Environmental - Appeals Court

Chevron v. Naranjo

2012-01-27T16:49:00.001-05:00

Jan 26: In the U.S. Court of Appeals, Second Circuit, Case Nos. 11-1150 - 11-1264. Defendants-appellants residents of the Ecuadorian Amazon and their American attorney challenge a preliminary injunction issued by the district court that prohibited them from enforcing or preparing to enforce a potential Ecuadorian judgment against plaintiff-appellee anywhere outside of the Republic of Ecuador. The Appeals Court ruled, "Because New York's Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. §§ 5301-5309, does not authorize affirmative relief of this kind, but only recognizes a defense available when a would-be judgment-creditor first attempts enforcement in New York, we vacate the injunction and remand to the district court with instructions to dismiss the plaintiff-appellee's complaint."

The Appeals Court provides the background saying, "This appeal represents the latest chapter in the ongoing litigation between plaintiff-appellee Chevron Corp. (Chevron) and the defendants-appellants, elsewhere known as the Lago Agrio Plaintiffs (LAPs or Ecuadorians) and their American attorney Steven Donziger. Chevron brought the present action in part under New York's Uniform Foreign Country Money-Judgments Recognition Act (the Recognition Act), N.Y. C.P.L.R. §§ 5301-5309, which allows judgment-creditors to enforce foreign judgments in New York courts, subject to several exceptions. Chevron, a potential judgment-debtor, sought a global anti-enforcement injunction against the LAPs and Donziger prohibiting the latter from attempting to enforce an allegedly fraudulent judgment entered by an Ecuadorian court against Chevron."

The Appeals Court explained its decision further in its conclusion saying, "We have considered all of the parties' remaining arguments on appeal and find them to be either rendered moot by our disposition of this appeal or to pertain to litigation that is not properly before us. Accordingly, for the foregoing reasons and consistent with our September 19, 2011 order, the judgment of the district court is reversed and the preliminary injunction vacated. We remand to the district court with the instruction to dismiss Chevron's claim for injunctive and declaratory relief under the Recognition Act in its entirety."

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Julie Weiss v. Secretary U.S. Department Of Interior

2012-01-26T16:27:00.001-05:00

Jan 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-1313. Appealed from the Western District of Michigan at Grand Rapids. The case is part of a broad redevelopment scheme in Benton Harbor, Michigan, where the city government leased part of its Jean Klock Park to a developer, Harbor Shores Community Redevelopment, Inc., for conversion into a golf course. In exchange, the City received other land that the developer agreed to improve and incorporate into a system of trails. Julie Weiss and other Park users sued the City and two Federal agencies, the National Park Service and the Army Corps of Engineers, that had approved the project. The district court granted summary

judgment to the defendants on some of Weiss's claims and dismissed others for lack of standing.

The Appeals Court explains, "Julie Weiss and other concerned citizens sued to stop a development project that she says has caused environmental damage. The district court rejected her challenges. We affirm as to some of Weiss's claims and hold that we are without power to decide the others."

The Appeals Court indicated further that the district court held that Weiss lacked standing for certain claims. "We agree as to one" i.e. that the land exchange violated the Land and Water Conservation Fund Act regarding the market-value provision of the Act requires the substitute "recreation properties" to have "at least equal fair market value" as the leased park. The appeals Court said Weiss "lacks standing to assert her market-value claim under the Land and Water Conservation Fund Act." However, the Appeals Court said, "The district court erred, however, in concluding that Weiss lacked standing for another of her claims: that the land swap did not 'accord with' Michigan's Outdoor Recreation Plan. . . Weiss has standing to assert this claim."

The Appeals Court explains, however, "Weiss must also show that her claims are not moot. The agencies argue that 'events have taken place during the pendency of the appeal that make it impossible' for our court to grant 'effective relief' on many of Weiss's claims. . . Weiss originally sought to halt the development project and have it declared illegal, but the project is now largely finished. (The district court denied Weiss's motion for a temporary restraining order and preliminary injunction, and Weiss chose not to appeal the denial.) The golf course is now constructed and open. The new parkland has been completely, or almost completely, improved. Therefore, the agencies say, the damage (to the extent there is any) has already been done; we are without power to stop it."

The Appeals Court said, "Weiss might as well ask a meteorologist on Friday to redo the Thursday forecast. Her claims under the National Environmental Policy Act are moot. For similar reasons, Weiss's claims under the National Historic Preservation Act are also moot. . . Weiss is left with two claims that we can adjudicate. Both concern the National Park Service's compliance with other provisions of the Land and Water Conservation Fund Act." First, Weiss says that the National Park Service acted arbitrarily in finding that the new parkland that the City received in the land swap had a "usefulness and location" that was "reasonably equivalent" to the leased portion of the Park. Weiss also claims

that the project was not "in accord with" Michigan's Outdoor Recreation Plan, which divergence would violate the Act.

On the first issue, the Appeals Court indicates that "Weiss's claim failed on the merits." On the second claim, the Appeals Court said, "The Service did not act arbitrarily in finding that exchanging underused parkland for new trails was consistent with Michigan's Comprehensive Outdoor Recreation Plan." Finally, the Appeals Court rules, "We vacate the district court's judgment on Weiss's National Environmental Policy Act and National Historic Preservation Act claims, and remand with instructions to dismiss those claims as moot. We otherwise affirm."

In a press release commenting on the decision, Terry Lodge, attorney for the plaintiffs said, "We're perplexed that the court mentioned nowhere in its opinion the serious toxic contamination of five of the seven (7) parcels of land traded to the public to make up for the loss of the acreage on the crests of the Jean Klock Park dunes. Harbor Shores' own consultant report suggests that only the thick concrete and wood-chip paths across the parcels, which the consultant calls 'isolation zones,' will be safe for families and children to use. The City, Harbor Shores, and ultimately the National Park Service all completely failed to tell the public before the deal was sealed that 5 of the 7 parcels of supposed new parkland have serious poisons oozing to the surface and polluting the Paw Paw River, and they did not explain how that economically-worthless acreage was a fair trade for the spectacular and unpolluted Lake Michigan overlooks of Jean Klock Park."

LuAnne Kozma, an activist formerly with Defense of Place, now with Public Park Advocates and a member of the plaintiffs' legal team, noted, "It is a travesty that the National Park Service argued this case to trade historic Jean Klock Park land, with its half-mile of Lake Michigan lakefront and dunes, for worthless, contaminated parcels inside a private golf course. Now that the National Park Service got the decision it wanted, it must watch over the contaminated Harbor Shores parcels 'in perpetuity' as public parkland. But 'in perpetuity' means nothing any longer. The public in Benton Harbor has lost a park that was precious and priceless. What has been lost to everyone in the U.S. is the idea that parks are to be protected forever.'" The plaintiffs said they have not determined whether they will take the matter to the U.S. Supreme Court, or not.

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Sierra Club v. EPA

2012-01-23T16:29:00.001-05:00

Jan 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-71457 and 10-71458. On Petition for Review of an Order of U.S. EPA. The Appeals Court explains that Sierra Club and several environmental groups, (collectively, Petitioners), petition for review of U.S. EPA's approval of the 2004 State Implementation Plan (2004 SIP) for the San Joaquin Valley's nonattainment area for the one-hour ozone National Ambient Air Quality Standard (NAAQS). Petitioners contend that: 1) EPA acted arbitrarily and capriciously, in violation of the Administrative Procedures Act (APA), by approving the 2004 SIP knowing that the emissions inventory data on which the plan relied were, as an actual matter, outdated and inaccurate by the time EPA approved the plan in 2010; 2) EPA violated the Clean Air Act (CAA) by approving the 2004 SIP because the emissions inventory data on which it relied were outdated and inaccurate within the meaning of the statute; 3) EPA violated the CAA by approving the 2004 SIP without the inclusion of the State-adopted regulations on which the plan relied; and 4) EPA violated the CAA by approving the 2004 SIP knowing that attainment of the one-hour ozone NAAQS by the 2010 deadline was impossible.

The Appeals Court held that EPA's 2010 approval of the 2004 SIP, which was based on data current only as of 2004, was arbitrary and capricious. The Appeals Court indicated that no other issued need be decided. The Appeals Court concluded, "Our role is not to substitute our conclusions based on the facts presented for those of the agency, and we express no opinion as to what conclusion EPA should have reached, with respect to the validity of the 2004 SIP, upon consideration of the 2007 data. But we should not silently rubber stamp agency action that is arbitrary and capricious in its reliance on old data without meaningful comment on the significance of more current compiled data. We hold that EPA's failure to even consider the new data and to provide an explanation for its choice rooted in the data presented was arbitrary and capricious. . . We grant the petition for review and remand the matter to EPA for further proceedings consistent with our decision."

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Montana Sulphur & Chemical v. U.S. EPA

2012-01-23T16:27:00.000-05:00

Jan 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 02-71657 and 08-72642. On Petition for Review of an Order of U.S. EPA. In these appeals, consolidated for decision, the Appeals Court address the propriety of various actions taken by U.S. EPA under the Clean Air Act with respect to Montana air quality from 1993 to 2008.

In No. 02-71657, Montana Sulphur & Chemical Company (Montana Sulphur) seeks review of the EPA's final rule which partially disapproved a proposed revision to Montana's State Implementation Plan (SIP) governing sulfur dioxide (SO2) emissions. 67 Fed. Reg. 22,168 (May 2, 2002). Montana Sulphur also seeks review of a prior EPA action in 1993 known as a "SIP Call," which preceded the formal SIP revision and started the review process. 58 Fed. Reg. 41,430 (Aug. 4, 1993). The final agency action incorporated documents supporting its SIP Call -- in particular EPA reliance on various modeling calculations -- into the administrative record for partial disapproval of the SIP.

In No. 08-72642, Montana Sulphur seeks review of the EPA's April 2008 final rule promulgating a Federal Implementation Plan (FIP) for the State of Montana's SO2 emissions. 73 Fed. Reg. 21,418 (April 21, 2008). The FIP is designed to fill perceived gaps the EPA identified in the SIP. This later appeal focuses on the EPA's authority to promulgate the FIP and the reasonableness of certain specific requirements set forth therein.

The Appeals Court ruled, "Because we conclude that the agency did not act arbitrarily or capriciously with respect to either the SIP or FIP, we deny both petitions for review." The Justices said further, ". . . we conclude the EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP. We therefore deny the petition for review in both 02-71657 and 08-72642."

Explaining further, they said, "The EPA's continued use of the ISC model was not arbitrary or capricious. The model was properly employed at both the time of the state SIP and the proposed FIP. The FIP did not replace the entire SIP, but only the limited portions the EPA had disapproved; because use of a different model could have yielded results that did not comport with the remainder of the SIP, it was not arbitrary or capricious for the EPA to continue with the existing model despite some later technological improvements." Montana Sulphur had argued that the EPA acted arbitrarily and capriciously because it used outdated modeling in the FIP.

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Hearts Bluff Game Ranch, Inc. v. U.S.

2012-01-23T16:26:00.001-05:00

Jan 19: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5164. Appealed from the United States Court of Federal Claims. The Appeals Court explains that Hearts Bluff Game Ranch, Inc. (Hearts Bluff) appeals from the decision of the United States Court of Federal Claims (the Claims Court) dismissing its claim for just compensation under the Fifth Amendment for an alleged taking based on the Army Corps of Engineers' (the Corps') denial of Hearts Bluff's proposal to operate a mitigation bank on its property. Hearts Bluff Game Ranch, Inc. v. United States, No. 09-498L (Ct. Cl. June 11, 2010) (the Order). The Appeals Court ruled, "Because Hearts Bluff did not have a cognizable property interest in obtaining a mitigation banking instrument, we affirm."

The Appeals Court ruled further, "As for Hearts Bluff's assertion that the denial of the mitigation banking instrument was arbitrary and capricious, that issue is not before us. Hearts Bluff brought suit under the Tucker Act, a concession that the government action was valid. Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993) ('[The] claimant must concede the validity of the government action which is the basis of the taking claim to bring suit under the Tucker Act.'). In order to challenge the legality of the denial of the mitigation banking instrument, Hearts Bluff would have had to sue in a district court under the Administrative Procedure Act. Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (The Court of Federal Claims 'lacks the general federal question jurisdiction of the district courts, which would allow it to review [an] agency's actions and to grant relief pursuant to the Administrative Procedure Act.'). It did not."

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System Fuels v. U.S.

2012-01-23T16:25:00.001-05:00

Jan 19: In these two separate and related cases in the U.S. Court of Appeals, Federal Circuit, Case Nos. 2008-5025, -5035; and Case Nos. 2010-5116, -5117. Appealed from the United States Court of Federal Claims.

In the first case, after trial, the United States Court of Federal Claims awarded Plaintiffs-Cross Appellants System Fuels, Inc. and Entergy Arkansas, Inc. (collectively SFI Arkansas or Plaintiffs) damages arising from the Department of Energy's (DOE) partial breach of a contract. System Fuels, Inc. v. United States, 79 Fed. Cl. 37, 40 (2007). The majority Appeals Court said, "Because the trial court properly declined to offset the damages award by the amount of Plaintiffs' one-time fee, this court affirms. On the other hand, this court reverses the trial court's denial of Plaintiffs' capital suspense loader costs. This court also remands the action for analysis in view of this court's decisions in Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008) and Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008)."

In the second case, on summary judgment, the United States Court of Federal Claims determined that the United States breached its contract with Plaintiffs-Appellants System Fuels, Inc., System Energy Resources, and South Mississippi Electric Power Association (collectively Plaintiffs) for the removal of spent nuclear fuel. Sys. Fuels, Inc. v. United States, 66 Fed. Cl. 722, 732-33 (2005) (SFI I). The trial court also granted summary judgment in favor of the Government regarding the implied covenant of good faith and fair dealing. Id. at 735. The trial court set damages for the breach at $10,014,114 as well as the cost of borrowed funds for financing the construction of the dry fuel storage project. Sys. Fuels, Inc. v. United States, 78 Fed. Cl. 769, 809 (2007) (SFI II). On reconsideration, the trial court reduced damages to $9,735,634 and denied the cost of borrowed funds. Sys. Fuels, Inc. v. United States, 92 Fed. Cl. 101, 114 (2010) (SFI III). The majority Appeals Court ruled, "This court affirms the trial court's denial of borrowing costs and reverses the denial of overhead costs. On damages, this court affirms the trial court's award."

The majority said further, "Because the trial court properly adhered to the decision of England [England v. Contel Advanced Systems, Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004)], this court affirms the denial of Plaintiffs' claim for the cost of borrowed funds. This court reverses the trial court's denial of overhead costs. This court affirms the trial court's causation analysis and revised award of nominal damages."

The dissenting Justice in both cases said, "I concur in the court's opinion and the rulings based thereon, with the exception of the ruling that damages for breach of contract cannot include the cost of financing the construction and storage expenditures required to mitigate the breach. As explained in my dissenting opinion in the companion case, System Fuels, Inc. v. United States, No. 2010-5116, -5117, these costs were incurred solely because of the government's breach of contract, and thus are recoverable as damages for the breach."

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Jon Bowers v. Richard Whitman

2012-01-13T16:29:00.001-05:00

Jan 12: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-35966 & 10-36029. Appealed from the United States District Court for the District of Oregon. The Appeals Court explained that In this consolidated appeal, the Appeals Court must determine whether the State of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs' due process rights, or violated Plaintiffs' equal protection rights when Oregon voters enacted Measure 49 to replace and modify remedies available under the previous Measure 37.

All of the Plaintiffs in the cases are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37 and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and, because of Measure 49, none have been able to proceed with any development of their land under the waivers granted.

Measure 37 required "state and local governments to compensate private property owners for the reduction in the fair market value of their real property that results from any land use regulations of those governmental entities that restrict the use of the subject properties." Measure 49, was also approved by the voters and The Oregon Supreme Court examined the text and context of Measure 49 and found that it "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners."

The Appeals Court ruled, "We conclude that Oregon did not commit a constitutional taking when it modified the remedies available under Measure 37, because any potential property interest that Plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class, Measure 49 also survives rational basis scrutiny and has not violated Plaintiffs' equal protection rights. Therefore, we affirm the district court."

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Ohio River Valley v. Kenneth Salazar (Interior Dept.)

2012-01-11T16:11:00.001-05:00

Jan 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1049. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. In this unpublished opinion which is not binding precedent in the circuit, the appeal concerns West Virginia's statutory and regulatory program under the Surface Mining Reclamation and Control Act of 1977 (SMCRA). Appellants Ohio River Valley Environmental Coalition, Inc. and West Virginia Highlands Conservancy, Inc. (collectively OVEC) challenge Appellee Kenneth Salazar's approval, in his official capacity as Secretary of the Interior (Secretary), of two amendments to West Virginia's surface coal mining regulations.

On cross-motions for summary judgment, the district court considered OVEC's argument that the Secretary's approval was arbitrary and capricious because the amendments violate SMCRA's mandate that "[n]othing in [the Act] shall be construed as superseding, amending, modifying, or repealing" the Clean Water Act (CWA), 33 U.S.C. §§ 1151-75, "the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality," 30 U.S.C. § 1292(a)(3). The district court denied OVEC's motion for summary judgment, granted summary judgment in favor of the Secretary and Intervenors-Appellees West Virginia Department of Environmental Protection (WVDEP) and West Virginia Coal Association (WVCA) (collectively Intervenors), and entered a final judgment in favor of the Secretary and Intervenors. The Appeals Court affirmed the district court decision.

The focus of this case is West Virginia's regulatory provision requiring WVDEP to prepare a CHIA [cumulative hydrologic impact assessment] in conjunction with its review of surface coal mining permits. West Virginia's first proposed amendment repeals its definition of "cumulative impact" in the State's CHIA provision and the second amendment at issue in this case adds a definition for "material damage to the hydrologic balance outside the permit area."

The Appeals Court concluded that, ". . .we agree with the district court's analysis. The district court properly determined that the Secretary 'has provided an adequate basis for his approval' and that 'West Virginia's material damage definition does not supersede, amend, modify, or repeal the [CWA].' . . Accordingly, we affirm on the basis of the district court's well reasoned opinion."

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SCOTUS Hears Arguments In Sackett v. EPA Wetlands Case

2012-01-10T16:19:00.001-05:00

Jan 9: The U.S. Supreme Court (SCOTUS) heard oral arguments in the case of Chantell and Michael Sackett v. U.S. EPA (SupCt No.10-1062). The case is being appealed from the Ninth Circuit [See WIMS 9/21/10]. In the case the Ninth Circuit said, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."

Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from EPA claiming that they filled a jurisdictional wetland without a Federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years. The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to Federal jurisdiction. The questions presented to the Supreme Court are: Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a) (3) of the Clean Water Act?

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D.C. Appeals Court Stays Cross-State Air Pollution Rule

2012-01-03T16:44:00.001-05:00

Dec 30: In one of the last official judicial environmental actions of 2011, the United States Court of Appeals for the D.C. Circuit issued a ruling to stay U.S. EPA's controversial Cross-State Air Pollution Rule (CSAPR) finalized on July 6, 2011, and published in the Federal Register on August 8, 2011 [See WIMS 7/7/11]. According to the 2-page Court order issued on December 30, the CSAPR, which just became effective on October 7, 2011, is now on hold pending judicial review until at least April 2012.

On October 6, EPA signed a proposed rule, seeking comment on significant revisions to the final CSAPR [See WIMS 10/7/11]. In a separate, but related, regulatory action, EPA finalized a supplemental rulemaking on December 15, 2011 to require five states -- Iowa, Michigan, Missouri, Oklahoma, and Wisconsin -- to make summertime NOx reductions under the CSAPR ozone season control program. CSAPR requires a total of 28 Eastern states to reduce annual SO2 emissions, annual NOx emissions and/or ozone season NOx emissions to assist in attaining the 1997 ozone and fine particle and 2006 fine particle National Ambient Air Quality Standards (NAAQS). CSAPR replaced EPA's 2005 Clean Air Interstate Rule (CAIR). A December 2008 court decision kept the requirements of CAIR in place temporarily but directed EPA to issue a new rule to implement Clean Air Act requirements concerning the transport of air pollution across state boundaries.

The case, EME Homer City Generation, L.P. v. EPA with the American Lung Association, et al. as Intervenors, Case No. 11-1302 is consolidated with 44 other petitions. Among other items, the Court order indicates, ". . .the motions to stay be granted. The Environmental Protection Agency's 'Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final Rule,' 76 Fed. Reg. 48,208 (August 8, 2011), is stayed pending the court's resolution of these petitions for review. Petitioners have satisfied the standards required for a stay pending court review. . . Respondent is expected to continue administering the Clean Air Interstate Rule pending the court's resolution of these petitions for review."

The Appeals Court ordered further, "that the parties submit by January 17, 2012, proposed formats and schedules for the briefing of these cases that would allow the cases to be heard by April 2012. The parties are strongly urged to submit a joint proposal and are reminded that the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief. The parties are directed to provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment. Requests to exceed the standard word allotment must specify the word allotment necessary for each issue."

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State Of New York v. Solvent Chemical Co., Inc.

2012-01-03T16:42:00.001-05:00

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case Nos. 10-2026, 10-2166, 10-2383. The Appeals Court summarizes saying, "Plaintiff sought contribution under the Comprehensive Environmental Response and Compensation Act (CERCLA) for both past and future costs of cleaning up industrial pollution. The U.S. District Court for the Western District of New York awarded contribution for past cleanup costs but declined to issue a declaratory judgment as to future contribution. The Appeals Court reversed the denial of a declaratory judgment and indicated that numerous other issues raised on appeal are decided in a summary order issued simultaneously with the opinion.

Plaintiff Solvent Chemical Company, Inc. (Solvent) sued two adjoining property owners, E.I. du Pont de Nemours & Co. (DuPont) and Olin Corporation (Olin), seeking contribution for costs that Solvent had incurred and continues to incur cleaning up hazardous waste pursuant to a consent decree with the State of New York. The district court declined to declare liability chiefly because the allocation of future costs would be premature.

The Appeals Court indicates that, "The reasons given by the district court might justify a refusal to allocate cleanup responsibility; none of them, however, supports a refusal to grant a declaratory judgment as to liability itself. . . none of the factors identified by the court distinguishes between past and future cleanup. . . These factors require a district court to issue a declaratory judgment in this case. A declaratory judgment would 'serve a useful purpose' here for at least two reasons.

"First, there is a short statute of limitations for a CERCLA contribution claim. . . Second, the 'costs and time involved in relitigating issues as complex as these where new costs are incurred would be massive and wasteful' . . . A declaratory judgment

with respect to liability saves litigants and courts substantial time and money, leaving for the future only the need to fix the amount of contribution and affording the court flexibility with respect to the time and manner for doing so. . .Accordingly, we conclude that: the judgment would 'serve a useful purpose in . . . settling the legal issues involved'. . ."

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National Association of Home Builders v. US Army Corps

2012-01-03T16:41:00.001-05:00

Dec 16: In the U.S. Court of Appeals D.C. Circuit, Case No. 10-5169. Appealed from the United States District Court for the District of Columbia. According to the Appeals Court, "Invoking its authority under § 404(e) of the Clean Water Act (CWA), 33 U.S.C. § 1344(e), the U.S. Army Corps of Engineers issued a generic nationwide permit (NWP 46) allowing persons to secure approval for qualifying discharges into 'waters of the United States' without going through the more laborious process of securing an individual permit."

The National Association of Home Builders (NAHB) appealed the district court's dismissal of its challenge to the Corps's authority to issue the permit. Although the district court held that the NAHB had standing to pursue its claim, it ultimately granted summary judgment for the Corps on the merits, finding that the terms of the permit survived the NAHB's legal challenges. The Appeals Court, however said, "Because we find that the NAHB lacked standing to bring its suit, we vacate and remand with instructions to dismiss the case."

The Appeals Court states further, "A membership organization such as the NAHB can assert standing on behalf of its members only if 'at least one' of these members would have standing on their own. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977)). Although it is undisputed that the NAHB qualifies to advance the claims of its members, we find that it has failed to show that any member had standing."

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Northern Plains Resources v. The Surface Transportation Bd.

2012-01-03T16:40:00.001-05:00

Dec 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 97-70037, 97-70099, and 97-70217. On Petition for Review of Orders of the Surface Transportation Board, Department of Transportation.

The Appeals Court indicates that the case arises out of three applications by the Tongue River Railroad Company, Inc. (TRRC) to build a 130-mile railroad line in Southeastern Montana to haul coal. The Surface Transportation Board (Board), or its predecessor, the Interstate Commerce Commission (ICC), approved each of the three applications (individually, TRRC I, II, and III). Northern Plains Resource Council, Inc. (NPRC), Mark Fix, the City of Forsyth, Native Action, Inc. (Native Action), and United Transportation Union-General Committee of Adjustment (UTU-GCA) (collectively, Petitioners) challenge TRRC II and III. Petitioners challenge the approval of TRRC II and III on a number of environmental and public convenience and necessity grounds.

The Appeals Court said, "We hold that the Board failed to take the requisite 'hard look' at certain material environmental impacts inherent in TRRC II and III in the manner required by the National Environmental Policy Act (NEPA) prior to approving those applications. We further hold that the Board did not err in its public convenience and necessity analyses, except with respect to its reliance on the viability of TRRC II during the approval of TRRC III. Accordingly, we reverse and remand in part, and affirm in part."

The Appeals Court indicates that, "Petitioners contend that the Board's cumulative impact analysis in TRRC III ignores the combined impacts of future coal bed methane (CBM) well development and coal mining projects that will also come into being in Southeastern Montana. Petitioners further contend that the Board failed to account for the combined effects of the referenced projects and the likely effects on air quality, wildlife, and water quality of the proposed construction and operation of the TRRC railroad. We agree with Petitioners' contentions concerning the cumulative foreseeable effects of CBM wells and the Otter Creek Coal Mine. . . we hold that the Board arbitrarily and capriciously relied on the five-year time frame, which resulted in a faulty analysis of the possible cumulative impacts from reasonably foreseeable CBM projects that could overlap construction of the railroad line." On other issues the Appeals Court ruled in favor of the Board.

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New Jersey v. EPA

2012-01-03T16:38:00.001-05:00

Dec 20: the U.S. Court of Appeals D.C. Circuit, Case No. 05-1097, consolidated with 40 other actions. The Appeals Court explains that this is a motion for fees and costs under section 307(f) of the Clean Air Act, which authorizes courts to -- award costs of litigation (including reasonable attorney and expert witness fees) whenever they determine that such award is appropriate. In the underlying litigation, movants, a group of Native American tribes and tribal associations, intervened on behalf of petitioners who were challenging EPA rules regulating mercury emissions from power plants. See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). The Tribes also filed a petition for review challenging an ancillary regulation not at issue here. The Appeals Court vacated the mercury rules because it agreed with petitioners that the rules violated the Clean Air Act. Id. Petitioners sought fees, and EPA agreed to pay.

The Appeals Court indicates, "Tribal Intervenors, who also pressed for vacatur, albeit on the basis of different arguments that we never reached, now ask us to order EPA to pay their fees and costs. EPA objects, claiming that Tribal Intervenors are ineligible for fee shifting. EPA also argues that even were Tribal Intervenors eligible, the size of their fee request is unreasonable and should be reduced by more than two-thirds. . . we conclude that Tribal Intervenors merit a fee award. We decline, however, to weigh in now on the appropriate amount; instead, we direct the parties to our Appellate Mediation Program."

Access the complete opinion (click here). [#Air, #CADC]

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WIMS Environmental News Blogs

2011-12-22T14:33:00.001-05:00

While we're on break it's a great time to check out our WIMS Environmental News Blogs -- 24/7 Environmental News. . .

We'll be back on Tuesday, January 3, 2012.

Happy Holidays

2011-12-19T13:33:00.001-05:00

Subscribers & Readers Note:

WIMS will be off the next two weeks for our annual Christmas/New Year's holiday break and return on Tuesday, January 3, 2012, to begin our 32nd year.

We wish all of our subscribers & readers a happy and safe holiday season and wish you well in the coming new year. Thank you all for your continuing support.

Dietrich Bergmann v. Michigan State Transportation Commission

2011-12-16T16:25:00.001-05:00

Dec 15: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 10-1708/1770. Appealed from the Eastern District of Michigan at Detroit. In the brief, but somewhat complicated, 5-page opinion, the Appeals Court said, "The district court partially granted Dietrich Bergmann's motion to enforce a decades-old consent decree concerning some real estate he owned in Detroit. The Appeals Court said, "In deciding which portions of the decree are enforceable, however, the court incorrectly looked to Michigan's statute of limitations, rather than the doctrine of laches. We vacate and remand."

In describing the background to the case, the Appeals Court indicates that in 1979, Bergmann bought land in Detroit from the Michigan State Transportation Commission. A decade later, he sued the Commission and the Michigan Department of Transportation under the Federal Comprehensive Environmental Response, Compensation, and Liability Act. He alleged that there was contamination on the site and sought the "costs of exploratory work and of remediating" the land. In its initial pleadings, the Department asserted sovereign immunity from suit. At that time, however, the Supreme Court had interpreted the Eleventh Amendment to allow states to be sued under CERCLA. See Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). The Department later dropped the sovereign-immunity defense in its answer to Bergmann's first amended complaint.

The parties settled. The district court entered a consent decree on June 21, 1991. The decree required the Department to remediate Bergmann's property by March 31, 1995. If by then the Department failed to make a good-faith effort to remediate, the decree required the Department to pay Bergmann $2,000 per month in liquidated damages on the first day of every month until the remediation was complete.

The Department failed to remediate the property or to pay the liquidated damages. On July 31, 2009 -- more than 14 years after those obligations came due -- Bergmann filed a motion with the same district court to enforce the decree. In response, the Department asserted sovereign immunity, citing a change in Supreme Court precedent. The district court eventually held that the Department had waived its sovereign immunity decades earlier by abandoning its argument that immunity barred the suit. The court then granted Bergmann's motion in part: It held that Michigan's 10-year statute of limitations barred enforcement of the Department's remediation obligation, but that each of the missed $2,000 payments triggered its own 10-year limitations period. Thus, the court awarded Bergmann damages for the period between August 1999 and March 26, 2010 (the date of its order).

The Appeals Court explains its decision and cites the following cases in saying, "Both parties argue that the district court misapplied Michigan's statute of limitations. But we think the court should not have applied the statute at all. As Judge Posner has explained: 'From the standpoint of interpretation a consent decree is a contract, but from the standpoint of remedy it is an equitable decree.' Cooke v. City of Chicago, 192 F.3d 693, 695 (7th Cir. 1999) (collecting cases). Thus, if a party violates a consent decree, his opponent 'must ask the court for an equitable remedy[,]' which is then 'subject to the usual equitable defenses.' Id. For this reason, the Second Circuit holds that the equitable doctrine of laches -- and not the state statute of limitations -- governs the timeliness of motions to enforce consent decrees in nondiversity cases. See Brennan v. Nassau County, 352 F.3d 60, 6364 (2d Cir. 2003) (per curiam). We agree with the Second Circuit. . ." [Note: the doctrine of laches indicates that failure to assert one's rights in a timely manner can result in a claim's being barred by laches].

The Appeals Court ruled, "On remand, therefore, the district court should apply the doctrine of laches in deciding Bergmann's motion to enforce the decree. The district court's order partially enforcing the decree is vacated, and the case remanded for proceedings consistent with this opinion."

Access the complete opinion (click here). [#Remed, #MIRemed, #CA6]

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Northwest Environmental Defense Center v. Brown

2011-12-14T16:30:00.001-05:00

In Dec 12: The U.S. Supreme Court issued an order relating to the Ninth Circuit Court of Appeals decision in the case of Northwest Environmental Defense Center v. Brown (Supreme Ct docket Nos. 11-338 & 11-347) [See WIMS 5/19/11]. The order simply states that, "The Solicitor General is invited to file a brief in these cases expressing the views of the United States. Justice Breyer took no part in the consideration or decision of these petitions."

In the case, Northwest Environmental Defense Center (NEDC) brought a suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and against various timber companies. NEDC argued that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits (i.e. discharge permits) from the U.S. EPA for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC said the discharges were from "point sources" within the meaning

of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES). The district court concluded that the discharges were exempt from the NPDES permitting process by the Silvicultural Rule, but, the Appeals Court overturned the decision and concluded that the discharges require NPDES permits.

Regarding the Supreme Court order, David Tenny, President and CEO of the National Alliance of Forest Owners (NAFO) released a statement on the order. NAFO is an organization of private forest owners committed to advancing Federal policies that promote the economic and environmental benefits of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states. Working forests in the U.S. support 2.5 million jobs.

Tenny said, "We applaud the Supreme Court for scrutinizing the Ninth Circuit's decision to disregard EPA's 35 years of success regulating forest management as a nonpoint source under Clean Water Act. The Court is hearing not only the voice of forest owners and managers across the country but also Attorneys General from 26 states who joined a brief supporting EPA's historic approach. The policy and legal importance of this case is clear.

"For nearly four decades, the EPA has cooperated with the states under established Clean Water Act authority to build a network of Best Management Practices providing flexible and effective water quality protection during forestry operations. This has been a Clean Water Act success story. The Ninth Circuit's decision threatens to upend this progress by replacing an efficient and flexible system that promotes clean water with a costly and inflexible permit requirement that invites additional litigation. In the end the Ninth Circuit's decision hurts forest owners and forests alike.

"While this is a significant first step, there is no guarantee that the Supreme Court will hear the case and reverse the Ninth Circuit Court's overstep. It does, however, provide the Administration and the Solicitor General an opportunity to submit to the Supreme Court a clear and unambiguous defense of EPA's longstanding and legally appropriate approach to regulating forest roads as nonpoint sources."

Access the Supreme Court order (click here, page 2). Access the Supreme Court docket (click here). Access a release from NAFO (click here). Access the complete Ninth Circuit opinion (click here). [*Water, *Land, *CA9, #SupCt]

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Portland Cement Association v. U.S. EPA

2011-12-12T15:52:00.001-05:00

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1358, and 10-1359, Consolidated with 10-1363, 10-1366, 10-1367, 10-1369, 10-1373, 10-1374, 10-1376, 10-1379, 11-1012, 11-1244 and 10-1361, 10-1364, 10-1365, 10-1368, 10-1370, 10-1372, 10-1375, 10-1377, 11-1245. On Petitions for Review of a Final Action of the Environmental Protection Agency. In this high profile case, the Appeals Court explains that pursuant to the Clean Air Act (CAA), the U.S. EPA enacted twin rules in 2010 setting emissions standards for portland cement facilities -- one under a section called National Emission Standards for Hazardous Air Pollutants (NESHAP); and the second under a section called New Source Performance Standards (NSPS). Petitioners, Portland Cement Association and other cement manufacturers (PCA), argue that both rules violate the CAA and are arbitrary and capricious. A consortium of environmental groups including the Sierra Club (Environmental Petitioners) filed their own petition, arguing that EPA abused its discretion by declining to include greenhouse gas emissions standards in its NSPS rule.

The Appeals Court said, ". . .we agree that EPA acted arbitrarily when it promulgated the final NESHAP rule and therefore grant PCA's petition for review with respect to EPA's denial of reconsideration on that issue. We also stay the NESHAP standards for clinker storage piles pending reconsideration by EPA. We deny PCA's petitions with respect to all other issues relating to NESHAP and NSPS, and dismiss Environmental Petitioners' petition for lack of jurisdiction."

In its final summary the Appeals Court ruled, ". . .we grant PCA's petition for review with respect to EPA's denial of reconsideration of the NESHAP rule and remand the rule for further action, deny PCA's petition for review with respect to the NSPS rule, and dismiss Environmental Petitioners' petition for lack of jurisdiction. All of the standards will remain in place except for the NESHAP standards applicable to clinker storage piles, which are stayed pending reconsideration. We nonetheless urge EPA to act expeditiously on remand. . ."

Regarding the Environmental Petitioners, the Appeals Court said, "At various points in their brief, Environmental Petitioners also appear to recast their petition as a challenge to EPA's 'refus[al] to act'. . . But if environmental petitioners are indeed challenging a 'refusal to act,' they should have brought their case in the district court. The Clean Air Act provides that any individual may file suit alleging that EPA has failed 'to perform any act or duty . . . which is not discretionary with the Administrator,' 42 U.S.C. § 7604(a)(2), and that '[t]he district courts shall have jurisdiction' over these suits. . . Because we lack statutory jurisdiction over environmental petitioners' claims, we have no need to consider PCA's alternative argument that environmental petitioners lack Article III standing."

One Justice concurred with the opinion but wrote a lengthy comment separately saying, ". . .I write separately to observe that there is much to be said for Petitioners' argument that EPA should not be permitted to base NESHAP standards on bare emissions data, and that EPA should instead isolate the effect of emissions control technology by controlling for input quality. Because kilns are co-located with raw material quarries and because there is significant variability in the pollutant content of those raw materials, a kiln may have low emissions simply because it happens to be blessed with good inputs, not because it is using a superior control technology. But when the CAA directs EPA to set floors based on 'the emission control that is achieved in practice by the best controlled similar source,'. . . (emphases in original), it would seem to be specifically directing EPA's attention to the active steps a kiln has taken to 'control' its emissions, not simply to the level of emissions itself. . ."

Access the complete opinion (click here). [#Air, #CADC]

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National Association of Home Builders v. U.S. EPA

2011-12-12T15:50:00.001-05:00

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5341. Appeal from the United States District Court for the District of Columbia. The Appeals Court explains that, the National Association of Home Builders (NAHB) and its member organizations, Southern Arizona Home Builders Association and Home Builders Association of Central Arizona, appeal the dismissal of their lawsuit challenging the determination (Determination) by the United States Army Corps of Engineers (Corps) and U.S. EPA (collectively, Agencies) that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable water[s]" (TNW) so as to come within the Agencies' regulatory authority under the Clean Water Act (CWA). NAHB challenges the TNW Determination as both procedurally and substantively defective.

The district court dismissed the complaint for lack of subject matter jurisdiction on the ground the CWA precludes a preenforcement challenge to a TNW Determination. The Appeals Court ruled, "We affirm the dismissal on the alternative jurisdictional ground that the appellants lack standing under Article III of the United States Constitution." The Appeals Court cites previous cases and the requirements for standing saying, "The 'irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." The Appeals Court said, "We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing -- either in its own right or on behalf of its members.

Access the complete opinion (click here). [#Air, #CADC]

Citizens for Balanced Use v. McAllister (U.S. Forest Service)

2011-12-05T16:28:00.001-05:00

Dec 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36051, 09-36058, & 09-36080. Appealed from the United States District Court for the District of Montana. A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). The Appeals Court ruled that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a Congressional decision on whether to designate the area as wilderness.

The Appeals Court said that, "In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service's adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court's decision finding that the Service's actions violate the Administrative Procedure Act (APA)."

The Appeals Court said, "In addressing § 1502.22, the Service noted that historical data tracking changes in the volume of recreational use within the study area could not be obtained, but concluded that such data were not necessary in any event. This conclusion was apparently based on the Service's faulty determination that it was not obligated to maintain the study area's 1977 wilderness character, including 1977 opportunities for solitude, for the benefit of current users. . . We therefore hold that the Service incorrectly determined that historical volume of use data are irrelevant for § 1502.22 purposes. . . On remand, the Service must acknowledge the relevance of the missing information and comply with § 1502.22(b)'s instructions for assessing reasonably foreseeable adverse impacts despite gaps in the relevant data."

In conclusion, the Appeals Court said, "We hold that the travel plan improperly ignores the impact of increased volume of motorized and mechanized use on current users' ability to seek quiet and solitude in the study area. Because the Service entirely failed to consider this important aspect of its duty to maintain the study area's 1977 wilderness character, its decision is arbitrary and capricious. We affirm judgment in favor of MWA and against the Service and Citizens."

Access the complete opinion (click here). [#Land, #CA9]

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Sierra Club v. Robert Van Antwerp (Army Corps)

2011-11-30T16:26:00.001-05:00

Nov 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5284 consolidated with 105297, 10-5345. Appealed from the United States District Court for the District of Columbia.

The Appeals Court explained that in 2007 the U.S. Army Corps of Engineers issued a permit authorizing the discharge of dredge and fill material into specified wetlands outside Tampa, Florida; it thereby enabled construction of a large mall. A number of firms are involved on the permittee's side in these appeals, but they are being referred to as CCTC, standing for Cypress Creek Town Center. Three environmental groups (collectively referred to as the Sierra Club) brought suit in district court to challenge issuance of the permit. The suit also names the heads of the Department of the Interior and the U.S. Fish and Wildlife Service as well, but are being considered collectively as the Corps. Plaintiffs invoked three statutes: the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Endangered Species Act (ESA).

The district court issued a decision finding that the Corps had not fully complied with its obligations under NEPA and the CWA, but rejected the plaintiffs' ESA claim. It granted summary judgment for the Sierra Club on the first two claims and for the Corps on the third. CCTC and the Corps appealed, and the Sierra Club crossappealed.

In summary, the Appeals Court indicates, "We affirm in part, reverse in part, and remand, concluding that the Corps did satisfy the demands of the three relevant statutes, except for failing to respond, in its treatment of the NEPA and ESA requirements, to a material contention as to the project's impact on an endangered species, the eastern indigo snake." Clarifying further in its conclusion the Appeals Court said, "Our decision here of course substantially alters the substantive merits outcome that underlay the district court's injunction. Accordingly it will be suitable on remand for the court to entertain contentions relating to modification of that injunction. In short, we reverse the district court entirely as to the CWA; reverse it as to NEPA except insofar as the court required further explanation by the Corps as to potential fragmentation of the indigo snake's habitat; and affirm its decision as to the ESA except in so far as it found the Corps's analysis of the indigo snake issue adequate."

Regarding the indigo snake, the Appeals Court said, "In both ESA and NEPA contexts, we reject the Sierra Club's wood stork claim but find that the Corps failed to adequately address indications of an adverse effect on the indigo snake. . . we must remand for further explanation by the Corps of its determination that the project was 'not likely to adversely affect' the indigo snake. We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes. . ."

Access the complete opinion (click here). [#Wildlife, #Water, #Land, #CADC]

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Buffalo Marine Services, Inc. v. USA

2011-11-28T16:42:00.001-05:00

Nov 23: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-41108. Appealed from the United States District Court for the Eastern District of Texas. The appeal arises out of an oil spill on the Neches River. Appellants challenge the National Pollution Funds Center's (NPFC's) final claim determination denying reimbursement for costs arising from the spill. The district court rejected appellants' challenge to the Agency's claim determination and the Appeals Court affirmed the decision.

By way of background, Buffalo Marine's barge collided with the TORM MARY, rupturing the vessel's skin and adjacent fuel-oil tank. As a result of the rupture, approximately 27,000 gallons of heavy fuel oil spilled into the Neches River. Buffalo Marine, the Torm, and their insurers coordinated the clean-up effort, assessed at a cost of $10.1 million.

The Appeals Court said in part, "Given the evidence on record and the concessions of the parties, we find no error in the NPFC's conclusion that the claimants failed to establish by a preponderance of evidence that the acts or omissions of Buffalo Marine's barge in approaching and colliding with the TORM MARY were other than those occurring in connection with a contractual relationship with the responsible party for the TORM MARY. Because the claimants failed to demonstrate by a

preponderance of evidence that the sole cause of the spill was a third-party act or omission that did not occur in connection with any contractual relationship with the responsible party, the Torm's third-party affirmative defense could not succeed. Thus, we also find no error in the NPFC's failure to decide whether the claimants could satisfy the additional requirements in § 2703(a)(3)(A) and (B)."

In its conclusion, the Appeals Court said, "We conclude that the NPFC's interpretation of 33 U.S.C. § 2703 is entitled to deference and that appellants have not demonstrated that the NPFC's denial of the Torm's third-party affirmative defense claim should be overturned under the standard set forth in the APA."

Access the complete opinion (click here). [#Remed, #CA5]

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Egan Marine Corporation v. Great American Insurance Co. of NY

2011-11-28T16:37:00.001-05:00

Nov 23: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1266 & 11-1346. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. Egan Marine Corporation (EMC) and Service Welding and Shipbuilding, LLC (SWS) are embroiled in a contract dispute with their insurance company, Great American Insurance Company of New York (GAIC). The dispute centers on the terms and scope of the plaintiffs' insurance policy, which indemnifies them against liability under several Federal environmental protection laws or those laws' state-law equivalents. EMC and SWS attempted to invoke their policy for up to $10 million in coverage following an explosion on one of their vessels that resulted in an oil spill in the Chicago Sanitary and Ship Canal. They intended to apply that amount against any legal liability and costs they incurred as a result of the incident. GAIC contends that, under the terms of the policy, the spill rendered available only $5 million in coverage.

Additionally, the parties disagree about the amount GAIC owes EMC and SWS pursuant to a post-explosion agreement between them that EMC and SWS would provide cleanup and spill management services on their own behalf -- a function contractually designated to GAIC. Under this arrangement, EMC and SWS agreed to charge GAIC at "cost," but each party disputes the other's understanding of and method of calculating "cost." The Appeals Court affirmed the judgment of the district court.

In this complicated and detailed case, the district court granted GAIC judgment on the pleadings with respect to the following: (1) it owed $5,000,000 per vessel, per incident and had fully honored the policy with respect to the EMC 423; (2) it owed no

coverage for either the Lisa E or the EMC 423 for in rem liability ["with respect to the thing itself" (i.e., the collateral)]. It denied any further judgment on the pleadings. The district court then granted EMC and SWS's motion for summary judgment on their breach of contract claim, finding that GAIC owed $5,000,000 in coverage for the Lisa E, was obligated to pay defense costs up to that amount, and had breached its contract by not doing so. It denied summary judgment on their claim that GAIC breached its duty of good faith and fair dealing.

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

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Greater Yellowstone Coalition v. State of Wyoming

2011-11-23T15:09:00.001-05:00

Nov 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-36100, 10-35043, 10-35052, 10-35053, and 10-35054. Appealed from the United States District Court for the District of Montana. In this partially split decision, the Appeals Court provides extensive background and explains, this case involves one of the American West's most iconic wild animals in one of its most iconic landscapes. The grizzly bear (Ursus arctos horribilis) -- so named for the gray-tipped hairs that give it a 'grizzled' appearance -- is both revered and feared as a symbol of wildness, independence, and massive strength. But while grizzlies may inspire some sense of human vulnerability, history has shown that it is the bears who have often been the more vulnerable ones. During the nineteenth and early twentieth centuries, widespread hunting, trapping, poisoning, and habitat destruction associated with American expansion decimated the grizzly population in the West and relegated the bears to increasingly remote and rugged terrain. Since then, their survival has depended both on their own ability to adapt to their surroundings and on human ability to adapt to their presence. These seemingly irreconcilable tensions have come to a head before us in this appeal.

The Yellowstone region of northwestern Wyoming, southern Montana, and northeastern Idaho is home to a grizzly population, two popular national parks -- Yellowstone and Grand Teton -- and a network of rural communities built on industries such as natural resource extraction, ranching, agriculture, and tourism. As such, it has served as a kind of living laboratory for the coexistence of people and grizzlies in close proximity. For much of the twentieth century, Yellowstone National Park's open-pit garbage dumps provided a reliable food source for the bears as well as a convenient bear-viewing opportunity for tourists. After the dumps were closed in the early 1970s due to concerns about encouraging the bears' attraction to human foods, however, grizzly mortality rates skyrocketed. By 1975 the grizzly population decline at Yellowstone and elsewhere prompted the U.S. Fish and Wildlife Service (the "Service") to list the grizzly as "threatened" in the lower 48 states under the Endangered Species Act (ESA).

Since then, the Yellowstone grizzly population has rebounded, as scientists, conservationists and land managers have made unprecedented efforts to study the bear and to change those human attitudes and behaviors that unnecessarily threaten it. These efforts, spearheaded by the Service's Grizzly Bear Recovery Coordinator Dr. Christopher Servheen, culminated in the "Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area" (the Strategy), an impressive inter-agency, multi-state cooperative blueprint for long-term protection and management of a sustainable grizzly population. Interagency Conservation Strategy Team, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Mar. 2007). Shortly after the Strategy's finalization, the Service removed the Yellowstone grizzly from the threatened species list.

The majority Appeals Court indicates, "The Service's delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the Service's delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the Service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA's staunch protections.

As to the first issue, we affirm the district court's ruling that the Service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the Service's determination regarding the adequacy of existing regulatory mechanisms was reasonable."

Following its analysis, the majority Appeals Court concludes, "We affirm the district court's grant of summary judgment in favor of Greater Yellowstone Coalition on the issue of whether the Service rationally supported its determination that potential whitebark pine declines did not threaten the Yellowstone grizzly bear. This is sufficient to affirm the district court's judgment vacating the Rule. However, we reverse the district court's grant of summary judgment in favor of Greater Yellowstone Coalition as to the Service's determination that existing regulatory mechanisms are adequate to protect a recovered Yellowstone grizzly population, and we direct the district court to enter summary judgment in favor of the governmental Appellants on that issue. We remand to the district court for further proceedings consistent with this Opinion. Affirmed in part; reversed and remanded in part.

In a partial dissent, one of the Justices said, "I agree with the majority that the U.S. Fish and Wildlife Service (the Service) did not, in its delisting rule, articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear. Unlike the majority, I would hold that the agency also erred in concluding the Yellowstone grizzly is not threatened by 'the inadequacy of regulatory mechanisms.' Therefore, I would affirm the district court's decision in its entirety."

In a release, the Natural Resources Defense County (NRDC) emphasized that the Court of Appeals panel "unanimously agreed that one of the grizzly's key food sources, the whitebark pine, has become so ravaged by climate change that the bears' future remains undeniably threatened." Louisa Willcox, senior wildlife advocate for NRDC said, "Grizzlies are still fighting for their survival in Yellowstone. Grizzly bears have made great progress in the Greater Yellowstone Ecosystem, but they are still very vulnerable, and we must maintain the protections that have brought the bears back from the brink of extinction. Since one of their key food sources is disappearing in Yellowstone, we must develop a long-term plan to help the bear adapt to the results of climate change on their habitat."

NRDC explains that, "Numerous studies have shown a clear correlation between the abundance of whitebark pine cone crops and human-bear conflicts. In years with large cone crops, the bears forage at higher elevation, far from high densities of people. When cones are scarce, the bears move closer to places where more people are. While the bears are omnivores, the pine nuts offer a high calorie food source at a time when little else is available of similar nutritional value. Many researchers have expressed concern over the impact this will have on the future of the grizzly bear population, and the animals' movements in search of new food sources, in the Greater Yellowstone Ecosystem. Recent NRDC/Forest Service research has shown that more than 80% of the whitebark pine forests in the Greater Yellowstone Ecosystem are now dead or dying due to a mountain pine beetle infestation brought on by warming temperatures."

Access the complete opinion and partial dissent (click here). Access the Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (click here). Access a release from NRDC with links to related information resources (click here). [#Wildlife, #CA9]

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Rock Creek Alliance v. US Fish & Wildlife Service

2011-11-17T16:15:00.001-05:00

Nov 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35596. Appeal from the United States District Court for the District of Montana. The Appeals Court indicates that Plaintiff-Appellant Rock Creek Alliance appealed the district court's grant of summary judgment in favor of Defendant-Appellee the U.S. Fish and Wildlife Service and Intervenor-Defendant-Appellee Revett Silver Company in an action brought pursuant to Section 7 of the Endangered Species Act, which requires Federal agencies to consult with the Fish and Wildlife Service before undertaking any action "authorized, funded, or carried out" by the agency that might "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat" used by any endangered or threatened species. The Appeals Court affirmed what it called the "district court's well-reasoned opinion."

Revett Silver Company proposed to build and operate a copper and silver mine in northwest Montana, part of which will be on land managed by the U.S. Forest Service. Because the mine might impact two species listed as threatened under the Endangered Species Act -- the bull trout and the grizzly bear -- the Forest Service was required to engage in formal consultations with the Fish and Wildlife Service before approving the mine. As a part of those consultations, the Fish and Wildlife Service issued two biological opinions that concluded that the mine would result in "no adverse modification" to critical bull trout habitat and would result in "no jeopardy" to the local grizzly bear population.

In the district court, Rock Creek Alliance challenged the biological opinions, arguing that the Fish and Wildlife Service's conclusions were arbitrary, capricious, and violated the Endangered Species Act. The district court disagreed, and granted summary judgment in favor of the Fish and Wildlife Service and Revett Silver Company. Rock Creek Alliance then appealed. After specifically addressing each of the Alliance's challenges, the Appeals Court ruled, ". . .the Fish and Wildlife Service's determination that the mine would entail 'no adverse modification' to bull trout critical habitat and would result in 'no jeopardy' to grizzly bears was not arbitrary, capricious, or in violation of the Endangered Species Act. Affirmed."

Access the complete opinion (click here). [#Wildlife, #CA9]

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The Ark Initiative v. United States Forest Service

2011-11-09T16:38:00.001-05:00

Nov 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1473. Appealed from the U.S. District Court for the District of Colorado. Plaintiffs-Appellants Ark Initiative, et al appeal from the district court's judgment in favor of the Defendants-Appellees, the U.S. Forest Service and its Chief. The district court upheld the Defendants' acceptance of the 2003 Master Development Plan (MDP), as well as a National Environmental Policy Act (NEPA) analysis, and decisions concerning the 2006 Snowmass Ski Improvements Project (Improvements Project). On appeal, Plaintiffs argue that the Defendants violated NEPA by approving the project without examining certain cumulative effects -- namely, effects on water resources, endangered fish, forest habitats, and "other resources." The Defendants counter that Plaintiffs have failed to exhaust these claims, given a significantly different argument on appeal, but that, in any event, NEPA does not require a Federal agency to examine the cumulative effects of its proposed action with those of an unrelated proposal where the proposed action will not affect the resource concerns pressed by the Plaintiffs. The Appeals Court affirmed the district court decision "based upon a failure to exhaust."

The Appeals Court said, "In order to exhaust administrative remedies, claims cannot be 'only vaguely and cryptically referred to, if at all, during the administrative appeal.' See Kleissler v. U.S. Forest Service, 183 F.3d 196, 203 (3d Cir. 1999). In fact, '[c]laims not properly raised before an agency are waived, unless the problems underlying the claim are "obvious," or otherwise brought to the agency's attention.' See Forest Guardians, 495 F.3d at 1170. In their administrative appeal, Plaintiffs exhausted the water depletion issue, but not the other issues presented here, specifically: 'impacts to wildlife . . . air quality, water quality, litter, solid waste generation, visual quality, and so on.'" Finally the Appeals Court said, "Because the issues on appeal either have not been properly exhausted before the agency or preserved before the district court, the district court's judgment is affirmed."

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Gerard Keating v. Nebraska Public Power District

2011-11-08T16:26:00.001-05:00

Nov 7: In the U.S. Court of Appeals, Eighth Circuit, Case No. 10-2441. Appealed from the United States District Court for the District of Nebraska. Several Nebraska farmers filed suit under 42 U.S.C. § 1983, alleging their due process rights were violated when Nebraska officials ordered the farmers to cease drawing water from the Niobrara Watershed without providing a predeprivation hearing. The Appeals Court said, "We reversed the district court's prior dismissal and remanded the matter to the court with specific instructions. On remand, the district court determined that there was no deprivation of a property right and entered summary judgment in favor of appellees. The district court also declined to exercise jurisdiction over pendent state law claims, dismissing those claims without prejudice. We agree with the district court's determination and affirm its thorough and well-reasoned decision."

Explaining further, due to a decrease in water levels in the Niobrara Watershed, in 2006 the Nebraska Public Power District (NPPD) requested that the Nebraska Department of Natural Resources (DNR) issue Closing Notices to hundreds of farmers and ranchers who held surface water appropriation permits that were junior to those permits held by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior permit holders without providing them notice or a hearing prior to the issuance of the Closing Notices. The appellants filed suit, arguing that the Closing Notices effected a property deprivation, and accordingly they were entitled to the procedural due process protections of a predeprivation hearing.

In this second appeal, the appellants argue they are entitled to a predeprivation hearing prior to the DNR conducting its administration of the Niobrara Watershed and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing

to challenge the validity of the NPPD's permits on the grounds that the NPPD was not beneficially using its appropriation to produce power and to challenge the DNR's determination of water scarcity.

The Appeals Court said, "Appellants argue that when the DNR administers the Niobrara in a manner which requires permit holders to stop taking water, the state should conduct a hearing to give permit holders who are being issued Closing Notices an opportunity to challenge the DNR's determination that there is a scarcity requiring administration and to challenge the validity of any senior appropriator's permit. We reject this argument because when the DNR determines that the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of entitlement to use the surface water and thus do not suffer a deprivation of a property right. On the face of the permits, permit holders are warned that there are periods of time when water supply on the Niobrara River is insufficient to meet the demands of all appropriators and that permit holders are 'hereby given notice that [they] may be denied the use of water during times of scarcity.'"

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U.S. v. Donovan

2011-11-01T16:39:00.001-04:00

Oct 31: In the U.S. Court of Appeals, Third Circuit, Case No. 10-4295. Appealed from the United States District Court for the District of Delaware. In this important case, David Donovan added fill material to a portion of his property in New Castle County, Delaware that the United States contends is "wetlands" subject to the Clean Water Act (CWA). The Government brought an enforcement proceeding against him under the CWA to force him to remove the fill and pay a fine. Donovan argued that his property is not covered by the CWA. The case provides significant insight and analysis into the controversial 4-1-4 opinion of the U.S. Supreme Court in Rapanos v. United States, as well as related opinions.

The District Court disagreed, granting summary judgment in the Government's favor and imposing a $250,000 fine. In the appeal, the Appeals Court is called upon to decide what test to apply in order to determine whether land is "wetlands" subject to the CWA after the Supreme Court's ruling in Rapanos v. United States, 547 U.S. 715 (2006). The appeals Court says, "We join the Courts of Appeals for the First and Eighth Circuits in holding, as the District Court here did, that property is 'wetlands' subject to the CWA if it meets either of the tests laid out in Rapanos. We hold, further, that summary judgment was properly granted and will affirm."

A Magistrate Judge concluded that wetlands are covered by the CWA if they meet either of the tests articulated by the Supreme Court in Rapanos. The Magistrate Judge then analyzed the Government's expert reports and noted that they "offered sufficient evidence to support a finding" that the first Rapanos test was met. . . and that they 'adequately show[ed]' that the second Rapanos test was met. . ."

The District Court agreed with the Magistrate Judge that federal authority can be asserted over wetlands that meet either Rapanos test. As to the first Rapanos test (which the Appeals Court refers to as the '"continuous surface connection test" or the "plurality's test"), the District Court concluded that the Government "propounded significant evidence" that the test was met, and that Donovan's declaration failed to create a genuine issue of material fact as to whether the test was satisfied. The District Court was also satisfied that the Government's evidence established that the second Rapanos test (which they referred to as the "significant nexus test" or "Justice Kennedy's test") was met and noted that Donovan had largely relied on arguments by counsel concerning alleged deficiencies with the Government's evidence, but put forth no evidence of his own. The District Court concluded that Donovan failed to come forward with specific facts showing a genuine issue for trial and granted the Government's motion for summary judgment. Finally, the District Court denied Donovan's motion for judgment on the pleadings, holding that the Government pled enough factual matter to plausibly suggest that Donovan's property is subject to the CWA.

The Appeals Court further defines the two tests in Rapanos and says, "As for wetlands, the Justices in the plurality concluded that they only fall within the scope of the CWA if they have 'a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands.'" And, "Under Justice Kennedy's approach, wetlands are subject to the strictures of the CWA if they possess a 'significant nexus' with 'waters of the United States,' meaning that the wetlands, 'either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as "navigable.""

In the 4-1-4 Supreme Court decision, the Appeals Court says, "At first glance, the Rapanos opinions seem to present an analytical problem: the three opinions articulate three different views as to how courts should determine whether wetlands are subject to the CWA, and no opinion was joined by a majority of the Justices. So which test should apply?. . . Justice Stevens stated that, although the Justices voting to remand disagreed about the appropriate test to be applied, the four dissenting Justices -- with their broader view of the CWA's scope -- would nonetheless support a finding of jurisdiction under either the plurality's or Justice Kennedy's test, and that therefore the Corps' jurisdiction should be upheld in all cases in which either test is satisfied."

The Appeals Court said, "In sum, we find that Rapanos establishes two governing standards and Donovan's reliance on pre-Rapanos case law [i.e. Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994)] is misplaced. We hold that federal jurisdiction to regulate wetlands under the CWA exists if the wetlands meet either the plurality's test or Justice Kennedy's test from Rapanos.

The Appeals Court concludes, "The District Court correctly denied Donovan's motion. Donovan contends that the Corps has jurisdiction only over wetlands that are adjacent to navigable-in-fact waters and that the Government's pleadings fail for not alleging that Donovan's wetlands are adjacent to such waters. This argument is premised on a notion that we rejected above: that Rapanos fails to create a governing standard and that, therefore, pre-Rapanos law applies. The Government's complaint need not have pled that Donovan's wetlands are adjacent to navigable-in-fact waters and hence the District Court properly denied Donovan's motion for judgment on the pleadings."

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Town Of Barnstable, MA v. FAA

2011-10-31T16:33:00.001-04:00

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1276. The Appeals Court summarizes that, Cape Wind Associates has proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound -- an area roughly the size of Manhattan island [See WIMS 4/28/10, & WIMS 4/29/10]. If constructed, the project would be the nation's first offshore wind farm.

The Appeals Court explains that as required by federal regulations, Cape Wind notified the Federal Aviation Administration (FAA) of its proposed construction. After a preliminary investigation, the FAA issued a Notice of Presumed Hazard, and initiated more extensive aeronautical studies to decide whether the project would "result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace." The FAA also circulated a public notice of these

studies and invited interested persons to submit comments.

The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines. In the determinations, the FAA concluded that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." Although it ultimately decided that the project was not a hazard, its decision was contingent on Cape Wind's implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

Petitioners -- the town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound, a non-profit organization of private citizens and other organizations -- challenge these No Hazard determinations. They argue that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. In response, the FAA claims that petitioners lack standing to challenge the FAA's determinations and that their merits

claims are faulty. The Appeals Court found that petitioners do have standing and that the FAA did misread its regulations, "leaving the challenged determinations inadequately justified."

The Appeals Court points out, "After discussing the adverse effects the turbines would have on nearby radar facilities, the FAA's Determination addressed the impact on VFR operations, purporting to find no adverse effect on such operations. In so doing, the FAA relied solely on § 6-3-8(c)1 of the handbook, which says: 'A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within 2 statute miles of any regularly used VFR route.'. . After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

The Appeals Court ruled, "The FAA repeatedly notes in its brief that the handbook 'largely consists of criteria rather than rules to follow.' . . We agree. Any sensible reading of the handbook, and of § 6-3-8(c)1 in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure. . . the FAA catapulted over the real issues and the analytical work required by its handbook.

"Whether in fact an application of the handbook's guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion. . . The FAA's misplaced reliance on § 6-3-8(c)1 is no substitute. The petitions for review are accordingly granted, and the FAA's determinations are Vacated and Remanded."

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Natural Resources Defense Council v. U.S. EPA

2011-10-31T16:31:00.001-04:00

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1105. On Petition for Review of a Final Rule of the Environmental Protection Agency. The Appeals Court explains that the case follows up a D.C. Circuit decision in Environmental Defense, Inc. v. EPA, 509 F.3d 553 (D.C. Cir. 2007), in which the Appeals Court reviewed U.S. EPA's promulgation of a final rule for "PM2.5 and PM10 Hot Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards," 71 Fed. Reg. 12,468 (Mar. 10, 2006) (the 2006 Rule).

The "conformity determinations" referred to in the rule's title are approvals needed under the Clean Air Act (CAA) for Federally funded transportation projects in an area that is designated "nonattainment" or "maintenance" with respect to the National Ambient Air Quality Standards (NAAQS) -- approvals required in order to assure that the project "conforms" to the applicable State Implementation Plan (SIP). See Environmental Defense, 509 F.3d at 55558. "Hot spot" analysis means simply analysis of a project's localized impact. See 2006 Rule, 71 Fed. Reg. at 12,469/3.

In a brief, 10-page opinion the Appeals Court said, "We start with a quick review of the statutory and regulatory provisions at issue in our remand in Environmental Defense, explain the nature of that remand, describe the EPA's response to the remand, and (finally) explain the adequacy of that response."

Much of the case looks at the 1990 Congress amended CAA's conformity provisions to provide that [c]onformity to an implementation plan means . . . "(B) that such activities will not (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or milestones in any area."

The Appeals Court indicates that, "The pertinent passage of the 2006 Rule, however, appeared to disregard subsection (B)(iii). It provided that a new transportation project:

must not [1] cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or [2] increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied . . . if it is demonstrated that . . . no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.

". . .Obviously the segments designated [1] and [2] neatly match (B)(i) and (B)(ii), and are paralleled in the sentence beginning 'This criterion is satisfied if . . . .' But if the statutory language 'any area' required application of the (B)(i) and (B)(ii) requirements at the local level, then the EPA's seeming failure to address B(iii), or to explain its not doing so, was arbitrary and capricious."

In summation, the Appeals Court rules, ". . .given the EPA's clarification that (B)(iii) applies to local projects and its persuasive explanation of how the substance of the "delay" condition is met, we are satisfied that the 2010 Rule is not arbitrary, capricious, or inconsistent with law for the reasons raised in Environmental Defense. In particular, it is now clear that a project giving rise to the 'counterbalance' hypothetical we described in that case would not be deemed conforming." Accordingly, the petition of three environmental organizations is denied.

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ASPCA v. Feld Entertainment, Inc

2011-10-31T16:30:00.001-04:00

Oct 28: Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. The Appeals Court summarizes, "In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals [i.e. American Society for Prevention of Cruelty to Animals (ASPCA)] allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants -- bullhooks and chains -- harms the animals in violation of the Endangered Species Act. But the district court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree."

The Appeals Court indicates that the district court held a six-week bench trial, heard testimony from approximately thirty witnesses, reviewed hundreds of documents entered into the evidentiary record, and concluded that both Rider (Tom Rider, a barn helper) and API (another plaintiff, Animal Protection Institute) had failed to establish standing. The district court found that Rider was "essentially a paid plaintiff and fact witness" whose trial testimony, and particularly his claim that he had developed an attachment to the elephants, lacked credibility. The district court also rejected API's two theories of standing.

Following an exhaustive analysis of standing issues, the Appeals Court indicates, "Because Rider has failed to show that the district court applied an erroneous legal standard, we are left to review the district court's fact-findings and credibility determination for clear error. . . we see no basis for finding clear error." The Appeals Court also rejects claims of "informational standing" [i.e. FEC v. Akins, 524 U.S. 11, 21 (1998)] and "Havens Standing [i.e. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)] and ultimately concludes that, "API and Rider lack Article III standing to maintain this action. We therefore affirm."

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State Of Wyoming v. USDA Forest Service

2011-10-24T16:30:00.001-04:00

Oct 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 08-8061 & 09-8075. Appealed from the United States District Court for the District of Wyoming. Defendants Forest Service and Defendants-Intervenors-Appellants Environmental Groups appeal the Wyoming district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule), which the Forest Service promulgated in 2001. Intervening Environmental Groups include the Biodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.

In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act), and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups ask the Appeals Court to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. The Appeals Court indicates that, "Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction."

Plaintiff-Appellee State of Wyoming and Intervenor-Appellee Colorado Mining Association (CMA) request the Appeals Court to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. The Appeals Court indicates that, "In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple-Use Sustained-Yield Act (MUSYA), and also the National Forest Management Act (NFMA).

In a lengthy 120-page opinion, the Appeals Court reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. On the NFMA issue the Appeals Court ruled, ". . .because the Roadless Rule was promulgated under the authority of the Organic Act and MUSYA, and was not otherwise governed by NFMA, the Forest Service was not required to comply with NFMA's provisions.

Wyoming's NFMA claim must therefore fail."

Regarding the permanent injunction remedy the Appeals Court said, "The district court permanently enjoined the Roadless Rule on a nationwide basis. . . Although the district court acknowledged that the issuance of a permanent injunction 'is an extraordinary remedy,' it nevertheless found that a permanent injunction was proper. . . In order to obtain a permanent injunction, a party must prove: '(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.' . . We review a district court's grant of a permanent injunction for an abuse of discretion. . . examining its factual findings for clear error and its legal determinations de novo. . . As discussed. . . Wyoming failed to demonstrate that the Forest Service's promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims."

A release from the environmental groups indicates that the "long-awaited, landmark decision" secures "critical legal protections for nearly 50 million acres of pristine National Forest lands" by protecting wild national forests and grasslands from new road building, logging, and development. This decision formally ends an injunction against the Rule's enforcement imposed by a Wyoming federal district court in 2008.

Tim Preso, an Earthjustice attorney representing the conservation groups said, "The public forests we've fought so hard to protect are now safe. All Americans can now know that a key part of our nation's natural heritage won't be destroyed." The 2001 Roadless Area Conservation Rule was the product of the most comprehensive rulemaking process in the nation's history, including more than 2 million comments from members of the public, hundreds of public hearings and open houses, and a detailed environmental review. The rule came under relentless attack by logging and resource extraction interests, certain states, and the Bush administration."

Mike Francis with The Wilderness Society said, "This is a great victory for the American people who have spoken out, time and again and in record numbers, for protection of these wild public lands." Mary Scurlock of Pacific Rivers Council said, "Roadless areas protect our rivers and streams -- protect our salmon, trout, drinking water. The Roadless Rule is common-sense, and finally the question of its legality is settled."

The groups said, "Now, conservation, faith, and recreation groups trust that the Obama administration will support and enforce the 2001 Roadless Rule as the law of the land, including defending its protections for all 58.5 million acres of roadless lands in the country. That includes national forests in Alaska, currently subject to a separate legal challenge and national forests in Idaho, whose roadless area protections were weakened in 2008." The groups cited candidate President Obama who said: "Road construction in national forests can harm fish and wildlife habitats while polluting local lakes, rivers, and streams. The Roadless Area Conservation Rule -- which was made on the basis of extensive citizen input -- protects 58.5 million acres of national forest from such harmful building. I will be proud to support and defend it."

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Neal Parker v. Schmiede Machine & Tool Corporation

2011-10-24T16:29:00.001-04:00

Oct 21: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 10-14703 & 10-14741. Appealed from the United States District Court for the Northern District of Georgia. In this unpublished opinion the plaintiffs are all current or former employees of the Lockheed Martin Corporation (Lockheed) who worked in its aircraft manufacturing plant in Marietta, Georgia. They have had a variety of different job responsibilities, time periods of employment, and work areas at the Lockheed facility, but they all have worked with and around beryllium-containing products.

According to the Plaintiffs, any action that disturbs the surface layer of beryllium ceramic or metal can produce respirable particles. Sandblasting, polishing, drilling, and other types of high-velocity abrading are especially likely to generate respirable particles. In 1948, the Atomic Energy Commission established an exposure standard for beryllium of 2.0 μg/m³. This exposure standard was adopted by the Occupational Safety and Health Administration (OSHA") and remains in place today. The Plaintiffs assert that even though this remains OSHA's standard, the beryllium manufacturing industry has long known that this standard is

inadequate to keep workers safe from the effects of respirable beryllium.

The Plaintiffs claim that their handling of beryllium or their presence in areas where beryllium was being handled led to three of them contracting chronic beryllium disease (CBD), and nine of them getting beryllium sensitization, a precursor to CBD. The plaintiffs sued Lockheed and various manufacturers of beryllium parts in Georgia state court alleging a number of claims, of which only the failure-to-warn claims remain. The defendants removed the action to the District Court for the Northern District of Georgia.

After a year-and-a-half of extensive discovery, the defendants moved for summary judgment. Although the district court originally denied the defendants' motions for summary judgment, the court later reversed itself and, in September 2010, granted summary judgment on the basis of the "sophisticated user doctrine" and the lack of direct causation. The plaintiffs appealed the rulings.

The Appeals Court agreed with the district court and ruled, ". . . the Plaintiffs have failed to make a showing sufficient to create a genuine issue of fact that the Defendants possessed information regarding a hazard of beryllium and that Lockheed lacked actual knowledge of that hazard. The Plaintiffs have failed with respect to both prongs; the Plaintiffs have failed to show either that Lockheed lacked knowledge of a particular hazard, or that these Defendants did have knowledge of that hazard. The overwhelming evidence in this record shows that Lockheed was a learned and sophisticated user of beryllium, and, if anything, possessed knowledge superior to that of these four Defendants.

After a review of the briefs and the evidence cited by the parties. . . as well as the benefit of oral argument, we conclude that the Plaintiffs have not adduced any evidence that would rebut the Defendants' defense that Lockheed Martin was a learned intermediary and a sophisticated user of beryllium. Accordingly, we affirm the judgment of the district court."

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Cunney v. Board. Of Trustees Village Of Grand View

2011-10-20T15:57:00.001-04:00

Oct 19: In the U.S. Court of Appeals, Second Circuit, Case No.10-0485. Appealed from the United States District Court for the Southern District of New York. Brendan Cunney appealed from the December 18, 2009 order and the January 20, 2010 judgment of the District Court which dismissed his complaint against the Board of Trustees of the Village of Grand View-on-Hudson, the Zoning Board of Appeals (ZBA) for the Village, and Joseph W.

Knizeski, in his capacity as the Village's building inspector (collectively, the Village Defendants).

The Appeals Court held that "the relevant provision of the Village Zoning Law as applied to Cunney's property is unconstitutionally vague." Accordingly the Appeals Court reversed the district court's grant of summary judgment in favor of the Village Defendants on Cunney's "void-for-vagueness" claim, and directed the district court to enter summary judgment in favor of Cunney on his claim. In addition, the Appeals Court vacated the district court's grant of summary judgment in favor of the Village Defendants on Cunney's "substantive due process" claim, and remanded the case for further proceedings consistent with the opinion.

By way of background, the Appeals Court explains that Cunney brought this action against the Village Defendants alleging a violation of his constitutional rights as a result of the ZBA's denial of his application for a certificate of occupancy (CO") for his newly-built home. Specifically, Cunney asserted that the Village Zoning Law, Chapter IX, Section E is "void for vagueness" and that the Village Defendants violated his substantive due process rights by denying him a CO.

The district court granted summary judgment in favor of the Village Defendants on both claims. The district court concluded that Cunney's vagueness claim failed because a reasonable person could discern that section E prohibited the building of structures that rise more than four and one-half feet above the easterly side of River Road. Despite the district The court also determined that Cunney's substantive due process claim failed because Cunney did not possess a legitimate claim of entitlement to a CO.

The Appeals Court ruled, "We hold that section E of the Village Zoning Law is unconstitutionally vague as applied to Cunney's property because it provides inadequate notice of the elevation point on River Road from which Cunney should measure the height of his house to determine compliance, and because it authorizes arbitrary and discriminatory enforcement. Furthermore, we hold that the ordinance's constitutionality is not otherwise saved by its core meaning because a reasonable enforcement officer could find that the height of Cunney's house is in compliance with section E's restrictions. We therefore reverse the district court's grant of summary judgment in favor of the Village Defendants on Cunney's void-for-vagueness claim, and direct the court to enter summary judgment in favor of Cunney on this claim. In addition, we vacate the grant of summary judgment in favor of the Village Defendants on Cunney's substantive due process claim, and remand for further proceedings consistent with this opinion."

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Redondo Waste Systems, Inc. v. Lopez-Freytes

2011-10-19T16:38:00.001-04:00

Oct 18: In the U.S. Court of Appeals, First Circuit, Case No. 10-1865. Appealed from the U.S. District Court for the District of Puerto Rico. Plaintiffs Redondo Waste Systems, Inc., and Big Blue Corp. (collectively Redondo) appealed the district court's dismissal of their complaint alleging various malfeasance by the Puerto Rico Environmental Quality Board (EQB). The Appeals Court said, "Because Redondo's complaint states no plausible claim against any identifiable defendant, we affirm."

Redondo is a Puerto Rico-based business engaged in the treatment and disposal of regulated biomedical waste (sometimes abbreviated RBW). On November 17, 2008, Redondo filed the complaint at issue against the members of EQB's Governing Board. Redondo's complaint alleges that EQB treated Redondo's competitor BFI/Stericycle much more favorably than it treated Redondo.

The Appeals Court ruled, "Redondo's complaint did not meet even minimal pleading standards; therefore, we affirm the district court's dismissal order. The district court correctly denied Redondo's belated attempt to remedy the complaint's deficiencies; therefore, we affirm the district court's denial of Redondo's motion to alter or amend. Costs to appellees. So ordered."

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Thiebaut vs. Colorado Springs Utilities

2011-10-14T16:19:00.001-04:00

Oct 12: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1471. The Appeals Court explains that in 2005, Bill Thiebaut -- the District Attorney for the Tenth Judicial District of Colorado -- filed a lawsuit pursuant to section 1365(a) of the Clean Water Act (CWA) against the City of Colorado Springs (City). Thiebaut named three plaintiffs: (1) himself, in his official capacity as District Attorney, (2) the Office of the District Attorney for the Tenth Judicial District of Colorado, and (3) the People of the State of Colorado (collectively Thiebaut). Thiebaut sought injunctive relief and civil penalties against the City for its alleged discharge of pollutants into a creek in violation of the CWA. The district court granted the City's motion for summary judgment, concluding that Thiebaut lacked standing to bring his claims. Thiebaut has appealed that ruling. The Appeals Court affirmed the district court's grant of summary judgment in favor of the City and also held that Thiebaut lacked standing.

Fountain Creek is a watershed that flows through Colorado Springs, Colorado and Pueblo County, Colorado. From 1998 through at least 2007, the City allegedly discharged raw sewage, non-potable water, and chlorine into Fountain Creek in violation of the CWA. The discharges have had a significant adverse impact on Fountain Creek and the recreational opportunities and economy in Pueblo County, Colorado.

The district court rejected all of Thiebaut's arguments. It first stated that Thiebaut did not have direct standing to assert his CWA claims in his official capacity because the Colorado Legislature has not authorized him to file a CWA citizen suit in

federal court. It further stated that Thiebaut did not have parens patriae [i.e. "parent of the nation" or the power and authority of the state to protect persons who are legally unable to act on their own] standing because the Colorado Legislature has not authorized him to invoke the sovereign capacity of the State of Colorado and because "the citizens of Colorado are . . . able to act for themselves in this matter." Finally, the court concluded Thiebaut did not have associational standing because, "[e]ven assuming that the Tenth Judicial District is an 'association' and [that] its citizens are 'members,'" the interests Thiebaut's suit sought to protect are not "germane to his office's purpose."

Thiebaut argued that the district court should have permitted him to remain as a plaintiff in this case after it determined that the Sierra Club had standing. The Appeals Court said, "In other words, Mr. Thiebaut argues that once a court has found that one plaintiff in a case has standing, it must permit all co-plaintiffs to remain in the case even if it determines they do not have standing. We disagree."

The Appeals Court agreed and said in conclusion, "We hold that Mr. Thiebaut does not qualify for parens patriae or associational standing. Additionally, we reject Mr. Thiebaut's 'standing for one is standing for all' theory as applied to this case and hold that the district court did not err in dismissing Mr. Thiebaut's claims even though it determined that the Sierra Club had standing. Because Mr. Thiebaut lacks standing, we affirm the district court's grant of summary judgment in favor of the City and dismiss this appeal."

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Russell Country Sportsmen v. U.S. Forest Service

2011-10-13T15:59:00.000-04:00

Oct 11: In the U.S. Court of Appeals, Ninth Circuit, Case 10-35623 & 10-35784. Appealed from the United States District Court for the District of Montana. In this case the Appeals Court considers whether the United States Forest Service's (Service) 2007 Travel Management Plan for parts of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study Area, violates the Montana Wilderness Study Act of 1977 (Study Act) and the National Environmental Policy Act (NEPA).

The Appeals Court said, "We hold that nothing in the Study Act, which requires the Service to manage a wilderness study area so as to 'maintain' its wilderness character as it existed in 1977, prohibits the Service from exercising its discretion to enhance the wilderness character of a study area. We also hold that NEPA does not require the Service to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision makes only minor changes and is qualitatively within the spectrum of the alternatives discussed in the draft EIS. We accordingly reverse the judgment of the district court."

Nine recreational groups having an interest in motorized recreation subsequently filed suit against the Service, seeking to invalidate the travel plan as violating NEPA and the Study Act. The Montana Wilderness Association intervened as a defendant, and the parties filed cross-motions for summary judgment.

The district court granted the recreational groups' motion for summary judgment and denied the Service's cross-motion. The district court concluded that the Service failed to comply with NEPA by adopting a final decision that "fell outside the range of alternatives [considered in the draft environmental impact statement (DEIS)] and made numerous, significant changes to the DEIS" without preparing a supplemental environmental impact statement as required by 40 C.F.R. § 1502.9(c), which states that "[a]gencies . . . [s]hall prepare supplements to either draft or final environmental impact statements if . . . [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns." The district court concluded that the final decision departed from the range of alternatives discussed in the DEIS in four areas.

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Raritan Baykeeper v. NL Industries, Inc.

2011-10-04T16:24:00.001-04:00

Oct 3: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2591. Appealed from the United States District Court for the District of New Jersey. Raritan Baykeeper and the Edison Wetlands Association (collectively, Raritan Baykeeper) brought the suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) to bring about the remediation of contaminated sediments in the Raritan River. The District Court, citing the involvement and expertise of the New Jersey Department of Environmental Protection, dismissed the action on abstention grounds. The Appeals Court said it concluded that "this case does not call for abstention, and we will vacate the judgment of the District Court."

From the 1930s until 1982, NL Industries (NL) manufactured titanium dioxide pigments on a 440-acre plot of land (the site) surrounded on three sides by the Raritan River. Although NL ceased its operations on the site in 1982, it retained ownership of the property and leased portions of it to other companies, who manufactured sulfuric acid on the site. NL continued to own the site until 2005, when the Sayreville Economic and Redevelopment Agency (SERA) acquired the site by eminent domain. SERA chose O'Neill Properties Group, L.P. (O'Neill) as the site's developer and O'Neill, in turn, formed Sayreville Seaport Associates, L.P. (SSA) to purchase and redevelop the site. SERA, O'Neill, SSA, and the County of Middlesex entered into an agreement controlling the sale of the site. Although the agreement made SSA responsible for most environmental issues at the site, it provided that NL would retain liability for contamination of sediments in the Raritan River. The agreement does not, however, call for any remediation of the sediments.

In 2009, however, the United States Environmental Protection Agency (EPA) ordered remediation of river sediments upstream from the site. Shortly after the EPA action, Raritan Baykeeper brought this suit against NL, SERA, SSA, O'Neill, and an array of government officials and agencies. Under RCRA and CWA Raritan Baykeeper sought injunctive relief requiring the Defendants to remediate sediments in the Raritan River.

The Appeals Court said, "In sum, we conclude that neither primary jurisdiction nor the Burford doctrine calls for abstention in this case. This outcome is consistent with the decisions of our sister circuits. The First Circuit explained that federal courts must ' exercise great caution in considering abstention, ' and that ' the circumstances justifying abstention will be exceedingly rare, ' because declining to hear a case for a reason not enumerated in the RCRA ' would substitute our judgment for that of Congress about the correct balance between respect for state administrative processes and the need for consistent and timely enforcement of RCRA. ' Chico Serv. Station, Inc., 633 F.3d at 31, 32. Similarly, the Seventh Circuit observed that, while ' there may be room for applying the doctrines of abstention or primary jurisdiction . . . in cases in which a state has a formal administrative proceeding in progress that the citizens' suit would disrupt, ' abstention in RCRA ordinarily would amount to ' an end run around the RCRA.' PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998).

"The same logic also applies to CWA actions, since that statute similarly provides for citizen suits except under specific, enumerated circumstances, none of which apply here. Raritan Baykeeper asks us to go a step further and hold that primary jurisdiction and Burford abstention never apply to RCRA and CWA actions. Like our sister circuits, we decline to impose such a general rule. As Judge Posner noted in PMC, Inc., 151 F.3d at 619, abstention might be appropriate in cases with heightened state involvement as evidenced by ' a formal administrative proceeding in process that the citizens' suit would disrupt. ' But such a case is truly the exception, not the rule, and is not present here."

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SCOTUS Denies Challenge To CA Indirect Air Source Rule

2011-10-03T16:23:00.001-04:00

Oct 3: The U.S. Supreme Court refused to hear a case appealed by the National Association of Home Builders (NAHB) regarding the San Joaquin Valley Unified Air Pollution District "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. NAHB sued the District, claiming that Rule 9510 is preempted by the Clean Air Act. The district court held that Rule 9510 is not preempted and in a split decision, the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed." [See WIMS 12/8/10]. On June 16, 2011, NAHB petitioned for review in the Supreme Court (Case No. 10-1528.

A release from Earthjustice indicated, the regulation, known as the Indirect Source Rule (ISR) was adopted by the San Joaquin Valley Unified Air Pollution Control District in December 2005 and took effect in March 2006. It requires developers to mitigate pollution from the increased traffic generated by new development. Developers can either incorporate into their projects, elements that will minimize traffic-related emissions such as building near public transit, adding bicycle lanes, or building walkable shopping into the plans, or pay a mitigation fee to the district to be used to purchase off-site emission reductions.

Paul Cort an attorney for Earthjustice who participated in the litigation of the issue in the lower courts and filed an opposition to the Homebuilders petition for Supreme Court review said, "We were glad to stand with the San Joaquin air district to defend this rule. No special interest should have a free ride in a region where schools and parents are frequently warned to keep children indoors on bad air days." Timothy O'Connor of the Environmental Defense Fund said, "The Supreme Court's action supports this common sense regulation to clean up the air in one of the most polluted areas in the country. Now the trade associations will have to follow the lead of the hundreds of California developers who have complied with this pollution-cutting measure."

Gordon Nipp of the Sierra Club's Bakersfield chapter said, "Every sector must do its part to help clean up our air in the San Joaquin Valley, some of the worst in the nation. Agriculture is learning to comply with the federal Clean Air Act, and now the homebuilders will join the fight against air pollution, despite their past legal recalcitrance." Earthjustice represented Environmental Defense and the Kern-Kaweah (Bakersfield), Tehipite (Fresno), and Mother Lode (Sacramento) Chapters of the Sierra Club in the lower court litigation.

Access the Supreme Court denial (click here, see page 71). Access the Supreme Court docket (click here). Access the Earthjustice release (click here). Access the Ninth Circuit opinion (click here). [#Land, #Air, #SupCt]

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Boston Edison Co. v. US

2011-09-29T15:26:00.001-04:00

Sep 28: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5136 & 2010-5137. Appealed from the United States Court of Federal Claims. The Appeals Court explains that this is another in a series of cases dealing with the consequences of the Federal government's ongoing breach of its contractual obligation to collect and dispose of the nation's nuclear waste. This case involves the Pilgrim Nuclear Power Station in Plymouth, MA.

The Appeals Court said, "Our recent precedent dictates the outcome of two of the issues raised in this litigation -- the right of a non-breaching party contracting with the government to recover indirect overhead costs associated with mitigation activities, and the right of such a party to recover the costs of financing those activities. We affirm the trial court's judgment on both of those issues. There is one novel question presented by this case: whether the sale of a nuclear plant and the transfer of a decommissioning fund affects the rights of the buyer and seller to recover future damages for the government's partial breach of contract. As to that issue, we reverse the trial court and hold that a sale of assets by a non-breaching party does not alter the settled common law principle that when the breaching party has not repudiated the contract and is still expected to perform, damages are not recoverable until they are incurred as a result of the breach. In addition, we address issues involving the award of damages in connection with fees paid to the United States Nuclear Regulatory Commission (NRC), and we remand for further proceedings on that issue."

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Hayden v. Elf Atochem North America

2011-09-28T16:20:00.001-04:00

Sep 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20305. Appeal from the United States District Court for the Southern District of Texas. The appeal arises from the settlement of a class action. The defendant paid substantial sums for res judicata [already judged by a competent court] protection from the claims of persons assertedly injured by the toxic emissions of an industrial plant near Bryan, Texas. The monies were allocated among three subclasses, one of which was to receive medical monitoring. Upon the monitoring program's completion, substantial sums remained unused.

The district court denied the settlement administrator's request to distribute the unused medical-monitoring funds to another subclass of persons suffering serious injuries. Instead, the court repaired to the doctrine of cy pres [i.e. "as near as possible" to that intended] and ordered that the money be given to three charities suggested by the defendant and one selected by the court. The gift of class funds to charity is attacked on two fronts: that the district court moved too quickly from the terms of the settlement agreement to a cy pres distribution, and alternatively that the district court neglected a prerequisite of the cy pres doctrine by not selecting charities with a sufficient nexus to the underlying substantive objectives of the class suit.

The Appeals Court said, "Persuaded by the first contention, we do not reach the second. We hold that the district court abused its discretion by ordering a cy pres distribution in the teeth of the bargained-for terms of the settlement agreement, which required residual funds to be distributed within the class. We reverse the district court's order distributing the unused medical-monitoring funds to third-party charities and remand with instructions that the district court order that the funds be distributed to the subclass comprising the most seriously injured class members."

By way of background, Lillian Hayden and five others instituted this action in April of 1992 by filing suit in State district court in Brazos County, Texas. Seeking to represent themselves and a class of others similarly situated, they sought compensation for exposure to arsenic and other toxic chemicals alleged to have been emitted into the air around Bryan, Texas, by an agrochemicals plant owned and operated by the defendant, Arkema, Inc. (formerly known as Elf Atochem North America, Inc.). The defendant removed the case to Federal court supported by diversity jurisdiction.

At issue in the appeal is the district court's use of the cy pres doctrine to dispose of approximately $830,000 that went unused during the administration of the medical-monitoring program created for the benefit of Subclass B -- one of three subclasses created in the settlement. The program allowed members of Subclass B to forego receipt of a small cash payment and instead enroll in a program through which they would receive regular checkups and physician visits over a five-year period. The aim was to assist members of the subclass in monitoring their health for any indication that they were developing an arsenic-related illness. Two primary factors contributed to the program's not exhausting its allocated funds. First, the initial participation rate was low. Some 329 members of Subclass B -- less than three percent of the total subclass membership -- opted to receive medical monitoring in lieu of a cash payment; just 221 attended their first monitoring examination. Second, in the course of this monitoring, no significant health problems were found. Among those who initially chose to participate, demand for monitoring greatly diminished, yielding a high dropout rate. Only 46 class members participated in all three rounds of screening as scheduled.

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American Trucking Associations, Inc. v. The City of Los Angeles

2011-09-27T16:29:00.001-04:00

Sep 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56465. Appealed from the United States District Court for the Central District of California.

Beginning in 2008, the Port of Los Angeles (POLA, or the Port) prohibited motor carriers from operating drayage trucks on Port property unless the motor carriers entered into "concession agreements" with the Port. The concession agreements set forth fourteen specific requirements covering, among other things, truck driver employment, truck maintenance, parking, and Port security. The agreements were adopted as part of the Port's "Clean Truck Program" (CTP), which includes a progressive ban on older (and higher polluting) trucks on Port property, a multi-faceted incentive program to support acquisition of clean trucks, and a system of penalties on transport of cargo by older trucks. The Port adopted the CTP in response to community opposition, including litigation, that had successfully stymied Port growth from the mid-1990s through 2007.

American Trucking Associations, Inc. (ATA, a national association of motor carriers), challenged the concession agreements, arguing that they are preempted by the Federal Aviation Administration Authorization Act (FAAA Act), 49 U.S.C. § 14501 et seq. After obtaining a preliminary injunction against several provisions of the concession agreements, ATA challenged five specific provisions at trial. The district court held that none of the challenged provisions fell within the scope of FAAA Act preemption, first because some did not relate to motor carriers' rates, routes, and services, and second because the State adopted the entire agreement (and the challenged provisions in particular) in its capacity as a market participant, rather than a market regulator. The district court further held that the FAAA Act's exemption for regulation "genuinely responsive to motor vehicle safety" saved from preemption the provision requiring motor carriers to create and administer regular maintenance plans.

ATA appealed. In a split decision, the majority Appeals Court affirmed the district court in large part, but reversed its decision that the employee-driver provision of the concession agreement falls within the market participant doctrine and is not preempted. The Majority said further, "The district court meticulously identified and applied the governing law. We affirm the district court's holdings that the financial capability, maintenance, off-street parking, and placard provisions are not preempted. We reverse the district court's conclusion that the employee-driver provision is saved from preemption by the market participant doctrine, and remand for further proceedings consistent with this opinion."

The dissenting justice said, "I must dissent from the majority opinion because: (1) the market participant exception to preemption does not apply. Drayage services (not port services) form the relevant market, and the Port of Los Angeles (the Port) acts as a regulator of drayage services. (2) Even assuming the Port qualifies as a proprietor, the off-street parking provisions are preempted, because they affect parties unrelated to contractual obligations to the Port. (3) The placard provision is preempted and not saved by the market participant doctrine or the safety exception, because California cannot revoke access to channels of interstate commerce and identification requirements on motor carriers are expressly preempted under 49 U.S.C. § 14506(a)."

American Trucking Associations President and CEO Bill Graves issued a release hailing the decision as a decisive victory for the trucking industry and consumers. He said, "By striking down the Port's unjustified ban on owner-operators, the Court has upheld the rights of trucking companies to structure their businesses to maximize efficiency and productivity. By throwing out the ban, the court has ensured that competition, not government regulation, will establish motor carrier's rates, routes, and services. This is a win for all involved; trucking companies; small business owner-operators; freight shippers; and ultimately average American consumers. The historic gains in air quality at the Port clearly show that the interests of clean air have been served without running independent contractors out of the Port.

He said, "This plan was never about clean air, it was about promoting special interests of a few well-connected, labor groups. "Successful clean trucks plans in Long Beach, Seattle and the Ports of New York and New Jersey have shown you can improve air quality without forcing owner-operators out of your port." ATA Chief Counsel Robert Digges said, "We are evaluating the rest of the court's ruling. While the court upheld our argument on the central issue, we will be deciding whether a further appeal is warranted. We firmly believe the other challenged provisions of the Concession Agreement should have been preempted as explained in a strong dissent by the panel's Chief Judge. Should we appeal, that dissent will be very helpful to our effort."

Access the complete opinion and dissent (click here). Access a release from ATA (click here). [#Air, #Transport, #CA9]
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Minard Run Oil Co. v. U.S. Forest Service

2011-09-21T16:30:00.001-04:00

Sep 20: In the U.S. Court of Appeals, Third Circuit, Case Nos. 10-1265 and 10-2332. Appealed from the United States District Court for the Western District of Pennsylvania. The Appeals Court explains that this appeal concerns a dispute between the U.S. Forest Service (the Service) and owners of mineral rights in the Allegheny National Forest (ANF). Although the Service manages the surface of the ANF for the United States, mineral rights in most of the ANF are privately owned. Mineral rights owners are entitled to reasonable use of the surface to drill for oil or gas and from 1980 until recently the Service and mineral owners had managed drilling in the ANF through a cooperative process. Mineral rights owners would provide 60 days advance notice to the Service of their drilling plans and the Service would issue owners a Notice to Proceed (NTP), which acknowledged receipt of notice and memorialized any agreements between the Service and the mineral owner about the drilling operations. However, as a result of a settlement agreement with environmental groups, the Service dramatically changed its policy and decided to postpone the issuance of NTPs until a multi-year, forest-wide Environmental Impact Study (EIS) under the National Environmental Policy Act (NEPA) is completed.

Mineral owners and related businesses affected by this new policy sought to enjoin the Service from implementing the policy, which would halt new drilling in the ANF. After holding a hearing and carefully considering the evidence, the District Court issued a preliminary injunction against the Service, prohibiting it from making the completion of the forest-wide EIS a condition for issuing NTPs and requiring it to return to its prior, cooperative process for issuing NTPs. The Service, the Attorney General, and several environmental organizations appeal the preliminary injunction, contending that the District Court lacked jurisdiction and erred in issuing a preliminary injunction. However, the Appeals Court affirmed in all respects the District Court's "thorough, well-reasoned opinion."

The district court found as follows: "The Settlement Agreement and the Marten Statement represented 'a fundamental sea change' in the Service's policy; therefore, they constituted final agency action subject to review under the APA. . . The effect of this policy was a 'drilling ban,' which precluded new drilling in the ANF (with the exception of the 54 grandfathered NTP applications) until the Service completed a forest-wide EIS. . . The Service had instituted the drilling ban without following the APA's notice and comment procedures, and the ban was not justified under NEPA because the issuing of an NTP was not a major federal action. The preparation of the EIS would likely last several years, resulting in irreparable harm to the plaintiffs, and the balance of the equities and the public interest favored an injunction."

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Natural Resources Defense Council v. U.S. EPA

2011-09-19T16:35:00.001-04:00

Sep 16: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3771. Natural Resources Defense Council, Inc. (NRDC) sought review of an Environmental Protection Agency (EPA) order overruling NRDC's objections to, inter alia, EPA's risk assessments for the pesticide dichlorvos, and denying NRDC's requests for a public evidentiary hearing. Because EPA conducted certain dichlorvos risk assessments without using a tenfold children's safety factor that Congress provided should presumptively apply, and EPA failed to explain why it did not apply this margin of safety, the Appeals Court granted NRDC's petition for review in part, vacated EPA's order in part, and remanded the case for further proceedings.

The Appeals Court indicates that, "In its petition, NRDC requested that EPA revoke all tolerances and cancel all registrations for dichlorvos. NRDC argued, inter alia, that EPA relied on inadequate data in its 2000 preliminary risk assessment, inadequately performed that risk assessment, and failed to apply required safety factors. Despite the numerous issues raised in its petition, we focus here on only the two issues relevant to NRDC's appeal: (1) EPA's reliance on a 1997 intentional human dosing study by A.J. Gledhill; and (2) EPA's failure to provide a legally adequate rationale for applying a children's safety factor lower than the FQPA's presumptive 10X factor."

Importantly, the Appeals Court said, "EPA did not explain how this conclusion related to 'potential pre- and post-natal toxicity and completeness of the data with respect to infants and children.' See 21 U.S.C. § 346a(b)(2)(C)(ii). FQPA requires such an explanation if a 10X children's safety factor is not used. . . Because EPA failed to explain why it did not use a 10X children's safety factor for dichlorvos risk assessments that relied on the Gledhill study, EPA acted in an arbitrary and capricious manner. Accordingly, we vacate those portions of EPA's July 23, 2008 order assessing the risk of dichlorvos based on the Gledhill study, as it was not 'reliable data' on which EPA could base its decision to choose a lower children's safety factor.. ."

On a separate issue, the Appeals Court explains, "NRDC challenges neither the data on which EPA relies, nor the way in which the data relate to infants and children. Instead, NRDC argues that regardless of other evidence of potential endocrine-related effects, EPA must apply the 10X children's safety factor unless it relies on data from its estrogen disruptor screening program. We reject this argument." Explaining further, "FQPA specifies that EPA may apply a children's safety factor of less than 10X if it

determines, 'on the basis of reliable data,' that a margin lower than 10X "will be safe for infants and children. . . Congress did not bar EPA from concluding that it has 'reliable data' regarding potential endocrine-related effects. . . NRDC does not challenge the non-Gledhill risk assessments on any other basis. Therefore, we deny NRDC's request to find arbitrary and capricious the risk assessments not based on the Gledhill study. . ."

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Potrero Hills Landfill, Inc. v. County of Solano

2011-09-14T16:45:00.001-04:00

Sep 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15229. Appealed from the United States District Court for the Eastern District of California. Potrero Hills Landfill (Potrero Hills), a privately owned solid waste and recycling business (one of the three largest landfills servicing the San Francisco Bay Area) in Solano County, California (the County), and twenty-two related businesses appeal the dismissal on Younger abstention grounds [See Younger v. Harris, 401 U.S. 37 (1971)] of their 42 U.S.C. § 1983 action for declaratory and injunctive relief challenging the constitutionality of a voter-enacted county ordinance restricting the import of out-of-county solid waste into Solano County -- an ordinance that the County itself believes to be unconstitutional and refuses to enforce.

The Appeals Court rules, "We hold that Younger abstention does not apply here. Although private mandamus actions seeking to compel the County to enforce the challenged ordinance were ongoing in state court at the time this case was filed, those state proceedings were brought by private interest groups and therefore did not implicate the state's unique interest in protecting its vital executive function of law enforcement; nor did they implicate the state's unique interests in protecting its vital judicial or legislative functions. Put differently, a federal court's exercise of jurisdiction over Potrero Hills' claim would not interfere with the state's exercise of a basic state function and would not offend the principles of comity and federalism that Younger abstention was designed to uphold. Accordingly, we vacate and remand. As part of the remand, we ask the district court to consider whether Pullman [See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941)], rather than Younger, abstention might be appropriate."

By way of background, in 1984, voters in Solano County enacted a ballot initiative, titled "Initiative Ordinance to Protect Solano County's Environment from Excessive Importation of Solid Waste" (Measure E), capping the annual amount of solid waste that may be imported into Solano County at 95,000 tons. The measure contained no restrictions on the disposal of solid waste generated within the County. Although the County initially complied with Measure E by including annual waste import limits in its Solid Waste Management Plan, it stopped doing so in 1992, in reliance on a legal opinion issued by the Solano County Counsel concluding that Measure E was likely unconstitutional, in light of two recent Supreme Court decisions striking down similar local waste import restrictions as violative of the dormant Commerce Clause. The Legislative Counsel of California reached the same conclusion in its own legal opinion on the measure.

In a footnote, the Appeals Court references the two historic Supreme Court decisions on this issue, i.e. The Supreme Court struck down as unconstitutional in violation of the dormant Commerce Clause an Alabama statute imposing a waste disposal fee only on hazardous wastes generated outside the State and disposed of at a commercial facility within the State, but not on hazardous wastes generated within the State. Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 336-37 (1992). The Court also struck down on dormant Commerce Clause grounds a Michigan statute prohibiting private landfill operators from accepting solid waste originating outside the county in which their facilities are located. Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Res., 504 U.S. 353, 361 (1992). The Court held that a county's restrictions on interstate commerce violate the dormant Commerce Clause just as much as does a state's. Id. ("[A] State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself.").

The Appeals Court explains the somewhat complicated case saying, "The issue before us is not the constitutionality of Measure E but rather only whether the district court properly dismissed the case based on Younger abstention, a doctrine that forbids federal courts from unduly interfering with pending state court proceedings that implicate 'important state interests.' Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). The district court determined that the ongoing state mandamus proceedings implicate the state's important interests in (1) enforcing a local ordinance enacted by California voters and (2) enforcing a local solid waste ordinance, and that the remaining Younger requirements are also satisfied. Although we agree that a state's interest in having its executive branch enforce such measures is sufficiently important for Younger purposes, we conclude that a private litigant's interest in seeing such measures enforced, which is all we have here, does not implicate the principles of comity and federalism with which Younger and its progeny are concerned."

The Appeals Court concludes, "Mindful that a federal court's obligation to exercise its jurisdiction is 'particularly weighty' when the federal plaintiffs before it seek relief under 42 U.S.C. § 1983 for violation of their civil rights, Miofsky, 703 F.2d at 338 (quoting Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980)), we decline to expand the 'extraordinary and narrow exception' created by Younger and its progeny to the circumstances presented here, id. (quoting Frank Mashuda, 360 U.S. at 188). Because the state mandamus actions brought by private interest groups did not involve any uniquely state interests in protecting the state's vital executive, judicial, or legislative functions, Younger abstention was not available and did not excuse the district court from its duty to adjudicate this federal constitutional claim. We therefore vacate and remand for the district court to consider Intervenors' alternative grounds for dismissal, including Pullman abstention, in the first instance."

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Jonathan Hirsch v. CSX Transportation Inc.

2011-09-12T16:47:00.001-04:00

Sep 9: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-4548. Appealed from the Northern District of Ohio at Cleveland. The Appeals Court says in brief summary, "Following a train crash that allegedly exposed a small town [Painesville, Ohio] to cancer-causing agents, the Plaintiffs-Appellants sought damages on behalf of a putative class. The district court granted summary judgment for the train company, CSX Transportation (CSX), because the Plaintiffs had not established general or specific causation and, as a matter of law, any increased risk of cancer or other diseases was too insignificant to warrant the court's ordering a lengthy period of medical monitoring. We affirm."

In conclusion the Appeals Court ruled, "The Plaintiffs in this case have failed to produce sufficient evidence such that a reasonable jury could believe that a reasonable physician would order medical monitoring. Our holding today does not foreclose any number of possibilities; for example, perhaps the Plaintiffs might have been able to survive summary judgment had Dr. Kornberg provided some indication of why medical monitoring would be the standard practice for risks this remote. Perhaps, though we do not require blood tests in every toxic tort case, see Redland Soccer Club v. Dep't of the Army, 55 F.3d 827, 847 (3d Cir. 1995), the Plaintiffs might have survived summary judgment had they obtained conclusive medical evidence that they faced a one-in-a-million increased risk of cancer. Those would be harder cases, and we leave them for another day. In this case, the Plaintiffs have failed to show a genuine issue of material fact. We therefore affirm the judgment of the district court."

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Adams v. U.S.

2011-09-09T17:01:00.001-04:00

Sep 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35458, 10-35611, & 10-35592. Appeal from the United States District Court for the District of Idaho. In 1999 and 2000, the Federal Bureau of Land Management (BLM) applied the herbicide Oust to approximately 70,000 acres of Federal lands in South Central Idaho in an effort to combat a devastating wildfire cycle. Wind carried some of the Oust off the Federal land and onto privately owned farmland nearby. The herbicide caused significant damage to the crops on these farmlands. The Plaintiffs in this case, 134 farmers whose crops suffered as a result of the Oust applications, sued the Federal government and Oust's manufacturer E.I. Du Pont De Nemours and Company (DuPont). The district court adopted a bellwether trial plan and selected four Bellwether Plaintiffs to resolve those issues in the case that do not depend on individual circumstances. The resolution of these issues will bind both the Bellwether and all other Plaintiffs. The district court conducted a 16-week trial involving claims against both DuPont and the government. The jury returned an advisory verdict against the Federal government, and a verdict against DuPont.

As required by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2402, the district court, upon its own fact-finding and independent review of the record, rendered a verdict against the Federal government. Both the jury and the district court allocated 60% of the fault to DuPont and 40% to the Federal government. The government and DuPont appealed. The Appeals Court indicates it is resolving the government's appeal in this opinion and DuPont's appeal, No. 10-35458, in a memorandum disposition

filed simultaneously with this opinion. The total damages for all four Bellwether Plaintiffs were nearly $17 million.

The government argues that jurisdiction is lacking, that the FTCA bars the "debt-based costs" that the district court awarded to Plaintiffs, and that Plaintiffs did not exhaust their administrative remedies for the crop damage they suffered in 2003 and 2004. The Appeals Court said, "Because we agree with the government that jurisdiction is lacking, we address only this threshold issue,

and we accordingly limit our discussion of the complex facts of this case."

As explained by the court Oust is a commercial name for the chemical compound sulfometuron methyl, which belongs to the sulfonylureas chemical family. Sulfonylureas chemicals inhibit amino lactase synthase and are known for their high potency in low doses as compared to other herbicides. Oust kills or injures crops by affecting a plant's root system, preventing it from taking up water and nutrients from the soil and causing drought-like symptoms. Oust is not labeled for any use on agricultural crops. BLM developed fire rehabilitation plans which included the use of Oust on tens of thousands of acres to kill Cheatgrass, an annual non-native plant that grows up early in the spring, dries out very early in the summer, and provides a continuous bed of fuel for wildfires.

The Appeals Court concluded in part, "BLM argues that we lack subject matter jurisdiction over Plaintiffs' FTCA claims for two reasons. First, BLM argues that Plaintiffs filed their lawsuit one day after the FTCA's statute of limitations had run, forever barring their claims. Second, BLM argues that the discretionary function exception, which provides immunity against FTCA claims even where a federal agency abuses its discretion, so long as the abuse occurs in the performance of non-mandatory duties, bars Plaintiffs' claims. Because we conclude that Plaintiffs' claims are barred by the FTCA statute of limitations, we do not address BLM's discretionary function argument."

In the memorandum disposition filed simultaneously with the opinion regarding DuPont's appeal (i.e. No. 10-35458). The Appeals Court explained that DuPont argues that the district court should have granted its Rule 50(b) motion on Plaintiffs' defective product claim because manufacturers cannot be held liable for manufacturing a product that does well what it is intended to do. However, the Appeals Court said, "Plaintiffs presented ample evidence from which a jury could infer that Oust was 'dangerous to an extent beyond that which would be contemplated by' the government, much less an 'ordinary consumer.' Id. For example, Plaintiffs presented evidence that Oust is susceptible to erosion and unusually longlasting -- both of which the jury could have construed as circumstantial evidence that Oust is unreasonably dangerous."

Among other finding, the district court found that Plaintiffs presented evidence that at most showed DuPont's nonfeasance, which cannot, as a matter of law, support an assumed duty of care claim. It therefore granted DuPont's Rule 50(b) motion as to

that claim. The Appeals Court ruled, "DuPont has not, however, identified any case in which a new trial has been granted in circumstances comparable to those here. We find no merit in DuPont's argument, particularly in light of the fact that it made strategic use of its corporate stewardship policy -- which was part of the assumed duty claim -- during the trial. DuPont must bear the risk of its own litigation strategy. Because DuPont has not cited any relevant authority in support of its new trial argument, the district court did not abuse its discretion when it denied DuPont's motion for a new trial on this ground." The Appeals Court subsequently denied a number of other arguments of DuPont and affirmed the district courts ruling in favor of farmers.

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R.R. Street & Co., Inc. v. Transport Insurance Co.

2011-09-08T16:28:00.000-04:00

Sep 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55361 and 10-55404. Appealed from the United States District Court for the Central District of California. The Appeals Court indicates that the dispute emerges from a web of state and Federal litigation over liability for damages and defense costs in certain environmental tort suits.

The Appeals Court said, "The appeal before us concerns two cases that mirror each other: (1) an action for damages that the Appellants brought in federal court and (2) a declaratory judgment action that the Appellee brought in state court, which Appellants later removed to federal court. The district court declined to entertain these actions, by dismissing the former and remanding the latter, in light of a related third action that had been pending for several years in state court.

"We must examine the propriety of this decision. Considering the particular circumstances of this case, we conclude that the district court had discretion under Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995), and Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), to remand the declaratory judgment action, and that the action for damages fell within the scope of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). We therefore affirm."

The case involves Vulcan Materials Company (Vulcan) which manufactures a drycleaning solvent called perchloroethylene (PerSec). Between the 1960s and the 1990s, R.R. Street & Co. Inc. (Street) distributed PerSec. During this time, Vulcan named Street as an additional insured under its insurance policies, including an excess liability coverage policy that Transport Insurance Company (Transport) issued to Vulcan in 1981 (the 1981 Policy). Since the 1990s, a number of lawsuits have been filed against Vulcan and Street alleging damage caused by the sale, distribution, use or handling of PerSec (collectively the Tort Actions). Street and Vulcan separately defended these actions. Since 2005, the companies and their insurers have engaged in an ongoing dispute over liability for damages and defense costs in the Tort Actions.

The Appeals Court concludes, "We do not take lightly the district court's decision not to entertain an action for damages. In this case, however, the district court did not abuse its discretion by deciding that the parties' claims should be resolved in the more comprehensive Vulcan Action. The district court had discretion under Wilton/Brillhart to remand the Removed Action, and the court's concerns about piecemeal litigation and interfering with the progress made in the Vulcan Action sufficiently supported dismissal under Colorado River."

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Barnes v. U.S. Dept. of Transportation

2011-09-08T16:27:00.001-04:00

Aug 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-70718. On Petition for Review of an Order of the Federal Aviation Administration. Petitioners Michelle Barnes, Patrick Conry, and Blaine Ackley (collectively, petitioners) challenge an order of the Federal Aviation Administration (FAA) concerning the proposed construction by the Port of Portland (the Port) of a new runway at Hillsboro Airport (HIO). The FAA issued a Finding of No Significant Impact (FONSI), thus relieving the agency of preparing an Environmental Impact Statement (EIS). Petitioners argue that the decision not to prepare an EIS was unreasonable for several reasons, chief among them the FAA's failure to consider the environmental impacts of any increased demand for HIO resulting from the addition of a runway. Petitioners also argue that the FAA did not afford them a public hearing within the meaning of 49 U.S.C. § 47106.

In a split opinion the Appeals Court majority granted the petition and remanded the case to the FAA with instructions to consider the environmental impact of increased demand resulting from the HIO expansion project, if any, pursuant to 40 C.F.R. § 1508.8(b). HIO is located in the city of Hillsboro in Washington County, Oregon, 12 miles west of downtown Portland. The Port of Portland assumed ownership of HIO in 1966. In 2008, HIO become Oregon's busiest airport, surpassing Portland International Airport (PDX) in number of airport operations.

The dissenting justice said, "It is conventional wisdom among aviators that 'when the weight of the paper equals the weight of the airplane, only then you can go flying.' The majority confirms the truth of this quotation: here a federal agency is trying to reduce airport delays and the concomitant negative environmental effects by commencing a project in anticipation of future growth, and

the majority sides with delay and air pollution by imposing pointless paperwork on the agency before the necessary project can go forward. Because the majority's approach is contrary to our case law and the facts, I dissent."

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Center for Environmental Law & Policy v. U.S. Bureau of Reclamation

2011-09-08T16:25:00.000-04:00

Aug 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35646. Appealed from the United States District Court for the Eastern District of Washington. The Appeals Court explains that Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management. The Appeals Court considered a challenge by environmental groups to a proposed incremental drawdown of water from the lake.

The Appeals Court indicates that the review under the National Environmental Policy Act (NEPA) is limited to determining whether the agency, in this case the United States Bureau of Reclamation (Reclamation), took a "hard look" and genuinely scrutinized the environmental consequences of its proposed action. The Appeals Court said, "Our own close look at the record persuades us that Reclamation was keenly aware of, and appropriately discharged, this duty when it prepared the drawdown project analysis."

According to the Appeals Court, the district court granted summary judgment to the defendants (Reclamation), holding that "the NEPA documents at issue" -- including Ecology's PEIS and SEIS as well as Reclamation's EA -- "thoroughly account for the history of development in the region and the project's cumulative impacts thereto," that the agencies' "analysis of indirect impacts complies with NEPA," that the EA's discussion of alternatives was sufficient in light of the "long collaborative process between [various] stakeholders" that led to the drawdown project, and that because Reclamation "retained the discretion [in the EA] to move forward with the project or not," its NEPA review was timely.

The Appeals Court ruled, "Significantly. . . Reclamation has committed itself to scrutinizing the cumulative effects of the Special Study with the drawdown project before implementing any action resulting from the Special Study. Under our precedents and the circumstances presented here, this procedure does not violate NEPA. Our review reveals no other deficiencies in the substance of the EA, and although Reclamation took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA's timing requirements. We therefore affirm the district court."

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City Sanitation, LLC v. Allied Waste Services of MA

2011-09-07T16:48:00.001-04:00

Aug 31: In the U.S. Court of Appeals, First Circuit, Case No. 10-2284. Appealed from the District Court of MA, Worcester. In the colorful words of the Appeals Court, "This appeal is the culmination of a pitched battle between two waste-disposal firms, squabbling over the carcass of a third. The littered battlefield brings to mind the familiar adage that one man's trash is another man's treasure.

"Telling the tale requires us to resolve questions of standing to prosecute claims arising out of a bankruptcy; questions of first impression as to the distinction between 'commercial tort claims' and 'proceeds' and as to the force and effect of Bankruptcy Rule 8006; and a question anent the fairness of a negotiated settlement. After careful consideration, we conclude that the disputed claims are commercial tort claims; that the trustee in bankruptcy had exclusive standing to pursue and settle those claims; that the appellant, by failing to comply with Bankruptcy Rule 8006, waived its theory of abandonment; and that the bankruptcy court's approval of the proposed settlement was within the realm of its discretion. Accordingly, we affirm the judgment . . . [and] we reject City's appeal."

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Jefferson Block 24 Oil & Gas, v. Aspen Insurance UK

2011-09-07T16:46:00.001-04:00

Aug 29: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-30190. Appealed from the United States District Court for the Eastern District of Louisiana. In this insurance coverage dispute, PlaintiffAppellant Jefferson Block 24 Oil & Gas, L.L.C. (Jefferson Block) appealed from the district court's grant of summary judgment in favor of DefendantsAppellees, Aspen Insurance UK Limited, Ace European Group Limited, and Certain Underwriters at Lloyd's, London (collectively Underwriters). In a split decision, the Appeals Court reversed and remanded the case to the district court.

The majority opinion concludes, "In short, we believe that the district court erred when it refused to apply the contra-insurer rule in this case. As we have discussed, the OPA [Oil Pollution Act] Policy is ambiguous with respect to the issue of coverage for Jefferson Block's 16-inch pipeline. This ambiguity arises because the policy's schedule of insured facilities refers to an MMS-1021 form that lists only the locations of facilities. Whether the pipeline -- which begins at one of the locations designated on the form but crosses others not so designated -- is a facility "thereon" one of the locations on the form cannot be determined through reference to the plain language of the policy. . . the extrinsic evidence in the record does not conclusively resolve this ambiguity. Since Jefferson Block offers a reasonable interpretation of the policy -- that a right-of-way pipeline originating in one of the lease blocks designated on an MMS-1021 form is included in that designation -- and did not completely draft the ambiguous provisions of the OPA Policy, the contra-insurer rule should apply and the ambiguity should be resolved in favor of the insured, Jefferson Block. The 16-inch pipeline was a 'covered offshore facility' designated on Jefferson Block's MMS-1021 form and thus included within the scope of coverage afforded by the OPA Policy."

The dissenting opinion states that Jefferson Block contends that its OPA insurance policy insures it against the costs of a recent spill from a particular 16-inch right-of-way oil pipeline and the Underwriters contend that the policy does not. "The majority reverses, relying on the rule of contra proferentem to construe ambiguity in the policy against the Underwriters. The substantial weight of recent New York authority, however, suggests that contra proferentem should not apply in this case. I therefore

dissent." The dissent explains that contra proferentem has taken the form of the so-called "contra-insurer" rule, which provides that when an ambiguity is found in a policy, it must be construed against the insurer and in favor of coverage. However, the dissent indicates that, "A review of the case law reveals numerous opinions suggesting that contra proferentem will not apply where the party seeking the benefit of the doctrine was sophisticated and negotiated the legal instrument at issue."

The dissent concludes that, ". . . 'the touchstone for applying contra proferentem is the insured's lack of sophistication,' particularly where the parties do not have 'equivalent bargaining power.' U.S. Fire Ins. Co., 949 F.2d at 574. A sophisticated party with a means to influence the terms of the contract should be able to identify and, if necessary, remedy ambiguities at the time of drafting. Such a party does not need a thumb on the scales in its favor."

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Dine Citizens Against Ruining v. Klein (DOI)

2011-09-07T16:44:00.001-04:00

Aug 26: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-1004. The Office of Surface Mining Reclamation and Enforcement (OSM) under the Department of Interior (DOI) approved an application by BHP Navajo Coal Company (BNCC) to revise the mining plan at its Navajo Mine -- a large open pit coal mine on tribal reservation lands in northwestern New Mexico. Diné Citizens Against Ruining Our Environment and San Juan Citizens Alliance (collectively Citizens) sought judicial review under the Administrative Procedures Act (APA). The district court concluded OSM had violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h, in approving the application and remanded the case for further proceedings. BNCC appealed from the district court's remand order. The Appeals Court said, "Lacking jurisdiction, we must dismiss the appeal as premature."

The Appeals Court explained, "Our jurisdiction extends only to review of 'final decisions of the district courts of the United States . . . .' 28 U.S.C. § 1291. 'The purpose of the finality requirement is to avoid piecemeal review.' Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). 'A final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1156 (10th Cir. 2007) (quotations omitted). 'The remand by a district court to an administrative agency for further proceedings is ordinarily not appealable because it is not a final decision.' Bender, 744 F.2d at 1426-27; see also Trout Unlimited v. United States Dep't of Agric., 441 F.3d 1214, 1218 (10th Cir. 2006); Baca-Prieto v. Guigni, 95 F.3d 1006, 1008 (10th Cir. 1996). This is often referred to as the administrative-remand rule. See, e.g., S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 970 (10th Cir.2008); Trout Unlimited, 441 F.3d at 1218; Baca-Prieto, 95 F.3d at 1008"

The Appeals Court notes that, "There is a 'narrow' exception to the rule 'when the issue presented is both urgent and important.' Trout Unlimited, 441 F.3d at 1218-19. . . In this case, although the issues may be important (an issue we need not decide),

they are not urgent. . ."

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Gates v. Rohm and Haas Co.

2011-09-07T16:42:00.001-04:00

Aug 25: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2108. Appealed from the United States District Court for the Eastern District of Pennsylvania. This is an interlocutory appeal under Fed. R. Civ. P. 23(f) from the denial of class certification for medical monitoring and property damage. Plaintiffs charge that chemical companies dumped an alleged carcinogen at an industrial complex near their residences. In denying the class certification, the District Court found individual issues predominated on exposure, causation, and the need for medical monitoring and also found individual issues predominated as to a liability-only issue class for the property damage claims.

Plaintiffs seek certification of two classes: (1) a class seeking medical monitoring for village residents exposed to the airborne vinyl chloride between 1968 and 2002; and (2) a liability-only issue class seeking compensation for property damage from the exposure. At issue is whether the District Court erred in finding individual issues barred certification of the proposed trial classes under Fed. R. Civ. P. 23(b)(2) or 23(b)(3). The Appeals Court affirmed the district court decision.

The Appeals Court explained further that, "Plaintiffs appear to rely on the same "common" evidence used for the medical monitoring class, but fail to explain how their estimates of exposure to residents over substantial periods of time corresponds to the level of contamination currently present at each home. It may prejudice absent class members whose properties may be shown to have suffered greater contamination. Given the inability to separate common issues from issues where individual characteristics may be determinative, the District Court did not abuse its discretion in refusing to certify a liability-only property damage class."

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