Pyramid Lake Paiute Tribe of Indians v. Nevada

Jul 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16470, 11-16475 & 11-16482. Appealed from the United States District Court for the District of Nevada. The Appeals Court explains and summarizes that, "Almost from the time that explorers John C. Frémont and Kit Carson first came upon the Truckee River and Pyramid Lake, disputes have arisen about water rights. In this latest chapter in a hundred-year litigation history, see Nevada v. United States, 463 U.S. 110, 113 (1983) (summarizing history), we consider whether diverting water to wetlands in order to sustain wildlife habitat constitutes 'irrigation.' We conclude that, within the meaning of the federal court decree governing water rights in the Newlands Reclamation Project, it does not, and we affirm the judgment of the district court."

 

    In this localized dispute over water rights controlled by the so-called "Alpine Decree", the Appeals Court concludes, ". . .we agree with the district court that the State Engineer's approval of the applications to transfer the non-consumptive use portion of the Applicants' water rights violated Administrative Provision VII of the Alpine Decree because the applications seek a change in the manner of use to a non-irrigation purpose. While we recognize the salutary purpose to which the Applicants wish to apply water at Carson Lake and Pasture, they may not do so in contravention of the express limitation on transfers of water rights articulated in the Alpine Decree. In sum, the district court correctly concluded that diversion of water for waterfowl habitat is not 'irrigation' within the meaning of the Alpine decree. We affirm the judgment of the district court."

 

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

In re: MTBE Products Liability Litigation

Jul 26: In the U.S. Court of Appeals, Second Circuit, Case Nos. 10-4135 & 10-4329. The Appeals Court explains that After an eleven-week bellwether trial and years of related litigation, the District Court entered a $104.69 million judgment for the City of New York, the New York City Water Board, and the New York City Municipal Water Finance Authority (collectively, the City) and against Exxon Mobil Corporation, Exxon Mobil Oil Corporation, and Mobil Corporation (collectively, Exxon). The jury found Exxon liable under New York tort law for contaminating City-owned wells in Queens by its release of the chemical methyl tertiary butyl ether (MTBE), which Exxon used as a gasoline additive from the mid-1980s through the mid-2000s, and whose use New York State banned as of 2004.

 

    On appeal, Exxon challenges the verdict, arguing primarily that the City's common law claims are preempted by the Federal Clean Air Act, which, from the mid-1990s through 2004, required use of gasoline oxygenates, such as MTBE, in New York City. Exxon also argues that because (among other reasons) the jury projected MTBE levels equal to the State's maximum contaminant level, the City's injury was not legally cognizable; that the City's action was not ripe for adjudication (or alternatively, that it was barred by the statute of limitations); that the City failed sufficiently to prove the elements of negligence, trespass, public nuisance, and failure-to-warn; and that the District Court erred in its handling of alleged jury misconduct. On cross-appeal, the City faults the District Court for instructing the jury to offset its damages award by the cost of remediating pre-existing contamination, and for its ruling that, as a matter of law, the City was not entitled to an award of punitive damages. The Appeals Court affirmed the decision of the District Court in its entirety.

 

    The Appeals Court concludes, "To summarize: We conclude that the state law tort verdict against Exxon is not preempted by the federal Clean Air Act. We conclude that the jury's finding that the MTBE levels in Station Six Wells will peak at 10 ppb in 2033 -- the MCL for MTBE since 2004 -- is not inconsistent with a conclusion that the City has been injured. We conclude that the City's suit was ripe because the City demonstrated a present injury, and that the City's suit was not barred by the statute of limitations. We conclude that the jury's verdict finding Exxon liable under state tort law theories is not precluded by the jury's concurrent conclusion that the City had not carried its burden, in the design-defect context, of demonstrating a feasible, cost-reasonable alternative to MTBE available to satisfy the standards of the now repealed Reformulated Gasoline Program. We conclude that Exxon's demand for a retrial because of an incident of juror misconduct is unavailing. And we conclude that the jury properly offset the gross damages award by amounts it reasonably

attributed to cleanup of contaminants other than MTBE, and that the City was not entitled to a jury determination of Exxon's liability for punitive damages."

 

    Access the complete 117-page opinion (click here). [#Air, #Water, #Toxics, #Drink, #CA2]

Voggenthaler v. Maryland Square, LLC

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17520, 11-15174, 11-15176, 12-16409, and 12-16412. Appealed from the United States District Court for the District of Nevada. The Appeals Court explains, "Two environmental statutes "everyone loves to hate" are the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). "In combination, they make owners of contaminated property and contributors to contamination responsible for cleaning up toxic waste, and, if someone else cleans up the waste, liable for the costs of that clean up. This litigation illustrates the point. It involves seepage over several decades of a toxic dry cleaning chemical into the ground under a Las Vegas shopping center. There have been two district court actions leading to multiple appeals."

    Two companies leased the Site and operated the dry cleaning facility. Shapiro Bros. Investment Co. (SBIC) operated it from 1969 until 1984. Johnson Group, Inc., the predecessor of DCI USA, Inc., (collectively DCI) purchased the dry cleaning business in 1984 and operated it until 2000. Neighboring homeowners brought the first action, seeking injunctive relief against the property owners of the shopping center and operators of the dry cleaning facility. The Nevada Division of Environmental Protection (NDEP) brought the other action to recover its clean up costs. The district court granted summary judgment for both sets of plaintiffs on all claims. The current owner and the former operators of the dry cleaning facility appeal. There are numerous procedural issues, but the principal legal contention is that application of CERCLA to this conduct that occurred solely in Nevada violates the Commerce Clause.

 

    The Appeals Court rules, "We largely affirm the district court, including its rejection of that constitutional challenge. We vacate the grant of summary judgment under CERCLA against the current owner and remand so the owner may have an opportunity to make the additional showing that would be necessary to establish that it meets an exception to CERCLA liability. We reverse on procedural grounds the grant of summary judgment under RCRA against the current owner and the operators because those defendants did not have an adequate opportunity to respond to plaintiffs' claims. We also reverse the grant of summary judgment against one guarantor, because there is no evidence of spills during the term of his guaranty.

 

    The Appeals Court concludes as follows: "The district court properly rejected Maryland Square's constitutional challenge to the application of CERCLA in this case, and correctly granted judgment against Maryland Square and in favor of NDEP on its state law claims. The district court's judgment in favor of NDEP and against SBIC on both the CERCLA and the state law claims must be affirmed. The judgment against SBIC on the claims of the prior Site owners for indemnity was in accordance with the provisions of the leases and must be affirmed.

 

    "The district court erred, however, in entering judgment against Maryland Square on NDEP's CERCLA claim without giving Maryland Square an opportunity to correct the deficiencies in its 'bona fide prospective purchaser' submission. The district court also erred in denying for lack of jurisdiction Maryland Square's motion for reconsideration of the RCRA judgment, and we remand for consideration on the merits. In the homeowners' RCRA action, the district court erred in entering judgment against SBIC sua sponte and the judgment, as well as the ensuing injunction, must be vacated. Although the district court properly held that the prior Site owners were entitled to indemnification from SBIC, the court erred in holding Melvin Shapiro was individually liable for indemnification on the basis of his personal guaranty that operated only prospectively."

 

    Access the complete opinion (click here). [#Haz, #Remed, #CA9]

State Of Texas v. U.S. EPA

Jul 26: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1425, consolidated with 11-1062, 11-1128, 11-1247, 11-1249, 11-1250; and 11-1037, consolidated with 11-1038, 11-1039, 11-1040, 11-1041, 11-1059, 11-1060, 11-1063, 11-1075, 11-1076, 11-1077, 11-1078, 11-1287, 11-1288, 11-1289, 11-1290, 11-1291, 11-1292, 11-1293.  On Petitions for Review of Final Actions of the U.S. EPA. In this high profile case, a 2-1 majority supports EPA's greenhouse gas rules and dismisses the states and industry petitions for lack of jurisdiction

 

    The Appeals Court explains that the cases present another set of challenges to rules promulgated by the Environmental Protection Agency (EPA) in response to the Supreme Court's holding that greenhouse gases unambiguously qualify as an "air pollutant" under the Clean Air Act (the Act or CAA). See Massachusetts v. EPA, 549 U.S. 497, 528–32 (2007). Last year, in Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (Coalition), the D.C. Circuit upheld EPA's regulation in the Tailpipe Rule of greenhouse gases emitted by cars and light trucks under Title II of the CAA, id. at 116–29, as well as its determination that the rule triggered permitting requirements for new major stationary sources of greenhouse gases under Part C of Title I of the CAA, id. at 132–44. The court dismissed for lack of standing under Article III of the U.S. Constitution challenges by States and industry groups to Timing and Tailoring Rules that ameliorated the burden of Part C permitting for greenhouse gases. Id. at 144–48.

 

    The Majority says, "At issue here is implementation of the Part C permitting requirements in several States without implementation plans for greenhouse gases as of January 2, 2011, when the emission standards in the Tailpipe Rule took effect. The States of Texas and Wyoming and industry groups petition for review of five rules designed to ensure that a permitting authority existed to issue the required greenhouse gas permits. Petitioners contend the rules are based on an impermissible interpretation of the Part C Prevention of Significant Deterioration program, CAA §§ 160–169, and violate the Act's "orderly process" for revision of state implementation plans (SIPs) pursuant to CAA § 110.

 

    "The court on more than one occasion has interpreted CAA § 165(a) unambiguously to prohibit construction or modification of a major emitting facility without a Part C permit that meets the statutory requirements with regard to each pollutant subject to regulation under the Act. Because we now hold that under the plain text of CAA § 165(a) and § 167 the permitting requirements are self-executing without regard to previously approved SIPs, industry petitioners fail to show how they have been injured in fact by rules enabling issuance of the necessary permits. State petitioners likewise fail, in the face of Congress's mandate in CAA § 165(a), to show how vacating the rules would redress their purported injuries. Accordingly, because petitioners lack Article III standing to challenge the rules, we dismiss the petitions for lack of jurisdiction. . . Accordingly, because "[p]etitioners have failed to establish that the [challenged] Rules caused them 'injury in fact,' much less injury that could be redressed by the Rules' vacatur," id. at 146, we must dismiss the petitions for lack of jurisdiction."

 

    In a lengthy dissent, Justice Kavanaugh said in part, "In this case, EPA in effect has required all States – including those without automatically updating SIPs, such as Texas and Wyoming – to immediately update their PSD permitting process when PSD requirements are changed. That approach cannot be squared with EPA's regulation. Section 51.166(a)(6)(i) expressly allows the States without automatically updating SIPs three years to update the PSD programs in their SIPs when PSD requirements are changed. That regulation has been on the books and followed by EPA for some 30 years. EPA may now believe that the regulation is bad policy. If so, EPA should change the regulation. But until then, the regulation remains binding law. In light of the regulation, I would therefore vacate the relevant EPA orders in this case. . . "

 

    Also, he said, "EPA did not have authority to disapprove Texas's and Wyoming's SIPs or to issue FIPs to regulate emissions of greenhouse gases in those States until the expiration of the three-year period set forth in EPA's regulation. Under that binding EPA regulation, States without  automatically updating SIPs are entitled to three years to revise their SIPs to cover greenhouse gases. During that time, States have legal authority to issue valid permits under their existing SIPs. EPA's orders should therefore be vacated. For those reasons, I respectfully dissent."

 

    Access the complete opinion and dissent (click here). [#Air, #Climate, CADC]

State Of Mississippi v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. No. 08-1200, consolidated with 08-1202, 08-1203, 08-1204, 08-1206. On Petition for Review of a Final Rule Issued by U.S. EPA. In this high profile case, involving dozens of attorneys, the Appeals Court summarizes briefly saying, ". . .we consider several challenges to the Environmental Protection Agency's most recent revisions to the primary and secondary National Ambient Air Quality Standards for ozone. For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration."

 

    By way of background and summarizing the overall opinion, the Appeals Court says, "Challenging the revised primary and secondary NAAQS, various parties, including several states, the District of Columbia, New York City, and several industry, environmental, and public health groups, filed these petitions for review. We then granted EPA's unopposed motion to hold these cases in abeyance to allow the agency to review the 2008 revisions and determine whether they should be reconsidered. In September 2011, EPA indicated that it was withdrawing its reconsideration proceedings and would instead be completing the reconsideration in conjunction with the next periodic review. Several parties filed petitions for review, challenging EPA's withdrawal of the reconsideration rulemaking. Finding that we lacked jurisdiction over EPA's non-final action, we dismissed the petitions and set a briefing schedule for the present case.

 

    "We now confront the parties' competing petitions for review. One set of petitioners -- comprising several states, the District of Columbia, New York City, and a number of environmental and public health groups -- thinks the primary and secondary NAAQS are not protective enough, while the other set -- comprising the state of Mississippi and several industry groups -- thinks they are too protective.

    "This opinion considers each of these claims in turn. We reject Mississippi and the industry groups' challenge to the primary and secondary standards in Part II. We explain our denial of the governmental and environmental petitions with respect to the primary standard in Part III and our grant of these petitions with respect to the secondary standard in Part IV.

    "In considering challenges to NAAQS, 'we apply the same highly deferential standard of review that we use under the Administrative Procedure Act.' ATA III, 283 F.3d at 362. Accordingly, 'we will set aside the Agency's determination only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." ' National Environmental Development Ass'n's Clean Air Project v. EPA, 686 F.3d 803, 809–10 (D.C. Cir. 2012) (quoting 42 U.S.C. § 7607(d)(9)(A)). And 'we do not look at the decision as would a scientist, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.' Id. at 810 (internal quotation marks omitted). That said, "we perform a searching and careful inquiry into the underlying facts." ATA III, 283 F.3d at 362 (internal quotation marks omitted)."

    In its conclusion, the Appeals Court says, "Because EPA failed to determine what level of protection was "requisite to protect the public welfare," EPA's explanation for the secondary standard violates the Act. We therefore remand this portion of the final rule for further explanation or reconsideration by EPA. In the meantime, we leave the standard in place rather than vacating the rule. . . Given these principles, neither EPA nor petitioners advocate vacatur. For the foregoing reasons, we remand the secondary NAAQS to EPA for reconsideration in view of this opinion. In all other respects, the petitions for review are denied.

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

State of Alaska v. Lubchenko (NOAA)

Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35201, consolidated with 12-35203, & 12-35204. Appealed from the United States District Court for the District of Alaska. The Appeals Court explains, the western Distinct Population Segment of the Steller sea lions (wDPS) live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress.

 

    In 2010, the National Marine Fisheries Service (NMFS or the agency) therefore limited commercial fishing in those waters, causing representatives of the fishing industry and the State of Alaska (Plaintiffs) to file this action challenging the limitations.

 

    The plaintiffs' principal argument is that the NMFS violated the Endangered Species Act (ESA) because it based the fishing restrictions on declines in sub-regions rather than in the entire population of the endangered species. Plaintiffs also contend the agency utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline.

 

    The Appeals Court said, "We hold that use of subregions did not violate the ESA and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. We therefore affirm the district court's judgment rejecting plaintiffs' claims."

 

    Reinforcing its decision, the Appeals Court said, "Applying its regulation, the agency indisputably found that the fisheries were removing prey species of the wDPS. It also found evidence of nutritional stress. While the agency admitted it could not find a direct link between the fisheries and the species's decline, it found that the indirect effect of the fisheries was the removal of wDPS's food. The agency was not required to find that the fisheries were the direct cause of the species's decline. . . The district court's order granting summary judgment to the defendants on the ESA claims and injunction on the NEPA claims are affirmed."

   

    Colin O'Brien, attorney for Earthjustice said, "This decision reinforces the importance of maintaining strong measures to protect Steller sea lions from the adverse effects of fishing, particularly in the western and central Aleutians. Not only is it important to protect sea lions in their own right, but the species is a key indicator of overall ecosystem health and fishery sustainability." John Hocevar, Oceans Campaign Director, Greenpeace said, "Instead of attacking the science, it's time for Alaska's fishing industry to start thinking about what can be done to prevent fur seals and other fish-eating species from joining sea lions on the endangered list. The court's decision to uphold protections is great news for endangered Steller sea lions. There's no reason why we can't have both productive commercial fisheries and a healthy ecosystem, but we won't be able to do that unless decisions are based on the best available science and a precautionary approach."

   

    Access the complete opinion (click here). Access a release from Earthjustice with more comments on the decision (click here). [#Wildlife, #CA9]

WildEarth Guardians v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-9559. On Petition for Review of an Order of U.S. EPA. Petitioner WildEarth Guardians seeks review of an order of the EPA denying in part Petitioner's petition for an objection to a Title V operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado, d/b/a Xcel Energy, for its coal-fired power station located in Morgan County, Colorado.

    In its petition for an objection, Petitioner argued, among other things, that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act's Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or "major modification" of a stationary source of air pollution had been triggered when the station underwent major modifications in 1994, 1997, and possibly other years. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002.

 

    However, EPA denied Petitioner's petition for an objection on this ground, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner's additional evidence also failed to demonstrate a violation. The EPA further held the State agency had adequately responded to Petitioner's comments regarding the PSD requirements before it issued the permit. The EPA thus denied the petition for an objection on this ground as well. Petitioner seeks review of the EPA's denial of the petition on these two grounds.

 

    Importantly, the Appeals Court said, "We are not persuaded by the Second Circuit's contrary conclusion that an NOV suffices to demonstrate non-compliance, see N.Y. Pub. Interest Research Grp., Inc., 427 F.3d at 181-82, since this conclusion fails to adequately take into account the preliminary nature of an NOV. Instead, like the Sixth and Eleventh Circuits, we find the EPA's interpretation of the demonstration requirement to be persuasive and thus entitled to deference. Nothing about the statute requires the EPA to find that a petitioner has demonstrated noncompliance simply by pointing to the existence of an NOV, and we will defer to the EPA's persuasive conclusion that an NOV alone is insufficient to meet this burden of demonstration."

 

    The Appeals Court rules further, "We further conclude that the agency did not act arbitrarily or capriciously in concluding that Petitioner failed to demonstrate noncompliance in this case. The agency held that Petitioner had not demonstrated PSD noncompliance because Petitioner's evidence failed to show there had been a major modification as defined by the Colorado SIP, which requires, among other things, consideration of the actual emissions increase resulting from a particular modification, as well as 'a determination of any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.' (J.A. at 200-01.) As the agency explained, Petitioner's evidence did not address key parts of this test, particularly the question of net emissions increases. . . Viewing the record as a whole, we are not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under our deferential standard of review, we affirm the EPA's denial of the petition on this ground."

 

    On the second claim, the Appeals Court says, "Finally, Petitioner argues the EPA erred in concluding that CDPHE adequately responded to Petitioner's comments during the public comment period. For support, Petitioner relies mainly on a prior EPA order where the EPA held that a state agency had failed to adequately respond to a petitioner's comments. However, the state agency's response in the previous case contained only two sentences referring vaguely to 'the rules that existed at the time of each modification.' (J.A. at 229.) Here, the state agency gave a much more thorough explanation in its response, and we are not persuaded that the EPA acted arbitrarily or capriciously in concluding this response was adequate. We therefore affirm the EPA's denial of the petition on this ground as well."

 

    Access the complete opinion (click here). [#Air, #CA10]

CA Sportfishing Protection Alliance v. Chico Scrap Metal

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16959. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that the Federal Water Pollution Control Act, or Clean Water Act (the Act) allows a citizen to sue to enforce the Act's prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; et al, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.

 

    The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff's claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. The Appeals Court rules, "We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court 'to require compliance' with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action comparable to one under the Act. We therefore reverse the judgment of the district court and remand for further proceedings." The Appeals Court says in a footnote that, "We express no view on the merits of any of Plaintiff's claims."

 

    § 1365(b)(1)(B)  bars a citizen suit as stated: "(B) if [a state or federal authority] has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order . . . ."

 

    The Appeals Court says, "Because Congress omitted any reference to 'comparable' state standards in § 1365, and because § 1365(b)(1)(B) specifically refers to an action 'to require compliance with the standard, limitation, or order' that is the subject of the citizen suit, we hold that its bar applies only if the government's action seeks to do exactly that. . . In sum, because the 2007 and 2008 proceedings aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action."

 

    On another bar claim by Defendants, the Appeals Court rules, "Because California has commenced no administrative penalty proceeding that is comparable to a proceeding by the EPA under § 1319(g), the statutory bar of § 1319(g)(6)(A)(ii) does not apply to Plaintiff's claims."

 

    In conclusion the Appeals Court says, "Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the

Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiff's citizen suit to enforce California's storm water general permit. -- Reversed and Remanded."

 

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

U.S. v. Truckee-Carson Irrigation District

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15474, 12-15476, 12-15595, & 12-15599. Appeal from the United States District Court for the District of Nevada. The Appeals Court explains that in this case it deals with "what essentially amounts to a footnote to the long-running litigation over how much water from the Truckee and Carson Rivers should be diverted to irrigation and how much should flow into Pyramid Lake for the benefit of the Pyramid Lake Paiute Indian Tribe." The Federal government and the Tribe are now requesting the Appeals Court to reconsider one aspect of its most recent opinion.

 

    The Appeals Court indicates that, "The district court had rejected claims of excess diversions in the other years between 1973 and 1988. In our concluding paragraph, we remanded for recalculation of the

effect of gauge error in the four specific years in which the district court had found excess diversions. . . On remand, the government asked the court to recalculate gauge error for those and additional years, but the district court limited its recalculation to the four years specified in the conclusion of the Bell opinion. It now appears that our understanding of the scope of the gauge error claim was mistaken and that the government was claiming the gauge error calculation had affected the flow measurement in other years as well."

 

    The Appeals Court indicates, "We do not ordinarily disturb a judgment of the court after the mandate has issued. See Calderon v. Thompson, 523 U.S. 538, 550 (1998). . . The government has candidly acknowledged that it should have moved for reconsideration of our prior opinion, but that it did not recognize the mistake until the matter was before the district court on remand. . .

 

    "We cannot fault the district court in any way, for it correctly followed our 2010 mandate. It was the mandate that was in error, and that only we can correct. . . We accordingly withdraw our earlier mandate and clarify it by changing the final paragraph of our previous opinion . . Our previous mandate in Bell is withdrawn and amended as provided in this opinion. The judgment of the district court on remand is vacated. The matter is remanded for proceedings in accordance with the Bell mandate as amended."

 

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

Angelex LTD. v. U.S.

Jul 22: In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-1610. Appealed from the United States District Court for the Eastern District of Virginia, at Norfolk. The Appeals Court summarizes saying the U.S. Coast Guard, and the U.S. Customs and Border Protection Agency (collectively, Respondents or the government) appeal the district court's order, which, upon an emergency petition filed in the Eastern District of Virginia, (1) altered the terms of a bond the Coast Guard had fixed for the release of a detained ship that was under investigation; and (2) restricted the types of penalties the government could seek for the ship's potential violations of certain ocean pollution prevention statutes. The matter was not subject to review in the district court because the Coast Guard's actions were committed to agency discretion by law. As a result, the district court lacked jurisdiction to consider the petition and the Appeals Court also determined, ". . .we reverse and remand for dismissal of the Petition for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1)."

 

    The case involves the fact that the U.S. is a signatory to MARPOL, which is a multi-national treaty aimed at achieving the complete elimination of international pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances. In fulfilling its obligations pursuant to MARPOL, Congress enacted the Act to Prevent Pollution from Ships (APPS). which requires the Secretary of the Department of Homeland Security  (DHS) to administer and enforce" MARPOL, as well as statutes and regulations designed to preserve the marine environment.

 

    There are two Petitioners in this appeal: the Antonis G. Pappadakis (Pappadakis or the vessel), an ocean-going bulk cargo carrier, which was built in 1995 and registered in Malta; and Angelex Ltd. (Angelex), a company that purchased the vessel on March 9, 2007. Kassian, a Greek company, serves as the vessel's operator.

 

    In this complicated case involving pollution by the vessel and subsequent detaining of the vessel by the Coast Guard subject to posting a bond, the amount of which was in dispute, Angelex asserts that the Coast Guard acted "arbitrarily, capriciously, and unreasonably" in detaining the Pappadakis, setting a bond which Angelex cannot post, and demanding a security agreement with terms that are not authorized by the operative statute.

 

    The Appeals Court says, ". . .we disagree with Appellees' characterization of the Petition as an attack on the statutory authority or constitutionality of the Coast Guard's actions. First, Appellees cannot with a straight face argue that the Coast Guard has acted outside the bounds of § 1908(e). Indeed, those bounds are quite limitless. The Coast Guard may demand a low bond, a high bond, or may refuse to grant clearance altogether. . . In short, the Coast Guard's stringent conformity to § 1908(e) simply does not give rise to a reviewable claim."

 

    The Appeals Court also notes that, "APPS contains a built-in safeguard to governmental abuses, which further convinces us that Angelex's Petition is out of place and time. In addition to the criminal and civil penalties that APPS authorizes the United States to seek, APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard. . . the Coast Guard's decisions regarding bond conditions with regard to the Pappadakis are unreviewable, and the district court thereby did not possess subject matter jurisdiction under the APA."

    Access the complete opinion (click here). [#Water, #CA4]

State Of Oklahoma v. U.S. EPA

Jul 19: In the U.S. Court of Appeals, Tenth Circuit, Case No. 12-9526 & 12-9527. Petition for review of final decision issued by U.S. EPA Re: EPA-R06-OAR-2010-0190. The Appeals Court explains that in these consolidated petitions for review, petitioners challenge a final rule promulgated by U.S. EPA under the Clean Air Act. The petitioners -- Oklahoma, the Oklahoma Industrial Energy Consumers interest group, and the Oklahoma Gas and Electric Company -- argue that the EPA impermissibly rejected Oklahoma's plan to limit the emissions of sulfur dioxide at Oklahoma Gas and Electric (OG&E) Company power plants and replaced it with its own more stringent regulations, which petitioners contend usurped the State's authority and will require sizable expenditures on unnecessary technology. In a split decision, the Majority Appeals Court ruled, "We conclude that the EPA has authority to review the state's plan and that it lawfully exercised that authority in rejecting it and promulgating its own. Exercising our jurisdiction under 42 U.S.C. § 7607(b)(1), we deny the petitions for review."

 

    On one claim by petitioners that EPA violated procedural requirements of the Clean Air Act, the Majority rules that, "The statute itself makes clear that the mere filing of a SIP by Oklahoma does not relieve the EPA of its duty. And the petitioners do not point to any language that requires the EPA to delay its promulgation of a FIP until it rules on a proposed SIP. As the EPA points out, such a rule would essentially nullify any time limits the EPA placed on states. States could forestall the promulgation of a FIP by submitting one inadequate SIP after another."

 

    The Majority explains on one of the contested issues that, petitioners argue that EPA lost authority to promulgate its FIP [Federal Implementation Plan] because more than two years had passed since the EPA made its initial finding that Oklahoma failed to submit a SIP [State Implementation Plan]. The Majority said, "Although the statute undoubtedly requires that the EPA promulgate a FIP within two years, it does not stand to reason that it loses its ability to do so after this two-year period expires. Rather, the appropriate remedy when the EPA violates the statute is an order compelling agency action."

 

    The Majority cites the Supreme Court decision of Brock v. Pierce County, 476 U.S. 253 (1986) and said, "The petitioners do not explain why the principles of Brock would not also control this case. The provision here is 'clearly intended to spur [the EPA] to action, not to limit the scope of [its] authority.' Id. at 265. In the absence of any other indication from Congress, the appropriate remedy is simply a suit to compel agency action, not to eliminate the EPA's authority to file a FIP." [citing Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1190-91 (9th Cir. 2012)].

 

    In a dissenting opinion that also concurred in part, one Justice said, "Although I agree with much of the court's analysis, I dissent with respect to whether certain EPA actions were arbitrary and capricious. See Ct. Op. Pt. IV(A) (analyzing the EPA's calculations of baseline emissions and its determination regarding the technical feasibility of the smaller scrubbers on which it based its cost/benefit analysis). Therefore, I would grant the petition for review."

 

    The dissent concludes, "Although the EPA has at least some authority to review BART [best available retrofit technology] determinations within a state's SIP, it has no authority to condition approval of a SIP based simply on a preference for a particular control measure. . .  Oklahoma considered the cost and resulting benefit of such a large investment in scrubbers, and its conclusion was not unreasonable. Assuming the EPA has authority to review Oklahoma's SIP in the manner it did, its rejection of the SIP and promulgation of its own FIP was arbitrary and capricious. Accordingly, I respectfully dissent on this issue."

 

    Sierra Club, a party in the case, issued a release calling the decision "major victory." Whitney Pearson, with Sierra Club said, "Today the court has upheld a common-sense solution to a serious pollution problem. Both in Oklahoma and around the nation, we see smart utilities showing leadership and making the right choices for our pocketbooks and our health. Now we have another signal that OG&E needs to make these smart choices too." David Ocamb, director of the Oklahoma Chapter of the Sierra Club said, "OG&E sends hundreds of millions of dollars out of state each year to import coal and the pollution that comes with it. For a state with abundant, homegrown natural resources, this makes no sense,. The Court upheld the law and acted in Oklahoma's best interests when OG&E wouldn't. It's time for OG&E to do what's right and phase out their coal plants. "

 

    Access the complete opinion and dissent (click here). Access the release from Sierra Club (click here). [#Air, #CA10]

USA v. Citgo Petroleum Corporation

Jul 17: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-31117. Appealed from the United States District Court for the Western District of Louisiana. The Appeals Court summarizes saying the United States brought suit against Citgo Petroleum Corporation, seeking civil penalties and injunctive relief under the Clean Water Act (CWA). After a bench trial, the district court imposed a $6 million penalty against Citgo and ordered injunctive relief. The United States appeals, arguing the amount of the penalty is inadequate. Citgo cross-appeals, arguing the district court lacked jurisdiction.

 

    The Appeals Court rules, "There is jurisdiction, but we conclude the district court erred in failing to provide a reasonable approximation of economic benefit as required under the CWA and our caselaw. We vacate the civil penalty award and remand for further proceedings."

 

    Significantly, the Appeals Court indicates that, ". . .the district court concluded in less than one page of analysis that Citgo was not grossly negligent." Citing that a district courts' "finding that a party is negligent or grossly negligent is a finding of fact and must stand unless clearly erroneous." Houston Exploration Co. v. Halliburton Energy Servs., Inc., 269 F.3d 528, 531 (5th Cir. 2001). "And saying, "A finding of fact is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." The Appeals Court said, "In our view, though, almost winning a highly risky gamble with the environment does not much affect the egregiousness of having been gambling in the first place."

 

    The Appeals Court rules, "We have acknowledged the need to uphold the district court's findings unless clearly erroneous. We make no ruling on this question now. The category of negligence into which Citgo's conduct is placed is part of the overall analysis underlying the setting of the appropriate penalty. Because of the conclusions we have already set out, the district court will have the obligation on remand to re-analyze the civil penalty award. At that time, the district court should reconsider all its findings with respect to Citgo's conduct, giving special attention to what Citgo knew prior to the oil spill and its delays in addressing recognized deficiencies."

 

    Another issue is that the government contends that district court used of Citgo's estimate of the amount of oil spilled in calculating the penalty. On the question of how much oil was spilled, the district court accepted Citgo's estimation. After evaluating the methods of calculation used by the parties' experts, the court found Citgo's estimate of 54,000 barrels "more reasonable and credible" than the government's higher estimate of 76,800 barrels. The government's argument on this issue is essentially that the court credited the wrong expert.

 

    The Appeals Court cites, "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258 (5th Cir. 2006); and says, "Consequently, we reject the government's argument that the district court erred with respect to its findings on the amount of oil spilled.

 

    "The district court's civil penalty is vacated and this case is remanded for further consideration of the statutory penalty factors and its finding of negligence consistent with this opinion."

 

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

Colon-Cabrera v. Esso Standard Oil Company

Jul 17: In the U.S. Court of Appeals, First Circuit, Case No. 11-2477. Appealed from the District Court of Puerto Rico, San Juan. The Appeals Court explains that appellant Manuel Colón Cabrera filed suit against appellee Esso Standard Oil Company under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972, seeking to compel Esso to remediate environmental contamination at a gas station he owned. After lengthy proceedings in the district court and in a concurrent action in the Puerto Rico commonwealth courts, Colón Cabrera filed a motion for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2), stating that the Federal lawsuit was no longer necessary in light of Esso's alleged concession that it would clean up his gas station.

 

    The district court held its ruling on the motion in abeyance while the parties engaged in settlement negotiations. Although it appeared for a time that the parties would be able to resolve the matter, the Negotiations were ultimately unsuccessful. The district court Subsequently granted Colón Cabrera's motion, but chose to dismiss the case with prejudice pursuant to Rule 41(a)(2) and assess attorneys' fees and costs against him.

 

    Colón Cabrera appealed, arguing that the district court abused its discretion in dismissing the case with prejudice. The Appeals Court rules that, "The parties offer different portrayals of the proceedings. . . but the issue that concerns us here is the district court's emphasis on Colón Cabrera's refusal to accept Esso's settlement offers. We conclude that dismissing the case with prejudice based on appellant's refusal to settle was an abuse of discretion. We therefore vacate the dismissal order and remand for further proceedings."

 

    In concluding, the Appeals Court states, "Given our present understanding of the record, we see no justification for dismissal with prejudice. Nevertheless, we owe deference to the district court's familiarity with the litigation and its grasp of all the relevant facts. We therefore remand so that the district court can reconsider the issue with the benefit of our guidance. If on remand the district court concludes that dismissal with prejudice is a proper exercise of its discretion, it should take care to evaluate the appropriate factors fully and provide an explanation of its reasons."

 

    Access the complete opinion (click here). [#Remed, #Haz, #CA1]

Hoosier Environmental Council v. U.S. Army Corps of Engineers

Jul 16: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-3187. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that the case involves the scope of the duty imposed on the Army Corps of Engineers by section 404 of the Clean Water Act and its implementing regulations, to protect wetlands that contain or are covered by waters of the United States (and so are within Federal jurisdiction) from environmental degradation by caused by the construction of a highway. Implementing regulations state that a permit will be denied if the Corps finds that there is "a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem," or if the discharge "would be contrary to the public interest." The Appeals Court highlights the above words with italics saying they "are the ones critical to this case."

 

    Environmentalists opposed building a highway (Interstate 69 connection) on the direct route from Indianapolis to Evansville on the ground that it would destroy wetlands, disrupt forests, and also disrupt "karst" ecosystems, unusual landscapes permeated by caves and other formations that provide rich habitats for wildlife, including such endangered and threatened species as the Indiana bat (endangered) and the bald eagle (threatened). The Appeals Court indicates that most of the environmental concerns have been resolved, and this case is concerned just with the filling of wetlands and of stream crossings.

 

    Environmental groups object to the choice of the direct route. They argue that the Corps failed to consider whether the direct route as a whole, rather than one section of it, would be in the public interest and whether the indirect route would be a practicable alternative. But the district court found the Corps' analysis adequate to justify the grant of the permit and so awarded summary judgment to the defendants, precipitating this appeal.

 

    The Appeals Court said, "The plaintiffs have not shown that the conclusion the Corps drew from its detailed and highly technical analysis -- that section 3 of the direct route is in the public interest -- was unreasonable. The Appeals Court concludes in affirming the district decision, "Anyway the highway agencies' Environmental Impact Statements had covered most, maybe all, of the ground that a public interest analysis would have covered. The plaintiffs argue neither that the project as a whole is contrary to the public interest nor that it was sectioned in order to prevent consideration of its total environmental harms. . .They may be playing a delay game: make the Corps do a public interest analysis from the ground up (along with an all-at-once six-section permit analysis) in the hope that at least until the analysis is completed there will be no further construction, so that until then the highway will end at the northernmost tip of section 3 -- making it a road to nowhere."

 

    Access the complete opinion (click here). [#Water/Wetlands, #Transportation, #CA7]

Center for Biological Diversity v. U.S. EPA

Jul 12: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1101, consolidated with 11-1285, 11-1328, 11-1336. On Petitions for Review of Administrative Action of the Environmental Protection Agency. In a split decision, the majority explains that as part of its ongoing effort to limit the emission of greenhouse gases, U.S. EPA issued a rule deferring regulation of "biogenic" carbon dioxide -- non-fossil-fuel carbon dioxide sources such as ethanol -- for three years. Citing scientific uncertainty over how to account for biogenic carbon dioxide's unique role in the carbon cycle, EPA justified this "Deferral Rule" on the basis of the de minimis, one-step-at-a-time, and administrative necessity doctrines. Several environmental groups petitioned for review, arguing that EPA's invocation of these doctrines was arbitrary and capricious. The majority vacated EPA's Deferral Rule.

 

    The majority indicates that EPA defines biogenic carbon dioxide emissions, as emissions "directly resulting from the combustion or decomposition of biologically-based materials other than fossil fuels and mineral sources of carbon." Deferral for CO2 Emissions from Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs ("Deferral Rule"), 76 Fed. Reg. 43,490, 43,493 (July 20, 2011). Biogenic carbon dioxide emissions are generated from, among other things, "the biological decomposition of waste in landfills, wastewater treatment[,] or manure management processes," "fermentation during ethanol production," and the "combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material." The majority also indicates that the Deferral Rule contains a sunset provision on July 21, 2014, and it is voluntary, i.e. "Each state may decide if it wishes to adopt the deferral and proceed accordingly." At least one State, Massachusetts, is currently regulating biogenic carbon dioxide sources at Step Two of the Tailoring Rule.

 

    The Center for Biological Diversity and several other environmental organizations now petition for review. The Appeals Court reviews the actions of the EPA to determine whether they are (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; or (C) in excess of statutory jurisdiction, authority, or limitations. The Appeals Court also determines that the case is ripe for review. Because EPA regulates carbon dioxide as an "air pollutant," petitioners contend that the agency has no authority to exempt any sources of carbon dioxide, including biogenic sources, from the PSD permitting program.

 

    The majority quickly rejects EPA's use of the de minimis doctrine saying, "EPA expressly disavows this doctrine, explaining that the Deferral Rule has a three-year sunset provision whereas the de minimis doctrine 'is used to establish permanent exemptions'. . . Given this concession, the Deferral Rule cannot be sustained under the de minimis doctrine. On the "one-step-at-a-time" the majority says, "EPA failed to explain in the Deferral Rule what 'full compliance' with the 'statutory mandate' means. EPA's brief. . . nowhere offers an interpretation of the Clean Air Act that would allow the agency to treat biogenic carbon dioxide sources differently. . . Without a clear answer to that question, EPA has no basis for invoking the one-step-at-a-time doctrine."

 

    Finally, EPA next invokes the "administrative necessity" doctrine, which permits an agency to "avoid implementing a statute . . . by showing that attainment of the statutory objectives is impossible." The majority says, "Without deciding whether the middle-ground option could pass muster under the statute, we agree with petitioners that EPA's rejection of that option was arbitrary and capricious."

 

    The majority concludes, "Because the Deferral Rule cannot be justified under any of the administrative law doctrines relied on by EPA, this opinion, contrary to our dissenting colleague's suggestion. . . leaves for another day the question whether the agency has authority under the Clean Air Act to permanently exempt biogenic carbon dioxide sources from the PSD permitting program. If and when EPA adopts a permanent exemption for some or all biogenic carbon dioxide sources, we will have the benefit of three years of scientific study, as well as fully briefed and contextualized arguments about EPA's authority under the Clean Air Act."

 

    The dissenting Justice said, "I believe EPA can -- and should -- defer regulation until it has the time it says it needs to study and resolve the issue it is charged with regulating. I would therefore uphold the Deferral Rule. Alternatively, given that the Deferral Rule expires or will be superseded in a matter of months -- and by then EPA will have at least crystallized the issue before us -- we should hold the case in abeyance as unripe. Accordingly, I respectfully dissent."

 

    Kevin Bundy, a senior attorney with the Center for Biological Diversity's Climate Law Institute said, "Burning trees to generate electricity is dangerous, polluting, and ought to be limited to protect people and the environment. This important decision will reduce respiratory ailments, protect forests and help ensure a healthier, more livable climate." Ann Weeks, legal director of the Clean Air Task Force, who argued the case for the petitioners and appeared on behalf of the Conservation Law Foundation and the Natural Resource Council of Maine said, "Today's ruling upholds EPA's authority to regulate pollution that drives climate change. The court's decision is grounded in an understanding that the science shows that biomass fuels, including tree-burning, can make climate disruption worse. The court clearly noted that the atmosphere can't tell the difference between fossil fuel carbon dioxide and carbon dioxide emitted by burning trees." Niel Lawrence, senior attorney at the Natural Resources Defense Council said, "The science is clear that not all biomass burning is good for the planet and today's ruling rightly affirms science as the guide for how EPA must now move forward on biomass energy production. This decision will ultimately benefit the climate, as well as Americans who want to breathe easier and protect the forests that they love. It will also ensure that our investments in clean energy go to sources that are actually clean."

 

    Access the complete majority opinion, separate concurrence and dissent (click here). Access a release from environmental groups (click here). [#Climate, #Air, #CADC]