Gintis v. Bouchard Transportation Co.

Feb 23: In the U.S. Court Appeals, First Circuit, Case No. 09-1717. In this case, a fuel barge owned and operated by defendants discharged a substantial amount of oil into the waters of Buzzards Bay in southeastern Massachusetts. Plaintiffs are owners of residential waterfront property on the bay who brought suit as individuals and as members of a proposed class. The district court denied class certification, but the Appeals Court said, ". . .because the court did not subject the parties' contentions to the plenary analysis that precedent requires, we vacate the judgment and remand."

 

    The  Appeals Court provided more detail and said, "It is enough to say here that Bouchard's arguments in this appeal appear to show that substantial and serious common issues would arise over and over in potential individual cases. Indeed, the only apparent mitigation of this prospect of duplicative litigation lies in the possibility that not many individual actions would be brought if separate actions were the only course, and this implicates the second condition for certification under paragraph (3), that class litigation be

superior to a string of individual plaintiffs going alone. While superiority is a separate base to be touched, it is addressed by many of the considerations that inform a trial court's judgment call about how clearly predominant the common issues must be. . .

 

    Here there is evidence that may well go to the very reason for Rule 23(b)(3), mentioned before (i.e., to make room for claims that plaintiffs could never afford to press one by one), since the record contains one estimate that potential individual recoveries are probably in the $12 to $39 thousand range. Given the elements of injury, causation and compensation on which Bouchard intends to join issue, there is a real question whether the putative class members could sensibly litigate on their own for these amounts of damages, especially with the prospect of expert testimony required. Like predominance, the issue of superiority is thus a serious one in these circumstances and should be addressed thoroughly."

 

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Crandall v. Denver

Feb 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1197. Plaintiffs Terri Crandall and JoAnn Hubbard sued for injunctive relief against the City and County of Denver under the citizen-suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA). Their concern is that aircraft deicing fluid (ADF), which can produce hydrogen-sulfide gas when it decomposes, endangers human health at Concourse B of the Denver International Airport. The gates on Concourse B are used almost exclusively by United Airlines. Crandall is a United employee, and Hubbard is a former employee who now frequently uses Concourse B as a passenger. Plaintiffs seek: (1) to prohibit full-plane deicing at Concourse B gates; and (2) to require other precautionary steps relating to ADF.

 

    Following a five-day bench trial, the United States District Court for the District of Colorado denied Plaintiffs relief. It found that Denver no longer permits full-plane deicing at the gates and held that Plaintiffs had not shown that the current use of ADF "may present an imminent and substantial endangerment to health," which is a prerequisite for RCRA relief. The court also held that RCRA does not govern all the ADF by Concourse B at the Denver Airport, but only the ADF "that flows in storm water into Concourse B and degrades in Concourse B." The ADF that degrades outside the concourse, it said, was governed exclusively by permits issued under the Clean Water Act (CWA).

 

    On appeal Plaintiffs argue that the district court misconstrued RCRA's requirements with respect to injunctive relief. They also contend that the court erred in holding that the CWA, rather than RCRA, governs some of the ADF at the Denver Airport. The Appeals Court ruled, "We affirm the district court's denial of injunctive relief. Plaintiffs failed to demonstrate that ADF at the airport (whether it degrades inside or outside Concourse B) may present an imminent and substantial endangerment to health. Because relief under RCRA would therefore not be available even if RCRA governs the ADF that degrades outside the concourse, we need not address whether such ADF is governed exclusively by the CWA."

 

    The Appeals Court said further, "A RCRA suit cannot be brought because someone may sometime begin disposing of solid waste in a manner that presents an endangerment. The endangering practice -- here, the resumption of gate deicing -- must be imminent. See 42 U.S.C. § 6972(a)(1)(B). Plaintiffs' suit was properly dismissed because the evidence showed that resumption of full-plane gate deicing at Concourse B was not imminent, but merely speculative. If the district court had been persuaded by the evidence that Denver would likely resume full-plane deicing at the gates upon conclusion of this litigation and that such a practice may present an imminent and substantial endangerment to health, we presume that it could properly issue an injunction under RCRA. That, however, is not the case we have before us."

 

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Nebraska Public Power District v. U.S.

Jan 12: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5083. In this en banc decision, which included concurring opinion and a lone dissenting opinion, the Appeals Court addresses what it called "a difficult question involving the allocation of jurisdiction between regional circuit courts and the Court of Federal Claims." The dispute in centers on the interaction between a provision of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10101-10270, and a government contract with a utility company that operates a nuclear power facility.

As explained by the Federal Circuit, the NWPA authorizes the United States Department of Energy (DOE) to enter into contracts with nuclear power producers to dispose of the high-level radioactive waste and spent nuclear fuel produced by nuclear power plants. The statute requires the contracts to provide that in return for the payment of fees by the nuclear power producers, DOE would begin disposing of the spent nuclear fuel and high-level radioactive waste no later than January 31, 1998. 42 U.S.C. § 10222(a)(5)(B). DOE did not begin accepting nuclear waste in 1998.

"Several years later, Nebraska Public Power District (NPPD), which had entered a nuclear waste disposal contract with DOE, filed a breach of contract action in the Court of Federal Claims. A central issue in the breach of contract action was whether prior decisions of the United States Court of Appeals for the District of Columbia Circuit interpreting DOE’s obligations under the NWPA were binding on the parties in the action before the Court of Federal Claims.

The Court of Federal Claims held that the D.C. Circuit’s rulings were void because the D.C. Circuit lacked jurisdiction in the prior statutory review proceedings. Neb. Pub. Power Dist. v. United States, 73 Fed. Cl. 650 (2006). That issue is now before us on interlocutory review. We hold that the D.C. Circuit had jurisdiction to review DOE’s compliance with the NWPA, and that the mandamus order issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order of the Court of Federal Claims and remand to that court for further proceedings."

The 11-1 majority ruled, "In sum, the D.C. Circuit’s decisions in the Indiana Michigan and Northern States cases were not barred by sovereign immunity and should not have been denied res judicata effect on that ground. We therefore reverse the order of the Court of Federal Claims under review and remand for further proceedings consistent with this opinion."

In a lone dissenting opinion, one Justice indicated, "The issue before the court is a fundamental question of jurisdiction between this court and the D.C. Circuit. If the order in mandamus issued by the D.C. Circuit had interpreted the statutory requirements of the Nuclear Waste Policy Act (NWPA), then it would have been within that court’s jurisdiction. Instead, the D.C. Circuit actually forbids the United States from defending itself in a contract action in the Court of Federal Claims. In my judgment, the order in mandamus is clearly directed to the interpretation of the Standard Contract (not the NWPA) and is thus not only outside the jurisdiction of the D.C. Circuit, but also infringes upon the Court of Federal Claims’s exclusive Tucker Act jurisdiction over the administration of contract disputes, thereby impacting the sovereign immunity of the United States and undermining this court’s duty to review the contract decisions of the Court of Federal Claims. I must therefore dissent from the majority’s judgment. . . I can appreciate the majority’s attempt to avoid criticism of a sister court, but the sheer mushy applesauce consistency of the majority opinion in avoiding a jurisdictional confrontation with the D.C. Circuit should be obvious. On this basis, the trial court’s ultimate holding to void the mandamus was correct and should be affirmed."

According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. On December 2, the Government Accountability Office (GAO) released a report entitled, Nuclear Waste Management: Key Attributes, Challenges, and Costs for the Yucca Mountain Repository and Two Potential Alternatives (GAO-10-48, November 04, 2009). The report discusses the options of dealing with the nation's most hazardous substances -- which is accumulating at 80 sites in 35 states. The United States has generated 70,000 metric tons of nuclear waste and is expected to generate 153,000 metric tons by 2055 [See WIMS 12/3/09].

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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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Attorney General for Oklahoma v. Tyson Foods, Inc

May 13: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-5154. The case, involving dozens of attorneys, is an interlocutory appeal of a denial of a motion for a preliminary injunction issued by an Oklahoma district court in September 2008. The motion arose out of a 2005 complaint filed by Plaintiffs-Appellants (collectively referred to as Oklahoma) against Defendants-Appellees (collectively referred to as Tyson Foods), which alleged various State and Federal environmental claims.

Pursuant to that complaint, on November 14, 2007, Oklahoma filed its motion for a preliminary injunction under the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. § 6972(a)(1)(B), seeking to enjoin Tyson Foods from “(1) applying poultry waste to any land within the [Illinois River Watershed (IRW)] and (2) allowing the application of poultry waste generated at its respective poultry feeding operations and/or the respective poultry feeding operations under contract with it to any land within the IRW.” The district court denied the preliminary injunction on September 29, 2008, and the Appeals Court affirmed the denial.

The majority Appeals Court, in this partially split decision (dissent in part, concur in part), said in conclusion, "In its opinion and order denying a preliminary injunction, the district court stated that 'the State has not yet met its burden of proving that bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources . . . . As a result, the State has failed to meet the heightened standard for a preliminary injunction . . . .'

"The district court set out the standard for granting a preliminary injunction, determined that the requested injunction required a heightened showing of the four factors, and then indicated that it did not find Oklahoma’s two expert witnesses on the source of bacterial pollutants in the IRW to be sufficiently credible. . . Therefore, the court held, Oklahoma could not establish causation, and thus by implication Oklahoma could not establish a likelihood of success on the merits of its RCRA claim.

"We certainly agree that the district court’s order could have been more explicit, but the grounds for the district court’s decision are sufficiently apparent to allow us to conduct appellate review, namely, it allows us to determine (1) the legal standards employed, (2) whether the findings have sufficient evidentiary support, (3) whether the legal conclusions follow from those findings, and (4) whether the legal conclusions support the grant or denial of relief. Thus, even if this court did find that the district court failed to comply with Federal Rule of Civil Procedure 52(a), the error would be harmless and a remand for clarification would not be necessary because we can ascertain from the record the basis for the denial. . . The district court, based on the evidence presented, simply could not establish a sufficient link between land-applied poultry litter and bacteria in the IRW, and therefore preliminary injunctive relief was not appropriate."

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Cannon v. Gates (Defense Department)

Aug 26: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-4107. Plaintiffs-Appellants F. Douglas Cannon, et al (the Cannons) brought suit against the Defendants-Appellees claiming two violations of the Solid Waste Disposal Act and one violation of the Administrative Procedures Act. The district court dismissed the case for lack of subject matter jurisdiction pursuant to the jurisdiction-stripping provision at 42 U.S.C. § 9613(h). The Appeals Court concluded that the district court properly applied § 9613(h) because the Cannons’ suit constitutes a challenge to the Government’s selected removal action, and therefore affirmed the dismissal.

Cannon owned over 1,416 acres of land in Tooele County, Utah and in 1945 entered into a six-month lease with the U.S. War Department, in return for one dollar, which permitted the Government to enter his land to conduct Project Sphinx, which was designed to test means of battling Japanese forces entrenched in caves in the Pacific Islands. The Government agreed that, at the expiration of the lease, it would “leave the property of the owner in as good condition as it is on the date of the government’s entry.”

As part of that testing, the Government used incendiary weapons, including aviation fuel, butane, gasoline, napalm, PT jell, and napalm-gas mixtures. The Government also used chemical weapons, such as phosgene, hydrogen cyanide, mustard gas, and defoliants. Finally, the Government dropped conventional bombs on Cannon’s property. In the 1970s, the Government initiated efforts to study the contamination at the adjacent Dugway Proving Grounds, and included the Cannon property in some of these efforts. The Government, however, did not clean up the Cannon property at that time, and has yet to do so.

Frustrated by the slow progress in the Government’s clean up efforts, two of Cannon’s children, sued the U.S. in 1998 under the Federal Tort Claims Act (FTCA). Following a bench trial, the district court found that the Government had diminished the value of the Cannons’ land from $176.26 to $25 an acre, and awarded them $160,937 in damages. The Tenth Circuit, however, reversed that judgment and held that the statute of limitations barred the Cannons’ FTCA claims.

In November 2005, the Cannons tried a different approach and initiated legal action alleging two claims under the Solid Waste Disposal Act (SWDA). The Cannons alleged under two sections of SWDA that the United States was in violation of federal and Utah regulations applicable to generators of hazardous waste; and that the U.S. has contributed to conditions on their property that endanger the Cannons, other individuals mining on the property, and members of the general public who come onto the Cannons’ property. The Cannons also made a claim under the Administrative Procedures Act (APA), to “compel agency action unlawfully withheld or unreasonably delayed.”

The district court said SWDA § 9613(h) deprives federal courts of jurisdiction to consider “any challenges to removal or remedial action selected.” The Cannons' appealed and the Appeals Court determined that the "Government has already undertaken several
steps toward determining how it will address the contamination present on the Cannons’ property"; and thus, "the Government’s removal actions are therefore sufficient to trigger § 9613(h)." The Appeals Court said, "We are sympathetic to the Cannons’ frustration with the long delays; however, their suit falls within the broad ambit of § 9613(h)."

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USA v. FMC Corporation

Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35429. As explained by the Appeals Court, in the late 1990s, Plaintiff United States and Intervenor Shoshone-Bannock Tribes (the Tribes) approached Defendant FMC Corporation, a mining company operating in Idaho, about potential violations of Federal and tribal environmental laws. FMC reached an agreement with each party. FMC agreed to pay the Tribes $1.5 million per year in lieu of applying for certain tribal permits. Concerning federal law, FMC and the United States entered into a detailed agreement (Consent Decree), which they presented to the federal district court for approval. The district court approved the Consent Decree, and the Ninth Circuit affirmed. United States v. Shoshone-Bannock Tribes (FMC Corp.), 229 F.3d 1161 (9th Cir. 2000) (unpublished disposition).

In 2001, FMC ceased some of its mining operations, stopped making its annual payments to the Tribes, and refused to apply for certain tribal permits. After negotiations between the Tribes and FMC failed, the Tribes sought enforcement of the Consent Decree in district court. The district court held that the Tribes could enforce the Consent Decree as third party beneficiaries and that the Consent Decree required FMC to apply for tribal permits. FMC appealed.

The Ninth Circuit determined that the Tribes lacked standing to enforce the Consent Decree and, therefore, vacated the district court’s orders and remanded the case with instructions to dismiss the action.

In a closing note the Appeals Court said, ". . .during the pendency of this appeal, FMC began the process of applying for tribal permits, which is the main relief that the Tribes have sought in this action. At oral argument, the Tribes expressed their concern that, if we were to hold that the Tribes lack standing to enforce the Consent Decree, FMC would withdraw its permit applications and undo the progress made to date on the proper resolution of this dispute. In response to questioning from the panel, FMC’s lawyer represented to the court that FMC understands that it has the obligation to continue, and will continue, with the current tribal proceedings to their conclusion. We accept that statement from counsel as binding on FMC."

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