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

Alaska Wilderness League v. U.S. EPA

Aug 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-71506. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. In its summary of the opinion the Appeals Court indicates, "42 U.S.C. § 7661c(e) is ambiguous as to whether 'increment' requirements are 'applicable' to a temporary source like Shell Offshore, Inc.'s (Shell) drill vessel Kulluk. Accordingly, we defer to the EPA Environmental Appeals Board's (EAB) reasonable interpretation of § 7661c(e). See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The EAB reasonably concluded that Shell need not analyze the Kulluk's potential impact on increment before obtaining an oil exploration permit. We also deny the petition for review of the Environmental Protection Agency's (EPA) exemption of a 500-meter radius surrounding the Kulluk from ambient air quality standards, because the decision was 'a permissible application of the EPA's regulations.' See Resisting Envtl. Destruction on Indigenous Lands, REDOIL v. EPA, 716 F.3d 1155, 1158, 1160–61 (9th Cir. 2013)."

 

    To comply with Title V of the Clean Air Act, Shell sought and obtained three related permits in 2011. At Shell's request, the EPA subsequently consolidated the permits into one permitting document (the Permit). The Permit allows Shell to construct, operate, and conduct "pollutant emitting activities" associated with the Kulluk in the Beaufort Sea off Alaska's

North Slope. Before issuing the Permit, the EPA released a Statement of Basis. The Statement of Basis provided that the EPA would not require Shell to analyze the effect its emissions would have on the "increment for the Kulluk's area of operation." EPA concluded that increment analysis was unnecessary, because, under § 7661c(e) and the other relevant statutes, no increment requirements were "applicable" to the Kulluk.

 

    Alaska Wilderness raised the increment and ambient air issues, among others, in its challenge of the Permit before the EAB. Alaska Wilderness contended that the EPA misinterpreted "applicable increment" under § 7661c(e). Alaska Wilderness argued that EPA's "source-based" interpretation erred by applying increment standards to temporary sources only if the PSD would impose increment standards on a similar stationary source. Alaska Wilderness maintained a "geography based" interpretation -- that increment requirements are "applicable" to all sources any time they are established for the geographic area. Alaska Wilderness also argued that the "ambient air" exemption was inconsistent with the Costle Letter, because Shell did not own and could not, by physical barrier, exclude the public from accessing the space. In a 100-page decision (the EAB Decision), the EAB rejected both challenges.

 

    The Appeals Court rules, "As a threshold matter, we reject Alaska Wilderness's argument that the EAB Decision is not entitled to Chevron deference. . . Section 7661c(e) is ambiguous, and the EPA's interpretation is reasonable under the applicable statutes' plain language. Thus, we owe Chevron deference to the EAB Decision not to require a preconstruction increment analysis for the Kulluk. Similarly, as we held in REDOIL, the EPA permissibly granted a 500-meter exemption to the Kulluk from "ambient air" standards. Petition denied."

 

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

 

Entergy Nuclear Vermont Yankee, LLC v. Gov. Shumlin

Aug 14: In the U.S. Court of Appeals, Second Circuit, Case No. 12-707. Appealed from U.S. District Court for the District of Vermont. A summary indicates that the owners of the nuclear power plant brought action against officials of the State of Vermont, seeking a declaratory judgment and permanent injunction that three Vermont statutes are preempted by the Atomic Energy Act, and that Vermont's efforts to require a below-market power purchase agreement is preempted by the Federal Power Act and violates the dormant Commerce Clause. Following a bench trial, the United States District Court for the District of Vermont ruled in plaintiffs' favor on the Atomic Energy Act preemption claim and the dormant Commerce Clause claim, and found that the Federal Power Act preemption claim was not ripe. The Appeals Court affirmed We the district court as to the Atomic Energy Act and Federal Power Act preemption claims, and reversed the district court as to the dormant Commerce Clause claim. One Judge issued a separate and "reluctantly" concurring opinion.

 

    Without getting into the complete details, at the heart of the litigation are two relatively new Vermont laws which would have limited or prohibited the continued operation of the Vermont Yankee nuclear power plant. Act 74, which was enacted on June 21, 2005, had two principal effects. First, Entergy would only need to seek a "certificate of public good" (CPG) from the Board before constructing storage facilities for new spent nuclear fuel, rather than the Vermont Legislature as had been required by section 6501(a). However, the CPG would remain in effect only until March 21, 2012. The second effect of Act 7 74 was that after March 21, 2012, the storage of any new spent nuclear fuel in Vermont would require an affirmative vote by the Vermont Legislature. If no such affirmative vote occurred, storage of nuclear waste generated from operations after March 21, 2012, would not be permitted. Thus, Vermont Yankee would have to shut down. Act 160 was passed on May 18, 2006, and provides that "a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly."

 

    In its conclusion the Appeals Court said, ". . .we affirm the district court's grant of a declaratory judgment that Act 74 and Act 160 are facially preempted by the Atomic Energy Act. We reverse the district court's determination that Vermont's efforts to condition a new Certificate of Public Good for Vermont Yankee on the execution of a favorable power purchase agreement violate the dormant Commerce Clause. We affirm the district court's determination that Entergy's challenge under the Federal Power Act is unripe. We affirm the district court's grant of a permanent injunction enjoining the defendants from enforcing sections 6522(c)(2) or 6522(c)(4) in title 10 of the Vermont Statutes, as enacted by Act 74, or sections 248(e)(2), 248(m), or 254 in title 30 of the Vermont Statutes, as enacted by Act 160. Finally, we vacate the district court's permanent injunction enjoining the defendants from conditioning the issuance of a Certificate of Public Good on the execution of a below-wholesale-market power purchase agreement between Entergy and Vermont utilities or otherwise requiring Vermont Yankee to sell power to Vermont utilities at preferential rates."

 

    Judge Susan Carney issued a separate concurring opinion stating in part, "I concur, reluctantly, in the majority's detailed and carefully reasoned opinion striking down Vermont Acts 74 and 160. My reluctance stems not from any flaw in the majority's analysis, but rather from my concern that Congress, in enacting the Atomic Energy Act (AEA), did not intend the result we reach. Rather, we are led to our conclusion principally by an expansive gloss on the preemptive scope of the AEA first set forth in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983) (Pacific Gas). There, the Supreme Court instructed that '[a] state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field' and would therefore be preempted. Id. at 213 (emphasis added)."

 

    Access the complete opinion and concurrence (click here). [#Energy/Nuclear, #CA2]

In Re: Aiken County (Yucca Mountain Case)

Aug 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1271. On Petition for Writ of Mandamus. In this split decision, the Majority explains that this case raises significant questions about the scope of the Executive's authority to disregard Federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. Petitioners include the States of South Carolina and Washington, as well as entities and individuals in those States. Nuclear waste is currently stored in those States in the absence of a long-term storage site such as Yucca Mountain.

 

    The Majority says, "The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress. Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process. We therefore grant the petition for a writ of mandamus."

 

    The Majority reminds that the Nuclear Waste Policy Act, which was passed by Congress and then signed by President Reagan in 1983, provides that the Nuclear Regulatory Commission "shall consider" the Department of Energy's license application to store nuclear waste at Yucca Mountain and "shall issue a final decision approving or disapproving" the application within three years of its submission. 42  U.S.C. § 10134(d). The statute allows the Commission to extend the deadline by an additional year if it issues a written report explaining the reason for the delay and providing the estimated time for completion. Id. § 10134(d), (e)(2).

 

    The Majority indicates that, ". . .the statutory deadline for the Commission to complete the licensing process and approve or disapprove the Department of Energy's application has long since passed. Yet the Commission still has not issued the decision required by statute. Indeed, by its own admission, the Commission has no current intention of complying with the law. Rather, the Commission has simply shut down its review and consideration of the Department of Energy's license application."

 

    The Majority concludes, "At the behest of the Commission, we have repeatedly gone out of our way over the last several years to defer a mandamus order against the Commission and thereby give Congress time to pass new legislation that would clarify this matter if it so wished. In our decision in August 2012, the Court's majority made clear, however, that mandamus likely would have to be granted at some point if Congress took no further action. See Order, In re Aiken County, No. 11-1271 (D.C. Cir. Aug. 3, 2012). Since then, Congress has taken no further action on this matter. At this point, the Commission is simply defying a law enacted by Congress, and the Commission is doing so without any legal basis.

 

    "We therefore have no good choice but to grant the petition for a writ of mandamus against the Commission. This case has serious implications for our constitutional structure. It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission. Our decision today rests on the constitutional authority of Congress, and the respect that the Executive and the Judiciary properly owe to Congress in the circumstances here. To be sure, if Congress determines in the wake of our decision that it will never fund the Commission's licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money. And Congress, of course, is under no obligation to appropriate additional money for the Yucca Mountain project. Moreover, our decision here does not prejudge the merits of the Commission's consideration or decision on the Department of Energy's license application, or the Commission's consideration or decision on any Department of Energy attempt to withdraw the license application. But unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process. The petition for a writ of mandamus is granted."

 

    Chief Judge Garland issued a dissenting opinion stating in part, "Mandamus is a 'drastic and extraordinary remedy reserved for really extraordinary causes.' Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal quotation marks omitted). Even if a petitioner can show that it has a 'clear and indisputable' right to the writ, issuing the writ remains 'a matter vested in the discretion of the court.' Id. at 381, 391. Likewise, 'mandamus does not necessarily follow a finding of a [statutory] violation.' In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (second alteration in original) (quoting In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C.Cir. 1991)). To the contrary, this court has not hesitated to deny the writ even when an agency has missed a statutory deadline by far more than the two years that have passed in this case. See id. at 546, 551 (declining to issue the writ, notwithstanding that the agency missed an 'express' statutory deadline by 8 years in 'clear violation' of the statute). Finally, and most relevant here, '[c]ourts will not issue the writ to do a useless thing, even though technically to uphold a legal right.' United States ex rel. Sierra Land & Water Co. v. Ickes, 84 F.2d 228, 232 (D.C. Cir. 1936).

 

    "Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do 'a useless thing.' The NRC has not refused to proceed with the Yucca Mountain application. Rather, by unanimous votes of both the Commission and its Atomic Safety and Licensing Board, it has suspended the application proceeding until there are sufficient funds to make meaningful progress. . . " Judge Garland explains that Congress has refused to provide adequate funding to pursue the project and it has been packed up and dismantled. He concludes his dissent, "In short, given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again. This exercise will do nothing to safeguard the separation of powers, which my colleagues see as imperiled by the NRC's conduct. . . And because '[i]t is within our discretion not to order the doing of a useless act,' Sierra Land & Water, 84 F.2d at 232, I respectfully dissent."

 

       Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL) issued a statement welcoming the court's decision, which they said "affirms that the NRC has the statutory duty to complete the license review using the funds appropriated by Congress." They said, "We welcome this long-awaited decision. Today's action by the court is a significant milestone for Yucca Mountain and a clear rebuke of the Nuclear Regulatory Commission's failure to implement the Nuclear Waste Policy Act. The Obama administration rejected the law and prematurely terminated the Yucca Mountain repository program, but Congress and the courts have spoken out to prevent billions of taxpayer dollars and three decades of research from being squandered. Last month, 335 House members, including the majority of Democrats, voted to boost funding for the license review in the energy and water appropriations bill.

    "Our great system of checks and balances will ensure the law is carried out, and we will soon know once and for all whether Yucca Mountain is safe. Ultimately, our goal continues to be the safe permanent storage of spent nuclear fuel, giving states and communities the certainty they need. This decision will help re-start the important work toward a resolution. We will continue our oversight of the Commission to ensure the license review is swiftly resumed and the NRC's independent, technical conclusions about the safety of Yucca Mountain are made available to the public. Let the science be the deciding factor on Yucca Mountain, not politics."

 

    Christopher Guith, vice president of policy at the U.S. Chamber's Institute for 21st Century Energy, issued a statement saying, "Today's ruling by the D.C. Circuit Court has reaffirmed what Congress determined long ago, but that the Executive Branch has been attempting to undermine. The Nuclear Waste Policy Act explicitly set out the nation's nuclear waste plan nearly 30 years ago. The Court's ruling reminds us that until the law is changed, Yucca Mountain is the nation's used fuel and nuclear waste repository. It's time for the NRC to implement the law of the land."

 

    Access the complete opinion and dissent and a separate concurrence (click here). Access the statement from Reps. Upton & Shimkus (click here). Access the U.S. Chamber statement (click here). [#Haz/Nuclear, #CADC]

Greg Herden v. United States

Aug 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3530. Appealed from United States District Court for the District of Minnesota in Minneapolis. In an split, en banc decision, the Appeals Court explains that Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged their cattle operation suffered damage because of a seed mixture an employee of the United States Department of Agriculture (USDA) directed them to plant on their land. The district court dismissed the Herdens' claims, concluding the Federal employee's conduct fell within the FTCA's discretionary-function exception. The Appeals Court indicates that, "After a divided panel of this court reversed the district court, the en banc court granted the government's petition for rehearing. We now affirm the district court."

 

    The case involves the Herdens who operate a three-generation cattle farm in northern Minnesota. In May 2004, the Herdens chose to participate in the Environmental Quality Incentives Program (EQIP). EQIP is a program run by the USDA through the Natural Resource Conservation Service (NRCS). In this case, the Herdens agreed to plant a mix of grasses and legumes on some of their pasture lands, and the government agreed to reimburse the Herdens 90% of the costs associated with planting the seed mixture chosen by the NRCS. In Minnesota, William Hunt served as the NRCS's State Conservationist. Hunt delegated seed mixture planting decisions to his staff, including State Grazing Specialist Howard Moechnig. Moechnig was the particular staff member who visited the Herdens' ranch to select a seed mixture.

    After Moechnig chose the seed mixture for the pasture in Section 11, Greg Herden said he complained to Moechnig about the high amount of Alsike Clover in the mixture because the clover can create toxic hay for cattle. Moechnig does not recall Herden complaining about Alsike Clover toxicity, but does remember Herden asking for permission to plant a mix containing alfalfa. Moechnig denied permission to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and therefore would neither meet NRCS's environmental goals nor be a good investment for the government. The Herdens chose to comply with Moechnig's seed mixture decision because failure to do so would have resulted in losing the federal funding under EQIP.

 

    The Herdens claim toxic hay began to injure their cattle in the spring of 2007. Several calves were stillborn, and others died shortly after birth. Adult cattle also died. The Herdens attribute the illnesses and deaths of their cattle to the Alsike Clover in the hay harvested from the Section 11 pasture. They claim the losses to their cattle herd have virtually destroyed their multi-generational farming operation. The NRCS contests the Herdens' claims and instead believes mold in improperly stored hay caused the problems with the cattle herd.

    The Majority reasoned that, "On one hand, the Herdens believed a seed mixture containing alfalfa would have better advanced the statutory goal of agricultural production, as well as one of Code 512's stated purposes of improving or maintaining livestock nutrition and/or health. On the other hand, Moechnig believed a seed mixture containing Alsike Clover would better advance the statutory goal of environmental quality, and at least one of Code 512's stated purposes of reducing soil erosion by wind and/or water. The fact that Moechnig was required to balance those competing interests in order 'to optimize environmental benefits,' 16 U.S.C. § 3839aa, clearly demonstrates the decision he ultimately made was susceptible to policy analysis and thus the type of decision Congress meant to shield from judicial second-guessing. A federal employee implementing EQIP at the local, operational level must have the discretion to balance environmental protection and cattle production in order for the program to be worth the government's significant investment. . . Moechnig's job required him to balance protecting the environment with providing nutritious cattle forage, while at the same time being cognizant of the cost to the Herdens and the federal government. We therefore conclude this case involves the type of discretionary decision Congress meant to shield from judicial second-guessing."

 

    Three Justices dissented saying, ". . .Moechnig's decision in this case is not the type of decision Congress intended to shield from suit. Decisions are not shielded from suit merely because it is possible to identify policy issues behind the government program at issue. Rather, there must be 'real and competing policy considerations implicated,' C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 802 (8th Cir. 1993), at the general level of decision-making challenged in the lawsuit. This 'is what separates' protected from unprotected conduct. Id. It is our task to carefully distinguish those cases involving meaningful policy considerations from cases like this, that bear only the superficial trappings of such considerations. . . Moechnig's limited authority did not extend to the type of discretion Congress intended to shield from suit."

 

    Access the complete opinion and dissent (click here). [#Agriculture, #Land, #CA8]

NRDC v. County Of Los Angeles

Aug 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56017. On Remand From The United States Supreme Court [In Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710 (2013), See WIMS 1/8/13].

 

The Appeals Court explains, Plaintiffs-Appellants Natural Resources Defense Council and Santa Monica Baykeeper (collectively, the Plaintiffs) filed suit against the County of Los Angeles and the Los Angeles County Flood Control District (collectively, the County Defendants) alleging that the County Defendants are discharging polluted stormwater in violation of the terms of their National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to the Federal Water Pollution Control Act (the Clean Water Act, Act, or CWA), 86 Stat. 816, codified as amended at 33 U.S.C. §§ 1251, et

seq.

 

    The district court granted the County Defendants' motion for summary judgment, reasoning that Plaintiffs failed to prove that any individual defendant had discharged pollutants in violation of the Clean Water Act, where Plaintiffs' only evidence of violations was monitoring data taken downstream of the County Defendants' (and others') discharge points, as opposed to data sampled at the relevant discharge points themselves.

 

    On appeal, the Ninth Circuit affirmed the district court's judgment in part and reversed in part. Natural Res. Def. Council, Inc. v. Cnty. of L.A., 673 F.3d 880 (9th Cir. 2011) [See WIMS 3/11/11]. On January 8, 2013, the Supreme Court reversed our judgment and remanded this case to us for further proceedings. L.A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710 (2013). On February 19,

2013, the Ninth Circuit ordered the parties to file supplemental briefs addressing the implications of the Supreme Court's ruling.

 

    The Appeals Court rules, "Having considered the Supreme Court's ruling, the responses of the parties in their supplemental briefs, and other matters noted herein, we now conclude that the pollution exceedances detected at the County Defendants' monitoring stations are sufficient to establish the County Defendants' liability for NPDES permit violations as a matter of law. Accordingly, we once again reverse the district court's grant of summary judgment in favor of the County Defendants, and remand to the district court for a determination of the appropriate remedy for the County Defendants' violations."

 

    In conclusion of its reverse and remand the Ninth Circuit says, "Because the results of County Defendants' pollution monitoring conclusively demonstrate that pollution levels in the Los Angeles and San Gabriel Rivers are in excess of those allowed under the Permit, the County Defendants are liable for Permit violations as a matter of law. This case is remanded to the district court for further proceedings consistent with this opinion, including a determination of the appropriate remedy for the County Defendants' violations."

 

    Steve Fleischli, senior attorney and director of NRDC's national water program commented on the decision saying, "Today's influential victory once again confirms Los Angeles County's legacy of Clean Water Act violations. No longer can the County sit idle and let persistent pollution problems sicken swimmers in Southern California. Today, Los Angeles residents and visitors alike can celebrate a future with cleaner water, knowing that the County is legally obligated to get to work to address its pollution problem, and protect people and water quality. Luckily, we know there are a range of green infrastructure solutions available to ensure this pollution is addressed."

    Liz Crosson, executive director of Los Angeles Waterkeeper said, "This opinion is a turning point for all of Los Angeles. Stormwater runoff is the number one source of pollution in Los Angeles' rivers and beaches and LA County is the largest discharger of stormwater. Holding LA County responsible for its pollution and working with them to find region-wide solutions is the biggest victory we could imagine."

    Access the complete opinion of the Ninth Circuit (click here). Access the release with background information from NRDC (click here).  [#Water, #SupCt, #CA9]

Ackerman v. ExxonMobil Corporation

Aug 7: In the U.S. Court of Appeals, Fourth Circuit, Case No. 12-1103. Appealed from the United States District Court for the District of Maryland, at Baltimore. ExxonMobil Corporation (Exxon) and John R. Hicks (together, Defendants) appeal a district court order abstaining from exercising jurisdiction under the Colorado River doctrine in a case brought against Defendants. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). The Appeals Court said it could find no reversible error and affirmed the decision of the district court.

 

    In June 2004, hundreds of residents of Fallston, Maryland, filed a putative class action (the Koch action) against Defendants in Maryland state court. The complaint alleged several state law causes of action for the contamination of their properties by gasoline and the gasoline additive methyl tertiary-butyl (MTBE) from an Exxon station that Hicks operated.

 

     The Ackerman Plaintiffs filed a motion in federal court seeking to remand the case to state court, arguing that removal was time-barred and that the Defendants waived their right to remove by litigating for several years in state court. Alternatively, the Ackerman Plaintiffs requested that the district court abstain under the Colorado River doctrine, which permits federal courts, under exceptional circumstances, to refrain from exercising jurisdiction in deference to pending, parallel state proceedings.

 

    When concluding that abstention was proper, the district court focused in large part on the length of time that the Koch action had been pending in state court and the progress that had been made on the case in the state system. The Koch case had proceeded in state court for years before the Ackerman claims were extracted and separately re-filed, and extensive discovery efforts had been conducted over the course of those years.

   

    The Appeals Court explained, "Balancing these facts and the other relevant factors against its own duty to exercise jurisdiction, the district court ultimately concluded that 'this litigation presents the rare, exceptional circumstances when wise judicial administration counsels abstention.'. . . The court therefore stayed Ackerman pending the resolution of the Koch proceedings in state court. The Defendants now appeal, arguing that the district court erred by granting the Plaintiffs' motion to abstain."

 

    In its conclusion the Appeals Court rules, "To summarize, we hold that 28 U.S.C. § 1446(d) affects only the jurisdiction of the state court only with regard to the case actually removed to federal court. Because Koch was not removed, the state court maintained jurisdiction over it, and the amendment to the complaint in that case was not void ab initio. That the district court might have had authority to issue an injunction striking the amendment does not make the amendment void when the district court never issued an injunction. The district court thus was correct to consider the amended Koch complaint in determining whether the Koch and Ackerman actions were parallel, and the court did not abuse its discretion when concluding that exceptional circumstances warranted abstention in favor of the pending Koch action. Accordingly, for the foregoing reasons, we hereby affirm the district court's order."

 

    In a strange separate, "concurrence" opinion, one Justice writes, "I write separately because the district court's errors were so many and of such significance that I cannot share the majority's confidence that they did not contribute to that result. More importantly, I believe that leaving those errors not only unaddressed but unacknowledged will allow, if not encourage, their repetition. My fundamental concern with the majority's opinion is that in its magnanimity to a profoundly flawed disposition below, it omits critical facts at the expense of our well-established obligation to exercise the jurisdiction that we have. . ."

 

    Access the complete opinion and concurrence (click here). [#Remed, #CA4]

Litgo New Jersey Inc v. Comm NJ Dept Env Protection

Aug 6: In the U.S. Court of Appeals, Third Circuit, Case No. 12-1288 & 12-1418 . Appealed from the U.S. District Court for the District of New Jersey. In a split opinion, the Majority Appeals Court summarizes saying the appeal follows a seventeen-day bench trial that involved several claims arising under Federal and State environmental laws. At issue is which parties bear the responsibility for the removal of hazardous substances present in the soil and groundwater at a parcel of land in Somerville, New Jersey (the Litgo Property or Property).  The Appeals Court says although the issue is "complicated by the fact that the Property has been the site of various private and public concerns since 1910, the District Court engaged in a careful examination of the evidence and the arguments of the parties, and we essentially agree with its adjudication of the case. We disagree with the District Court's determination, however, in two respects, and will reverse in part and remand."

 

    The Majority concludes, ". . .we agree with the great majority of the District Court's comprehensive and thoughtful consideration of this complex case, and will affirm its judgment in all respects save two: (1) the Litgo Appellants should have been awarded prejudgment interest; and (2) the District Court erred in dismissing the RCRA claim against the Sanzari Appellees. We will vacate the District Court's order in those respects and will remand for further proceedings consistent with this opinion."    

    In a lengthy dissenting opinion the Justice concluded, "The majority opinion reaches its conclusion notwithstanding the fact that there is nothing in the text, intent, history, or purpose of RCRA indicating that Congress affirmatively prohibited the states from hearing and deciding cases brought pursuant to RCRA. The majority in its opinion has accordingly defied enduring Supreme Court precedents that go as far back as 1876. . . federal authority cannot excessively intrude on local regulation of land and water, it is essential (absent an express Congressional declaration otherwise) that the states should, through their own courts, be able to enforce the laws governing pollution of their land, even when the source of the law is federal. I am compelled to part company with my colleagues in the majority because they have failed to adhere to Supreme Court precedent interpreting Congress' legislation. As I have pointed out, since at least 1867 the Supreme Court has required federal courts to recognize dual jurisdiction in matters such as RCRA. The majority here has not. "

 

    Access the complete opinion and dissent (click here). [#Haz, #Drink, #Remed, #CA3]

Carolyn Baker v. Chevron U.S.A. Inc.

Aug 2: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 11-4369; 12-3995. Appealed from the U.S. District Court for the Southern District of Ohio. In this unpublished opinion, the case arises from defendant Chevron's activities at its crude oil refinery near the Village of Hooven in Hamilton County, Ohio. Chevron acknowledges that from 1931 to 1986, the refinery was the source of considerable environmental contamination, including hazardous air emissions and a cumulative release of approximately eight million gallons of gasoline that gravitated through the soil and formed a plume atop the groundwater under the refinery. By 1996, the plume had migrated under a portion of the Village of Hooven.

 

    Plaintiffs are approximately 200 former and current neighbors of the refinery who allege claims for damages arising out of the refinery's air emissions, the groundwater plume, and the "soil vapors" arising from the plume that escape to the surface. Plaintiffs fall into three distinct categories: (1) individuals who claim personal injury because of the air emissions; (2) individuals who seek medical monitoring damages because their exposure to the plume and its soil vapors has given them an increased risk of contracting a serious disease; and (3) individuals who claim property damage because of the plume and its soil vapors.

 

    The district court bifurcated the personal injury plaintiffs from the property damage plaintiffs and selected bellwether plaintiffs from each group to determine the viability of each category of claims. After excluding two of plaintiffs' experts opinions as unreliable, the district court granted summary judgment to Chevron on all claims. The district court also granted Chevron's motion for Rule 11 sanctions, ordering plaintiffs' counsel to pay Chevron $250,000 in defense costs because their positions regarding the legal and evidentiary basis for medical monitoring damages were objectively unreasonable. Plaintiffs appealed the orders excluding their experts and granting summary judgment to Chevron; plaintiffs' counsel appealed the order granting Rule 11 sanctions to Chevron. The district court granted Chevron's motions, holding that "the record fails to show that the hydrocarbon plume caused any damage to Plaintiffs' property or interfered with their property rights or with the use and enjoyment of their properties." The Appeals Court affirmed the district court decision in favor of Chevron.

 

    In part of its conclusion, the Appeals Court said, "After counsel admitted they had no causation proofs, the court suggested a Raceway dismissal so that counsel could challenge the court's legal rulings on appeal; the parties agreed. Later, however, counsel reneged because they wanted to dismiss the claims for medical monitoring and the nonbellwether property damage claims, whereas Chevron wanted to adhere to the compromise struck on the record and dismiss only the medical monitoring claims. In light of counsels' admission regarding their lack of evidence, Chevron subsequently sent counsel a Rule 11 safe-harbor letter advising counsel to voluntarily dismiss or face the possibility of paying defense costs for the medical monitoring claims going forward. Counsel refused to dismiss, believing that they were ethically obligated to preserve the medical monitoring plaintiffs' appellate rights. Counsel was mistaken.

 

    Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at 627 ('Rule 11 imposes a continual obligation on attorneys to refrain from pursing meritless or frivolous claims at any stage of the proceedings . . . .') (citation and internal quotation marks omitted); Runfola, 88 F.3d at 373 (affirming Rule 11 sanctions against counsel who failed to dismiss the action after becoming aware of their inability to assert any evidence in support of their claims). Given the history of this case, the district court did not commit a clear error of judgment by sanctioning counsel for continuing to litigate meritless claims. Further, counsel's false dilemma argument -- either dismiss and lose appeal rights or litigate and pay costs -- is unpersuasive. The district court offered counsel a Raceway dismissal that would have allowed counsel to promptly challenge the district court's rulings in this court. Despite this offer, counsel refused to dismiss only the claims of the medical monitoring plaintiffs and continued litigating under the specter of Rule 11 at their own peril. . . we affirm the judgment of the district court.

 

    Access the complete opinion (click here). [#Remed, #CA6]

Montana Wilderness Association v. BLM

Jul 31: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35818 & 11-35821. Appealed from the United States District Court for the District of Montana. In this partially split decision, the Majority Appeals Court explains that plaintiff environmental groups challenge the Bureau of Land Management's (BLM) Resource Management Plan (RMP) for the Upper Missouri River Breaks National Monument (Monument). The district court granted summary judgment to the defendants on all claims.

 

    The Majority rules, "We affirm in part, reverse in part and remand. We hold that BLM complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) but violated the National Historic Preservation Act (NHPA)."

 

    By way of background, the Antiquities Act authorizes the President of the United States to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments. 16 U.S.C. § 431.

 

    On the NHPA claims, Montana Wilderness Association (MWA) argues that BLM was required to conduct a Class III inventory in the areas where historic sites are most likely to be found (the river corridor) and the areas in which historic sites are most likely to be damaged or destroyed (roads, airstrips and dispersed camping sites). The Wilderness Society (TWS) argues that BLM should be required to conduct a Class III inventory for the most affected areas, which TWS says are the open road corridors. The government argues that BLM's reliance on a Class I survey was reasonable and in good faith, citing several considerations.

 

    The Majority indicates, ". . .we hold that BLM failed to make a reasonable effort to identify historical and cultural resources. Consistent with BLM's own policy documents, BLM is required to conduct Class III inventories for roads, ways and airstrips that have not been surveyed previously or were surveyed decades ago."

 

    The Majority concludes, "We conclude that the district court properly granted summary judgment in favor of the defendants on the plaintiffs' FLPMA and NEPA claims. We hold that the court erred by granting summary judgment in favor of the defendants on the plaintiffs' NHPA claim. We vacate that portion of the judgment and remand with instructions to enter judgment in favor of the plaintiffs on the NHPA claim and to enter an appropriate order requiring BLM to conduct Class III surveys with respect to roads, ways and airstrips that have not been subject to recent Class III surveys. Each party shall bear its own costs of appeal."

 

    The partially dissent Justice indicated that he disagreed with "the majority's conclusion that the RMP's definition of 'road' for purposes of the off-road travel ban is reasonable." He said, "I conclude that BLM's

adoption of this definition of 'road' violates the Proclamation, FLPMA, and the Administrative Procedure Act (APA) because BLM did not explain how its expansive definition of 'road' serves the Proclamation's essential purpose of protecting Monument objects. . . I disagree that BLM's definition of 'road' can survive APA review. . ."

 

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