Fireman's Fund Ins. Co. v. Great Am. Ins. Co.

<> Fireman's Fund Ins. Co. v. Great Am. Ins. Co. - 5/20/16. In the U.S. Court of Appeals, Second Circuit, Case No. Nos. 14-1346. Fireman's Fund, Great American, and MSI underwrote insurance policies that included coverage for a dry dock that Signal owned. After the dry dock sank, Signal and Fireman's Fund sought contribution for losses and cleanup costs from Great American and MSI. The district court held that the Great American and MSI policies were void and the Appeals Court affirmed.

Karl Ebert v. General Mills, Inc.

<> Karl Ebert  v.  General Mills, Inc. - 5/20/16. In the U.S. Court of Appeals, Eighth Circuit, Case No. 15-1735. General Mills, Inc., challenges the district court's grant of class certification in this environmental-contamination lawsuit.1 Plaintiffs, all owners of residential properties in a particular neighborhood in Minneapolis, Minnesota, sued General Mills, alleging General Mills caused the chemical substance trichloroethylene (TCE) to be released onto the ground and into the environment at a former General Mills facility, located within the same neighborhood --  the district court certified a proposed class. Because the class lacks the requisite commonality and cohesiveness to satisfy Rule 23, we reverse.

Maiden Creek Associates LP v. DOT

<> Maiden Creek Associates LP v. DOT - 5/19/16. In the U.S. Court of Appeals, Third Circuit, Case No. 15-3224. This action for declaratory and injunctive relief is brought pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321. Maiden Creek Associates and the Board of Supervisors of Maidencreek Township appeal the order of the District Court dismissing their complaint and denying their motion to amend. The Panel affirmed the judgment of the District Court.

D.C. Appeals court delays action on Obama's carbon emissions plan

<> D.C. Appeals court delays action on Obama's carbon emissions plan - 5/116/16. The U.S. Court of Appeals for the District of Columbia Circuit on Monday delayed consideration of a challenge by 27 states to President Barack Obama's federal regulations to curb carbon dioxide emissions mainly from coal-fired plants, meaning a decision will not come until after the November presidential election -- it will now hear the case on Sept. 27 -- originally scheduled to hear the case on June 2. DC Court Delays Hearing Over Obama's Carbon Rule. Here's How It Could Actually Speed Things Up - oral argument will be before the en banc court (9 Justices instead of 3) -- the D.C. Circuit functioning as something of a court of last resort with the Supreme Court likely to deadlock 4-4. [includes language of the Order] D.C. Circuit Court Expedites Legal Process for the Clean Power Plan Full D.C. Circuit to Decide Legal Merits of the Clean Power Plan [Previous WIIMS Coverage] U.S. Court of Appeals Rules that Clean Power Plan Will Remain in Effect - State of West Virginia, et al. v. EPA - In the U.S. Court of Appals, D.C. Circuit, Case No. 15-1363, consolidated with many others.

Jocelyn Allen, et al v. Boeing Company

<> Jocelyn Allen, et al v. Boeing Company - 5/5/16. In the U.S. Court of Appeals, Ninth Circuit, Case No. 16-35175. A class of 108 plaintiffs sued The Boeing Company (Boeing) and Landau Associates (Landau) in Washington state court, alleging that for several decades Boeing released toxins into the groundwater around its facility in Auburn, Washington, and that for over a decade Landau had been negligent in its investigation and remediation of the resulting pollution.      The Panel ruled, "We affirm the district court's remand of this case to the state court, holding that Plaintiffs have adequately pled both that they are seeking 'significant relief' from Landau and that Landau's alleged conduct forms a 'significant basis' for their claims."

Tooele County v. United States

<> Tooele County v. United States - 5/3/16. In the U.S. Court of Appeals, Tenth Circuit, Case No. 15-4062. Wilderness Alliance indicates that the court order clears the path for Tooele County resident Michael Abdo and the Southern Utah Wilderness Alliance to move forward with a state court lawsuit that could derail the State of Utah's RS 2477 litigation which they say is an ongoing campaign to wrest federal public lands away from Americans.      On legal details, the Panel ruled, "The second exception to the Anti-Injunction Act does not apply, and the district court erred by concluding that it could enjoin the state-court proceedings. This error requires reversal and remand for further proceedings." Federal Appeals Court Clears Path for State Court to Hear Taxpayer Lawsuit

National Surety Corporation v. Dustex Corporation

<> National Surety Corporation v. Dustex Corporation - 4/29/16. In the U.S. Court of Appeals Case, Eighth Circuit, Case Nos: 15-2096 & 15-2328. This is an insurance-coverage dispute that began with an arbitration proceeding, expanded to state court, and eventually made its way to federal court. The district court concluded that Dustex failed to establish the affirmative defense of estoppel. On appeal, Dustex raised two arguments: (1) the district court erred by applying Iowa law rather than Georgia law to the estoppel claim, and (2) the district court erred in finding that Dustex failed to establish its affirmative defense of estoppel. The Appeals Court affirmed the district court opinion.

Natural Resources Defense Council v. NRC

<> Natural Resources Defense Council v. NRC - 4/26/16. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-1225. National Resources Defense Council (NRDC) challenges the Nuclear Regulatory Commission's (NRC's) denial of NRDC's request for a hearing and subsequent application for a waiver, in the matterr of Exelon's Limerick nuclear power station in Pennsylvania, asserting the process was inconsistent with the procedural rigor mandated by the National Environmental Policy Act (NEPA).       The Appeals Court ruled, "We find the Commission reasonably concluded NRDC's request to intervene was a challenge to a general rule. . . and, contrary to NRDC's view, while NEPA requires agencies to take a hard look before approving a major federal action, it does not mandate adoption of a particular process for doing so. Having failed to show its contentions were unique to Limerick, NRDC also was not entitled to a waiver. We conclude the Commission's actions were not arbitrary and capricious and deny the petition."

In Re: U.S. DOD & EPA & the Definition Of WOTUS

<> In Re: U.S. DOD & EPA & the Definition Of WOTUS - 4/21/16, Order denying en banc review. In the U.S. Court of Appeals, Sixth Circuit, Consolidated Case Nos. 15-3751 /3799/ 3817/ 3820/ 3822/ 3823/ 3831/ 3837/ 3839/ 3850/ 3853/ 3858/ 3885/ 3887/ 3948/ 4159/ 4162/ 4188/ 4211/ 4234/ 4305/ 4404. WOTUS Case Update - There will be no hearing of the full U.S. Court of Appeals for the Sixth Circuit on the waters of the United States rule (WOTUS) as a result of an order issued Apr 21 by the court in Cincinnati -- instead of the entire 23-judge court reviewing the case, the illegal future of the rule will remain in the hands of a three-judge panel. Clean Water Act rule rehearing denied In Re: U.S. DOD & EPA & the Definition Of WOTUS - 2/22/16, opinion of the U.S. Court of Appeals, Sixth Circuit in the consolidated case

Hughes v. Talen Energy Marketing, LLC

<> Hughes v. Talen Energy Marketing, LLC - 4/19/16. In the U.S. Supreme Court, Docket No. 14-614H. In a unanimous 8-0 decision the Supreme Court said, ". . .the Court of Appeals for the Fourth Circuit held that Maryland's scheme impermissibly intrudes upon the wholesale electricity market, a domain Congress reserved to FERC alone. We affirm the Fourth Circuit's judgment."  Complete background, analysis and all briefs & opinions Opinion analysis: U.S. energy regulators' authority grows - For the second time in recent months, the Supreme Court on Tuesday reinforced the authority of the federal government's energy regulators in the ongoing national-state competition to manage the markets for electricity.

Kansas, et al v. U.S. EPA

<> Kansas, et al v. U.S. EPA - 4/15/16. In the U.S. Court of Appeals, D.C. Circuit, Case No.14-1268, unpublished ruling. Petitioners are two states – Kansas and Nebraska – and two non-profit organizations – Energy Future Coalition and Urban Air Initiative, Inc. – that allege the MOVES2014 model violates the Administrative Procedure Act -- in their view, MOVES2014 constitutes a legislative rule promulgated without notice and comment.      The Appeals Court ruled, "We first address Petitioners' standing and, finding none, have no occasion to reach the merits of the case."

Ohio v. Sierra Club

<> Ohio v. Sierra Club - 3/28/16. In the U.S. Supreme Court, Docket No. 15-684. The Supreme Court refused to hear an appeal of a significant decision of the Sixth Circuit that said, "We find that the [Sierra] Club has standing, and we agree with its claim that 'reasonably available control measures' are a prerequisite to redesignation. Therefore, we vacate EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area." Sierra Club v. EPA - 3/18/15. In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 12-3169, 12-3182 & 3420. Ohio v. Sierra Club – more details

Court Leaves Rules in Place that Protect Tongass Rainforest Wildlands from Damaging Logging, Road Construction

<> Court Leaves Rules in Place that Protect Tongass Rainforest Wildlands from Damaging Logging, Road Construction - The U.S. Supreme Court today declined to hear a last-ditch effort by the State of Alaska to exempt America's largest national forest from a national rule protecting undeveloped, road-free national forest areas from logging and road construction -- the State sought to overturn a Ninth Circuit Court of Appeals ruling that kept the Roadless Area Conservation Rule in effect in the vast Tongass National Forest in Southeast Alaska -- a federal District Court in Alaska that the Bush administration improperly exempted the Tongass from that landmark conservation measure. Alaska, Petitioner v. Organized Village of Kake, Alaska, et al – Supreme Court docket Organized Village of Kake v. USDA - 3/26/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35517. U.S. Supreme Court Denies Effort to Overturn Tongass National Forest Protections

Southern Forest Watch, Inc. v. Sally Jewell (Dept. of Interior)

<> Southern Forest Watch, Inc. v. Sally Jewell (Dept. of Interior) - 3/23/16. In the U.S. Court of Appeals, Sixth Circuit, Case No. 15-5413. Southern Forest Watch, Inc. and three individual plaintiffs appeal the grant of summary judgment to the U.S. Department of the Interior, the National Park Service, and four officials, in this action challenging a new fee at Great Smoky Mountains National Park. SFW argues that the Park Service failed to comply with the Federal Lands Recreation Enhancement Act (FLREA), 16 U.S.C. § 6801 et seq., when it imposed the fee. SFW also contends that the district court erred in denying a motion to order discovery outside the administrative record. The Appeals Court affirmed the district court decision in favor of the Interior Dept.

National Parks Conservation v. EPA

<> National Parks Conservation  v.  EPA - 3/14/16. In the U.S. Court of Appeals, Eighth Circuit, Case Nos: 12-2910 & 12-3481. Petitions challenging the EPA's approval of the Minnesota Regional Haze State Implementation Plan denied; the EPA's explanation that the "Transport Rule" is better than source-specific "Best Available Retrofit Technology (BART)" had a rational basis and its reliance on the Transport Rule was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; the EPA did not err in approving the reasonable progress goals in Minnesota's Plan as it was acting rationally within its sphere of expertise in approving the goals. There was a separate concurring opinion in the result.

Ark Initiative v. Thomas Tidwell

<> Ark Initiative v. Thomas Tidwell - 3/8/16. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-5259. At issue in this case is the 2012 Colorado Rule's exclusion from the 4.2 million acres of inventoried roadless land in Colorado of about 8,300 acres of land that the Service also has designated for recreational skiing.       The plaintiffs—environmental organizations and two individuals—challenge the Service's application of the 2012 Colorado Rule to allow development of a proposed egress ski trail on once-roadless land within the Special Use Permit boundary for the Snowmass Ski Resort in Aspen.       The District Court disagreed, concluding that the Service offered ample reasons for its decision to exclude existing designated ski areas from the Colorado roadless inventory, and that the Service's six-year public rulemaking process satisfied all applicable notice requirements. The Appeals Court agreed and affirmed that the Service adequately explained the limited ski-area exclusion and did not violate any applicable notice requirements.

Sierra Club v. Oklahoma Gas & Electric Co.

<> Sierra Club v. Oklahoma Gas & Electric Co. - 3/8/16. In the U.S. Court of Appeals, Tenth Circuit, Case No. 14-7065. Sierra Club brought a citizen suit seeking civil penalties against Oklahoma Gas and Electric Company (OG&E) for alleged violations of the Clean Air Act. Sierra Club asserting that a coal-fired power plant in Muskogee, modified a boiler at the plant without first obtaining an emission-regulating permit as required under the Act.      Because Sierra Club filed its action more than five years after construction began on the plant, the district court dismissed its claim under Rule 12(b)(6) as barred by the statute of limitations. The Panel agreed and affirmed the district court and conclude that Sierra Club's claim for civil penalties is statutorily time-barred and claims for declaratory and injunctive relief are precluded because they are based on the same facts as the time-barred claim for civil penalties.

Shell Offshore Inc. v. Greenpeace, Inc.

<> Shell Offshore Inc. v. Greenpeace, Inc. - 3/4/16. In the U.S. Court of Appeals, Ninth Circuit, Case No. 15-35392. The Panel dismissed as moot an appeal from the district court's preliminary injunction against Greenpeace, Inc., concerning protests against oil exploration activities in the Chukchi Sea. The panel held that the appeal was moot because the injunction had expired, and defendants Shell Offshore, Inc., and Shell Gulf of Mexico, Inc., did not seek to renew it.

Sierra Club de Puerto Rico v. EPA

<> Sierra Club de Puerto Rico v. EPA - 3/4/16. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-1138. The case involves challenges regarding lead contamination in Arecibo, Puerto Rico, where Intervenor-Respondent, Energy Answers Arecibo LLC, seeks to build a waste incinerator. Sierra Club, etc al do not challenge the permits, instead, they seek to vacate a 1980 EPA rule on regulation of the incinerator's lead emissions.      The Panel rules that Petitioners challenge comes too late and they dismiss Sierra Club's petition as time-barred under 42 U.S.C. § 7607(b)(1).

Citizens for Appropriate Rural v. Anthony Foxx

<> Citizens for Appropriate Rural v. Anthony Foxx - 3/3/16. In the U.S. Court of Appeals, Seventh Circuit, Case No. 15-1554. This case involves the extension of Interstate 69 (I-69) in Southern Indiana. The extension, which will connect Evansville and Indianapolis, has evolved over several decades and is scheduled to be completed in the coming years. Plaintiffs filed a complaint on August 1, 2011, raising several challenges to the extension. The district court dismissed part of Plaintiffs' complaint when ruling on Defendants' motion to dismiss, and granted summary judgment in favor of Defendants on all other counts. The Panel affirmed.

Idaho Wool Growers Association v. Tom Vilsak (USDA)

<> Idaho Wool Growers Association v. Tom Vilsak (USDA) - 3/2/16. In the U.S. Court of Appeals, Ninth Circuit, Case No. 14-35445. Among other things, the panel affirmed the district court's summary judgment in favor of the United States Forest Service in an action challenging the Forest Service's decision, made in response to concerns regarding disease transmission to immunologically vulnerable bighorn sheep, to close to domestic sheep grazing approximately 70% of allotments on which grazing had been permitted in the Payette National Forest in Idaho.

Supreme Court Rejects State Attorneys General Attack on Life-Saving Mercury Standards

<> Supreme Court Rejects State Attorneys General Attack on Life-Saving Mercury Standards - Today (Mar 3), Chief Justice John Roberts denied an emergency application filed by Michigan Attorney General Bill Schuette and allied Attorneys General to "stay" the landmark limits on toxic pollution from power plant smokestacks (MATS rule).  Opposition Petition (Mar 2) of environmental groups, states and cities opposed to the stay application Previous WIMS Coverage: What a Supreme Court ruling on mercury standards will tell us

Defenders of Wildlife v. Sally Jewell (Interior Department)

<> Defenders of Wildlife v. Sally Jewell (Interior Department) - 3/1/16. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-5284. The issue in this appeal concerns when a voluntary state conservation agreement may be considered in deciding whether or not to list a species under the Endangered Species Act. FWS's withdraw its 2010 proposal to list the dunes sagebrush lizard, whose habitat is in New Mexico and Texas and the district court granted summary judgment to the Secretary of Interior.      The Panel said: "Appellants fail to show the Service did not rationally apply its policy in evaluating the Texas plan inasmuch as the Service's factual conclusions are supported by substantial evidence in the record. Accordingly, we affirm."

Alaska Oil and Gas Association v. Jewell (Interior Dept)

<> Alaska Oil and Gas Association v. Jewell (Interior Dept) - 2/29/16. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-35619, consolidated with 13-35662, 13-35666, 13-35667, 13-35669. In 2009, FWS proposed to designate an area of Alaska's coast and waters as critical habitat for the polar bear. The proposal drew fire from oil and gas trade associations, several Alaska Native corporations and villages, and the State of Alaska claiming the habitat designation was unjustifiably large, and FWS had failed to follow ESA procedure.      The panel reversed the district court's judgment vacating the United States Fish & Wildlife Service ("FWS") designation of critical habitat in Alaska for the polar bear, a species listed as threatened under the Endangered Species Act; affirmed the district court's denial of cross-appeal claims; and remanded for entry of judgment in favor of FWS.

Certiorari denied in American Farm Bureau v. EPA

 

<> Certiorari denied in American Farm Bureau v. EPA - American Farm Bureau v. EPA (SupCt docket 15-599), a petition for certiorari was denied by the High Court. The denial leaves the 7/6/15 Third Circuit opinion in place which upheld U.S. EPA's plan to clean up Chesapeake Bay,      The high interest case involving many states and trade associations including Michigan, challenged EPA's "total maximum daily load" (TMDL) of nitrogen, phosphorous, and sediment that can be released into the Chesapeake Bay. Third Circuit Opinion: American Farm Bureau Federation v. EPA

Arizona DEQ v. U.S. EPA

<> Arizona DEQ v. U.S. EPA -  2/24/16. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-70366 & 13-70410. The panel denied consolidated petitions for review of a Final Rule, promulgated by U.S. EPA under the Clean Air Act, that partially disapproved Arizona's regional haze State Implementation Plan (SIP) – setting forth emission limits and other measures – and issued a Federal Implementation Plan (FIP) in place of the disapproved SIP elements.

State of New Mexico v. Trujillo

<> State of New Mexico v. Trujillo - 2/19/16. In the U.S. Court of Appeals, Tenth Circuit, Case No. 15-2047. Elisa Trujillo holds a domestic well permit that allows her to divert the Basin's underground water. During an individual adjudication, she and the State disputed her water rights. In 2010, the special master granted summary judgment in favor of the State. On appeal, she presents no developed argument challenging the special master's summary judgment order that served as a basis for the 2015 order. The Panel affirmed the summary judgment in favor of the State.

In Re: U.S. DOD & EPA & the Definition Of WOTUS

<> In Re: U.S. DOD & EPA & the Definition Of WOTUS - 2/22/16. In the U.S. Court of Appeals, Sixth Circuit, Consolidated Case Nos. 15-3751 /3799/ 3817/ 3820/ 3822/ 3823/ 3831/ 3837/ 3839/ 3850/ 3853/ 3858/ 3885/ 3887/ 3948/ 4159/ 4162/ 4188/ 4211/ 4234/ 4305/ 4404.      This multi-circuit case consists of numerous consolidated petitions challenging the validity of the "Clean Water Rule" recently published by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency ("the Agencies"). The Clean Water Rule is intended to clarify the scope of "the waters of the United States" [WOTUS] subject to protection under the Clean Water Act. The Act provides that certain specified actions of the EPA Administrator are reviewable directly in the U.S. Circuit Courts of Appeals. Because of uncertainty about whether the Agencies' adoption of the Clean Water Rule is among these specified actions, parties challenging the Rule have filed petitions in both district courts and circuit courts across the country. Many of the petitions have been transferred to the Sixth Circuit for consolidation in this action. Many of the petitioners and other parties now move to dismiss the very petitions they filed invoking this court's jurisdiction, contending this court lacks jurisdiction to review the Clean Water Rule.      The movants find support for their position in the language of the Clean Water Act's judicial review provisions, which purport to define circuit court jurisdiction specifically and narrowly. Over the last 35 years, however, courts, including the Supreme Court and the Sixth Circuit, have favored a "functional" approach over a "formalistic" one in construing these provisions. These precedents support the Agencies' position that this court does have jurisdiction. The district courts that have confronted the jurisdictional question in this litigation have arrived at conflicting answers.1 For the reasons that follow I conclude that Congress's manifest purposes are best fulfilled by our exercise of jurisdiction to review the instant petitions for review of the Clean Water Rule.      Separate concurring and dissenting opinions were filed.

Sanders v. Energy Northwest

<> Sanders v. Energy Northwest - 2/12/16. In the U.S. Court of Appeals, Ninth Circuit, Case No.14-35368. In a split decision, the majority affirmed the district court's summary judgment on a claim of whistleblower retaliation in violation of the Energy Reorganization Act, the panel held that the plaintiff did not engage in protected activity when he objected to the security level designation given to an internal "condition report" of a safety procedure violation concerning access badges.       The dissenting Judge wrote that the majority wrongly narrowed the scope of the Energy Reorganization Act by rejecting the whistleblower claim on the basis that the safety problems were not overlooked, neglected, or concealed by management and were not concrete and ongoing issues.

Reece v. AES Corporation

<> Reece v. AES Corporation - 2/9/16. In the U.S. Court of Appeals, Tenth Circuit, Case No. 14-7010. Plaintiffs' class action suit alleged that several companies were responsible for environmental pollution stemming from the generation and disposal of coal-combustion waste and fluid waste from oil and gas drilling.       Plaintiffs challenge the district court's denial of their two motions for remand and also its dismissal of their amended complaint. The Panel ruled: "Because we agree with the district court's disposition of the remand motions and conclude that Plaintiffs failed to adequately allege the element of injury in their amended complaint, we affirm the district court's judgment."

SCOTUS: Clean Power Plan Carbon Pollution Controls On Hold

<> SCOTUS: Clean Power Plan Carbon Pollution Controls On Hold - Dividing five to four, the Supreme Court on Tuesday evening ordered the Obama administration not to take any steps to carry out its "Clean Power Plan," a move that may stall the plan until after the president leaves office next January -- the order — issued in identical form in individual responses to five separate challenges — will spare the operators of coal-fired power plants from having to do anything to begin planning for a shift to energy sources that the government considers to be cleaner. Example of the five orders - "The Environmental Protection Agency's 'Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,' 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants' petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants' petition for a writ of certiorari, if such writ is sought."