as paper, pulp, bio-plastics, R-PET, PLA, ceramic, bamboo, and others, without any low cost options for consumers."

    Defendants collectively and individually moved to dismiss Evergreen's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. They argued, inter alia, that the complaint did not set forth a plausible basis for finding any agreement, but rather merely listed allegations consistent with unilateral refusals to deal based on business decisions. Evergreen opposed defendants' motions, arguing that the complaint met the standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), but requested in its opposition permission to file an amended complaint if the court did not agree.

 

    Evergreen argues on appeal that the allegations in its complaint are sufficient to support a plausible conspiracy claim under § 1 of the Sherman Act, and the district court erred in concluding otherwise. The Appeals Court says, "After reviewing the district court's analysis of the facts alleged and its application of the Twombly plausibility standard, we agree with Evergreen. . .we hold that Evergreen alleged sufficient facts to adequately plead its § 1 claim. Since the district court summarily dismissed Evergreen's Massachusetts Chapter 93A claim because it 'fail[ed] for the same reasons that the Sherman Act claim fails,' we remand for the district court to reconsider this issue consistent with the strictures of this opinion. We thus vacate the district court's judgment and remand the case for further proceedings. Costs of appeal awarded to plaintiff. Vacated and Remanded."

 

    Access the complete opinion (click here). [#P2, #Solid, #CA1]

 

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Starr Indemnity & Liab Co. v. SGS Petroleum Service

Jun 18: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-20545. Appeal from the United States District Court for the Southern District of Texas. The Appeals court summarizes, "An insurer sought a declaratory judgment that it was not required to show prejudice before denying coverage for liability arising out of a pollution occurrence which the insured did not report within thirty days, as required by a pollution buy-back clause in the policy. The district court granted the insurer's motion for judgment on the pleadings and denied the insured's motion for summary judgment. We affirm." The decision is based primarily on decisions of the Texas Supreme Court.

 

    On November 7, 2010, an accidental release of the chemical meta-toluene demine occurred while an SGS employee was conducting unloading operations at a Bayer chemical plant in Baytown, Texas. SGS learned of the release that same day. Based on the initial report and information Bayer provided SGS, the preliminary estimate for the clean-up costs was between $600,000 and $1 million. Because this was within the $2 million coverage limit of its primary policy with Allianz, SGS did not inform Starr of the release. However, on December 20, 2010, Bayer presented SGS with invoices reflecting clean-up costs of over $4 million. Only in late December did SGS first realize the costs exceeded $2 million and would trigger coverage beyond the limits of its policy with Allianz. On January 5, 2011, fifty-nine days after SGS learned of the chemical release, SGS sent an email reporting the release to Starr.

 

    Starr and SGS had added to the policy a provision, commonly called a pollution "buy-back," which deleted the pollution exclusion and replaced it with ". . .This exclusion shall not apply, however, provided that the assured establishes that all of the following conditions have been met: . . . (4) the discharge, dispersal, release or escape was reported in writing to these underwriters within 30 days after having become known to the assured.

 

    SGS argues that the opinion is "no longer tenable" and its reasoning is "deeply flawed." It maintains that the Texas Supreme Court has now changed the law pertaining to notice requirements in insurance contracts, citing two cases referenced as PAM, Inc. v. Hanover Ins. Co., 243 S.WE.3d 630 (Tex. 2008) and Prodigy Communications Corp. v. Agricultural Excess & Surplus Ins. Co., 288 S.WE.3d 374 (Tex. 2009). But, the Appeals Court disagreed and said, ". . . we are dealing with a specific endorsement, separately negotiated by the parties, and with a clear notice requirement. Following an inquiry similar to the one outlined in PAM and Prodigy, Matador concluded that a notice requirement in this type of supplemental pollution endorsement is essential to the bargained-for coverage. We remain bound by that precedent."

 

    Access the complete opinion (click here). [#Remed, #CAD]

 

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In Re: Polar Bear Endangered Species Act Listing

Jun 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-5353. Appealed from the United States District Court for the District of Columbia. The Appeals Court summarizes saying, "After listing the polar bear as a threatened species under the Endangered Species Act [ESA], the U.S. Fish and Wildlife Service, acting pursuant to a related statute -- the Marine Mammal Protection Act [MMPA] -- barred the importation of polar bear trophies. Hunters and hunting organizations challenge this determination, raising both statutory and procedural arguments. Finding them all without merit, the district court granted summary judgment to the Service. We affirm."

    On May 15, 2008, the Service published a rule listing the polar bear as a threatened species under the ESA. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008). In the same rule, the Service also determined that the listing had the effect of designating the polar bear as "depleted" under the MMPA and that MMPA sections 101(a)(3)(B) and 102(b)(3) thus barred continued importation of sport-hunted polar bear trophies under that statute.

    The Safari Club now appeals the district court's grant of summary judgment on the importation issue, raising both statutory and procedural challenges. Several conservation groups, including the Humane Society of the United States, have intervened on behalf of the Service. On one of the issues regarding bears taken before the designation as depleted, according to the Safari Club, this provision applies only to mammals taken from species that had already been designated as depleted at the time they were taken. The Appeals Court said, "The district court disagreed, as do we. See In re Polar Bear Endangered Species Act Listing, 818 F. Supp. 2d at 256 & n.11. The provision refers not to mammals taken from species the Secretary had designated as depleted but instead mammals taken from species the Secretary has so designated. If Congress intended section 102(b)(3) to apply only to mammals taken after the species became depleted, it would have replaced the verb 'has' with 'had.'" The Appeals Court noted further, "Reinforcing this conclusion, other provisions of section 102(b) are expressly limited by the phrase 'at the time of taking.'"

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

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U.S. Forest Service v. Pacific Rivers Council

Jun 17: In the U.S. Supreme Court, Case No. 12-623. In a brief Summary Disposition, the U.S. Supreme Court issued an order stating, "The motion of respondent Pacific Rivers Council to vacate the judgment below and dismiss as moot is granted. The judgment below is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with directions that it instruct the United States District Court for the Eastern District of California to dismiss the case as moot in its entirety." The High Court dismissed a the case [See WIMS 6/21/12] which had said the Forest Service's EIS inadequate after the Pacific Rivers Council abandoned its claim against the  Forest Service.

 

        Access the Supreme Court order (click here). Access the Supreme Court docket (click here). Access the SCOTUS blog on the case (click here). Access the complete opinion and dissent of the Ninth Circuit (click here). Access the Pacific Rivers Council website for more information (click here). [#Land, #Water, #Wildlife, #CA9, #SupCt]

 

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Supreme Court Rules On Out-Of-State Diversions Of Water

Jun 13: In the case of Tarrant Regional Water District. v. Herrmann, in the U.S. Supreme Court, Case No. 11-889. Appealed from the U.S. Court of Appeals, Tenth Circuit [See WIMS 9/27/11]. In this important, unanimous opinion for the High Court, involving out-of-state diversions of water, the Justices indicate that, "The Red River Compact, (or Compact), 94 Stat. 3305, allocates water rights among the States within the Red River basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana. Petitioner Tarrant Regional Water District (Tarrant), a Texas agency, claims that it is entitled to acquire water under the Compact from within Oklahoma and that therefore the Compact preempts several Oklahoma statutes that restrict out-of-state diversions of water. In the alternative, Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant's claims lack merit.    

    The High Court points out that absent an agreement among the States, disputes over the allocation of water are subject to equitable apportionment by the courts, Arizona v. California, 460 U. S. 605, 609 (1983), which often results in protracted and costly legal proceedings. In 1955, to forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. The negotiations lasted over 20 years and finally culminated in the signing of the Red River Compact in 1978. Congress approved the Compact in 1980, transforming it into federal law.

    At issue in this case are rights under the Compact to water located in Oklahoma's portion of subbasin 5 of Reach II. Reach II posed the greatest difficulty to the parties' efforts to reach agreement. The problem was that Louisiana, the farthest downstream State, lacks suitable reservoir sites and therefore cannot store water during high flow periods to meet its future needs. The upstream States (Texas, Oklahoma, and Arkansas), which control the River's flow, were unwilling to release water stored within their own reservoirs for the benefit of any downstream States, like Louisiana. Without any such release, there would be no guaranteed flow of water to Louisiana.

 

    The provisions of the Compact relating to Reach II were crafted to address this problem. Subbasins 1-4 ended in last downstream major damsites controlled by the individual states. Subbasin 5, instead required that water be allowed to flow to Louisiana through the main stem of the River at certain minimum levels, assuring Louisiana an allocation of the River's waters and solving its flow-through problem.

 

    The provision of the Compact central to the present dispute is §5.05(b)(1), which sets the following allocation during times of normal flow: "(1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second [hereinafter CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS]."

 

    Tarrant proposed to divert the Kiamichi River, at a point located in subbasin 5 of Reach II, before it discharges into the Red River and applied to Oklahoma Water Resources Board (OWRB, the respondent in this case) for a permit. Tarrant knew, however, that Oklahoma would likely deny its permits because various state laws (collectively, the Oklahoma water statutes) effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma's borders.

 

    When Tarrant filed its permit application, it also filed suit against respondents in Federal District Court. Tarrant sought to enjoin enforcement of the Oklahoma water statutes by the OWRB. Tarrant argued that the statutes, and the interpretation of them adopted by Oklahoma's attorney general, were preempted by Federal law and violated the Commerce Clause by discriminating against interstate commerce in water.

 

    The District Court granted summary judgment for the OWRB on both of Tarrant's claims. The Tenth Circuit affirmed. 656 F. 3d 1222, 1250 (2011). The Supreme Court, in its current opinion now affirms the judgment of the Tenth Circuit. The High Court rules, "The Red River Compact does not preempt Oklahoma's water statutes because the Compact creates no cross-border rights in its signatories for these statutes to infringe. Nor do Oklahoma's laws run afoul of the Commerce Clause. We affirm the judgment of the Court of Appeals for the Tenth Circuit."

 

    [Note: The decision supports the rights of states to protect their own water rights and could have important ramifications in existing and future water disputes over Great Lakes water use and out-of-state diversions]. In fact, a number of states concerned about protecting their water rights via various compacts, particularly against Commerce Clause claims, filed an amicus brief in support of OWRB. The states included: CO, ID, IN, MI, NV, NM, and UT.

 

    Access the complete opinion (click here). Access the Supreme Court docket (click here). Access the merit and amicus briefs, including the one from the states above (click here). Access the complete Tenth Circuit opinion (click here). Access more information and analysis on the opinion from the SCOTUS blog (click here). [#Water, #GLakes]

 

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American Trucking Association v. Los Angeles

Jun 13: In the U.S. Supreme Court, Case No. 11-798. Appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 9/27/11]. In this unanimous High Court decision, the Justices consider whether Federal law preempts certain provisions of an agreement that trucking companies must sign before they can transport cargo at the Port of Los Angeles. The Supreme Court concludes that "the Federal Aviation Administration Authorization Act of 1994 (FAAAA) expressly preempts two of the contract's provisions, which require such a company to develop an off-street parking plan and display designated placards on its vehicles." However, the High Court declines "to decide in the case's present, pre-enforcement posture whether, under Castle v. Hayes Freight Lines, Inc., 348 U. S. 61 (1954), federal law governing licenses for interstate motor carriers prevents the Port from using the agreement's penalty clause to punish violations of other,non-preempted provisions."

 

    Explaining further, the unanimous Court says, ". . .the kind of enforcement ATA [American Trucking Association] fears, and believes inconsistent with Castle, might never come to pass at all. In these circumstances, we decide not to decide ATA's Castle-based challenge. That claim, by its nature, attacks the Port's enforcement scheme. But given the preenforcement posture of this case, we cannot tell what that scheme entails. It might look like the one forbidden in Castle (as ATA anticipates), or else it might not (as the Port assures us). We see no reason to take a guess now about what the Port will do later. There will be time enough to address the Castle question when, if ever, the Port enforces its agreement in a way arguably violating that decision. " The Court said, ". . .the Castle question because the case's pre-enforcement posture obscures the nature of the agreement's remedial scheme, rendering any decision at this point a shot in the dark." 

 

    The Castle v. Hayes Freight Lines, Inc., case of 1954 held that Illinois could not bar a Federally licensed motor carrier from its highways for prior violations of state safety regulations. The parties here dispute whether Castle restricts the Port's remedial authority. The Port echoes the Ninth Circuit's view that banning a truck from "all of a State's freeways" is meaningfully different from denying it "access to a single Port." ATA responds that because the Port is a "crucial channel of interstate commerce," Castle applies to it just as much as to roads.

 

    ATA President and CEO Bill Graves hailed the opinion and said, "We are gratified that, at the conclusion of many years of litigation, the highest court in the land unanimously agreed with ATA on these rules. Our position has always been that the Port's attempt to regulate drayage operators -- in ways that had nothing to do with its efforts to improve air quality at the Port -- was inconsistent with Congress' command that the trucking industry be shaped by market forces, rather than an incompatible patchwork of state and local regulations. The decision is sure to send a signal to any other cities who may have been considering similar programs which would impermissibly regulate the port trucking industry."

 

    ATA characterized the case saying, at issue was the Port's attempt to impose so-called "concession agreements" on drayage operators wishing to move goods in and out of the Port. The Federal Aviation Administration Authorization Act prohibits the enforcement of any state or local "law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier." The question before the Supreme Court was whether certain provisions of the concession agreements that undisputedly "related to a price, route, or service" of motor carriers nevertheless escaped preemption because the Port asserted that it imposed these requirements to serve its "business interest" in expanding the Port, rather than in an effort to regulate the drayage market.

 

    ATA indicates that the Court concluded that, whatever the Port's asserted motivation, the concession agreements amounted to "classic regulatory authority" and thus fell within the scope of the FAAAA's preemption provision. It observed that the concession agreements, while technically contracts between the Port and trucking companies, were not the "result merely of the parties' voluntary commitments."  Rather, the Port compelled trucking companies to enter into the contracts as a condition of access to the Port, by "wielding coercive power over private parties, backed by the threat of criminal punishment."  By imposing the concession agreements through coercion rather than "ordinary bargaining," Los Angeles was "performing its prototypical regulatory role."

 

    Access the complete opinion (click here). Access the Supreme Court docket (click here). Access the merit and amicus briefs in the case (click here). Access the complete Ninth Circuit opinion and dissent (click here). Access a release from ATA (click here). [#Air, #Transport, #CA9, #SupCt]

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Conservation Congress v. U.S. Forest Service

Jun 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-16452. Appeal from the United States District Court for the Eastern District of California. The Appeals Court explains that the case arises from a Federal agency's authorization of a timber sale, known as the Mudflow Vegetation Management Project (Mudflow Project or Project), and its potential effects on the Northern Spotted Owl's (Owl) critical habitat. Plaintiff-Appellant Conservation Congress (CC) sued Federal Defendants-Appellees, alleging that they had failed to adequately evaluate the effects of the Mudflow Project on the Owl's critical habitat, in violation of section 7(a)(2) of the Endangered Species Act (ESA), among other claims.

 

    CC unsuccessfully sought to enjoin the Mudflow Project based on its ESA claim and appealed the district court's denial of its motion for a preliminary injunction. The Appeals Court concluded that "the district court did not abuse its discretion when it determined CC failed to show a likelihood of success on the merits as to its ESA claim that Defendants arbitrarily or capriciously approved the Mudflow Project and affirmed the district court decision.

 

    CC alleges that: (1) the Forest Service's biological assessment (BA) for the Mudflow Project failed to adequately evaluate the Project's potential effects on the Owl's critical habitat; and (2) the FWS issued an arbitrary concurrence letter accepting the BA's conclusion. A week before oral argument, Defendants filed a Suggestion of Mootness, seeking dismissal of the appeal because of recent events. Defendants argued that a new 2013 habitat designation, and subsequent reinstatement of informal consultation between the Forest Service and the FSW, render this appeal moot; however, the Appeals Court disagreed.

 

    First, CC asserts that the district court committed legal error by disregarding the purported requirement that the Forest Service perform a "cumulative effects" analysis during its informal consultation with the FWS. Second, CC claims that the district court committed clear factual error by ignoring evidence controverting Defendants' conclusion that the Mudflow Project would "degrade" the Owl's critical habitat, but not result in an adverse effect.

 

    The Appeals Court rules, "In essence, CC demands that Defendants conduct a more extensive, NEPA-like cumulative impacts analysis. But NEPA and ESA call for different regulatory review, and we must defer to the procedural mechanisms established by the implementing agency. . . CC's argument also fails because there is simply no statutory mandate to consider cumulative effects during informal consultation. . . under the plain meaning of 50 C.F.R. § 402.12(f), consideration of cumulative effects is permissive, not mandatory. The district court correctly determined that the Forest Service did not abuse its discretion in failing to consider a factor that it was not required to consider in the

first place."

 

    The Appeals Court also ruled, ". . .from the totality of the factors considered, that a thinning of 22 acres, out of a total of 408 acres of the Owl's degraded foraging habitat, to a basal area of 100–125 square feet per acre would necessarily mean that the Owl's total foraging habitat would be 'adversely' modified -- which, in the regulatory context, means appreciably diminished. . . Given the totality of the findings, Defendants reasonably concluded that the Mudflow Project 'may affect, but is not likely to adversely affect' the Owl or its critical habitat. . . Therefore, the district court did not abuse its discretion in deferring to Defendants' determination that the Mudflow Project would not likely adversely affect the Owl or its critical habitat, thus obviating the need for formal consultation."

 

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

 

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Doe Run Resources Corp. v. Lexington Insurance Co.

Jun 13: U.S. Court of Appeals, Eighth Circuit, Case No: 12-2215. Appealed from the U.S. District Court for the Eastern District of Missouri - St. Louis. The Appeals Court explains that Doe Run Resources Corporation (Doe Run), the largest integrated lead producer in the Western Hemisphere, operates the Sweetwater Mine and Mill near Viburnum, Missouri. Doe Run extracts and crushes ore containing lead and other metals at the mine, processes the crushed ore at a mill near the mine, and either sells the resulting lead concentrate on the world market or transports it by truck to Doe Run's smelter for processing into ingots, bars, and other forms. In 2006, Nadist, LLC, a neighboring landowner, sued Doe Run, alleging environmental property damage resulting from the mine and mill operations (the Nadist Lawsuit).

 

    More than three years later, Doe Run tendered defense of the Nadist Lawsuit to Lexington Insurance Company (Lexington) under Commercial General Liability (CGL) policies Doe Run purchased between 1998 and 2006. When Lexington denied coverage on numerous grounds, Doe Run commenced this declaratory judgment action seeking to enforce Lexington's contractual duty to defend Doe Run. The district court granted summary judgment dismissing the complaint, concluding that Lexington had no duty to defend because the policies' absolute pollution exclusions unambiguously bar coverage of all claims asserted in the Nadist Lawsuit. The Appeals Court indicates that, "Missouri law governs the issues raised on appeal in this diversity case."

 

    The Appeals Court rules, "Here, the more specific lead exclusion, if included, would have overlapped the absolute pollution exclusion as it applies to the release of lead "pollutants," but the two exclusions would not have conflicted. The parties' deletion of the lead exclusion left the remainder of the CGL policy in full force and effect, including its absolute pollution exclusion. The judgment of the district court is affirmed."

 

    Access the complete opinion (click here). [#Remed, #CA8]

 

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Organic Seed Growers & Trade Ass'n v. Monsanto Co.

Jun 10: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-1298. Appealed from the United States District Court for the Southern District of New York. Appellants, a coalition of farmers, seed sellers, and agricultural organizations, sought declaratory judgments of non-infringement and invalidity with respect to twenty-three patents owned by Monsanto Co. and Monsanto Technology, LLC (collectively Monsanto). The district court concluded that there was no justiciable case or controversy and dismissed for lack of jurisdiction.

 

    The Appeals Court indicates that, "Because Monsanto has made binding assurances that it will not 'take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower's land),' . . . and appellants have not alleged any circumstances placing them beyond the scope of those assurances, we agree that there is no justiciable case or controversy. We affirm."

 

    Among other allegations, ". . .appellants also complain that they are harmed by exposure to the allegedly adverse health effects of genetically modified seeds and glyphosate; longterm environmental impacts of genetically modified seeds; economic costs following from contamination of conventional crops by transgenic seeds and glyphosate; and the costs of anti-contamination precautions taken for purposes other than avoiding suit (i.e., to maintain organic certification). But as the appellants concede, 'a declaratory judgment here would do nothing to eliminate the risk of transgenic seed contamination.' . . . Aside from the risk of suit by Monsanto, none of the alleged harms caused by contamination is traceable to Monsanto's enforcement of its patents, they could not be remedied by a declaratory judgment, and they cannot serve as a basis for jurisdiction in this case.

 

    "In sum, Monsanto's binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed. The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing. The district court correctly concluded that it lacks Declaratory Judgment Act jurisdiction."

 

    The organization, Beyond Pesticides, summarizes the case saying, ". . .the Federal Circuit ruled Monday that a group of organic and otherwise non-GE farmer and seed company plaintiffs are not entitled to bring a lawsuit to protect themselves from Monsanto's transgenic seed patents after Monsanto made binding assurances that it will not take legal action against growers whose crops might inadvertently be contaminated with traces of Monsanto biotech genes."

 

    While this may seem confusing, Beyond Pesticides explains saying, "Organic farmers and others have worried for years that they will be sued by Monsanto for patent infringement if their crops get contaminated with Monsanto genetically engineered (GE) material from GE crops. Organic and non-GE farms get contaminated when pollen or seed migrate from neighboring GE farms. Even though wind or insect transfer of pollen is a natural process, Monsanto has been suing farmers for infringing on their patents if contamination is found on their farms. Monsanto's history of aggressive investigations and lawsuits brought against farmers is a major source of concern for organic and non-GE agricultural producers since Monsanto's first lawsuit brought against a farmer in the mid-'90s. As of 2012, Monsanto has filed 142 alleged seed patent infringement lawsuits involving 410 farmers and 56 small farm businesses in 27 states." The case was a preemptive effort by plaintiffs to protect themselves from being accused of patent infringement should their crop ever become contaminated by Monsanto's GE seed.

 

    Plaintiffs' attorney, Dan Ravicher of the Public Patent Foundation (PUBPAT), views the decision as a partial victory.  He said, "Before this suit, the Organic Seed plaintiffs were forced to take expensive precautions and avoid full use of their land in order to not be falsely accused of patent infringement by Monsanto. The decision today means that the farmers did have the right to bring the suit to protect themselves, but now that Monsanto has bound itself to not suing the plaintiffs, the Court of Appeals believes the suit should not move forward." Maine organic seed farmer Jim Gerritsen, president of lead plaintiff Organic Seed Growers and Trade Association said, "Even though we're disappointed with the Court's ruling not to hear our case, we're encouraged by the court's determination that Monsanto does not have the right to sue farmers for trace contamination. However, the farmers went to court seeking justice not only about contamination, but also the larger question of the validity of Monsanto's patents. Justice has not been served."

 

    Dave Murphy, founder and executive director of Food Democracy Now!, a co-plaintiff in the lawsuit, "Today's ruling may give farmers a toehold in courts regarding the unwanted contamination of their crops, but it does not protect our food supply from the continued proliferation of Monsanto's flawed technology. The real threat of continued contamination of our nation's food supply was only highlighted last week when Monsanto's unapproved GMO wheat was discovered in an Oregon farmer's field more than 10 years after it was legally planted in that state." Beyond Pesticides indicates, "The decision allows farmers who are contaminated to sue Monsanto and Monsanto's customers for the harm caused by that contamination without fear of a retaliation patent infringement claim against them by Monsanto." Despite this Court of Appeals' decision, the plaintiffs still have the right to ask the Supreme Court to review the Court of Appeals decision and ultimately reinstate the case. Organic Seed plaintiffs are considering such action.

 

    Access the complete opinion (click here). Access lengthy release with links to related information from Beyond Pesticides (click here). [#CAFed, #Agriculture, #Toxics]

 

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