Dow AgroSciences LLC v. National Marine Fisheries Service

Feb 21: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-2337. Appealed from the United States District Court for the District of Maryland, at Greenbelt. In summary, the Appeals Court reversed, the agency's biological opinion vacated, and the case remanded by published opinion.

 

    In this appeal, the Appeals Court decides whether a "biological opinion" (BiOp) issued by the National Marine Fisheries Service

(Fisheries Service or the Service) to U.S. EPA is arbitrary and capricious under the Administrative Procedure Act. The BiOp,

which the Fisheries Service provided as part of the EPA's process of reregistering the pesticides chlorpyrifos, diazinon, and malathion, concluded that these pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and therefore used without substantial restriction.

 

    Three manufacturers of the pesticides commenced the legal action, challenging the BiOp by contending that it rested on numerous unsupported assumptions and conclusions and faulty analyses and that therefore it was arbitrary and capricious. The district court, unpersuaded, granted the Fisheries Service's motion for summary judgment, finding that the BiOp was rationally supported by the "voluminous facts and studies considered by the [Fisheries Service]."

 

    The Appeals Court ruled, "On appeal, we reverse, concluding that the BiOp was not the product of reasoned decision-making in that the Fisheries Service failed to explain or support several assumptions critical to its opinion. To enable a renewed agency process, we vacate the BiOp and remand this case to the district court with instructions to remand it to the Fisheries Service for further proceedings consistent with this opinion."

 

    In its conclusion, the Appeals Court said further, "In sum, the Fisheries Service's November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational. While the Service may have had good and satisfactory explanations for its choices, the BiOp did not explain them with sufficient clarity to enable us to review their reasonableness. For that reason, we conclude the BiOp is arbitrary and capricious. In reaching this conclusion, we have addressed what we consider to be the more obvious flaws, but others are claimed to exist. We have not addressed all of the Pesticide Manufacturers' complaints because, on remand, they can be aired and addressed in the renewed agency process. We find it sufficient at this point to vacate the BiOp in its present form and require the Fisheries Service to address not only the flaws we identified but also any additional matters that may be raised on remand. . . "

 

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

 

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Menasha Corporation v. DOJ

Menasha Corporation v. DOJ - Feb 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-1720. Appeal from the United States District Court for the Eastern District of Wisconsin. As explained by the Appeals Court, this appeal is about whether the attorney work product privilege protects from pretrial discovery work product exchanged between Justice Department lawyers who are assigned to provide legal assistance to Federal agencies that have conflicting interests.

 

    In 2010 the United States, on behalf of U.S. EPA and the Department of the Interior, filed, jointly with the State of Wisconsin, a suit in a federal district court in Wisconsin against a number of public and private entities. The suit (United States v. NCR Corp., No. 10-C-910, E.D. Wis.) charged that the defendants had polluted the 39-mile long Lower Fox River, plus 1000 square miles of Green Bay (both bodies of water in Wisconsin), with PCBs (polychlorinated biphenyls), a toxic chemical, and that by doing so they had incurred liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

 

    As part of a settlement agreement, embodied in a consent decree the United States offered to contribute $4.5 million to the clean up of the polluted site. The Appeals Court notes that a consent decree requires judicial approval. A court considering a proposed CERCLA consent decree must ensure that it was negotiated fairly. Menasha opposes the proposed consent decree, which has not yet been approved and "contends that the federal agencies' activities increased the costs of the pollution at the Superfund site by far more than $4.5 million, which is only three-tenths of one percent of the estimated potential liability of all

the polluters of the site." The Appeals Court notes that Menasha's opposition to the proposed decree is based on suspicions concerning the bona fides of the negotiations within the Justice Department that led up to the modest estimate of the government's liability.

 

    The team of lawyers in the Justice Department's Environment and Natural Resources Division that is handling the government's case is drawn from two of the Division's sections: the Environmental Enforcement Section, which represents the United States in suits to enforce environmental laws, and the Environmental Defense Section, which defends the United States from suits to enforce

those laws. The case involves Menasha's attempt to obtain communications back and forth between the two sections.

 

    In its conclusion and reversal, the Appeals Court rules, "The Justice Department contends that some of the documents sought by Menasha are also protected by other common law privileges, such as the attorney client privilege and the deliberative process privilege, and also by the privilege for information the disclosure of which could interfere with federal law enforcement. 5 U.S.C. § 552(b)(7)(A). We need not consider these contentions, because all the documents at issue are protected by the work product privilege."

 

    The Appeals Court explains earlier in the opinion that, "Were Menasha's position sound, the Justice Department could never shield attorney work product in a case like this -- a case, not unusual, in which the federal government by virtue of its size and diversity has internal conflicts -- without a crippling reorganization of the Department. Suppose the Department decided (were

we to affirm the district court) that to protect its work product it must create an impermeable membrane between the enforcement section and the defense section. Each section would have to draft its own proposed consent decree. . ."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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