Koontz v. St. Johns River Water Management District

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

 

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

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

 

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

 

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

 

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

 

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Supreme Court Denies Hearing Controversial E15 Waivers Case

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

 

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

 

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

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

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

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

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Supreme Court Will Hear Appeals Of Cross State Air Pollution Rule

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

 

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

 

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

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

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

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

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

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