Peconic Baykeeper, Inc. v. Suffolk County

Mar 30: In the U.S. Court of Appeals, Second Circuit, Case No. 09-0097. Defendants Suffolk County and the Suffolk County Department of Public Works, Division of Vector Control (County) employ various measures to combat the spread of mosquito-borne illnesses, including the use of pesticides intended to kill adult mosquitoes in mid-flight. Plaintiffs Peconic Baykeeper, Inc., Kevin McAllister and Alfred Chiofolo contend that the County violated the Clean Water Act (CWA), in its application of certain pesticides, and, separately, its dredging of mosquito ditches. Plaintiffs, who commenced this action under the CWA's citizen-suit provision, sought declaratory and injunctive relief, as well as civil penalties to be paid to the United States Treasury. Following a six-day bench trial, the district court found that the disputed mosquito-control activities were lawful under the CWA. Judgment was entered for the defendants, and plaintiffs appealed.

 

    The Appeals Court made a three-part ruling and vacated the judgment of the district court insofar as it held that the defendants' spraying activities were uniformly in compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136, et seq.; and vacated insofar as it held, in the alternative, that the trucks and helicopters used to spray the pesticides were not "point sources" for the purposes of the CWA; and, affirmed insofar as it held that the County's dredging activities did not violate the CWA.

 

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Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc.

Feb 24: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3843. As explained by the Appeals Court, Niagara Mohawk Power Corporation (NiMo) commenced this action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), and the Superfund Amendments and Reauthorization Act of 1986 (SARA) from the defendants for cleanup of properties previously owned by NiMo and once either owned, leased, or used by the defendants. In the appeal, NiMo challenges orders of the United States District Court for the Northern District of New York which denied NiMo's motion for summary judgment, granting summary judgment in favor of the defendants, and denying NiMo's motion for reconsideration.

 

    We are called upon to determine whether NiMo, as a potentially responsible party under CERCLA, can seek response and cleanup costs under either § 107(a)(4)(B) or § 113(f)(3)(B), after having settled its CERCLA liability with the New York State Department of Environmental Conservation (DEC) but not with the Environmental Protection Agency (EPA), where the EPA has not expressly authorized the DEC to settle CERCLA liability relating to the property at issue.

 

    The Appeals Court said, "We hold that NiMo may seek contribution costs under § 113(f)(3)(B) because NiMo has settled with the DEC, but consequently NiMo may not seek reimbursement for response costs under § 107(a). We hold that the district court erred in granting summary judgment for the defendants because there are genuine issues of material fact with regards to their respective liabilities.

 

    Additionally, the Appeals Court ruled, "We hold that the district court erred by holding that NiMo did not comply with the National Contingency Plan. We hold that the district court erred in part by dismissing NiMo's New York Navigation Law claims. Finally, we hold that the district court erred in dismissing Chevron's third party action against the County of Rensselaer and others. We affirm, however, the district court's dismissal of NiMo's state contribution, indemnity, and unjust enrichment claims because they are preempted by CERCLA."

 

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New York v. Nuclear Regulatory Commission

Dec 21: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3903. The case involves a petition for review of a decision of the Nuclear Regulatory Commission denying rulemaking petitions filed by Massachusetts and California. The Appeals Court indicated, "As the Nuclear Regulatory Commission has given due consideration to the relevant studies concerning the rulemaking petitions, we must defer to its expertise in determining the proper risk level associated with the storage of nuclear material in spent fuel pools, and therefore deny the petition to review the Nuclear Regulatory Commission’s decision."

The two States filed rulemaking petitions (Massachusetts in 2006, and California in 2007) asking the NRC to reverse its 1996 Generic Environmental Impact Statement, which found (among other things) that spent fuel pools at nuclear power plants do not create a significant environmental impact within the meaning of the National Environmental Policy Act (NEPA). The States petitioning for review here (New York, Connecticut, and Massachusetts) claim standing on the ground that nuclear power plants are within or near their borders and that an accident at one of these plants could harm their citizens.

The States on appeal contended that the risk of a spent fuel pool fire must be a Category II rather than a Category I risk, because the risk is affected by mitigation that varies from plant to plant. It is true that the NRC relies in part upon mitigation at nuclear power plants -- including various coolant sprays and makeup water systems in case of pool drainage -- to conclude that the risk of an accidental or terrorist-caused fire in the pools is uniformly low. However, the NRC has mandated that these mitigation tactics be implemented at all nuclear power plants. The Appeals Court ruled, "The NRC relies on numerous studies detailing the effectiveness of its required mitigation measures; these studies constitute substantial evidence."

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AMW Materials Testing, Inc. v. Town of Babylon

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)."

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Orange County Water District v. Unocal Corp

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

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).

Coalition On West Valley Nuclear Wastes v. Chu

Aug 31: In the U.S. Court of Appeals, Second Circuit, Case No. 07-5243. As explained by the Appeals Court, the Coalition on West Valley Nuclear Wastes, et al contend that the United States Department of Energy (DOE, & Secy. Chu) violated both the National Environmental Policy Act (NEPA) and the terms of a 1987 settlement between the Coalition and the DOE by issuing an environmental impact statement concerning waste management activities at the West Valley Project site, a portion of the Western New York Nuclear Service Center, that did not address long-term closure issues regarding the rest of the Center. The district court granted summary judgment in favor of DOE on all claims and the Appeals Court affirmed the decision.

On one of the main issues of contention, the Appeals Court said, "The DOE’s final Record of Decision on the Waste Management EIS indicates that its waste management actions entail shipping certain kinds of waste off-site and storing high-level waste at the West Valley site until it can be shipped to a geologic repository. . . As the district court found, removing the waste from the site has “independent utility,” for instance in storing the waste more safely, regardless of whether the Center as a whole is closed or decommissioned. Appellants have failed to present any evidence that would suggest that dealing in a more permanent fashion with waste that is currently left on the Project site somehow depends on closing the entire Center for its justification. Thus, we agree with the district court’s conclusion that the waste management actions are not “connected” to the closure actions. . . We also perceive no basis in the record for concluding that the actions are either cumulative in character, yielding cumulative environmental impacts that should be discussed in the same EIS . . . or that they are so similar that the 'best way to assess adequately the combined impacts . . . is to treat them in a single impact statement' . . ."

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Simsbury-Avon Pres. Society v. Metacon Gun Club, Inc.

Jul 31: In the U.S. Court of Appeals, Second Circuit, Case No. 07-0795. Plaintiffs-Appellants (Simsbury-Avon) brought suit against Defendants-Appellees Metacon Gun Club, Inc., and its members and guests (collectively referred to as Metacon) for violations of the Resource Conservation and Recovery Act (RCRA, and the Clean Water Act (CWA), resulting from the discharge and accumulation of lead shot on Metacon’s property. Plaintiffs-Appellants now appeal from several decisions of the United States District Court for the District of Connecticut, dismissing their claims.

The Appeals Court said, "We defer to the EPA’s interpretation of the applicable RCRA permit regulations, and hold that they do not apply to the regular, intended use of lead shot on a shooting range. Therefore, we conclude that the district court properly dismissed Plaintiffs-Appellants’ claim based on the alleged disposal of hazardous waste without a RCRA permit, in violation of 42 U.S.C. § 6925(a). We also hold that the Plaintiffs-Appellants have failed to adduce sufficient evidence to create a material issue of fact regarding whether lead contamination on the shooting range constitutes 'an imminent and substantial endangerment to health or the environment.' 42 U.S.C. § 6972(a)(1)(B). Thus, we affirm the district court’s grant of summary judgment to Metacon on Plaintiffs-Appellants’ RCRA 'imminent and substantial endangerment' claim. Finally, we hold that the Plaintiffs-Appellants failed to set forth sufficient evidence to create a material issue of fact as to whether the gun club is discharging lead shot into 'navigable waters' from a 'point source.' 33 U.S.C. § 1362(12). Accordingly, we affirm the district court’s grant of summary judgment to Metacon on Plaintiffs-Appellants’ CWA permit claim."

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Natural Resources Defense Council, Inc. v. FAA

May 1: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5267. The Panama City-Bay County Airport and Industrial District (the sponsor), a state-chartered entity that owns and operates Panama City-Bay County International Airport proposed to close the existing airport at Panama City FL and to construct a new airport in western Bay County (the West Bay Site). Pursuant to the Airport and Airway Improvement Act (AAIA), the Sponsor sought and obtained approval for the construction project from the Federal Aviation Administration (FAA).

Petitioners Natural Resources Defense Council et al (NRDC) challenged the FAA's decision as a violation of the AAIA and the National Environmental Policy Act (NEPA), and requested that the court enjoin the FAA from implementing its decision. The Appeals Court concluded that, "Because the FAA's decision is not 'arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law,' we deny the petition for review and the relief sought therein."

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Coalition of Watershed Towns v. EPA

Dec 29: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-2449 & 07-3912. Petitioners are a confederation of towns in the Catskill and Delaware watershed region of New York, that are seeking review of two actions regarding the implementation of the Safe Drinking Water Act of 1974 (SDWA) by U.S. EPA. The Appeals Court says, "For the reasons explained in this opinion, we may not address the merits of the petition because petitioners lack standing to sue under Article III of the Constitution. Specifically, petitioners have not shown that their proposed injuries are likely to be redressed by a favorable court decision. The petition is denied."

The towns petition for review of two “final actions” by the EPA: (1) an April 25, 2007 letter from the EPA highlighting the State’s non-compliance with certain EPA regulations regarding administrative penalties and temporarily postponing the previously scheduled transfer to the State of primary enforcement responsibility (primacy) over the Catskill and Delaware watersheds until the State complies with the relevant regulations; and (2) a July 30, 2007 Filtration Avoidance Determination (FAD), which required the City to spend additional monies on land acquisition in the Catskill and Delaware watershed regions.

As a threshold matter, the EPA argues that, under the “case-or-controversy” requirement of Article III of the Constitution, the Towns lack standing to bring this petition because they have not suffered any “injury-in-fact,” i.e., an invasion of a legally protected interest that is “concrete and particularized . . . and [ ] actual or imminent, not conjectural or hypothetical”.

The Appeals Court ruled, "Despite any injury the Coalition may allege, any relief this Court could provide is speculative. Even if we were to hold that the EPA was required by the MOA [Memorandum of Agreement] to transfer primacy to the State in May 2007, as opposed to September 2007, when they actually transferred primacy, there is no basis for us to conclude that petitioners would more likely than not be in any different position than they are now. While the State might have been required by state regulations and laws to perform a cost-benefit review of the substance of the July 2007 FAD [Filtration Avoidance Determination], petitioners do not point to any evidence suggesting that the State’s analysis would have substantially differed from the EPA’s, or would remedy any injury alleged by petitioners. Indeed, the State’s intervention in this case on the side of the EPA and in support of the June 2007 FAD leads us to conclude that the State would have promulgated substantially the same determination."

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Sahu v. Union Carbide Corporation

Nov 3: In the U.S. Court of Appeals, Second Circuit, Case No. 065694. In this case involving an appeal from a judgment of the United States District Court for the Southern District of New York that granted a summary judgment in favor of defendants Union Carbide Corporation and Warren Anderson on all the claims of the plaintiffs related to water pollution allegedly caused by the operations at a factory owned and operated by a former Union Carbide subsidiary in Bhopal, India.

According to the Appeals Court, with respect to the plaintiffs' claims for injunctive relief and their theories of liability other than their attempt to pierce the corporate veil between Union Carbide and its subsidiary, the district court, sua sponte [taking action on its own], converted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to one for summary judgment
under Federal Rule of Civil Procedure 56 and granted the motion.

The Appeals Court said, "We conclude that the district court did not give the plaintiffs sufficient notice to allow them adequately to respond to the converted summary judgment motion." Therefore, the Appeals Court vacated the district court action and remanded the case for further consideration consistent with its opinion.

According to their complaint, "the plaintiffs have suffered a variety of ailments caused by 'the highly carcinogenic chemicals and toxic pollutants in the drinking water supply emanating from the premises of the former UCIL plant'. . . The plaintiffs also contend that Union Carbide was aware of the danger of water pollution and other environmental damage yet failed to take adequate precautions to prevent it. . . [and] Finally, the plaintiffs fault Union Carbide's response to the 1984 disaster. They contend that the cleanup effort undertaken by the company was only 'a site-based project, undertaken at minimal expense, which would conceal both the seriousness of on-site pollution and the potential risks of off- site contamination, while enabling Union Carbide to recover money from the sale of its remaining assets at UCIL.'"

The Appeals Court concluded in part, ". . . we view this as a close case. But we think there is a reasonable likelihood that, in light of the peculiarly difficult procedural history of this and related litigation, the plaintiffs were not aware that they were in danger of an adverse grant of summary judgment based on the submissions prior to the district court's order converting the motion and then deciding it. We conclude that further notice was required and that consequently it is appropriate to remand for what would appear to be relatively limited further proceedings in connection with consideration of summary judgment."

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Fund For Animals v. Kempthorne (Interior Department)

Sep 18: In the U.S. Court of Appeals, Second Circuit, Case No. 05-2603. In this case the Plaintiffs appeal from a decision of the district court that granted defendants, Department of Interior, Fish and Wildlife Service (FWS), a summary judgment and dismissing plaintiffs' claims challenging the defendants' Public Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of treaty obligations and Federal statutes. The Appeals Court affirmed the decision of the district court.

The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].

The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.

In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."

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Islander East Pipeline Co. v. McCarthy

May 2: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5764. The Appeals Court denied a petition for review by Islander East Pipeline Company, LLC, who needed a water quality certification from the State of Connecticut Department of Environmental Protection (CTDEP) in order to secure Federal approval to build a natural gas pipeline across Long Island Sound. Islander East contended that the State's second denial of the certification was arbitrary and capricious.

The Appeals Court notes, citing previous decisions, that while the Natural Gas Act (NGA) generally preempts local permit and licensing requirements, the Clean Water and Coastal Zone Management Acts are notable in effecting a Federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the Federal government become the federal standard for that state. Under the Clean Water Act, state water quality standards approved by U.S. EPA becomes ‘the water quality standard for the applicable waters of that State. Consistent with that scheme, the two Acts require applicants for Federal permits to provide Federal licensing agencies such as the FERC [Federal Energy Regulatory Commission] with certifications from affected states confirming compliance with local standards.

In a 2-1 decision, the Appeals Court concluded, "To summarize, Islander East’s proposed installation of a natural gas pipeline from Connecticut to New York across Long Island Sound must comport with various statutes, including the Clean Water Act. The Clean Water Act requires Islander East to procure from the CTDEP a certification that the proposed pipeline will comply with state water quality standards. Record evidence supports the CTDEP’s finding that various techniques to be employed by Islander East in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. On such a record, we cannot conclude that the CTDEP’s decision to deny Islander East a certificate of compliance was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' Islander East’s petition for review is denied."

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Benzman v. Whitman

Apr 22: In the U.S. Court of Appeals, Second Circuit, Case Nos. 06-1166, 06-1346, 06-1454. This interlocutory appeal and cross-appeal present issues concerning individual and governmental agency liability, in the aftermath of the 9/11 attack, for alleged breach of duties owed to a putative plaintiff class of people who reside, attend school, or work in lower Manhattan or Brooklyn. The principal claim is that Government officials misled the plaintiff class members by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices.

The Appeals Court indicates that the core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”

The Appeals Court ruled, "Whether or not Whitman’s resolution of such competing considerations was wise, indeed, even if her agency’s overall performance was as deficient as the Plaintiffs allege, she has not engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. . .

"Although the complaint contains numerous allegations that various employees within EPA were aware of data indicating health risks, there is no allegation that Whitman, from whom damages are sought in her personal capacity, was herself aware of such information. Perhaps, as a competent administrator, she should have been aware of significant information known to her
subordinates, but arguably inadequate management of a vast agency of 17,000 employees is not a basis for constitutional tort liability. . . alleging Whitman’s personal liability for damages for a denial of substantive due process, must be dismissed."

The Appeals Court concluded saying, "We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. . . Accordingly, the case is remanded with directions to dismiss the Complaint."

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