Environmental - Appeals Court

American Road & Transportation Builders v. EPA

2009-12-14T17:21:00.000-05:00

Dec 11: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1381. The American Road and Transportation Builders Association (ARTBA) is a trade organization representing the “transportation construction industry” -- companies that build roads, public transit systems, airports and the like. In 2002 ARTBA petitioned the U.S. EPA to amend two regulations implementing § 209(e) of the Clean Air Act. EPA had originally promulgated the rules in 1994, and then readopted them in 1997. After some litigation over the Agency’s failure to act on ARTBA’s petition, EPA formally opened it to public comment in 2007, then rejected it in 2008.

Shortly thereafter, ARTBA sought review in the D.C. Circuit Appeals Court. The Appeals Court dismissed dismiss the suit for lack of jurisdiction, on the grounds that National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), "requires us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought revised, and that judicial review of such a challenge is time-barred under Clean Air Act § 307(b)(1). . ." The Appeals Court dismissed the case saying, "We conclude that we are without jurisdiction to hear this petition."

Access the complete ruling (click here).

South Fork Band Council v. U.S. Department of Interior

2009-12-04T16:53:00.001-05:00

Dec 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15230. This is an appeal from the denial of a preliminary injunction in an environmental challenge to a major gold mining project on the side of Mt. Tenabo in Nevada. The mountain has religious significance for Indian tribes. The plaintiffs-appellants are the South Fork Band Council of Western Shoshone of Nevada, and other tribes and organizations (the Tribes).

The Tribes originally filed this action against the United States Department of the Interior and its Bureau of Land Management (BLM) after BLM issued its final environmental impact statement approving the project. The project’s developer, Barrick Cortez, Inc., (Cortez) appeared as an intervenor and is also an appellee. The Appeals Court denied the Tribes’ emergency motion for an injunction pending appeal, but expedited the briefing and argument of the appeal.

The district court’s opinion devotes most of its consideration to claims brought under the Religious Freedom Restoration Act (RFRA). Those claims were not pursued on appeal. Instead, the claims allege violations of the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA). In determining whether a preliminary injunction should issue, the Appeals Court said it is bound by the Supreme Court’s recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08].

The Appeals Court said it "must decide whether the Tribes have shown that they are likely to succeed on the merits of their claims; that they are likely to suffer irreparable harm if a preliminary injunction is denied; that the balance of the equities tips in their favor; and that an injunction is in the public interest. . . The Tribes must make each of these showings to be entitled to injunctive relief. . . To succeed on the merits of their action under the Administrative Procedure Act, the Tribes must show that BLM’s action was arbitrary and capricious or contrary to law. . ."

The Appeals Court ruled, "Given the thorough consideration of the project’s impact on the Tribes religion in the Environmental Impact Statement (EIS), which was approved after more than two years of study and consultation with the Tribes and with the public, we conclude that the Tribes have not satisfied their burden of showing a likelihood of success on the merits of their FLPMA claims. We reverse the denial of injunctive relief on the NEPA claims, however, and remand for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions."

Further, the Appeals Court said, "The likelihood of irreparable environmental injury without adequate study of the adverse effects and possible mitigation is high. Indeed the district court did not question the irreparable environmental harm threatened by this massive project, and that will be visited most directly on the plaintiffs. The resulting hardship asserted by Cortez and the government is cast principally in economic terms of employment loss, but that may for the most part be temporary. Given the narrow scope of our holding, which rejects the broader FLPMA contentions, the balance of hardship favors the appellants. As to the public interest, Congress’s determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may go forward. Suspending a project until that consideration has occurred thus comports with the public interest."

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Ackerson v. Bean Dredging LLC

2009-11-30T16:30:00.001-05:00

Nov 25: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-30272. In this multi-party case known as the Katrina Canal Breaches Litigation, appellants sued the United States and thirty-two defendants who dredged the Mississippi River Gulf Outlet to recover damages sustained during Hurricane Katrina. The district court dismissed the claims against the dredgers because it determined that the defendants acted pursuant to contracts with the United States government under authority granted by an act of Congress. The appellants argue that the district court improperly: (1) dismissed their claims; (2) refused to allow them to amend their complaint; (3) refused to allow them to conduct discovery; and (4) entered judgment in favor of those defendants whose actions had been stayed after they filed petitions under the Limitation of Liability Act.The Appeals Court affirmed the district court decision.

While admitting that the district court did commit a procedural error, the Appeals Court ruled, "A district court’s failure to comply with formal procedural requirements is a ground for reversing a judgment when “the failure substantially prejudiced one of the parties.” Here, the limitation actions and the merits actions were before the same district court. Because the district court could cure the procedural defect merely by entering a stay in the limitation actions and then entering judgment for the Limitation Defendants in the merits action, the Plaintiffs would be in the same position if the district court followed the proper procedure. The Plaintiffs have not identified any substantial prejudice arising out of the district court’s procedural error. Thus, we affirm the entry of judgment in favor of the Limitation Defendants.

"Because we hold that the Contractor Defendants are entitled to government-contractor immunity under Yearsley and that the Plaintiffs’ other claims are without merit or are harmless error, we affirm the district court’s dismissal and deny the motion to dismiss the appeal as moot."

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Boston & Maine Corp. v. Massachusetts Bay Transportation

2009-11-25T17:26:00.001-05:00

Nov 24: In the U.S. Court of Appeals, First Circuit, Case No. 09-1185. The Appeals Court explains that on June 30, 1983, the Boston and Maine Corporation (B&M), a railroad operator, was discharged from bankruptcy by a Consummation Order stating that it was "free and clear of all claims." The Order was pursuant to § 77 of the Bankruptcy Act of 1898, 11 U.S.C. § 205 (repealed 1978). B&M was the operator of what is now known as the MBTA Commuter Rail Maintenance Facility (the Terminal), a thirty-four-acre railroad terminal in the greater Boston area used for refueling diesel trains. In 1983, the Terminal was owned by the Massachusetts Bay Transportation Authority (the MBTA), having been purchased by the MBTA from B&M in 1976; B&M had operated the Terminal under bankruptcy protection from 1970 to June 1983 and had owned the Terminal since the late 1920s. B&M continued to operate the Terminal under an agreement with and for the benefit of the MBTA until December 31, 1986.

The MBTA asserted no claims against B&M regarding environmental matters before B&M's June 1983 discharge from bankruptcy, pursuant to the Consummation Order. The MBTA did, however, assert a claim on May 4, 2004, almost 21 years later, against B&M. The claim was for 95 percent of $15,340,810 for past costs and 95 percent of all future costs, as contribution, under state environmental law, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Chapter 21E), for certain cleanup activities the MBTA had undertaken at the Terminal.

The Appeals Court ruled, "We hold that the MBTA's contribution claims under Chapter 21E for contamination prior to the 1983 discharge from bankruptcy are barred as a matter of law by the Consummation Order. We reverse and direct entry of judgment on these claims for B&M." Further the Appeals Court concluded, "Both sides have been ably represented by counsel; the facts and the law require rejection of the MBTA's arguments. The MBTA's contribution claims arising out of pre-June 30, 1983, conduct by B&M are barred by the Consummation Order, so B&M is entitled to an order enjoining the MBTA from pursuing claims for investigation or remediation costs for contamination at the Terminal occurring before June 30, 1983."

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State of North Carolina v. EPA

2009-11-25T17:28:00.001-05:00

Nov 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1225. The State of North Carolina petitions for review of the final rule of U.S. EPA removing the northern part of the State of Georgia from EPA’s regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period [See 73 FR 21,528, 4/22/08]. In 1998 EPA called upon several states to revise their state implementation plans (SIPs) for attaining the NAAQS for ozone by reducing emissions of oxides of nitrogen (NOx), a precursor of ozone [63 FR 57,356, 10/27/98, NOx SIP Call].

Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.

Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.

The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."

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Levine v. Vilsack (USDA)

2009-11-24T07:23:00.001-05:00

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-16441. A number of parties including The Humane Society of the United States (collectively “Levine”) appealed from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (Secretary or USDA). The case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactment) term the “Humane Methods of Slaughter Act of 1958 (HMSA).” In particular, the parties dispute whether poultry should be considered “other livestock” as that phrase is used in that statute.

Levine challenged USDA’s enunciation of its position -- made most recently on September 28, 2005, in a Federal Register Notice issued by USDA’s Food Safety and Inspection Service [see Treatment of Live Poultry before Slaughter, 70 FR 56,624, 9/28/05] -- that “there is no specific federal humane handling and slaughter statute for poultry.” In Levine v. Conner, 540 F. Supp. 2d 1113 (N.D. Cal. 2008), the United States District Court for the Northern District of California (district court) determined that, while the plain meaning of the word “livestock” as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA.

The Appeals Court said, "Because we conclude that Levine cannot satisfy the redressability prong of Article III standing, we vacate that decision and remand to the district court so that it can dismiss the action." Further, the Appeals Court concluded, "Because Levine’s alleged injuries are not redressable by way of this lawsuit, there is a lack of standing to proceed with this action. Consequently, the decision of the district court granting the USDA’s motion for summary judgment is vacated and the case is remanded with instructions to dismiss."

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National Parks & Conservation Association v. BLM

2009-11-12T07:25:00.000-05:00

Nov 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-56814, 05-56815, 05-56843, 05-56832, and 05-56908. Kaiser Eagle Mountain, Inc. (Kaiser) seeks to build a landfill on a former Kaiser mining site near Joshua Tree National Park (Joshua Tree). As part of its landfill development plan, Kaiser sought to exchange certain private lands for several parcels of land surrounding the mine site and owned by the Bureau of Land Managment (BLM). Several parties, including the National Parks Conservation Association (Conservation Association) and Donna and Laurence Charpied (the Charpieds), challenged the land exchange. Nevertheless, the BLM approved the land exchange, as did the Interior Board of Land Appeals (Appeals Board).

The Conservation Association and the Charpieds pursued their challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act (Management Act) and National Environmental Policy Act (NEPA). The district court held for the Conservation Association and Charpieds on the Management Act claims and some, but not all, of the NEPA claims. Under its review, the Appeals Court in a split decision, affirmed in part and reversed in part.

In this somewhat complicated decision, involving several conclusions on separate disputed issues, the majority Appeals Court ruled in part that, "BLM necessarily considered an unreasonably narrow range of alternatives. We therefore affirm the district court’s grant of summary judgment on both the 'purpose and need' and “reasonable range of alternatives” claims under NEPA."

And, "Contrary to the district court’s conclusion, we find that the EIS contains extensive analyses of potential impacts on Bighorn sheep, including migration patterns, habitat loss, and water accessibility. . . [However,] the discussion of [atmospheric] eutrophication is neither full nor fair with respect to atmospheric eutrophication. . . We therefore affirm the district court’s decision on this NEPA claim.

". . .we affirm the district court’s holding that the Charpieds lack standing under NEPA, the National Park Service Organic Act, and the California Desert Protection Act. . . [Also,] "we find that the EIS’s discussion of these issues [desert tortoises, visual, noise, and night lighting impacts, groundwater, and air quality] is sufficient to foster informed decision-making and public participation. We therefore affirm the district court’s grant of summary judgment on these NEPA claims."

Perhaps, most interesting in this case is the lengthy dissenting opinion of Justice Trott. In summary he says, "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting -- if not impossible -- such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the 'due process' of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. The record here exceeds 50,000 pages. At the beginning, Kaiser had a partner, Browning-Ferris Industries (BFI), but BFI -- a company experienced in the field of solid waste disposal -- dropped out after investing $45 million in the project with nothing to show for it in return.

"I agree with my colleagues insofar as they dispense with the cross-appeal and the public interest and bighorn sheep issues, but I dissent with respect to the rest. The final irony is that my colleagues send the case back to the Bureau of Land Management (BLM) to do something BLM has already adequately done: consider the value of the land involved as a commercial landfill." In the final conclusion of his 49-page dissent, Judge Trott said, "I end with the Technical Advisory Panel’s evaluation: 'the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.' Don’t hold your breath."

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U.S. v. Albert Investment Co.

2009-11-12T07:21:00.001-05:00

Nov 10: In the U.S. Court of Appeals, Tenth Circuit, Chase No. 08-6267. Union Pacific Railroad Co. (Union Pacific) appealed from the district court’s denial of its motion to intervene in an action brought by Plaintiffs-Appellees (United States and the State of Oklahoma) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Appeals Court ruled, "Because Union Pacific has an interest in the underlying action, and a statutory right to intervene, we reverse and remand."

The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."

In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."

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Friends Of Tims Ford v. TVA

2009-11-09T16:18:00.001-05:00

Nov 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5706. Plaintiff-Appellant Friends of Tims Ford (FTF) appeals from the district court’s dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners’ associations, who own property adjoining the Tims Ford Reservoir (Reservoir) or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority (TVA) and James Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation (TDEC), for alleged violations of the National Environmental Policy Act of 1969 (NEPA) by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan (LMDP), based on the Final Environmental Impact Statement (FEIS) prepared by TVA and TDEC, and for violations of the TVA Act of 1933 (TVA Act) in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC.

The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."

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California Energy Commission v. Department of Energy

2009-10-30T16:18:00.000-04:00

Oct 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71576. The California Energy Commission (CEC) petitions for review of an order of the U.S. Department of Energy (DOE) denying CEC’s request for a waiver of preemption under the Energy Policy and Conservation Act (EPCA). The CEC sought the waiver in order to establish water efficiency standards for residential clothes washers, as set forth in its state regulations. To obtain such a waiver, CEC was required to show by a preponderance of the evidence that the state regulation was “needed to meet unusual and compelling State or local . . . water interests.”

DOE rejected the CEC’s petition for three separate reasons, but asserts that “each [of the reasons] flowed from CEC’s failure to provide adequate information to DOE to allow the federal agency to make an informed decision.” The DOE also challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, raising an issue of first impression in the Ninth Circuit.

The Appeals Court said, "We hold that this court has jurisdiction under the EPCA. Because the DOE’s stated justifications demonstrate an arbitrary and capricious failure meaningfully to address the CEC’s application for a waiver, we reverse the
DOE’s ruling and remand for further proceedings."

The Appeals Court ruled further, "The CEC has requested that this Court order the DOE to grant the CEC’s waiver petition. However, this Court’s appropriate role is not to engage in the underlying analysis to determine whether the statutory criteria are met, even if the CEC might have supplied the DOE with sufficient information to do so. . . Considering the significant number of
issues left for resolution, many of which require factual findings in the DOE’s area of expertise, we decline to order a waiver on the present record. We reverse the challenged order of the DOE and remand for further proceedings consistent with this opinion."

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Nkihtaqmikon v. Imson

2009-10-29T15:41:00.001-04:00

Oct 28: In the U.S Court of Appeals, First Circuit, Case No. 08-2122. The appeal is the second in continuing litigation by a group of members of the Passamaquoddy Tribe called Nulankeyutmonen Nkihtaqmikon (NN) -- the phrase means "We Protect the Homeland," -- to challenge a Bureau of Indian Affairs (BIA) decision which approved a lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas (LNG) facility, contingent on Federal regulatory approval being obtained from the Federal Energy Regulatory Commission (FERC).

Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.

As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."

The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."

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Rhode Island Fishermen's Alliance v. Rhode Island DEM

2009-10-26T16:13:00.001-04:00

Oct 23: In the U.S. Court of Appeals, First Circuit, Case No. 08-2390. The case involves regulations which imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the Rhode Island Department of Environmental Management (DEM's) alleged use of "retroactive control dates" in composing the regulatory scheme.

According to the Appeals Court, "This appeal brings us face to face with two exotic creatures: the American lobster and a state-law claim that may or may not contain an embedded federal question sufficient to ground a claim of original jurisdiction under 28 U.S.C. § 1331 (commonly known as "federal question" jurisdiction). Cases of this sort require courts to venture into a murky jurisprudence. The answers are rarely black or white but, rather, more often doused in varying shades of gray. The difficult jurisdictional question presented here is no exception."

The underlying case began as a state-court challenge to regulations promulgated by the DEM. Those regulations imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the DEM's alleged use of retroactive control dates in composing the regulatory scheme. The Court explains that a "control date" is "a cut off date for potential use in establishing eligibility criteria for future access to a fishery." Neither the relevant statute nor the challenged regulation, however, defines the term "retroactive control date." The plaintiffs aver that the DEM employed "retroactive control dates" by limiting, in 2006, fishermen's future access to fishing resources based on each fisherman's documented catch during 2001-2003.
The DEM thought that it was obliged to adopt the retroactive control dates by federal law. Accordingly, it removed the case to the federal district court. The plaintiffs moved to remand, but the district court refused to relinquish jurisdiction. The court subsequently granted summary judgment in favor of the defendants. The Appeals Court said, "After careful consideration of the plaintiffs' ensuing appeal, we agree that the district court appropriately exercised federal question jurisdiction over the case." Accordingly, the Appeals Court affirmed both the district court's denial of the plaintiffs' motion to remand and its grant of summary judgment in favor of the defendants.

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Comer v. Murphy Oil USA

2009-10-21T16:34:00.002-04:00

Oct 16: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-60756. This case represents another major decision regarding citizen enforcement, utilizing common-law actions and seeking damages resulting from corporate greenhouse gas emissions. The case follows another recent related decision in State of Connecticut v. American Electric Power Co. Inc. issued on September 21, 2009, by the U.S. Court of Appeals, Second Circuit [See WIMS 9/22/09].

As explained by the Appeals Court, the plaintiffs, residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.

The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs invoked the district court’s subject-matter jurisdiction based on diversity of citizenship. The plaintiffs do not assert any federal or public law actions and do not seek injunctive relief.

Defendants moved to dismiss plaintiffs’ claims on the grounds that the plaintiffs lack standing to assert their claims and that their claims present "nonjusticiable political questions." The district court granted the motion and dismissed the claims. The plaintiffs timely appealed.

The Appeals Court ruled, "For the reasons discussed herein, we conclude that the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims present nonjusticiable political questions; but we conclude that their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons. Accordingly, we reverse the district court’s judgment, dismiss the plaintiffs’ suit in part, and remand the case to the district court for further proceedings."

The Appeals Court explains that the district court began its analysis of the political question doctrine by stating “that the problem [in this case] is one in which this court is simply ill-equipped or unequipped with the power that it has to address these issues.” Describing this suit as a “debate” about global warming. The district court judge said he should not be forced "to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is simply nonjudicial."

In its conclusion the Appeals Court said, "The plaintiffs have pleaded sufficient facts to demonstrate standing for their public and private nuisance, trespass, and negligence claims. We decline to find standing for the unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims and dismiss these claims. We find that the plaintiffs’ remaining claims are justiciable and do not present a political question. We do not hazard, at this early procedural stage, an Erie guess into whether these claims actually state all the elements of a claim under Mississippi tort law, e.g., whether the alleged chain of causation satisfies the proximate cause requirement under Mississippi state common law; we leave this analysis to the district court in the first instance. Thus, for the foregoing reasons, we reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion."

On attorney, Paul Mollica, with the law firm of Meites, Mulder, Mollica & Glink in Chicago commented on the company blog that, "The headline for this case ought to read: 'Fifth Circuit More Activist Than San-Francisco-Based Court." A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.'" Mollica concludes his comments saying, "One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead."

The blog, Global Environmental Law posted a comment on the case saying, "The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina."

Access the complete 36-page opinion (click here). Access the complete blog post by Paul Mollica (click here). Access the complete Global Environmental Law blog post (click here).

AMW Materials Testing, Inc. v. Town of Babylon

2009-10-20T16:37:00.000-04:00

Oct 19: In the U.S. Court of Appeals, Second Circuit, Case No. 08-1731. The case involved a fire at a commercial building during which hazardous materials were released into the environment. Plaintiff owners sued the local entities that responded to the emergency in the under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), New York tort law, and New York Navigation Law to recover cleanup costs. Plaintiffs appealed a judgment from the district court in favor of defendants arguing that defendants qualify as a matter of law as “operators” of the facility from which hazardous materials were released, and that emergency response actions cannot constitute an affirmative defense to liability. The Appeals Court said, "Both arguments are unpersuasive" and affirmed the district court decision in favor of defendants.

The Appeals Court summarized its decision as follows: "(1) Section 9607(d)(2) of Title 42 is an affirmative defense to CERCLA liability under § 9607(a), and, accordingly, the district court did not err in treating it as such; (2) Whether the § 9607(a) claims in this case were properly tried to a jury or to the court, on the trial record no reasonable factfinder could decline to find that defendants are entitled to the affirmative defense set forth in § 9607(d)(2); (3) The district court properly referenced the factors set forth in Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 375 (1987), in charging the jury as to plaintiffs’ theory of defendants’ municipal liability for negligence under New York law. (4) The district court properly denied plaintiffs’ motion for judgment as a matter of law or a new trial on their claim for the discharge of petroleum under N.Y. Nav. Law § 181(1)."

Access the complete opinion (click here).

IL Dunesland Preserve v. IL Dept of Natural Resources

2009-10-15T16:23:00.001-04:00

Oct 14: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1535. According to the Appeals Court, in this suit regarding free speech and First Amendment rights, the Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois; it attracts upward of two million visitors in some years. The plaintiff, a nonprofit corporation that helped to create and continues to support the park, filed this suit under 42 U.S.C. § 1983 [i.e. Civil action for deprivation of rights] against state officials involved in its management and the state agency that operates the park, charging infringement of free speech.

The defendants refused to display in the display racks in various buildings in the park a scary two-page pamphlet that the plaintiff had prepared. Entitled “Tips for Avoiding Asbestos Contamination at Illinois Beach State Park,” the pamphlet recommends “commonsense approaches . . . for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” It warns that “many pieces of asbestos have been tumbling along the shoreline for years,” that “microscopic asbestos can be released from the sand when agitated,” and that “disturbing the sand can cause asbestos to become airborne.” And since “asbestos fibers can be found wherever beach sand can go,” the reader is advised to “wash your whole body including hair, ears, and under fingernails. Pets should also be washed down prior to leaving the beach . . . Take care when shaking out towels and blankets that may have come into contact with sand. Remove all beach clothing prior to entering your car or home. Launder beach clothing, blankets, and towels separately. Store shoes and other hard to clean items outside of the home.”

The Appeals Court notes that while the beaches do contain asbestos fibers, several cited state and Federal studies have not found levels of asbestos sufficient to menace human health. Additionally, the Appeals Court said, ""In this case, which involves a First Amendment issue, the lawyers have treated us to a barrage of unhelpful First Amendment jargon."

In conclusion, the Appeals Court affirmed the district court ruling and said, ". . .the district judge noted that the plaintiff 'did not seek to distribute its flyer within the Park by any means other than inclusion in the display racks.' The judge added that 'no special permit or license is required to hand out pamphlets to Park visitors.' The park authorities cannot impose unreasonable barriers to using open public space to convey ideas and opinions (remember that a park is 'a traditional public forum'), but there has been no showing that they’ve tried to do this."

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Orange County Water District v. Unocal Corp

2009-10-02T16:44:00.002-04:00

Oct 1: In the U.S. Court of Appeals, Second Circuit, Case No. 07-5724. In this case involving the chemical gasoline additive methyl tertiary butyl ether (MTBE) and including major international oil and chemical companies as Defendants, Orange County Water District petitions for a writ of mandamus are denied by the Appeals Court. The County's petitions challenged a November 7, 2007 order of the United States District Court for the Southern District of New York which denied a motion to remand to state court. The Appeals Court said in its denial, "We hold that our prior opinion in this multi-district litigation did not preclude the District Court’s conclusion that petitioners failed to file a timely motion for remand ... because the purportedly erroneous removal under. . . did not implicate the District Court’s subject matter jurisdiction. Furthermore, we conclude that any challenge to the District Court’s subject matter jurisdiction is best addressed on direct appeal, rather than by a writ of mandamus."

The Appeals Court said the question presented is whether a district court may retain jurisdiction when a case was improperly removed to Federal court. Specifically, the Appeals Court ruled as to whether improper removal under the bankruptcy removal statute requires subsequent remand to state court.

By way of background and summary the Appeals Court explains, "The Orange County Water District (OCWD) petitions for a writ of mandamus challenging a November 7, 2007 order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge), denying OCWD’s motion to remand the case from the Southern District of New York to California state court. OCWD argues that this Court’s decision in In re MTBE Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007) (MTBE) -- which involved other parties in this multi-district litigation -- required the District Court to remand OCWD’s action. Specifically, OCWD contends as follows: (1) this Court’s opinion in MTBE requires that the District Court find that OCWD asserted a timely objection under 28 U.S.C. § 1447(c) to the improper application of the bankruptcy removal statute, 28 U.S.C. § 1452(a); and, alternatively, (2) the District Court was required to abstain pursuant to 28 U.S.C. § 1334(c)(2) because it lacked 'core' bankruptcy jurisdiction. We deny OCWD’s petition for a writ of mandamus because we conclude that: (1) our opinion in MTBE did not require the District Court to remand OCWD’s action, and (2) OCWD’s alternative jurisdictional arguments can be reviewed in the regular course of appeal."

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Provincial Government of Marinduque v. Placer Dome, Inc.

2009-09-30T16:55:00.002-04:00

Sep 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16306. In the case, which does involve environmental issues, but is more related to international law and legal jurisdiction issues, the Ninth Circuit says, under the act of state doctrine, “the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990). Founded on international law, the doctrine also serves as a basis for federal-question jurisdiction when the plaintiff’s complaint challenges the validity of a foreign state’s conduct.

The Appeals Court said, "We consider here whether the district court had subject-matter jurisdiction over this suit, based upon the act of state doctrine, such that removal from state to federal court was proper. Because none of the referenced conduct by the foreign sovereign -- in this case, the Philippine government -- is essential to any of the plaintiff’s causes of action, we reverse the district court’s exercise of subject-matter jurisdiction under the act of state doctrine."

The Provincial Government of Marinduque (the Province) sued Placer Dome Corporation in 2005 in Nevada state court for alleged human health, ecological, and economic damages caused by the company’s mining operations on Marinduque, an island province of the Republic of the Philippines. According to the complaint, Placer Dome severely polluted the lands and waters of Marinduque for some thirty years, caused two cataclysmic environmental disasters, poisoned the islanders by contaminating their food and water sources, and then left the province without cleaning up the mess -- all in violation of Philippine law.

Immediately after the Province filed suit, Placer Dome removed the case to federal district court for the District of Nevada on the basis of federal-question jurisdiction. Specifically, Placer Dome contended that the case “tender[ed] questions of international law and foreign relations.” The Province moved for an order requiring Placer Dome to show cause why the action should not be remanded to the state court due to a lack of subject-matter jurisdiction. The district court denied the Province’s motion, holding that federal-question jurisdiction existed under the act of state doctrine of the federal common law. Placer Dome moved to dismiss the suit for lack of personal jurisdiction and forum non conveniens. The district court granted limited discovery on personal jurisdiction. Before discovery was concluded, in March 2007, the United States Supreme Court issued Sinochem International Co. v. Malaysia International Shipping Corp., announcing that district courts have latitude to rule on the threshold issue of forum non conveniens before definitively ascertaining subject matter and personal jurisdiction. 549 U.S. 422, 432 (2007). The district court stayed jurisdictional discovery, and ordered briefing on the issue of forum non conveniens. Invoking Sinochem, the district court dismissed the matter on forum non conveniens grounds in favor of a Canadian forum.

In its final conclusion the Appeals Court said, "The Province’s complaint does not present a federal question based upon the act of state doctrine. The district court therefore lacked subject-matter jurisdiction over this suit and removal from state court was improper. We reverse, vacate the forum non conveniens dismissal, and remand with instructions to remand to the state court."

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U.S. v. Starnes

2009-09-25T16:58:00.001-04:00

Sep 24: In the U.S. Court of Appeals, Third Circuit, Case Nos. 07-3341 & 08-1691. Cleve-Allan George and Dylan C. Starnes appeal from judgments of conviction and sentence entered against them following a jury trial in the United States District Court for the District of the Virgin Islands. Although these appeals have not been formally consolidated, the Appeals Court resolved them together because they arise from a common set of facts. The Appeals Court affirmed the judgments.

Virgin Islands Housing Authority (VIHA) received a Federal grant for asbestos cleanup to be “performed in strict accordance with all federal, state and local regulations and ordinances” and eventually awarded a demolition contract to Alvin Williams Trucking & Equipment Rental, Inc. That company, with the consent of VIHA, subcontracted the asbestos abatement portion of the project to the Virgin Islands Asbestos Removal Company (VIARCO), a company owned by George. VIARCO had “joined forces” with Environmental Contracting Company (ECC), a company run by Starnes.

Among other violations, a “pressure washer” was used to dislodge asbestos-containing materials from the site’s structures. The Appeals Court said, this removal method, although time-efficient, generated a substantial amount of debris-filled wastewater, which the crew pumped into toilets and bathtubs. But those fixtures rapidly clogged, causing wastewater to pour out and accumulate on the buildings’ balconies. In response, George constructed a drainage system out of PVC pipes, which permitted the wastewater to flow off the balconies and down to the ground. When the wastewater evaporated, it left a dusty white residue clinging to the facades of the buildings and the surrounding sidewalks and grass.

The District Court sentenced Starnes to thirty-three months of imprisonment, three years of supervised release, and a special assessment of $1,600. While noting the government’s position that George’s acts were more egregious than those of Starnes, the District Court nonetheless imposed on George the same sentence that it had imposed on Starnes.

The Appeals Court said, "Both defendants also argue, albeit somewhat perfunctorily, that the District Court committed significant procedural error by failing to give meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). We disagree. While a sentencing court must consider all of the § 3553(a) factors, it does not have to discuss and make findings as to each factor so long as the record otherwise makes clear that it took the factors into account."

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Stanley v. United States Steel Corporation

2009-09-23T16:36:00.002-04:00

Sep 22: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 08-2311 & 082312. The Appeals Court explained that Malcolm Moulton challenges the district court’s approval of a settlement agreement arising from a class action filed by the neighbors of a steel mill owned by United States Steel Corporation. A group of other class members, led by Ron Anderson, join Moulton’s objections, and separately challenge the district court’s management of the opt-out process and its handling of attorney Donnelly Hadden’s attempts to represent them. We affirm, except with respect to the district court’s approval of the attorney’s fee award, which we vacate and remand for further explanation.

In 2003, U.S. Steel purchased a steel mill bordering Ecorse and River Rouge, Michigan. At the time, the mill’s pollution-control equipment was in disrepair. After purchasing the mill, the company spent $65 million to upgrade the old pollution-control equipment and to buy new equipment. About a year after the purchase, several residents of Ecorse and River Rouge filed a class-action lawsuit against the company. The plaintiffs raised several tort and statutory claims, all to the effect that the mill wrongfully discharged harmful “metal-like dust and flakes” that settled on their real and personal property.

The case basically involves class action procedures and the conduct of attorney Hadden. In part, the Appeals Court rules, "At no point has Hadden offered evidence on the record that the 34 “missing” opt-out forms were mailed to Class Counsel. Lacking any evidence that these class members opted out, Hadden cannot demonstrate that an error occurred, much less that the district court abused its discretion by not correcting it. . . We also reject Hadden’s claim that the district court abused its discretion by not accepting opt-out forms that Hadden signed, purportedly at his clients’ request. We have serious doubts at the outset whether these clients requested that Hadden sign their form, or if they merely failed to respond to Hadden’s letter -- triggering Hadden’s 'automatic' opt out on his terms. Even setting this skepticism aside, we find none of his arguments persuasive. . .

"The Michigan Constitution’s guarantee of 'the right to prosecute . . . [a] suit . . . by an attorney,' Mich. Const. Art. I, § 13, does not save his argument. The Hadden clients who opted out of the suit had an attorney: Hadden. And those who remained in the class were adequately represented by court-approved Class Counsel."

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State of Connecticut v. American Electric Power Co. Inc.

2009-09-22T16:46:00.001-04:00

Sep 21: In the U.S. Court of Appeals, Second Circuit, Case Nos. 05-5104 & 05-5119. In this major 139-page decision regarding citizen and government enforcement of greenhouse gas emissions the Appeals Court summarized saying, the case is appealed from a judgment of the United States District Court for the Southern District of New York that dismissed Plaintiffs-Appellants’ Federal common law of nuisance claims as non-justiciable under the "political question doctrine."

The Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings.

The case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

By way of background, in 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively Plaintiffs), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively Defendants), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

Plaintiffs brought these actions under the Federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to "cap and then reduce their carbon dioxide emissions." Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of Federal common law. In addition, Defendant Tennessee Valley Authority (TVA) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

The Appeals Court ruled, "We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."

In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."

The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." NRDC said that the Second Circuit "held that Federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress."

Included in the NRDC release was a statement from Matt Pawa, lead attorney for the land trusts Open Space Institute and the Audubon Society of New Hampshire saying, “The court’s decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today’s decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law.”

Also, David Doniger, senior attorney and policy director for NRDC’s Climate Center said, “The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”

Access the complete opinion (click here). Access a release from NRDC (click here).

Rosemere Neighborhood Association v. U.S. EPA

2009-09-18T16:32:00.001-04:00

Sep 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35045. The Rosemere Neighborhood Association (Rosemere) appealed the district court’s dismissal of its action against the U.S. EPA on "mootness grounds." The Appeals Court said, "We conclude that the district court erred in dismissing the case, because the voluntary cessation exception to mootness applies. We therefore reverse."

The dispute arises out of a complaint that Rosemere filed against the City of Vancouver, WA with the EPA's Office of Civil Rights (OCR) alleging that the City failed properly to utilize EPA funds to address lingering environmental problems in low-income and minority communities in the City. The City then opened an inquiry into Rosemere that eventually culminated in the revocation of Rosemere’s status as a formal neighborhood association. Rosemere then filed a second complaint with the OCR in December 2003, alleging retaliation by the City.

Some eighteen months lapsed with no action by the OCR, until Rosemere filed suit in federal district court in June 2005 against the EPA, seeking to compel the OCR to accept or reject the retaliation complaint. About six weeks later, the OCR notified Rosemere that it had accepted the complaint for investigation. EPA then moved to dismiss Rosemere’s action as moot. The district court granted the motion, concluding that the delay was nothing “more than an isolated instance of untimeliness and oversight,” and there was no evidence that the EPA’s failure to act was a “practice” the EPA might resume in the future.

The Appeals Court concluded, "We thus conclude that the district court erred in dismissing Rosemere’s action. As the Seventh Circuit held, 'when the relief sought is an order to the delaying agency to hurry up,' but the agency acts 'to moot [the] case by acting before [the] claim for relief can be decided,' such a sequence 'begs for an exception to the ordinary rules of mootness.' Lucien v. Johnson, 61 F.3d 573, 574-75 (7th Cir. 1995). Rosemere’s complaint is not moot. The judgment of the district court is reversed and the case remanded for further proceedings consistent with this opinion."

Access the complete opinion (click here).

Center For Biological Diversity v. US Department of Interior

2009-09-15T17:04:00.002-04:00

Sep 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16423. The Center for Biological Diversity (CBD), the Western Land Exchange Project, and the Sierra Club (collectively, Appellants) sued Asarco LLC (Asarco), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, BLM). Appellants contend that the BLM’s approval of a land exchange violated the National Environmental Policy Act (NEPA) and the Mining Law of 1872. If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872. If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872.

Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations (MPO) to the BLM. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed.

As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement (FEIS) pursuant to NEPA. In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision (ROD) approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences -- and the implications for the public interest -- would differ depending on whether the proposed land exchange occurs.

In a split decision, the Appeals Court ruled, "Because the BLM has conducted no comparative analysis, we hold that it has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was “arbitrary and capricious” in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving the actions of the BLM."

In a lengthy and harshly critical dissenting opinion, Justice Tallman said, "It has been said that the life of a canary in a coal mine can be described in three words: short but meaningful. So too apparently was the life of our decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). . . Having carefully reviewed and evaluated the record, I staunchly disagree with the majority’s conclusion . . .

"This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. . . In sum, the majority’s creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. . .

"Today’s opinion embodies the type of judicial meddling in agency action that we intended to put to rest in Lands Council. Its implications are far-reaching and severe. In order to achieve a particular result, my colleagues set the stage for a catastrophic collapse of the mine shaft timbers of deferential administrative law. For these reasons, I dissent. Has anyone seen the canary?"

Taylor McKinnon, public lands campaigns director with CBD said, “At stake in today’s decision were habitats for desert bighorn sheep, endangered desert tortoise habitat, and other threatened and endangered species. This is a victory for them -- a victory that will save lives.” CBD said the proposed exchange would have given Asarco 10,976 acres of public lands in exchange for 7,300 acres of the company’s private holdings, and would have facilitated the expansion of Asarco’s Ray Mine, an open-pit copper mine located 65 miles east of Phoenix and 50 miles north of Tucson. By gaining private ownership of the land, Asarco would no longer be subject to Federal planning, reclamation, and bonding requirements designed to minimize and mitigate the environmental impacts of hard-rock mining operations.

Access the complete opinion and dissent (click here). Access a release from CBD (click here).

Thomas v. Jackson (U.S. EPA)

2009-09-11T17:07:00.001-04:00

Sep 10: In the U.S. Court of Appeals, Eighth Circuit, Case No: 08-2152. Plaintiffs filed a complaint in district court under the Administrative Procedure Act (APA), arguing that approval by the U.S. EPA of the State of Iowa’s 2004 “§ 303(d) lists” violated several aspects of the Clean Water Act (CWA). The district court dismissed the complaint and the Appeals Court affirmed the district court decision.

In part the Appeals Court ruled, "We disagree with Plaintiffs’ contention that when a state uses a non-compliant variation of approved water quality standards in drafting its § 303(d) list, the ultimate, EPA-approved list must be invalidated in its entirety even if the EPA applied the correct water quality standards rather than the non-compliant variation. See Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 912 n.14 (11th Cir 2007) (rejecting a similar argument where the court concluded that the record showed the EPA applied the approved standards rather than the challenged variation); see also 40 C.F.R. § 130.7(d)(2) (establishing a time frame for the EPA to develop § 303(d) list if it disapproves the state’s draft list). However, if the EPA were to itself apply the unapproved state modification, the resulting § 303(d) list would be undermined. Florida Public Interest Research Group Citizen Lobby v. EPA, 386 F.3d 1070, 1090–91 (11th Cir. 2004) (FPIRGCL) (remanding for additional review where the court concluded that the record showed that the EPA applied the challenged variation rather than the standards as approved)."

Second, Plaintiffs contended that the EPA impermissibly accepted Iowa’s distinction between “evaluated” and “monitored” waters and its position that waters evaluated, but not monitored, need not be placed on the § 303(d) list. The Appeals Court said, "The EPA maintains that it reviewed all 'evaluated' waters consistent with federal regulations, ignoring Iowa’s distinction. As with the Credible Data Law, Plaintiffs’ only evidence that the EPA adopted Iowa’s distinction is the fact that the EPA only added four of the 'evaluated' waters back to the § 303(d) list. Plaintiffs argue that '[w]e must assume' that the EPA approved of Iowa’s distinction. The burden of proof lies with Plaintiffs, however, and Plaintiffs cannot meet that burden through unsupported assumptions."

Finally, Plaintiffs contend that even relying on the approved water quality standards was in error because Iowa was in the process of revising its water quality standards. The EPA counters that applicable water quality standards remain in effect until the new standards are approved. The Appeals Court said, "As Plaintiffs have pointed to no authority to the contrary, and any
improper delay in the promulgation of the revised standards is not directly at issue in the case before us, we defer to the EPA’s reasonable application of its own regulations. . ."

Access the complete opinion (click here).

State of Michigan v. EPA

2009-09-10T16:46:00.001-04:00

Sep 9: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-2582. As explained by the Appeals Court, the cultural and religious traditions of the Forest County Potawatomi Community (the Community) often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests. To remedy this problem, it submitted a request to U.S. EPA) to redesignate certain tribal lands from Class II to Class I status under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act (the Act). This would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.

After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status [See WIMS 4/29/08]. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs.

The Appeals Court said, "Because Michigan lacks standing to pursue these claims, we dismiss its petition for review." The Appeals Court stated further in its conclusion, "The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan’s challenge to the EPA’s redesignation actions raises some important issues about the PSD program’s regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer. We dismiss the petition for review."

Access the complete opinion (click here). Access a 6/30/08 release from MDEQ (click here). Access the Dispute Resolution FR announcement (click here). Access the Final Rule FR announcement (click here). Access EPA's docket for this action with complete background information (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

USA v. Apex Oil Company

2009-09-04T16:36:00.002-04:00

Aug 25: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3433. As explained by the Appeals Court, Apex Oil Company appeals from the grant of an injunction, at the behest of U.S. EPA and on the authority of the Resource Conservation and Recovery Act of 1976, that requires Apex to clean up a contaminated site in Hartford, Illinois. In a 178-page opinion following a 17-day bench trial, the district judge made findings that millions of gallons of oil, composing a “hydrocarbon plume” trapped not far underground, are contaminating groundwater and emitting fumes that rise to the surface and enter houses in Hartford and in both respects are creating hazards to health and the environment. The Appeals Court said, "The judge deemed it Apex’s legal responsibility to abate this nuisance because the plume was created by an oil refinery owned by a corporate predecessor of Apex. Apex challenges the findings and conclusion, but the challenge has no possible merit."

The Appeals Court indicated, "The principal question presented by the appeal is unrelated to the district judge’s findings and conclusions; it is whether the government’s claim to an injunction was discharged in bankruptcy and therefore cannot be renewed in a subsequent lawsuit -- this suit. The bankruptcy judge’s confirmation (approval) of a claim in a Chapter 11 proceeding discharges the debtor from 'any debt that arose before the date of' confirmation, with immaterial exceptions." The Appeals Court affirmed the decision and said, "There is no improper delegation to the EPA (compare United States v. Microsoft Corp., 147 F.3d 935, 955 (D.C. Cir. 1998)), because its exercise of 'oversight and approval' will be subject to the court’s override."

Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]