Aug 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3857. The case involves a gun range that the United States government operates on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The Appeals Court affirmed the district court decision.
Plaintiff, Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (Blue Eco), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws.
To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.
The district court dismissed the suit for lack of subject matter jurisdiction saying that plaintiffs concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm. Additionally, the district court held that expressed concerns over birds, fish, and wildlife were "too general and did not allege any particular or specific harm" that had been caused by the bullets at the gun range.
The Appeals Court concluded, "Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is affirmed."
In a separate concurring opinion, one Judge wrote, "This is without question a close case. As the case law laid out by the majority suggests, 'injury in fact' can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical."
Access the complete opinion (click here).
Showing posts with label Great Lakes. Show all posts
Showing posts with label Great Lakes. Show all posts
Friday, August 14, 2009
Tuesday, February 17, 2009
Friends Milwaukee v. Milwaukee Metro
Feb 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1103. The Appeals Court comments on the long history of litigation on the case saying, "After over six years of litigation and two trips back and forth between the district court and this court, we are hopeful that the sun is breaking through." The case involves Friends of Milwaukee’s Rivers and Lake Michigan Federation, n/k/a Alliance for the Great Lakes (collectively, Friends), and their citizens’ suit against the Milwaukee Metropolitan Sewerage District (MMSD) under the Federal Water Pollution Control Act (the Clean Water Act or the Act), alleging that certain sanitary sewer overflows that occurred between January 1, 1995 and September 25, 2001 were violations of MMSD’s Clean Water Act permit and of the Act itself. The State of Wisconsin (the State) also filed suit against MMSD.
On May 19, 2008, the WDOJ and MMSD resolved the WDOJ’s 2005 enforcement action with a new stipulation (the 2008 Stipulation). The district court found that the 2002 Stipulation was a diligent prosecution for privity purposes, and therefore dismissed plaintiffs’ suit on res judicata grounds. Plaintiffs appealed the dismissal as well as the denial of their motions to supplement the record. The Appeals Court says, "The questions presented in this successive appeal are relatively narrow. Friends do not challenge the sufficiency of the evidence supporting the district court’s decision." The Appeals Court concludes that the, "district court was within its discretion when it found that the letter did not set forth the activities of the EPA. Moreover, even if any abuse of discretion had occurred, it would have been harmless."
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).]
On May 19, 2008, the WDOJ and MMSD resolved the WDOJ’s 2005 enforcement action with a new stipulation (the 2008 Stipulation). The district court found that the 2002 Stipulation was a diligent prosecution for privity purposes, and therefore dismissed plaintiffs’ suit on res judicata grounds. Plaintiffs appealed the dismissal as well as the denial of their motions to supplement the record. The Appeals Court says, "The questions presented in this successive appeal are relatively narrow. Friends do not challenge the sufficiency of the evidence supporting the district court’s decision." The Appeals Court concludes that the, "district court was within its discretion when it found that the letter did not set forth the activities of the EPA. Moreover, even if any abuse of discretion had occurred, it would have been harmless."
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).]
Thursday, July 24, 2008
Northwest Environmental Advocates v. U.S. EPA
Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 03-74795, 06-17187, 06-17188. Plaintiffs in this case are Northwest Environmental Advocates, San Francisco Baykeeper, and The Ocean Conservancy. Plaintiffs-intervenors are the States of Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin. Plaintiffs and plaintiffs-intervenors challenge a regulation originally promulgated by U.S. EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA). The Shipping Industry Ballast Water Coalition was an intervenor on behalf of EPA.
That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.
The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .
"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.
The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”
The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.
Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).
That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.
The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .
"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.
The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”
The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.
Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).
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