Zanonia White v. United States of America

Apr 9: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-3158, appealed from the Southern District of Ohio at Columbus. Plaintiffs-Appellants appealed the district court's dismissal of their pre-enforcement challenge to the anti-animal-fighting provisions of the Animal Welfare Act (AWA), naming as defendants the United States, the Secretary and Department of Agriculture, the Attorney General and Department of Justice, and the Postmaster General and the United States Postal Service. The plaintiffs-appellants allege that these provisions are unconstitutional insofar as they "constitute a bill of attainder; violate the principles of federalism contained in, inter alia, the Ninth, Tenth, and Eleventh Amendments to the United States Constitution; and unduly impinge on the plaintiffs-appellants' First Amendment right of association, constitutional right to travel, and Fifth Amendment right to due process for deprivations of property and liberty.

 

    The district court dismissed the lawsuit for lack of Article III standing, a decision that the Appeals Court affirmed. The targeted provisions of the AWA are contained in § 2156, which places restrictions on cockfighting and other "animal fighting ventures,"

defined as "any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 3 animals for purposes of sport, wagering, or entertainment."

 

    The Appeals Court explained and concludes that "By prohibiting the sale and transportation of chickens for fighting purposes, the AWA violates (or so the complaint argues) the plaintiffs' rights of travel and association, their 'rights to due process in the deprivation of their rights to property and liberty,' and their 'right to be free from bills of attainder' . . . In other words, the plaintiffs are correct that they need not actually violate the AWA in order to have standing. However, they still must demonstrate an injury-in-fact to a legally protected interest that is actual or imminent and that satisfies the other prongs of the constitutional standing test. The purported constitutional violations the plaintiffs allege do not satisfy this standard. . ."

 

    Access the complete opinion (click here).

U.S.A. v. Lexington-Fayette Urban County

Jan 7: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-6296. The district court in this case refused to approve a proposed settlement of a Clean Water Act suit brought by the United States and the Commonwealth of Kentucky against the Lexington-Fayette Urban County Government. The sticking point was a proposed civil penalty of $425,000 that the district court found could be better directed toward alleviating the conditions that violated the Clean Water Act. The Appeals Court ruled, "Such a concern by itself cannot support rejection of an otherwise proper settlement, in light of the express provision for civil penalties in the Clean Water Act. Remand is therefore required."

According to the opinion, the United States, the Commonwealth, and Lexington ultimately reached a settlement agreement, embodied in a proposed consent decree, that would require Lexington to bring its sanitary and storm sewer systems into compliance with the Clean Water Act at an estimated cost, according to the United States, of $250 million to $300 million. The proposed consent decree also would require Lexington to complete two Supplemental Environmental Projects (estimated to cost $1.23 million) and two Commonwealth environmental projects (estimated to cost $1.50 million) and to pay the United States a $425,000 civil penalty. The parties assert that they negotiated the proposed consent decree in good faith. Although Lexington agreed to the entry of the proposed consent decree “without further notice,” Lexington maintains that its agreement to the terms of the proposed consent decree is neither “an admission of liability” nor “an adjudication or admission of any fact or law.”

The settlement was noticed and eighteen public comments were received; four comments remarked that the $425,000 civil penalty was too high and that the money could be better used to bring Lexington’s sewer systems into compliance with the Clean Water Act. The U.S. responded to comments indicating, "It is customary to include substantial penalties for past non-compliance in consent decrees as an important component of enforcement and to operate as a deterrent to future non-compliance by the defendant and by others. It sends an important message to all municipal dischargers that non-compliance is far from free, and that expeditious efforts to improve [a] system are worth the cost."

The district court ruled, "The Court agrees with the commenters who were concerned that the [civil] penalties were too high and that the penalty money could be better applied to the work required under the Consent Decree. . . Present day taxpayers and sewer services users should not be severely penalized for longstanding neglect on the part of the defendant. A large portion of the penalty money could be better utilized by additional [Supplemental Environmental Projects] or by application of a portion of the penalty money to remedial work required by the Consent Decree." The district court denied the United States’ motion for reconsideration, and the U.S. appealed.

The Appeals Court explained further its remand decision saying, "The only stated basis for the conclusion that the proposed penalty was too high was that the money would be better used by Lexington for remediation of 'longstanding' violations. While this may be so, such a consideration conflicts with the determination of Congress that civil penalties are appropriate in the case of Clean Water Act violations. Rejecting a civil penalty as too high because of the greater seriousness of the violation, or because the penalty money could be used for remediation, is in tension with, rather than in accordance with, the statutory purpose behind civil penalties. In most Clean Water Act cases, the more serious the violation, the more that penalty money could be used for remediation. If Congress thought a violator’s money would be better spent that way, Congress would hardly have provided for civil penalties."

Access the complete opinion and separate concurring opinion (click here).

Friends Of Tims Ford v. TVA

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."

Access the complete opinion (click here).

Stanley v. United States Steel Corporation

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."

Access the complete opinion (click here).

Scott Howard v. Hilda Solis

Jul 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5799. In this case Petitioner Scott Howard, a miner, sought a writ of mandamus from the court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argued that the present standards are too high and that the Secretary had, therefore, violated her duty under the Mine Act to promulgate “improved” standards to protect the health of miners.

The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"

Access the complete opinion (click here).

U.S. Bank National Association v. U.S. EPA

Apr 20: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-3083. Eagle-Picher Technologies, LLC (EP Tech), an electronics manufacturer, filed for Chapter 11 bankruptcy in 2005. The United States, on behalf of U.S. EPA and the Department of Interior, filed a claim in the bankruptcy proceeding against EP Tech under CERCLA -- the Comprehensive Environmental Response, Compensation and Liability Act of 1980. The Appeals Court indicates that under CERCLA, the federal government may recover the cost of cleaning up hazardous waste from the parties responsible for its release.

Over the objections of U.S. Bank, the bankruptcy trustee, the bankruptcy court found EP Tech liable for $357,246 of already-incurred costs and $8,735,434 in estimated future costs for the clean-up of groundwater and soil contamination near a now-vacant manufacturing plant in Socorro, New Mexico. U.S. Bank appealed to the district court, which affirmed the finding.

U.S. Bank appealed to the Sixth Circuit, arguing: (i) EP Tech is not liable under CERCLA for hazardous waste releases that occurred before EP Tech acquired an interest in the Socorro plant in 1998; (ii) even if EP Tech is liable for the clean-up costs at the plant, genuine issues of material fact precluded the bankruptcy court from concluding that EP Tech was responsible for contamination detected at a well located a mile and a half south of the plant; and (iii) the bankruptcy court improperly excluded evidence at the hearing on estimating the future cost of cleaning up the hazardous substances.

The Appeals Court said in affirming the finding, "the bankruptcy court’s decision was legally correct, and it did not abuse its discretion by excluding evidence of future costs."

Further explaining its decision the Appeals Court said, "Our review of the hearing transcript indicates, contrary to U.S. Bank’s characterization, that the bankruptcy court was well-aware that, notwithstanding the finality of the divisibility issue, U.S. Bank was allowed to challenge the estimate derived from EPA’s proposed clean-up strategy. And the transcript shows that the court gave both parties wide latitude. The court appreciated the overlap between the divisibility issue and the estimation of future costs. . . It did not categorically bar questions about the scope of the contamination, and instead probed each of the experts on how their proposed clean-up plans fit with the available data. . ."

Access the complete opinion (click here).

Sierra Club v. EPA

Feb 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-4485. According to the summary provided by the Sixth Circuit in its opinion, the Clean Air Act requires the U.S. EPA to object to an air-pollution permit if any person “demonstrates” to the EPA “that the permit is not in compliance” with the Act’s requirements. 42 U.S.C. § 7661d(b)(2). In August 2006, the Sierra Club petitioned the EPA Administrator to object to a permit issued by the Kentucky Division of Air Quality to the East Kentucky Power Cooperative, claiming it had “demonstrate[d]” non-compliance because the EPA previously had issued a notice of violation to the same company (about the same plant) in January 2003 and had filed a federal-court complaint against the same company (about the same plant) in January 2004.

The Appeals Court said, "The EPA declined to object. Because it reasonably interpreted § 7661d(b)(2) to mean that the agency may alter its position about a power plant’s compliance with the Act based on intervening events and because the Sierra Club does not challenge the impact of these intervening events on the power plant’s compliance with the Act, we deny the petition for review."

This case arises from the power company’s request for a renewal of its Title V permit for one of the coal-powered steam generators, known (not so descriptively) as Unit 2, at the Spurlock Station power plant in Maysville, Kentucky. The Kentucky agency granted the permit in 1999. In 2003, apparently after discovering these changes to the plant, the EPA issued a notice of violation, informing the company that its Unit 2 permit failed to address the PSD requirements stemming from these modifications.

In August 2006, the Sierra Club petitioned the EPA to object to the permit, arguing (as it did in its comments to the state agency) that the proposed permit was deficient because it failed to address the PSD requirements. In support, the Sierra Club relied solely on the fact that the EPA previously had issued a notice of violation and had filed a civil-enforcement action based on the same allegations.

In August 2007, while the parties waited for the district court to approve the consent decree, the EPA reached a decision on the Sierra Club’s petition. Although it granted the petition in part (on an unrelated issue), it declined to object to the power company’s failure to address the PSD requirements. Acknowledging its prior notice of violation and enforcement action, the EPA explained that they were “initial steps” in the enforcement process and did not reflect the agency’s final position as to whether the Title V permit for Unit 2 needed to include a PSD compliance schedule.

The Appeals Court said, "The question is this: Does the Act require the EPA to object to a permit request when the agency previously has filed a notice of violation and enforcement action regarding the same allegations about the same plant? The answer turns on the meaning of a statute that the EPA administers and thus turns on an application of the familiar Chevron framework. Unless the statute’s terms “directly address[] the precise question at issue,” Chevron says that we must defer to the EPA’s “reasonable” interpretation of the provision. Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). . .

"Under these circumstances, the EPA acted within its authority in addressing the Sierra Club’s objection. Consistent with Chevron, the EPA reasonably construed § 7661d(b)(2) to mean that a prior notice of violation and enforcement action did not by themselves require it to object to a permit request. And consistent with the APA, the EPA did not arbitrarily or capriciously deny the Sierra Club’s request, after accounting not only for the agency’s prior actions but also for developments in that litigation."

Access the complete opinion (click here).

USA v. Holden

Feb 24: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 07-5573, 07-5574. The appeal involves convictions arising out of an investigation into false reporting of pollutant levels in wastewater discharged by a water treatment facility in Mount Pleasant, Tennessee. Mike Holden, the operator of the plant, was convicted of knowingly falsifying and concealing material facts in a matter within the jurisdiction of U.S. EPA in violation of 18 U.S.C. §§ 2, 1001(a), and of falsifying documents with the intent to impede an investigation within the jurisdiction of the EPA in violation of 18 U.S.C. §§ 2, 1519. His father, Larry Holden, the Superintendent of Public Works for Mount Pleasant, was convicted of knowingly falsifying and concealing material facts in a matter within the jurisdiction of the EPA.

The Holdens challenge their convictions on four grounds. First, they argue that the district court abused its discretion by excluding evidence that Marty Roddy had been treated for marijuana dependency in 1992. Second, they argue that the district court committed plain error by admitting into evidence a negative evaluation of the plant from before the charged period. Third, they argue that the district court abused its discretion by refusing to admit statements by Mike Holden under the “rule of completeness.” Fourth, they argue that the evidence presented at trial was insufficient to find James Larry Holden guilty beyond a reasonable doubt.

The Appeals Court ruled, "We find that no reversible error occurred at trial, and we thus affirm."

Access the complete opinion (click here).

USA v. Cundiff

Feb 4: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 05-5469/5905; 07-5630. The case involves an interpretation of the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006) and the definition of wetlands and the “waters of the United States.” By way of background, the Appeals Court explains that after eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362.

The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs’ array of statutory, common law, and constitutional counterclaims.

The Appeals Court indicates that while the original appeal in this case was pending, the Supreme Court issued its "splintered ruling" in Rapanos, which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, the Appeals Court returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. According to the Appeals Court, "The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds."

The Appeals determined that, "the Cundiffs "actively filled the wetlands with dredged spoil and covered roughly 5.3 acres of wetlands next to about 11,900 feet of ditches", thus the Appeals Court said, ". . . they discharged a pollutant under the Act." The Cundiffs argue that their activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch maintenance exception, § 1344(f)(1)(C). The Appeals Court rejects those arguments, and says, "Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the 'recapture provision,' 33 U.S.C. § 1344(f)(2), which states that a permit is still required whenever a dredging activity has 'as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,' and the 'flow or circulation of navigable waters may be impaired or the reach of such waters reduced.'" The Appeals Court ruled, ". . . the district court properly granted summary judgment on their liability."

Access the complete opinion (click here). Access multiple postings on the WIMS-eNewsUSA blog relating to the Rapanos decision (click here). [*Water]

The National Cotton Council v. EPA

Jan 7: In the U.S. Court of Appeals, Sixth Circuit, Case No. 06-4630. As explained by the Appeals Court, the case involves the final regulation issued by the U.S. EPA under the Clean Water Act, 33 U.S.C. § 1251 et seq. The Clean Water Act regulates the discharge of “pollutants” into the nation’s waters by, among other things, requiring entities that emit “pollutants” to obtain a National Pollutant Discharge Elimination System (NPDES) permit. On November 27, 2006, the EPA issued a Final Rule concluding that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are exempt from the Clean Water Act’s permitting requirements. [71 FR 68,483 (11/27/06)]. [See WIMS 11/22/06]

Two different groups of Petitioners -- one representing environmental interest groups and the other representing industry interest groups -- oppose EPA’s Final Rule as exceeding the EPA’s interpretive authority. EPA defends the Final Rule by arguing that the terms of the Clean Water Act are ambiguous and that the Final Rule is a reasonable construction of the Clean Water Act entitled to deference from the Court.

The Appeals Court said, "We cannot agree. The Clean Water Act is not ambiguous. Further, it is a fundamental precept of this Court that we interpret unambiguous expressions of Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Therefore, we hold that the EPA’s Final Rule is not a reasonable interpretation of the Act and vacate the Final Rule."

The Appeals Court explains its decision further saying, ". . . we conclude that the statutory text of the Clean Water Act forecloses the EPA’s Final Rule. The EPA properly argues that excess chemical pesticides and chemical pesticide residues, rather than all chemical pesticides, are pollutants. However, the Final Rule does not account for the differences between chemical and biological pesticides under the language of the Clean Water Act. Further, because the Act provides that residual and excess chemical pesticides are added to the water by a 'point source' there is no room for the EPA’s argument that residual and excess pesticides do not require an NPDES permit. The 'point source' from which the residue originates is easily discernable and necessarily must 'be controlled at the source.' See 73 Fed. Reg. at 33,702. Given all of the above in combination with the EPA’s interpretation that '[p]oint sources need only convey pollutants into navigable waters to be subject to the Act,' id. at 33,703, dischargers of pesticide pollutants are subject to the NPDES permitting program in the Clean Water Act. As such, the EPA’s Final Rule cannot stand. Because the Clean Water Act’s text bars the Final Rule we make no determination regarding the validity of the issuance of the Final Rule under the APA, nor do we analyze the relationship between the Clean Water Act and the FIFRA."

Access the complete opinion (click here). Access the EPA docket for this action with background, technical documents and public comments (click here).

Freeman v. Blue Ridge Paper Products, Inc

Dec 29: In the U.S. Court of Appeals, Six Circuit, Case No. 08-6321. The case is a class action for nuisance in the form of water pollution from a paper mill involves an effort by plaintiffs to avoid removal to Federal court under the Class Action Fairness Act (CAFA) of 2005. Plaintiffs, three-hundred landowners who own property in Tennessee downriver from Blue Ridge’s paper mill in Canton, North Carolina, divided their suit into five separate suits covering distinct six-month time periods, with plaintiffs’ limiting the total damages for each suit to less than CAFA’s $5 million threshold.

The suits were filed in state court with identical parties and claims, except that the suits were for a series of different, sequential six-month periods. Each suit limited the total class damages to less than $4.9 million. The cases were removed to Federal court by the defendant paper mill, but remanded by the district court. The Appeals Court indicates that, "Because no colorable basis for dividing the claims has been identified by the plaintiffs other than to avoid the clear purpose of CAFA, remand was not proper."

In a split decision, the majority ruled, "The remand order is reversed and the case remanded for the district court to consider whether the aggregated cases satisfy the amount in controversy requirement under § 1332(d). The attorney fee order is also reversed." The dissenting justice says, "There is no gainsaying the point emphasized by the majority that CAFA was intended to prevent local courts from 'keeping [class action] cases of national importance out of Federal court' . . . The aspect of this case that the majority overlooks, however, is the fact that this class action is not a 'case of national importance' but is, instead, a matter of local concern."

Access the complete opinion (click here).

Fednav et al., v. Steven E. Chester (MI DEQ)

Nov 21: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-2083. In the case of Fednav et al., v. Steven E. Chester, et al, the Appeals Court unanimously upheld the U.S. District Court, Eastern District, Southern Division decision of Judge John Feikens [Case No. 07-11116, See WIMS 8/16/07] that ruled that Michigan's Ballast Water Statute, Mich. Comp. Laws § 324.3112(6), is constitutional. The case challenging the Michigan law was brought by nine shipping companies and associations. Defendants in the case were Michigan Department of Environmental Quality (MDEQ) Director Steven Chester and Michigan Attorney General Mike Cox. Four environmental and conservation organizations intervened in the case supporting the State's position including: Michigan United Conservation Clubs (MUCC); Alliance for the Great Lakes (Alliance); National Wildlife Federation (NWF); and Natural Resources Defense Council (NRDC).

In summary, the Appeals Court said, "We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm." The Appeals Court summarized the Federal regulations that exist and why Michigan felt compelled to adopt its own, separate law. The Court said, ". . . to summarize, the Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water from outside the EEZ [exclusive economic zone] must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. NOBOB [No Ballast On Board] vessels are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes."

The Appeals Court explains the argument of the Plaintiffs saying, "Each of these Plaintiffs seeks, in this Court at least, to challenge two distinct provisions of the Michigan Ballast Water Statute. First, they challenge the statute’s requirement that all 'oceangoing vessels engaging in port operations in' Michigan obtain a permit (the 'permit requirement'). Mich. Comp. Laws § 324.3112(6). Second, they challenge the requirement -- applicable only to oceangoing vessels that discharge ballast water in Michigan -- that they employ a treatment system approved by the MDEQ as a safe and effective means of preventing the discharge of ANS (the 'treatment requirement')."

Plaintiffs include four shipping companies: Fednav, Limited, Canadian Forest Navigation Company, Limited, Baffin Investments, Limited, and Canfornav, Incorporated (the “Shipping Companies”). They include three shipping associations: the Shipping Federation of Canada, the Seaway Great Lakes Trade Association, and the United States Great Lakes Shipping Association (the “Shipping Associations”). They also include a port terminal, Nicholson Terminal and Dock Company (“Nicholson”), and a port association, The American Great Lakes Ports Association (the “Ports Association”).

The Appeals Court then considers whether each of the Plaintiffs has standing to challenge each of these requirements, i.e. the permit requirement and the treatment requirement. The Appeals Court determines that the Shipping Companies and each of the Shipping Associations has standing to challenge the permit requirement, but Nicholson and the Ports Association do not.

On the treatment requirement, the Court says, "'virtually all' of Plaintiffs’ ships do not discharge ballast water in Michigan. And to the extent that Plaintiffs do not so discharge, they are not even subject to the treatment requirement, much less harmed by it. . . And none of them have remotely alleged that they have taken any action, much less an injurious one, in compliance with the treatment requirement. The complaint is conspicuously silent on that point. Second, and more fundamentally, we simply will not strain to construe the complaint to say by negative implication what it very simply could have said directly. . . We instead hold fast to the 'longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.'”

Thus the Appeals Court determines that, "The only claims over which we have jurisdiction, then, are those of the Shipping Companies and the Shipping Associations (hereinafter, 'Plaintiffs') with respect to the permit requirement." The Appeals Court conducts a rigorous analysis of preemption issues and determines that, ". . . we know that Congress contemplated ANS [aquatic nuisance species] prevention measures 'in the Great Lakes region that are not conducted pursuant to this chapter.' Id. § 4723(a)(1)(D) (emphasis added). That leaves only the question whether the reference to ANS prevention measures 'not conducted pursuant to this chapter' includes measures conducted by the states. For several reasons, we believe that it does. . . The permit requirement does not conflict with NISA [National Invasive Species Act of 1996] or the Coast Guard’s regulations promulgated pursuant to it. The requirement therefore is not preempted by federal law."

The Court also rejects a claim by Plaintiffs that the Michigan law violates the so-called “dormant” Commerce Clause by burdening interstate commerce and a "due process" claim and concludes, "Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes. The August 15, 2007 order of the district court is affirmed."

Alliance vice president for policy, Joel Brammeier, praised the court's ruling saying, “We’re pleased with this confirmation of the states’ authority to protect the Great Lakes from invaders. While the federal government spent 2008 sitting on its hands, this decision reinforces the only real line of defense we have right now -- state action to shield the Great Lakes from these biological threats.”

Access the Appeals Court decision (click here). Access the complete 32-page district court opinion (click here). Access MDEQ's Ballast Water Reporting website for extensive information (click here). Access legislative details for PA 33 of 2005 (click here). Access a release from the Alliance (click here). Access various media reports on the decision (click here).

Kentucky Waterways Alliance v. Johnson

Sep 3: In the U.S. Court of Appeals, Sixth Circuit, Case No. 065614. Plaintiffs, Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association, appealed the district court’s grant of summary judgment in favor of Defendants, U.S. EPA Administrator Stephen L. Johnson, the Commonwealth of Kentucky, the Kentucky Coal Association, Associated Industries of Kentucky, the Kentucky Chamber of Commerce, and the Kentucky League of Cities. Plaintiffs’ challenge was brought pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. (2000), regarding EPA’s approval, under § 303(c) of the Clean Water Act (CWA), 33 U.S.C. § 1313(c) (2000), of Kentucky’s regulatory implementation of its "Tier II water quality antidegradation rules."

The Appeals Court affirmed in part and reversed in part the district court’s opinion and order. Additionally, the Appeals Court vacated in part, EPA’s approval of Kentucky’s Tier II antidegradation rules, and remanded the matter to the EPA for further proceedings consistent with these opinions.

Tier II protection applies when “the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” 40 C.F.R. § 131.12(a)(2). For such waters, the regulation requires that their “quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic and social development in the area in which the waters are located.” 40 C.F.R. § 131.12(a)(2). However, “[i]n allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully.” 40 C.F.R. § 131.12(a)(2).

According to the Sixth Circuit, "Kentucky’s Tier II exemption for coal-mining discharges was not ambiguous. The antidegradation regulations stated, in explicit terms, that Tier II review 'shall not apply' to coal mining discharges regulated under existing regulations. . . Those existing regulations do not require socioeconomic review. Indeed, when the EPA first queried the State on socioeconomic review for coal-mining discharges, the State responded that there was no such review. . . Only after further inquiries from the EPA did Kentucky adopt a starkly different position -- that its regulations (it did not cite a particular one) compelled a socioeconomic review for each proposed discharge. . . This securing an informal commitment from a state agency rather than requiring the state to amend its regulations violates the federal approval procedure established by 33 U.S.C. § 1313(c)(3) -- the EPA either approves or disapproves the regulations proposed by a state."

The Appeals Court also said, "Enforceability also argues against the EPA’s reliance on informal state commitments." Citing two precedent-setting cases, the Appeals Court ruled, "Because the EPA relied on an informal Cabinet commitment to approve Kentucky’s Tier II exemption for coal mining discharges, we find that the agency’s approval was 'not in accordance with law.' 5 U.S.C. § 706(2). Accordingly, we hold that this exemption too requires remand to the EPA for reconsideration."

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Burlison v. USA

Jul 17: In the U.S. Court of Appeals, Sixth Circuit, Case No. 06-6369. The case concerns an appeal by the United States from a district-court decision holding that landowners in Tennessee possess an easement over a field-access road that traverses the Lower Hatchie National Wildlife Refuge. The landowners (Plaintiffs-Appellees) sought to quiet title to the access road pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, and the U.S. District Court for the Western District of Tennessee entered judgment in their favor. The United States also appeals the district court’s holding that the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. § 668dd, as amended, does not give Congress or the United States Fish and Wildlife Service the authority to regulate Plaintiffs-Appellees’ easement, which “predate[d] the Government’s ownership of the servient tenement.” Burlison v. United States, (W.D. Tenn. Aug. 31, 2006).

The Appeals Court said, "We agree that Plaintiffs-Appellees have an easement by reservation over the field-access road. We also hold, however, that the federal government has the power under 16 U.S.C. § 668dd(d)(1)(b), enacted pursuant to the Property Clause, to regulate in a reasonable manner Plaintiffs-Appellees’ use of their easement. Therefore, the Sixth Circuit affirmed the judgment of the district court in part and reversed in part.

The Appeals Court ruled further saying, "We note that remand is not appropriate at this time because Plaintiffs-Appellees have refused to apply for the Special Use Permit required by the Fish and Wildlife Service. For this same reason, we express no opinion on the reasonableness of any current or future restriction or regulation on Plaintiffs-Appellees’ use of the easement, as that question is not properly before us at this time, but is instead a question to be decided on the basis of the permit. Once Plaintiffs-Appellees apply for this permit, in the case that it is denied or in the case that Plaintiffs-Appellees find the restrictions set forth under the permit to be unreasonable, they can bring suit in federal district court to challenge the reasonableness of the regulations imposed by the Fish and Wildlife Service."

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Norton Construction v. U.S. Army Corps

Jun 2: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3826. The appeal involved plaintiff Norton Construction Company’s application for a permit to construct a new landfill in an area subject to defendant United States Army Corps of Engineers’ jurisdiction. The Corps refused to process the application, citing a Congressional appropriation act that the Corps construed as forbidding it from processing applications for new landfills in the area that it considered to be within the Muskingum Watershed. Norton unsuccessfully challenged the decision in district court. The district court ruled that the Corps reasonably interpreted the statute and that the law did not violate Norton’s constitutional rights. Norton appealed the decision and the Sixth Circuit affirmed the district court decision.

Norton applied for a Section 404 permit, but the Corps returned the application without acting upon it because Congress enacted a temporary appropriations rider, which in the opinion of the Corps, prohibited the Corps from processing its application. Subsequently, Congress passed and the President signed the Energy and Water Development Appropriations Act of 2006, Pub. L. No. 109-103, 119 Stat. 2247 (2005). Section 103 of the Act, enacted as a regular appropriations statute rather than as a temporary appropriations rider, prohibited the Corps from granting new landfill applications, "In order to protect and preserve the integrity of the water supply against further degradation," in the “Muskingum Watershed.”

The Appeals Court indicates that the case was made more difficult by its "ever-changing legal landscape." At first, by means of a temporary appropriations rider, Congress prohibited the processing of new landfill applications in the area of the Muskingum Watershed. Later, Congress reenacted this prohibition as part of a nonexpiring appropriations statute, thus prompting the current suit. Finally, while the present appeal was pending, Congress acted yet again by passing the Consolidated Appropriations Act of 2008. The Appeals Court explains that under different arguments it would still affirm the district court ruling and concludes "that declaring the case moot and again remanding for reconsideration in light of the latest statute would be a futile exercise and a needless waste of valuable judicial resources."