NRDC v. US FDA

NRDC v. US FDA - 7/23/14. In the U.S. Court of Appeals, Second Circuit, Case No. 12-2106. Defendants, Food and Drug Administration (FDA) challenge the district court's conclusion that FDA is required to proceed with hearings to determine whether to withdraw approval for the use of penicillin and tetracyclines in animal feed and that its decision denying two citizen petitions urging it to hold such hearings was arbitrary or capricious. In a split decision, with a lengthy dissent, the Majority reversed the district court decision and remanded to the district court with instructions to deny the plaintiffs' motion for summary judgment, grant the defendants' motion for summary judgment, and dismiss the action.

 

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WildEarth Guardians v. U.S. EPA

WildEarth Guardians v. U.S. EPA - 7/23/14. In the U.S. Court of Appeals, Tenth Circuit, Case No. 13-9524. WildEarth Guardians filed a petition for review of the Federal Implementation Plan (FIP) to reduce regional haze from the Four Corners Power Plant on the Navajo Reservation in northwestern New Mexico; saying EPA did not consult with the Fish and Wildlife Service as required under the Endangered Species Act (ESA). The Panel denied the petition saying it could not create a duty to consult under the ESA because it would have required the EPA to exceed the clearly delineated boundaries of the FIP.

 

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USA v. Volvo Powertrain Corporation

USA v. Volvo Powertrain Corporation - 7/18/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5234. Volvo Powertrain argues that a consent decree has no application to the Volvo Penta engines even though, under the language of the decree, the engines were manufactured at a "facility owned or operated by" a settling company. The district court disagreed, and it held Volvo Powertrain liable and ordered Volvo Powertrain to pay approximately $72 million. The Panel agreed with the district court decision and found no abuse of discretion.

 

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Readers Note: Upcoming Vacation Days: We will not be publishing the remainder of this week (Tuesday, the 22nd through Friday, the 25th). Next week we will be back on Monday, Tuesday & Wednesday; and off again on Thursday and Friday July 31 & August 1).

WildEarth Guardians v. EPA

WildEarth Guardians v. EPA - 7/17/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-71523. On challenges to the Nevada air pollution SIP, the Panel concluded that the EPA's decision was not arbitrary and capricious and that EPA's approval of Nevada's SIP did not violate any requirements imposed by 42 U.S.C. § 7410(1).

 

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Ralls Corporation v. Committee on Foreign Investment

Ralls Corporation v. Committee on Foreign Investment - 7/15/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-5315. The case challenges a decision by Committee on Foreign Investment in the United States (CFIUS) and a Presidential Order denying a transaction by a Chinese company to purchase 4 wind farms in Oregon saying they posed a threat to national security. The district court dismissed both the CFIUS decision and Order. The Panel reversed the district court decision and remanded with instructions.

 

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State of Michigan v. United States Army Corps of Engineers

State of Michigan v. United States Army Corps of Engineers - 7/14/14. In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-3800. Plaintiffs, five Great Lakes states, ask the Appeals Court to step in and impose measures to ensure that the Asian Carp are forever blocked from the Lakes. In an informative, 30-page opinion, the Panel concludes, ". . .we hold that the States have failed to state a claim upon which relief can be granted, either under a public nuisance theory or under the APA. We therefore affirm the judgment of the district court."

 

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Friends of Merrymeeting Bay v. Hydro Kennebec, LLC

Friends of Merrymeeting Bay v. Hydro Kennebec, LLC - 7/14/14. In the U.S. Court of Appeals, First Circuit, Case No. 13-1220/1750. Two conservation groups, brought two citizen enforcement suits containing claims under the Endangered Species Act and the Clean Water Act against Hydro Kennebec, LLC, et al. The district court entered summary judgment in favor of Defendants as to the CWA claims in both cases, and Plaintiffs appealed the rulings. The Panel vacated and remanded the judgments.

 

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Alt v. Chesapeake Bay Foundation

Alt v. Chesapeake Bay Foundation - 7/14/14. In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-2200. Plaintiff Lois Alt, a West Virginia farmer, sued EPA in the seeking declaratory relief in connection with EPA administrative enforcement proceedings against her for violations relating to her chicken farm. CBF attempted to intervene and the district court denied its intervention motion as untimely. CBF appealed the Denial Order, and, the Panel affirmed the denial.

 

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Hobart Corp. v. Waste Mgmt. of Ohio, Inc.

Hobart Corp. v. Waste Mgmt. of Ohio, Inc. - 7/14/14. In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 13-3273/3276. The case involves the apportionment of liability between various entities that allegedly created an environmental hazard at a landfill in Ohio. In both cases, the district court dismissed Appellants' § 113(f)(3)(B) contribution claims as untimely and dismissed the unjust-enrichment claims for failing to state a valid cause of action under Ohio law. The Panel affirmed the district court's dismissals and its grant of summary judgment to Appellees.

 

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Recent U.S. Appeals Court decisions

<> National Mining Association v. Gina McCarthy - 7/11/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5310. The Panel concludes, "that the Enhanced Coordination Process memorandum is a procedural rule that EPA and the Corps had authority to enact under the Clean Water Act. Under our case law, we conclude that the Final Guidance is not a final agency action subject to review at this time. We therefore reverse the District Court's grant of summary judgment and remand to the District Court with instructions to grant judgment for defendants on the Enhanced Coordination Process and to dismiss the challenge to the Final Guidance."

• The D.C. Circuit Rejects Challenge to EPA's Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final to Be Appealable - On Friday, the D.C. Circuit reversed Judge Reggie Walton's decision from 2012 and affirmed EPA's authority to adopt the "Enhanced Coordination Process" governing coordination with the Army Corps of Engineers. . .

<> Southern Appalachian Mountain Stewards v. A & G Coal Corporation - 7/11/14. In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-2050. The question in this case is whether the defendant-appellant, A & G Coal Corporation ("A&G"), can assert a "permit shield" defense for discharges of selenium when it failed to disclose the presence of this pollutant during the permit application process. The Panel held that the shield defense is unavailable to A&G.

• Mountaintop Removal Mines are not automatically shielded; will be held accountable for unpermitted pollution

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Alabama-Coushatta Tribe of TX v. USA, et al

<> Alabama-Coushatta Tribe of TX v. USA, et al - 7/9/14. In the U.S. Court of Appeals, Fifth Circuit, Case No. 13-40644. The Tribe sued the Departments of Agriculture and Interior alleging violations of the Administrative Procedures Act and federal common law in issuing drilling leases and permits to third parties. The Panel affirmed the district court decision and said  the Tribe failed to allege "agency action" sufficient to meet the standards required for waiver of the Government's sovereign immunity.

 

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CTS Corporation v. EPA

<> CTS Corporation v. EPA - 7/8/14. In the U.S. Court, D.C. Circuit. Case No. 12-1256. CTS Corporation has petitioned for review of the EPA's decision to add to the National Priorities List a site centered around property formerly owned by the company. The Panel ruled, "Because each of CTS's objections is without merit, forfeited, or impermissibly based on extra-record evidence, we deny the petition for review."

 

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Recent cases

<> NO Gas Pipeline v. FERC - 7/1/14. In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 12-1470, 12-1474, 12-1475. Environmental plantiffs challenged a decision of the Federal Energy Regulatory Commission (FERC) granting a certificate of public convenience and necessity for the construction of a natural gas pipeline connecting New York and New Jersey. The Panel said, ". . .we conclude that we do not have jurisdiction over any of the petitions, and we will therefore dismiss all without reaching the merits of any."

<> National Liab & Fire Ins Co. v. R & R Marine, Inc. - 7/1/14. In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20767. R&R Marine's liability insurer, National Liability & Fire Insurance Company (National), initiated this suit to disclaim liability under its policy for the the sinking of a vessel. The district court found that R&R was negligent and that National was liable for the ensuing damage. National and R&R appeal. The Panel said, "We affirm in part, reverse in part, and remand for entry of judgment consistent with this opinion."

Aransas Project v. Bryan Shaw, et al

<> Aransas Project v. Bryan Shaw, et al – 6/30/14. In the U.S. Court of Appeals, Fifth Circuit, Case No. 13-40317. After the deaths of some whooping cranes -- an endangered species -- The Aransas Project ("TAP") sued directors of the Texas Commission on Environmental Quality ("TCEQ") under the Endangered Species Act ("ESA" or the "Act"). TAP sought and was granted an injunction prohibiting TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home. The Panel ruled, ". . .the injunction is an abuse of discretion. The judgment is reversed."