Thursday, September 19, 2013

Rocky Mountain Farmers Union v. Corey (CARB)

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15131 & 12-15135. Appeal from the United States District Court for the Eastern District of California. In this partially split decision, the panel affirmed in part and reversed in part the district court's summary judgment, and vacated the district court's preliminary injunction and remanded in an action which alleged that California's Low Carbon Fuel Standard, violated the dormant Commerce Clause and was preempted by Section 211(o) of the Clean Air Act, 42 U.S.C. § 7545(o). There were many parties in the case and a number of states including Michigan filed an amicus brief opposing the California standard. The court staff summarized the opinion as follows:
    The panel held that the Fuel Standard's ethanol provisions were not facially discriminatory, and reversed that portion of the district court's decision and remanded for entry of partial summary judgment in favor of California Air Resources Board ("CARB"). The panel also reversed the district court's decision that the Fuel Standard was an impermissible
extraterritorial regulation and the panel directed that an order of partial summary judgment be entered in favor of CARB on those grounds. The panel remanded the case for the district court to determine whether the ethanol provisions discriminate in purpose or effect and, if not, to apply the balancing test established in Pike v. Bruce Church, Inc., 397
U.S. 137 (1970).
    The panel affirmed the district court's conclusion that the Fuel Standard's crude oil provisions (the 2011 Provisions), were not facially discriminatory, but reversed the district court's holding that the 2011 Provisions were discriminatory in purpose and effect. The panel directed the district court to enter an order of partial summary judgment in favor of CARB on those issues. The panel remanded to the district court to apply the Pike balancing test to the 2011 Provisions.
    The panel affirmed the district court's conclusion that Section 211(c)(4)(b) of the Clean Air Act does not insulate California from scrutiny under the dormant Commerce Clause.
    The panel remanded to the district court with instructions to vacate the preliminary injunction. The panel expressed no opinion on plaintiffs' claim that the Fuel Standard is preempted by the federal Renewable Fuel Standard (RFS). The panel also expressed no opinion on CARB's claim that the savings clause in the Energy Independence and Security Act of 2007 precludes implied preemption by the RFS.
    Concurring in part and dissenting in part, Judge Murguia agreed with the majority's conclusions concerning the crude oil regulations and preemption under the Clean Air Act. She dissented from the majority's conclusion that ethanol regulations do not facially discriminate against interstate commerce.
    In part, the Appeals Court stated: "California should be encouraged to continue and to expand its efforts to find a workable solution to lower carbon emissions, or to slow their rise. If no such solution is found, California residents and people worldwide will suffer great harm. We will not at the outset block California from developing this innovative, nondiscriminatory regulation to impede global warming. If the Fuel Standard works, encouraging the development of alternative fuels by those who would like to reach the California market, it will help ease California's climate risks and inform other states as they attempt to confront similar challenges."

    Tim O'Connor, Director of Environmental Defense Fund's (EDF's) California Climate Initiatives commented on the decision saying, "This is a great day for public health and the economy of California. The court clearly upheld a groundbreaking policy that will protect consumers and the environment by diversifying our fuel mix and providing more choices for a clean energy future."

    Natural Resources Defense Council (NRDC) Senior Attorney, David Pettit said, "Today's victory ensures Californians are given better, cleaner choices at the fuel pump, which is something everyone can support. This policy will spur American ingenuity to produce cleaner fuels with fewer impacts to our environment. The standard is working to reduce pollution while decreasing the state's reliance on oil. "We're already on track to achieve these goals, and today's ruling reaffirms California as a national leader for common sense actions to curb climate change."
    Access the complete opinion and partial dissent (click here). Access a release from NRDC (click here). Access a release from EDF (click here). [#Energy/Fuel, #Climate, #MIEnergy/Fuel, #MIClimate, #CA9]


Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-72104. Appealed from the Northwest Power and Conservation Council. The panel affirmed the Sixth Northwest Power Plan, adopted by the Northwest Electric Power and Conservation Council (NPCC), concerning a "due consideration" challenge to the accommodation of fish and wildlife interests with hydropower interests in the Columbia River Basin, and remanded on a limited basis for additional consideration.
    The Appeals Court explains that the present case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest Electric Power Planning and Conservation Act (the Power Act), 16 U.S.C. §§ 839–839h. That statute established the Northwest Power and Conservation Council (the Council), an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington that Congress tasked with promulgating both "a regional conservation and electric power plan" and "a program to protect, mitigate, and enhance fish and wildlife." 16 U.S.C. § 839b(d)(1), 839b(h)(1)(A).
    The case presents a challenge by an environmental group, the Northwest Resource Information Center (NRIC), to the Sixth Northwest Power Plan (the Plan) that the Council adopted in May 2010. NRIC's key complaint is that the Council failed to give due consideration to the accommodation of fish and wildlife interests when it adopted the Plan. The Appeals Court rules, ". . .we affirm the Plan with respect to NRIC's "due-consideration" challenge, but remand the Plan to the Council for the limited purposes of (1) allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and (2) reconsidering the inclusion in the Plan of a market-price-based estimate of the cost of accommodating fish and wildlife interests."
    Access the complete opinion (click here). [#Energy, #Wildlife, #CA9]