Jan 21: The U.S. Supreme Court issued an important 5-4 decision with the majority opinion written by Justice Kennedy in the case of Citizens United v. Federal Election Commission (Case No. 08-205). Justice Stevens dissented and was joined by Justices Ginsburg, Breyer, and Sotomayor. According to a summary in the Washington Post, which called the decision a "seismic jolt,"The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns. . . They overturned two of the court's past decisions -- including one made as recently as six years ago -- to upend federal legislation that says corporations may not use their profits to support or oppose candidates and to declare unconstitutional a large portion of the McCain-Feingold campaign finance reform act passed in 2002 [i.e. Bipartisan Campaign Reform Act of 2002 (BCRA)]."
President Obama issued a strong statement on the decision saying, "With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington -- while undermining the influence of average Americans who make small contributions to support their preferred candidates. That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less."
U.S. Senator Russ Feingold (D-WI) issued a statement on the ruling saying, "It is important to note that the decision does not affect McCain-Feingold’s soft money ban, which will continue to prevent corporate contributions to the political parties from corrupting the political process. But this decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century's worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections. In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible."
The dissenting opinion by Justice Stevens concludes, "In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should out weigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."
Access the complete opinion and dissent (click here; or here). Access the docket for the case (click here). Access the Washington Post article (click here). Access the statement from the President (click here). Access the statement from Senator Feingold (click here). Access complete background and briefs in the case on the SCOTUS Wiki (click here).
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Friday, January 22, 2010
Tuesday, June 23, 2009
Supreme Court Okays Regs Allowing "Fill Material" In Lake
Jun 22: In the U.S. Supreme Court case of Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (Case Nos. 07-984 & 07-990), the High Court ruled in a 6-3 opinion that the Corps of Engineers was the proper agency to issue a permit to discharge mining waste slurry into an Alaskan lake and the permit was valid. The public interest law firm, Earthjustice a party in the case, said the ruling will allow the "mining company to pump hundreds of thousands of gallons per day of a toxic wastewater slurry into an Alaskan lake, killing its fish and aquatic life." They said, "The ruling has dire implications for other waterways across the country, but the Obama administration and Congress may act promptly to ensure lakes, rivers, streams, and wetlands are not destroyed by industrial waste dumping."
The majority 6-3 ruling was delivered by Justice Kennedy and Justices Roberts, Breyer and Alito joined; and Justice Scalia joined in part. Justice Breyer also filed a concurring opinion. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justice Ginsburg filed a dissenting opinion and Justices Stevens and Souter joined in the dissent.
The case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act; and begs the question that WIMS asked in a December 2006 article: Can A Lake Be Filled & Fish Killed Under CWA? [See WIMS eNewsUSA Blog posts on this case]. When the lawsuit was first initiated, Earthjustice, expressed concern that if allowed to proceed, the mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.
According to the Supreme Court summary of questions presented in the cases, the Clean Water Act (CWA) provides two separate programs for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of “fill material,” subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Environmental Protection Agency may issue permits for the discharge of all other pollutants, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term “discharge of fill material” to include “tailings or similar mining-related materials.” Pursuant to its authority under Section 404 to grant permits for the discharge of “fill material,” the Corps granted petitioner a permit to deposit certain mine tailings in a lake.
The Ninth Circuit invalidated that permit even though it acknowledged that the proposed discharge “facially meets the current regulatory definition of ‘fill material.’” Upsetting 35 years of established agency practice, the court of appeals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation.
In its majority opinion, the Supreme Court said the case involved two questions under the Clean Water Act (CWA). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to U.S. EPA, to issue a permit for the discharge of mining waste slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into the lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with the law.
The High Court said, "With regard to the first question, §404(a) of the CWA grants the Corps the power to 'issue permits . . . for the discharge of . . . fill material.'. . . But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to 'issue a permit for the discharge of any pollutant' '[e]xcept as provided in' §404. 33 U. S. C. §1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as 'fill material,' 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under §404, rather than from the EPA, under §402."
On the second question -- "whether the Corps permit is lawful -- the High Court said that the environmental groups argue that the issuance of the permit by the Corps was “not in accordance with law” because EPA regulations forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters [citing 40 CFR §440.104(b)(1)] while Coeur Alaska and the State of Alaska, and the federal agencies maintain that the Corps permit "is lawful" nonetheless because the EPA’s performance standard do not apply to discharges of "fill material."
Reversing the judgment of the District Court, the Ninth Circuit Court of Appeals held that the EPA’s performance standard did apply to the discharge and the permit from the Corps was unlawful. The High Court reversed and remanded the Ninth Circuit decision.
In essence, rather than build a tailings pond, which is the typical way in which mining waste is handled, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. The lake is small -- 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres.
Section 404(a) of the CWA empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of . . . slurry, or tailings or similar mining-related materials.”
The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help "recla[im]" the lake by "[c]apping" the tailings with about 4 inches of "native material."
In its ruling the majority said, "Because Congress has not 'directly spoken' to the 'precise question' of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case." In the absence of Congressional intent, the High Court then looked at the agencies regulations, which they said were "ambiguous," so they looked at the agencies’ "subsequent interpretation of those regulations." The High Court said, "In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not 'plainly erroneous or inconsistent with the regulation[s],' and so we accept it as correct."
Responding to the decision, Earthjustice president Trip Van Noppen said, "If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America. The good news is that the problem is reversible. It was caused by a Bush administration rule reversing thirty years of successful regulation under the Clean Water Act. We call on President Obama to act immediately to repeal this rule and restore the original intent of the Clean Water Act."
Access the complete opinion, dissent and concurring opinions (click here). Access a lengthy release from Earthjustice and links to related information (click here). Access the complete 70-page oral argument transcript (click here). Access links to the various party briefs and all amicus briefs in the case (click here). Access the Supreme Court Docket No. 07-984 (click here); and Docket No. 07-990 (click here).
The majority 6-3 ruling was delivered by Justice Kennedy and Justices Roberts, Breyer and Alito joined; and Justice Scalia joined in part. Justice Breyer also filed a concurring opinion. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justice Ginsburg filed a dissenting opinion and Justices Stevens and Souter joined in the dissent.
The case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act; and begs the question that WIMS asked in a December 2006 article: Can A Lake Be Filled & Fish Killed Under CWA? [See WIMS eNewsUSA Blog posts on this case]. When the lawsuit was first initiated, Earthjustice, expressed concern that if allowed to proceed, the mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.
According to the Supreme Court summary of questions presented in the cases, the Clean Water Act (CWA) provides two separate programs for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of “fill material,” subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Environmental Protection Agency may issue permits for the discharge of all other pollutants, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term “discharge of fill material” to include “tailings or similar mining-related materials.” Pursuant to its authority under Section 404 to grant permits for the discharge of “fill material,” the Corps granted petitioner a permit to deposit certain mine tailings in a lake.
The Ninth Circuit invalidated that permit even though it acknowledged that the proposed discharge “facially meets the current regulatory definition of ‘fill material.’” Upsetting 35 years of established agency practice, the court of appeals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation.
In its majority opinion, the Supreme Court said the case involved two questions under the Clean Water Act (CWA). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to U.S. EPA, to issue a permit for the discharge of mining waste slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into the lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with the law.
The High Court said, "With regard to the first question, §404(a) of the CWA grants the Corps the power to 'issue permits . . . for the discharge of . . . fill material.'. . . But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to 'issue a permit for the discharge of any pollutant' '[e]xcept as provided in' §404. 33 U. S. C. §1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as 'fill material,' 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under §404, rather than from the EPA, under §402."
On the second question -- "whether the Corps permit is lawful -- the High Court said that the environmental groups argue that the issuance of the permit by the Corps was “not in accordance with law” because EPA regulations forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters [citing 40 CFR §440.104(b)(1)] while Coeur Alaska and the State of Alaska, and the federal agencies maintain that the Corps permit "is lawful" nonetheless because the EPA’s performance standard do not apply to discharges of "fill material."
Reversing the judgment of the District Court, the Ninth Circuit Court of Appeals held that the EPA’s performance standard did apply to the discharge and the permit from the Corps was unlawful. The High Court reversed and remanded the Ninth Circuit decision.
In essence, rather than build a tailings pond, which is the typical way in which mining waste is handled, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. The lake is small -- 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres.
Section 404(a) of the CWA empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of . . . slurry, or tailings or similar mining-related materials.”
The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help "recla[im]" the lake by "[c]apping" the tailings with about 4 inches of "native material."
In its ruling the majority said, "Because Congress has not 'directly spoken' to the 'precise question' of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case." In the absence of Congressional intent, the High Court then looked at the agencies regulations, which they said were "ambiguous," so they looked at the agencies’ "subsequent interpretation of those regulations." The High Court said, "In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not 'plainly erroneous or inconsistent with the regulation[s],' and so we accept it as correct."
Responding to the decision, Earthjustice president Trip Van Noppen said, "If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America. The good news is that the problem is reversible. It was caused by a Bush administration rule reversing thirty years of successful regulation under the Clean Water Act. We call on President Obama to act immediately to repeal this rule and restore the original intent of the Clean Water Act."
Access the complete opinion, dissent and concurring opinions (click here). Access a lengthy release from Earthjustice and links to related information (click here). Access the complete 70-page oral argument transcript (click here). Access links to the various party briefs and all amicus briefs in the case (click here). Access the Supreme Court Docket No. 07-984 (click here); and Docket No. 07-990 (click here).
Tuesday, May 5, 2009
High Court Rules 8-1 On Superfund Liability Issues
May 4: The U.S. Supreme Court decided the consolidated cases of Burlington No., & Santa Fe R. Co., v. United States, (Docket No. 07-1601); and Shell Oil Co., v. United States (Docket No. 07-1607) on appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 2/25/089]. The 8-1 opinion was delivered by Justice Stevens and supported by Justices Roberts, Scalia, Kennedy, Souter, Thomas, Breyer and Alito. Justice Ginsburg filed a dissenting opinion. In these cases involving cleanups under the Comprehensive, Environmental, Response, Compensation, and Liability Act (CERCLA), the High Court explained that the cases "raise the questions whether and to what extent a party associated with a contaminated site may be held responsible for the full costs of remediation."
The law allows the government to obtain reimbursement for the costs of remediating hazardous waste sites from the owners and operators of land on which a disposal of hazardous substances has occurred. However, because even passive landowners may be subjected to CERCLA liability, Congress removed language from early CERCLA bills mandating joint and several liability for multiple defendants who own or operate a particular site. In the Burlington case, the Ninth Circuit nevertheless imposed joint and several liability for the entire cost of a facility's remediation on two landlords, even though they owned only a portion of the overall site for a fraction of its period of operation. In the Shell Oil case, the questions presented are whether liability for "arranging" for disposal of hazardous substances under CERCLA may be imposed upon a manufacturer who merely sells and ships, by common carrier, a commercially useful product, transferring ownership and control to a purchaser who then causes contamination involving that product.
In the Ninth Circuit, the final opinion concluded, "The district court erred in determining that the harm in this case could be apportioned on this record. Given the district court’s erroneous approach and the paucity of record evidence, there is no reasonable basis for apportioning the damages attributable to the Railroads’ activity. Shell’s liability is a closer call, but the evidence on the record in that regard is also insufficient to support apportionment. The district court followed the proper analysis in finding that Shell is liable as an arranger. Shell arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage, and so the disposal, of those chemicals."
The Supreme Court concluded, "that the Court of Appeals erred by holding Shell liable as an arranger under CERCLA for the costs of remediating environmental contamination at the Arvin, California facility. Furthermore, we conclude that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. The judgment is reversed, and the cases are remanded for further proceedings consistent with this opinion." In her dissent, Justice Ginsburg said, "Although the question is close, I would uphold the determinations of the courts below that Shell qualifies as an arranger within the compass of the. . . CERCLA."
Access the complete 23-page majority opinion and dissent (click here). Access the transcript of the oral arguments (click here). Access the Supreme Court docket for 07-1601 (click here). Access the Supreme Court docket for 07-1607 (click here). Access the various merit and amicus briefs filed by the parties (click here, scroll down to February 24). Access more information on the SCOTUS Wiki (click here). Access links to various media reports on the case (click here).
The law allows the government to obtain reimbursement for the costs of remediating hazardous waste sites from the owners and operators of land on which a disposal of hazardous substances has occurred. However, because even passive landowners may be subjected to CERCLA liability, Congress removed language from early CERCLA bills mandating joint and several liability for multiple defendants who own or operate a particular site. In the Burlington case, the Ninth Circuit nevertheless imposed joint and several liability for the entire cost of a facility's remediation on two landlords, even though they owned only a portion of the overall site for a fraction of its period of operation. In the Shell Oil case, the questions presented are whether liability for "arranging" for disposal of hazardous substances under CERCLA may be imposed upon a manufacturer who merely sells and ships, by common carrier, a commercially useful product, transferring ownership and control to a purchaser who then causes contamination involving that product.
In the Ninth Circuit, the final opinion concluded, "The district court erred in determining that the harm in this case could be apportioned on this record. Given the district court’s erroneous approach and the paucity of record evidence, there is no reasonable basis for apportioning the damages attributable to the Railroads’ activity. Shell’s liability is a closer call, but the evidence on the record in that regard is also insufficient to support apportionment. The district court followed the proper analysis in finding that Shell is liable as an arranger. Shell arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage, and so the disposal, of those chemicals."
The Supreme Court concluded, "that the Court of Appeals erred by holding Shell liable as an arranger under CERCLA for the costs of remediating environmental contamination at the Arvin, California facility. Furthermore, we conclude that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. The judgment is reversed, and the cases are remanded for further proceedings consistent with this opinion." In her dissent, Justice Ginsburg said, "Although the question is close, I would uphold the determinations of the courts below that Shell qualifies as an arranger within the compass of the. . . CERCLA."
Access the complete 23-page majority opinion and dissent (click here). Access the transcript of the oral arguments (click here). Access the Supreme Court docket for 07-1601 (click here). Access the Supreme Court docket for 07-1607 (click here). Access the various merit and amicus briefs filed by the parties (click here, scroll down to February 24). Access more information on the SCOTUS Wiki (click here). Access links to various media reports on the case (click here).
Thursday, April 2, 2009
Supreme Court: Entergy Corp. v. Riverkeeper, Inc.
Apr 1: In the U.S. Supreme Court, Case Nos. 07-588, 07-589, 07-597 [See WIMS 1/26/07 & 3/23/07, 12/3/08]. The cases involve regulation under the Clean Water Act (CWA) of the intake structures used by power plants to take in cooling water. After 30 years of regulating new facilities, the Environmental Protection Agency (EPA) promulgated a regulation requiring existing cooling water intake structures to be retrofitted to comply with EPA’s latest determination of the “best technology available for minimizing adverse environmental impact,” measured in terms of the potential effects on early life stages of fish. The Second Circuit, deferring to EPA, held that EPA has authority to retrofit existing facilities. Siding with environmental petitioners and against EPA, the court also held that EPA’s weighing of costs and benefits is limited to a narrow “cost-effectiveness” test.
The majority opinion upholds EPA's use of cost-benefit analysis and overturns the Second Circuit opinion. The majority opinion was delivered by Justice Scalia, in which Justices Roberts, Kennedy, Thomas, and Alito, joined. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Stevens filed a dissenting opinion, in which Justices Souter and Ginsburg joined.
As stated by the High Court, respondents -- environmental groups and various States -- challenged EPA's regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F. 3d 83, 99–100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under §1326(b). Petitioners operate -- or represent those who operate -- large power plants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ "cooling water intake structures" that extract water from nearby water sources.These structures pose various threats to the environment, chief among them "the squashing against intake screens (elegantly called 'impingement') or suction into the cooling system ('entrainment') of aquatic organisms that live in the affected water sources.
The crux of the argument, framed by the High Court is, "In its Phase II rules. . . the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. . . It refused to take that step in part because of the 'generally high costs' of converting existing facilities to closed-cycle operation, and because 'other technologies approach the performance of this option.'. . Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent . . (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year. . . nine times the estimated cost of compliance with the Phase II performance standards . . . Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems 'would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal,' possibly requiring the construction of '20 additional 400–MW plants . . . to replace the generating capacity lost.'"
The Second Circuit Court of Appeals, concluded, that cost-benefit analysis, which "compares the costs and benefits of various ends, and chooses the end with the best net benefits," is impermissible under §1326(b). The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. (The remand was also based on other grounds but those are not at issue).
The case focuses on “the best technology available for minimizing adverse environmental impact,” which the Court calls the “BTA” test and says that is "the one at issue here." The majority opinion says, "In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits." The Court compared the annualized use-benefits of $83 million to annual costs of $389 million and said it, "demonstrates quite clearly that the agency did not select the Phase II regulatory requirements because their benefits equaled their costs." Saying further, "While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years."
In its final conclusion, the majority ruled, "We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals’ reliance in part on the agency’s use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision. . . was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used. . . We of course express no view on the remaining bases for the Second Circuit’s remand which did not depend on the permissibility of cost-benefit analysis. . . The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion."
Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access questions presented and merit and amicus briefs in the case (click here, scroll to Entergy Corp. v. EPA). Access the oral argument transcript (click here). Access the 2nd Circuit opinion (click here). Access EPA's Cooling Water Intake Structure website for additional information (click here).
The majority opinion upholds EPA's use of cost-benefit analysis and overturns the Second Circuit opinion. The majority opinion was delivered by Justice Scalia, in which Justices Roberts, Kennedy, Thomas, and Alito, joined. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Stevens filed a dissenting opinion, in which Justices Souter and Ginsburg joined.
As stated by the High Court, respondents -- environmental groups and various States -- challenged EPA's regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F. 3d 83, 99–100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under §1326(b). Petitioners operate -- or represent those who operate -- large power plants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ "cooling water intake structures" that extract water from nearby water sources.These structures pose various threats to the environment, chief among them "the squashing against intake screens (elegantly called 'impingement') or suction into the cooling system ('entrainment') of aquatic organisms that live in the affected water sources.
The crux of the argument, framed by the High Court is, "In its Phase II rules. . . the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. . . It refused to take that step in part because of the 'generally high costs' of converting existing facilities to closed-cycle operation, and because 'other technologies approach the performance of this option.'. . Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent . . (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year. . . nine times the estimated cost of compliance with the Phase II performance standards . . . Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems 'would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal,' possibly requiring the construction of '20 additional 400–MW plants . . . to replace the generating capacity lost.'"
The Second Circuit Court of Appeals, concluded, that cost-benefit analysis, which "compares the costs and benefits of various ends, and chooses the end with the best net benefits," is impermissible under §1326(b). The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. (The remand was also based on other grounds but those are not at issue).
The case focuses on “the best technology available for minimizing adverse environmental impact,” which the Court calls the “BTA” test and says that is "the one at issue here." The majority opinion says, "In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits." The Court compared the annualized use-benefits of $83 million to annual costs of $389 million and said it, "demonstrates quite clearly that the agency did not select the Phase II regulatory requirements because their benefits equaled their costs." Saying further, "While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years."
In its final conclusion, the majority ruled, "We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals’ reliance in part on the agency’s use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision. . . was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used. . . We of course express no view on the remaining bases for the Second Circuit’s remand which did not depend on the permissibility of cost-benefit analysis. . . The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion."
Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access questions presented and merit and amicus briefs in the case (click here, scroll to Entergy Corp. v. EPA). Access the oral argument transcript (click here). Access the 2nd Circuit opinion (click here). Access EPA's Cooling Water Intake Structure website for additional information (click here).
Wednesday, March 4, 2009
Supreme Court Decision In Summers v. Earth Island Institute
Note: Previously, we have not posted Supreme Court decision here. Effective immediately, we will begin posting Supreme Court decision that we cover.
Mar 3: In the U.S. Supreme Court, Case No. 07-463 [See WIMS 10/8/08]. On appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 6/11/07]. The questions presented are indicated by the Court as: 1. Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. 2. Whether respondents established standing to bring this suit. 3. Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties. 4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court. In the 5-4 split decision, Justice Scalia delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Alito joined. Justice Kennedy also filed a separate concurring opinion. Justices Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, joined.
The majority said, "Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as Earth Island.) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations." The case involves the "Burnt Ridge Project" for which the Service issued a decision memo approving the Project, a salvage sale of timber on 238 acres damaged by that fire in September 2003.
The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient ‘case or controversy’" before the court to sustain a facial challenge. It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The majority said, "Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described. . . It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members’ recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972).
The majority determined that the one proof of valid standing in the case was, in fact settled and remedied, in the district court decision, and said, "Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members." The majority further said, "Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- [in isolation and without reference to anything else] is insufficient to create Article III standing."
The majority concluded, "Since we have resolved this case on the ground of stand-ing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act.We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part."
The majority also summarized and responded the dissenting argument as follows: "The dissent proposes a hitherto unheard of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "‘700,000 members nationwide, including thousands of members in California’" who "‘use and enjoy the Sequoia National Forest,’" post, . . . it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.
Access the complete majority opinion and concurring and dissenting opinions (click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here).
Mar 3: In the U.S. Supreme Court, Case No. 07-463 [See WIMS 10/8/08]. On appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 6/11/07]. The questions presented are indicated by the Court as: 1. Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. 2. Whether respondents established standing to bring this suit. 3. Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties. 4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court. In the 5-4 split decision, Justice Scalia delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Alito joined. Justice Kennedy also filed a separate concurring opinion. Justices Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, joined.
The majority said, "Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as Earth Island.) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations." The case involves the "Burnt Ridge Project" for which the Service issued a decision memo approving the Project, a salvage sale of timber on 238 acres damaged by that fire in September 2003.
The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient ‘case or controversy’" before the court to sustain a facial challenge. It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The majority said, "Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described. . . It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members’ recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972).
The majority determined that the one proof of valid standing in the case was, in fact settled and remedied, in the district court decision, and said, "Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members." The majority further said, "Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- [in isolation and without reference to anything else] is insufficient to create Article III standing."
The majority concluded, "Since we have resolved this case on the ground of stand-ing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act.We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part."
The majority also summarized and responded the dissenting argument as follows: "The dissent proposes a hitherto unheard of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "‘700,000 members nationwide, including thousands of members in California’" who "‘use and enjoy the Sequoia National Forest,’" post, . . . it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.
Access the complete majority opinion and concurring and dissenting opinions (click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here).
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