Peconic Baykeeper, Inc. v. Suffolk County

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

 

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

 

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United Farm Workers Of America v. U.S. EPA

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35528. According to the majority decision, "A single issue is presented by this case: Was an appeal from a decision of the Environmental Protection Agency (the EPA) filed in the right court? In the background are the merits of the litigation centered on the continued use of the pesticide Azinphos-Methyl (AZM). Our task is not to decide the merits but to ascertain the appeals process established by Congress."

While perhaps not relevant to the decision, by way of background, in the case EPA used a cost-benefit analysis to allow the continued use of a highly toxic chemical, AZM. The adverse effects of AZM on people exposed to AZM, such as agricultural workers, include headache, nausea, and dizziness. Anxiety and restlessness are also prominent. Worsening may result in twitching, weakness, tremor, incoordination, vomiting, abdominal cramps, diarrhea. In 2006, after receiving written comments from the public (notice and comment), the EPA issued an order that permitted growers to continue spraying of AZM on certain crops until 2012, after which the use of AZM would be “phased out.”

In short, according to the dissenting opinion, "without hearing any witness testimony or reviewing anything other than the submission of written comments, the EPA struck the cost-benefit analysis in favor of the AZM manufacturers and the growers who use AZM and against the agricultural workers and the environment. Because AZM’s toxic effects endanger the health of agricultural workers, the plaintiff-appellants, United Farm Workers of America (Farm Workers) opposed the continued use of AZM and challenged the EPA’s order in federal district court."

The dissenting opinion explains that, "To resolve this case we are required to interpret the words 'public hearing' under Section 16(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. Under § 16(b), whether the Farm Workers should have filed for review in federal district court or in the federal court of appeals depends on whether the EPA’s notice and comment procedure amounted to a “public hearing.” 7 U.S.C. § 136n(b). Simply put, if there was a public hearing, the Farm Workers would have been correct to file in the court of appeals. 7 U.S.C. § 136n(b). If there was not a public hearing, the Farm Workers were correct to file in district court. 7 U.S.C. § 136n(a)-(b)."

The majority ruled, "We hold that the choice of the district court by United Farm Workers of America and the other appellants (collectively Farm Workers) was mistaken and that the district court correctly dismissed their suit for lack of jurisdiction." The majority said further, "Jurisdiction in the Court of Appeals is conferred after an order is issued by the EPA 'following a public hearing.' Does the addition of 'public' alter the meaning of 'hearing'? It seems unlikely. If it did, there would be actions by the Administrator following 'a hearing' for which no review was provided. 'Hearing' and 'public hearing' should be read in tandem. Context does determine that 'the hearing' contain written submissions; otherwise, judicial review would be awkward. . . On this construction, review of the contested decision in this case should have been sought in this court. Unfortunately for the appellants it is now too late to seek it here. Petitions for review must be filed 60 days after the decision. . . The time is past."

The dissenting justice said in a lengthy dissent, "The Farm Workers sought review in the district court. They correctly determined that the court of appeals lacked jurisdiction to hear their challenge to the EPA’s order because the only evidentiary material presented to the EPA was in the form of written comments. The Farm Workers correctly concluded that this limited process did not constitute a public hearing. . . The majority would affirm the district court’s ruling that the EPA’s solicitation of written comments from the public is a 'public hearing' under § 16(b) and that the Farm Workers should have filed their challenge to the EPA’s order in the court of appeals. . . I disagree."

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In re: W.R. Grace & Co.

Dec 31: In the U.S. Court of Appeals, Third Circuit, Case No. 08-3697/3720. In the case, W.R. Grace & Co. (Grace) and the State of Montana appeal an order from the United States District Court for the District of Delaware affirming an order from the District’s Bankruptcy Court denying Grace’s motion to expand a preliminary injunction. The proposed expansion would have enjoined claims against the State of Montana arising from Grace’s mining operations near Libby, Montana. Both the District Court and the Bankruptcy Court determined that the Bankruptcy Court lacked jurisdiction under 28 U.S.C. §§ 1334(b) and 157(a) to expand the injunction to enjoin those claims and, therefore, denied the motion. The Appeals Court agreed and affirmed the lower courts' decisions. This appeal is the fourth to be considered by the Third Circuit from Grace’s ongoing efforts to reorganize under Chapter 11 of the Bankruptcy Code, efforts which began in 2001 when Grace sought shelter from liabilities associated with asbestos litigation.

The Appeals Court said, "In conclusion, our precedent dictates that a federal bankruptcy court does not have related-to jurisdiction over a third-party lawsuit if that lawsuit would affect the bankruptcy proceeding only through the intervention of yet another lawsuit. Grace will not be bound by a judgment against Montana unless there is an additional adjudication. Accordingly, we affirm the judgment of the Bankruptcy Court and the District Court that subject matter jurisdiction does not exist to expand the § 105(a) injunction to include the Montana Actions."

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IL Dunesland Preserve v. IL Dept of Natural Resources

Oct 14: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1535. According to the Appeals Court, in this suit regarding free speech and First Amendment rights, the Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois; it attracts upward of two million visitors in some years. The plaintiff, a nonprofit corporation that helped to create and continues to support the park, filed this suit under 42 U.S.C. § 1983 [i.e. Civil action for deprivation of rights] against state officials involved in its management and the state agency that operates the park, charging infringement of free speech.

The defendants refused to display in the display racks in various buildings in the park a scary two-page pamphlet that the plaintiff had prepared. Entitled “Tips for Avoiding Asbestos Contamination at Illinois Beach State Park,” the pamphlet recommends “commonsense approaches . . . for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” It warns that “many pieces of asbestos have been tumbling along the shoreline for years,” that “microscopic asbestos can be released from the sand when agitated,” and that “disturbing the sand can cause asbestos to become airborne.” And since “asbestos fibers can be found wherever beach sand can go,” the reader is advised to “wash your whole body including hair, ears, and under fingernails. Pets should also be washed down prior to leaving the beach . . . Take care when shaking out towels and blankets that may have come into contact with sand. Remove all beach clothing prior to entering your car or home. Launder beach clothing, blankets, and towels separately. Store shoes and other hard to clean items outside of the home.”

The Appeals Court notes that while the beaches do contain asbestos fibers, several cited state and Federal studies have not found levels of asbestos sufficient to menace human health. Additionally, the Appeals Court said, ""In this case, which involves a First Amendment issue, the lawyers have treated us to a barrage of unhelpful First Amendment jargon."

In conclusion, the Appeals Court affirmed the district court ruling and said, ". . .the district judge noted that the plaintiff 'did not seek to distribute its flyer within the Park by any means other than inclusion in the display racks.' The judge added that 'no special permit or license is required to hand out pamphlets to Park visitors.' The park authorities cannot impose unreasonable barriers to using open public space to convey ideas and opinions (remember that a park is 'a traditional public forum'), but there has been no showing that they’ve tried to do this."

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Orange County Water District v. Unocal Corp

Oct 1: In the U.S. Court of Appeals, Second Circuit, Case No. 07-5724. In this case involving the chemical gasoline additive methyl tertiary butyl ether (MTBE) and including major international oil and chemical companies as Defendants, Orange County Water District petitions for a writ of mandamus are denied by the Appeals Court. The County's petitions challenged a November 7, 2007 order of the United States District Court for the Southern District of New York which denied a motion to remand to state court. The Appeals Court said in its denial, "We hold that our prior opinion in this multi-district litigation did not preclude the District Court’s conclusion that petitioners failed to file a timely motion for remand ... because the purportedly erroneous removal under. . . did not implicate the District Court’s subject matter jurisdiction. Furthermore, we conclude that any challenge to the District Court’s subject matter jurisdiction is best addressed on direct appeal, rather than by a writ of mandamus."

The Appeals Court said the question presented is whether a district court may retain jurisdiction when a case was improperly removed to Federal court. Specifically, the Appeals Court ruled as to whether improper removal under the bankruptcy removal statute requires subsequent remand to state court.

By way of background and summary the Appeals Court explains, "The Orange County Water District (OCWD) petitions for a writ of mandamus challenging a November 7, 2007 order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge), denying OCWD’s motion to remand the case from the Southern District of New York to California state court. OCWD argues that this Court’s decision in In re MTBE Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007) (MTBE) -- which involved other parties in this multi-district litigation -- required the District Court to remand OCWD’s action. Specifically, OCWD contends as follows: (1) this Court’s opinion in MTBE requires that the District Court find that OCWD asserted a timely objection under 28 U.S.C. § 1447(c) to the improper application of the bankruptcy removal statute, 28 U.S.C. § 1452(a); and, alternatively, (2) the District Court was required to abstain pursuant to 28 U.S.C. § 1334(c)(2) because it lacked 'core' bankruptcy jurisdiction. We deny OCWD’s petition for a writ of mandamus because we conclude that: (1) our opinion in MTBE did not require the District Court to remand OCWD’s action, and (2) OCWD’s alternative jurisdictional arguments can be reviewed in the regular course of appeal."

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U.S. v. Starnes

Sep 24: In the U.S. Court of Appeals, Third Circuit, Case Nos. 07-3341 & 08-1691. Cleve-Allan George and Dylan C. Starnes appeal from judgments of conviction and sentence entered against them following a jury trial in the United States District Court for the District of the Virgin Islands. Although these appeals have not been formally consolidated, the Appeals Court resolved them together because they arise from a common set of facts. The Appeals Court affirmed the judgments.

Virgin Islands Housing Authority (VIHA) received a Federal grant for asbestos cleanup to be “performed in strict accordance with all federal, state and local regulations and ordinances” and eventually awarded a demolition contract to Alvin Williams Trucking & Equipment Rental, Inc. That company, with the consent of VIHA, subcontracted the asbestos abatement portion of the project to the Virgin Islands Asbestos Removal Company (VIARCO), a company owned by George. VIARCO had “joined forces” with Environmental Contracting Company (ECC), a company run by Starnes.

Among other violations, a “pressure washer” was used to dislodge asbestos-containing materials from the site’s structures. The Appeals Court said, this removal method, although time-efficient, generated a substantial amount of debris-filled wastewater, which the crew pumped into toilets and bathtubs. But those fixtures rapidly clogged, causing wastewater to pour out and accumulate on the buildings’ balconies. In response, George constructed a drainage system out of PVC pipes, which permitted the wastewater to flow off the balconies and down to the ground. When the wastewater evaporated, it left a dusty white residue clinging to the facades of the buildings and the surrounding sidewalks and grass.

The District Court sentenced Starnes to thirty-three months of imprisonment, three years of supervised release, and a special assessment of $1,600. While noting the government’s position that George’s acts were more egregious than those of Starnes, the District Court nonetheless imposed on George the same sentence that it had imposed on Starnes.

The Appeals Court said, "Both defendants also argue, albeit somewhat perfunctorily, that the District Court committed significant procedural error by failing to give meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). We disagree. While a sentencing court must consider all of the § 3553(a) factors, it does not have to discuss and make findings as to each factor so long as the record otherwise makes clear that it took the factors into account."

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Steven Pollack v. DOJ

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."

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Geerston Seed Farms v. Monsanto Co.

Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. This ruling affirms a major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto. The original decision was issued on September 2, 2008 [See WIMS 9/4/08]. In the latest action, the Ninth Circuit, has voted to deny the petition for panel rehearing and recommend denial of the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc and no Judge has requested a vote on whether to rehear the matter en banc. The Appeals Court ruled, "The petition for panel rehearing and rehearing en banc is denied. No further petitions for rehearing will be accepted."

The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.

Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”

Access the latest ruling (click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).

Martex Farms, S.E. v. Environmental Appeals Board

Mar 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1311. Martex Farms, S.E., one of the largest commercial farms in Puerto Rico, appealed a final decision and order of U.S. EPA's Environmental Appeals Board (the Board), which held Martex liable for numerous violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. The Appeals Court affirmed the Board's decision in full, as to both liability and penalty.

Because Martex uses pesticides as part of its agricultural methods, it is subject to the Worker Protection Standard (WPS), 40 C.F.R. pt. 170, which is enforced by EPA. The WPS is intended to reduce the risk of illness and injury to workers and handlers who are exposed to pesticides during the course of employment. In January 28, 2005, EPA filed an administrative complaint against Martex alleging 336 violations of FIFRA by Martex. The EPA accused Martex of failing to meet several rather common sense and straightforward WPS requirements, including: (1) displaying information for workers and handlers regarding pesticide application; (2) providing decontamination supplies for workers and handlers in easily accessible locations; and (3) providing handlers with personal protective equipment. Martex subsequently appealed the decisions of an administrative law Judge and the Board.

The Appeals Court said, "Our review of the Board's conclusions is highly deferential. By statute, we will sustain the Board's order 'if it is supported by substantial evidence when considered on the record as a whole.' 7 U.S.C. § 136n(b). In addition, we will sustain the EPA's interpretation of its own regulations unless that interpretation is 'arbitrary, capricious, or otherwise plainly impermissible.'"

On one of the primary arguments, i.e. Substantial Evidence Claim, the Appeals Court said, "Martex also contests the substantive findings of liability made below. The crux of Martex's argument in this regard is that its farms contain abundant sources of water, such as lakes, streams, and fruit washing facilities, which are sufficient to comply with the WPS standards. However, neither in its brief nor at oral argument did Martex allege that these water sources were grouped together with the required soap and paper towels, or that they were available within 1/4 mile of the work sites, as required by regulations. Indeed, substantial evidence in the record points to the opposite conclusion. We therefore see no basis for reversal as to the substantive violations."

On the penalty issue, the Appeals Court said, "The maximum statutory fine for each violation of FIFRA committed by Martex is $1,100. The Board conducted a deliberate and rigorous evaluation of the proper penalty as to each violation, never assessed an amount greater than $1,100 for any violation, and in several cases assessed a much lower penalty. One of the factors it considered was Martex's ability to pay the proposed penalty. We therefore find no error."

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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).

McDonald v. Sun Oil Co.

Nov 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35683. Thomas McDonald, Marian McDonald and Alex McDonald appeal from the district court’s grant of summary judgment in favor of Sun Oil Company, Sunoco, Inc. and Cordero Mining Company (collectively, Sun). The McDonalds sued Sun for, among other things, negligence, contribution, breach of contract and fraud. Each of the claims arose out of an alleged oral warranty that certain crushed rock at the Horse Heaven Mine Property (Horse Heaven), a disused mercury mine, was free of mercury.

The district court held that Oregon’s statute of repose barred the McDonalds’ negligence claim, that their claim for contribution failed to comply with an administrative requirement, that their breach of contract claim failed because of the merger doctrine and the parol evidence rule, and that their fraud claim failed to raise a genuine issue of material fact. The Appeals Court affirmed in part, reversed in part, and remanded for trial.

The Appeals Court concluded, "The district court erred in granting summary judgment to Sun on the McDonalds’ negligence claim and that claim is remanded for trial. The district court correctly concluded that summary judgment was proper on the McDonalds’ contribution, breach of contract and fraud claim." In explaining the negligence ruling the Appeals Court said, "
the negligence claim is not based on any alleged promise to provide mercury-free calcine, but rather on alleged failures to warn about the mercury in the calcine and to test the calcine. A jury could find that there was no oral agreement, but that Sun was negligent in failing to warn that, for example, the calcine was not tested. The negligence claim should not have been dismissed."

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Sahu v. Union Carbide Corporation

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

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

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

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

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

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Sycamore Industrial Park v. Ericsson, Inc.

Oct 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1118. The Appeals Court explains that in 1985, plaintiff Sycamore Industrial Park Associates bought an industrial property with fixtures, including a boiler-based steam heating system, from defendant Ericsson, Inc. Before it sold the property, Ericsson installed a new natural gas heating system, but it left the old heating system in place. Several years after purchasing the property, Sycamore discovered that the boilers, pipes, and various pipe joints that make up the old system were insulated with asbestos-containing material.

Sycamore sued to force Ericsson to remove and dispose of the abandoned asbestos insulation and reimburse Sycamore for alleged "response costs it has incurred or will incur in removing the asbestos insulation." The suit was brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). The district court granted Ericsson’s motion for summary judgment, and Sycamore appealed. The Appeals Court affirmed the district court’s grant of summary judgment.

In its ruling, the district court found that the defendant abandoned the asbestos insulation in place at the property prior to sale. Yet it held as a matter of law that the abandonment did not constitute “disposal” of a solid or hazardous waste into or on any land or water so that such solid waste or hazardous waste might enter the environment, as CERCLA requires. In addition, the district court held as a matter of law that the abandonment of the boiler-based heating system and the subsequent sale of the Sycamore property was not “handling, storage, treatment, transportation or disposal of any solid or hazardous waste,” as required by RCRA.

In its review the appeals Court notes that the Ninth Circuit reached the same conclusion in Stevens Creek, 915 F.2d 1355. The Seventh Circuit said, "Our sister Circuit determined there was no private cause of action under CERCLA for the sale of a building containing materials with asbestos because the defendant never 'disposed' of a hazardous substance." The Seventh Circuit ruled further, "Here, there is no evidence that Ericsson transferred the Sycamore property with the intent to dispose of a hazardous substance. It incidentally left the old heating equipment in place when it sold otherwise useful realty. It simply does not make sense to hold that Ericsson is a responsible party just because Sycamore decided to remove asbestos in place decades after it purchased valuable real estate in a legitimate transaction."

On the RCRA claim, the Appeals Court said, ". . .as a matter of law, by leaving equipment that is insulated by asbestos in place and then selling the Sycamore property, Ericsson did not handle, store, treat, transport, or dispose of the asbestos as required for RCRA liability.

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Abagninin v. AMVAC Chemical Corp

Sep 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-56326. Akebo Abagninin and others who live and work in the Ivory Coast (Abagninin) [Côte d'Ivoire, Africa] appeal the district court’s dismissal with prejudice of their claims against manufacturers, distributors, and users of the pesticide DBCP for genocide and crimes against humanity under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. Abagninin alleges that DBCP caused male sterility and low sperm counts, which AMVAC knew. The district court granted with prejudice AMVAC’s motion for judgment on the pleadings as to the genocide claim for failure to allege that AMVAC acted with specific intent. Abagninin’s claim for crimes against humanity was subsequently dismissed for failure to allege that AMVAC’s conduct occurred within the context of a State or organizational policy. The Appeals Court affirmed the district court decision.

In part, the Appeals Court ruled on the "intent" issue, "The Second Circuit has recognized that dismissal of a genocide claim is appropriate when the complaint fails to allege facts sufficient to show specific intent [Cite: In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115 (E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008)]. . . Abagninin’s attempts to distinguish Agent Orange because the harmful effects of those chemicals were not known at the time assume, but incorrectly, that knowledge is the standard for intent. The key similarity between this case and Agent Orange is Abagninin’s failure to allege that AMVAC intended to harm him through the use of chemicals."

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Northwest Coalition for Alternatives to Pesticides v. U.S. EPA

Sep 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 05-75255, 05-76807. The petitioners are two environmental groups challenging the U.S. EPA's establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. The Appeals Court in a split (2-1) decision granted the petition in part, denied it in part, and remanded the case to the EPA.

The case involves the regulation of pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FDCA). The Appeals Court notes that in 1996, Congress amended the FDCA by enacting the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489. One of the key provisions of the FQPA requires the EPA to give special consideration to risks posed to infants and children when establishing pesticide tolerances.

The FQPA directs the EPA to use an additional tenfold margin of safety . . . to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children. EPA may “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children." "Unfortunately," as the Appeals Court points out, the FQPA does not define “reliable data,” and says, "The dispute before us turns on the definition of this term."

Between December 2001 and April 2002, EPA published seven regulations establishing tolerances for the pesticides acetamiprid, fenhexamid, halosulfuron-methyl, isoxadifen-ethyl, mepiquat, pymetrozine, and zetacypermethrin and did not apply the presumptive 10x child safety factor to any of these seven pesticides. EPA reduced the 10x child safety factor to 3x for four of the pesticides (acetamiprid, fenhexamid, isoxadifen-ethyl, and pymetrozine), and did not apply a child safety factor at all for the others.

The majority concluded, "Because the EPA failed to adequately explain the basis for its deviations from the 10x child safety factor for acetamiprid, mepiquat, and pymetrozine, we grant the petitions for review in part and remand to the EPA for further proceedings consistent with this opinion. On all other issues, we deny the petitions for review." The dissenting Justice indicated in part concurring and in part and dissenting, "I agree with the majority’s conclusion that 'the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.'" and did not act arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine; but disagreed with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetrozine must be remanded.

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Geerston Seed Farms v. Monsanto Co.

Sep 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. In this major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto.

The Monsanto Company (Monsanto) is a large-scale manufacturer of chemical products, including herbicides and pesticides. In the 1990s it began developing a variety of alfalfa that would be resistant to one of its leading herbicides. The United States Department of Agriculture, through the Animal and Plant Health Inspection Service (APHIS), approved the genetically modified alfalfa in 2005. This is an appeal from an injunction entered by the district court enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by APHIS of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.

Monsanto and its licensee, Forage Genetics, Inc. (Forage Genetics), intervened on the side of the government defendants. Monsanto, Forage Genetics, and the government pursued the appeal. According to the Ninth Circuit, there are no issues of law and therefore the Court reviewed the case for "abuse of discretion," citing Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir. 2002).

The Appeals Court ruled in a split, 2-1 decision, "We affirm because the district court did not abuse its discretion in entering the injunction after holding one hearing on the nature of the violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(C), and two hearings on the scope of injunctive relief, as well as reviewing extensive documentary submissions relating to an appropriate remedy. The injunction is limited in duration to the time necessary to complete the EIS. The existence of the NEPA violation is not disputed on appeal."

By way of background, when APHIS published its notice of the Monsanto petition for approval of Roundup Ready alfalfa in November 2004, it received 663 comments -- 520 of which opposed the petition and 137 of which supported it. Most of the commenting alfalfa growers and seed producers supported it because they said there was a demand for weed-free alfalfa, and Roundup Ready alfalfa would provide farmers a new option for weed control by allowing farmers to apply herbicide after weeds have germinated. Most of the academic professionals, agricultural support industries, and growers associations who commented supported the petition as well. Opponents of the petition, who included organic and conventional alfalfa growers, cited concerns that inadvertent gene transmission would occur, and that foreign and domestic markets may not accept products that cannot be guaranteed to be non-genetically engineered. They urged a full environmental evaluation through an EIS that would analyze the environmental effects of all the alternatives.

APHIS in June 2005 made a finding of no significant impact, concluded that it did not need to prepare an EIS, and unconditionally deregulated Roundup Ready alfalfa. Plaintiffs filed their lawsuit in February 2006, alleging violations of NEPA and other Federal statutes. The district court granted plaintiffs’ motion in February 2007, holding that APHIS had violated NEPA by deregulating Roundup Ready alfalfa without first preparing an EIS. The district court ruled APHIS had failed to take the required “hard look” at whether and to what extent the unconditional deregulation of Roundup Ready alfalfa would lead to genetic contamination of non-genetically engineered alfalfa.

The district court entered a preliminary injunction on March 12, 2007, enjoining all planting of Roundup Ready alfalfa and all sales of Roundup Ready alfalfa seed after March 30, 2007, which allowed farmers who were prepared to plant Roundup Ready alfalfa immediately, and who had already purchased the seed, to do so. After reviewing "voluminous evidentiary submissions from both sides," the district court entered its permanent injunction in May 2007. The injunction enjoined all planting of Roundup Ready alfalfa after March 30, 2007, pending APHIS’s completion of an EIS and decision on the deregulation petition.

In the appeal, much of the argument centered on whether an evidentiary hearing was required before entering the permanent injunction [See Idaho Watersheds Project, 307 F.3d 815]. The dissenting Justice said, "The district court’s failure to conduct the requisite evidentiary hearing prevents me from joining the majority’s opinion." However, the majority said, "We explained in Idaho Watersheds, however, that the key reason a further evidentiary hearing was not required was that the injunction would be in place only until the necessary environmental studies were conducted." The majority concluded, "The injunction involved only interim measures pending APHIS’s compliance with NEPA, and the district court considered extensive remedies-phase evidence. The court did not err in declining to hold a further hearing before entering the injunction pending the agency’s completion of environmental study the law undisputedly required it to perform before approving this product for unrestricted use."

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U.S. v. MV Sanctuary

Aug 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2123. According to the Appeals Court, the main issue in the appeal is whether U.S. EPA may obtain an administrative warrant to carry out its authority under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq., to inspect places containing regulated chemical substances. The Appeals Court ruled that EPA has such authority, and affirmed the district court’s issuance of a warrant authorizing the Agency to inspect the M/V Sanctuary for polychlorinated biphenyls (PCBs). The Appeals Court also affirmed the district court’s preliminary injunction order preventing the Sanctuary’s owner, Potomac Navigation, Inc., from moving a ship from the pier in Baltimore where it was docked.

The Appeals Court cites the relevant sections of TSCA and indicates TSCA provides EPA with inspection authority. Specifically, "[f]or purposes of administering [TSCA]," EPA "may inspect any establishment, facility, or other premises in which" substances regulated by the Act "are manufactured, processed, stored, or held before or after their distribution in commerce." 15 U.S.C. § 2610(a). In addition, this inspection authority reaches "any conveyance being used to transport" a regulated substance "in connection with distribution in commerce." Id. EPA’s inspection powers "extend to all things within the premises or conveyance inspected" that "bear[ ] on whether the requirements of [TSCA]" have been met with respect to regulated substances "within such premises or conveyance."

The Sanctuary, built in 1944, was once a U.S. Navy hospital ship. The ship was stricken from the Naval Vessel Reports in 1989, and the government sold the ship later that year to Project Life, Inc. (formerly Life International) for $10, with the stipulation that the ship would be used to provide humanitarian services. Project Life docked the Sanctuary at a Maryland Port Authority (MPA) pier in Baltimore, with the announced purpose of converting the ship into a facility for women suffering from addiction. The conversion was never accomplished, and Project Life failed to pay MPA dockage and related charges that became due. Later, sampling data showed that PCBs were present in paint coatings on the Sanctuary. Moreover, as EPA’s research revealed, it was likely that PCBs were in, or exposed on the surfaces of, other components, equipment, and materials on the ship. It was also likely that the PCBs would be in, or on the surfaces of, items that were not being maintained "in a totally enclosed manner."

In early November 2007, pursuant to its authority under TSCA, EPA requested permission from Potomac to inspect the Sanctuary for materials containing PCBs. Potomac denied EPA’s request. Shortly thereafter, EPA (1) applied to the district court for an administrative warrant authorizing the inspection, and (2) moved for a preliminary injunction to prohibit Potomac from moving the Sanctuary from the Baltimore pier until EPA could complete the inspection and determine whether enforcement action was necessary. The district court issued the warrant for the inspection of the Sanctuary and granted the preliminary injunction.

Potomac appeals, contending that the district court erred in (1) concluding that EPA has warrant authority under TSCA, (2) finding probable cause to support issuance of the administrative warrant, (3) concluding that the Sanctuary was a proper location for inspection under TSCA, (4) denying Potomac’s request for a Franks hearing, and (5) granting the preliminary injunction that enjoined the towage of the Sanctuary from Baltimore.

The Appeals Court concluded, "Given the serious health and environmental consequences associated with PCBs, the district court did not clearly err in finding that the balance of harms tipped sharply in favor of EPA (and the public interest). In short, the district court did not abuse its discretion in granting a preliminary injunction (of limited duration) that prevented the Sanctuary from being moved from the United States while EPA executed its inspection warrant and considered what, if any, regulatory or enforcement action was warranted."

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Natural Resources Defense Council v. EPA

Jun 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1053, Natural Resources Defense Council (NRDC) v. U.S. EPA, with American Chemistry Council intervenor. In short summary the Appeals Court explains that synthetic organic chemicals have few direct consumer uses, but they often serve as raw materials in the production of plastics, rubbers, fibers, protective coatings, and detergents. Petitioners, the NRDC and the Louisiana Environmental Action Network (LEAN), challenged EPA’s "residual risk" rulemaking under subsection 112(f) of the Clean Air Act for facilities that use or produce synthetic organic chemicals (the industry). Petitioners also challenged EPA’s technology review under subsection 112(d)(6). The Appeals Court said, "In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners’ challenge. We deny the petition."

Explaining further, after submitting a required report to Congress in 1999, EPA commenced residual risk rulemaking, apparently because it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry’s emissions pose lifetime excess cancer risks of "greater than one-in-one million."

In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. But the other, which EPA adopted in the final rule, was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face "an excess lifetime cancer risk of greater than 100-in-one million," which EPA regards as the “presumptively acceptable” level under its precedents.

In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to “review, and revise as necessary” the technology-based standards in light of technological developments at least every eight years. It concluded there were no such developments.

In conclusion, the Appeals Court said, "In sum, petitioners’ arguments boil down to one simple point: EPA could have used better data in conducting its risk analysis. Whether or not this is true, it misstates the inquiry under the arbitrary and capricious standard. . . In other words, the sole question before us is whether EPA has acted reasonably, not whether it has acted flawlessly. On the record before us, EPA explained why it chose to rely on industry-supplied data, and it reasonably responded to petitioners’ objections to its data analysis. . ."

In response, NRDC issued a release saying the court "upheld the Environmental Protection Agency’s refusal to protect American families from cancer risks posed by the chemical industry." NRDC said as a result it is launching a campaign "to force EPA to re-open scores of toxic air pollution regulations to correct public health and legal deficiencies identified by prior court rulings." NRDC said, “We are disappointed that the court sided with EPA’s refusal to protect the American people from cancer-causing toxic air pollution. While the Bush EPA will celebrate this perverse victory for polluters, today’s ruling is a loss for the American people and the fight against cancer.”

In the coming weeks, NRDC said it will submit a formal legal petition to the EPA Administrator demanding that EPA conduct rulemakings to strengthen the vast majority of existing toxic air pollution regulations that suffer from "common legal and health deficiencies. . . One such regulation is the 1994 rule governing the chemical industry that was part of the backdrop for today’s court decision." They said that previous lawsuits brought by NRDC and other environmental groups, have produced a series of court rulings from 2005-2007 that found the "EPA-created defects to be squarely in violation of the Clean Air Act."

The American Chemistry Council (ACC) applauded the decision. ACC President and CEO Jack Gerard said, “We are thrilled by the unanimous decision made by the panel judges. The business of chemistry represents the gold standard in responsible product management and is committed to continual emissions improvement. ACC helped defend EPA’s decision and we are pleased that the agency’s determination, based in sound science, was upheld.” ACC indicated that EPA’s 2006 residual risk and technology review rule was largely based on emissions data submitted by ACC member companies. ACC indicated that, "The rule affirmed that the application of maximum achievable control technology since 1994 has resulted in a substantial reduction of hazardous air pollutant emissions from the synthetic organic chemical manufacturing industry.

Access the complete 18-page opinion (click here). Access a release from NRDC (click here). Access a release from ACC (click here).

Sierra Forest Legacy v. Rey (U.S. Forest Service)

May 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. Sierra Forest Legacy (Sierra Forest) appeals the decision of the district court denying a preliminary injunction against the United States Forest Service (the USFS or the Forest Service) in a suit challenging its decision to permit logging in accordance with changes made in 2004 by the USFS in the relevant forest plan. Many other parties have intervened on each side. The Attorney General of California, Edmund Brown, Jr., filed an amicus brief in support of Sierra Forest. The Appeals Court held that the district court abused its discretion and reversed and remanded the case.

The Appeals Court says that the "USFS acknowledges that its reason for selling the forest trees to commercial loggers is to raise funds to carry on its fire prevention duties. Sierra Forest and the State of California seek to preserve the larger trees and so to preserve the habitat that supports various species. We need decide here a limited and narrow issue: Does the 2004 SEIS prepared by USFS regarding its plans to sell off the forest trees comply with the requirements of NEPA?"

In its conclusion, the Appeals Court says, "Postponement of the Forest Service plans may increase the danger posed by fires; but the Forest Service and Congress do not appear helpless to find the funds to decrease the dangers. The question we address here is whether USFS’s choice of funding for fire reduction -- rather than fire reduction itself -- outweighs California’s preservation interests. We conclude that it does not, given that 'special solicitude' should be afforded California’s stake in its natural resources and that the Forest Service did not consider alternatives to its choice of funding."

Greg Loarie, an attorney with Earthjustice representing the conservation groups said, "The Ninth Circuit understood that the old-growth logging at issue here may turn a profit, but will not make the Sierra any safer if there's a fire. We desperately need the Forest Service to turn its attention away from the big trees and back to Sierra communities."

Access the complete opinion (click here). Access a release from Earthjustice (click here).

State of New Jersey v. EPA Vacates Agency Mercury Rules

Feb 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1097, consolidated with 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294. In this high profile case involving many states [CA, CT, DE, IL, ME, MA, MN, NH, NJ, NM, NY, PA, VT and WI], environmental organizations and industry groups, the Appeals Court considered petitions for review of two final rules promulgated by U.S. EPA regarding the emission of hazardous air pollutants (HAPs) from electric utility steam generating units (EGUs) -- the so-called Delisting Rule and CAMR.

The Appeals Court sets the stage saying New Jersey and fourteen additional States, the Michigan Department of Environmental Quality, the Pennsylvania Department of Environmental Protection, the City of Baltimore (Government Petitioners), and various environmental organizations (Environmental Petitioners) contend that EPA violated Section 112’s plain text and structure when it did not comply with the requirements of section 112(c)(9) in delisting EGUs. Government and Environmental Petitioners further contend that CAMR is inconsistent with provisions of section 111, and that both the Delisting Rule and CAMR should be vacated. Certain intervenors -- including various industry representatives, States, and state agencies -- join EPA in urging the lawfulness of the two rules.

The first rule removes coal- and oil-fired EGUs from the list of sources whose emissions are regulated under section 112 of the Clean Air Act (CAA), Revision of December 2000 Regulatory Finding (Delisting Rule), 70 FR 15,994 (3/29/05). The second rule sets performance standards for new coal-fired EGUs and establishes total mercury emissions limits for States and certain tribal areas, along with a voluntary cap-and-trade program for new and existing coal-fired EGUs. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units (CAMR), 70 FR 28,606 (5/1805).

The Appeals Court said, "Petitioners contend that the Delisting Rule is contrary to the plain text and structure of section 112. In response, EPA and certain intervenors rely on section 112(n), which sets special conditions before EGUs can be regulated under section 112, to justify the rule. We hold that the delisting was unlawful. Section 112 requires EPA to regulate emissions of HAPs. Section 112(n) requires EPA to regulate EGUs under section 112 when it concludes that doing so is 'appropriate and necessary.'"

The Appeals Court states further that, "In December 2000, EPA concluded that it was 'appropriate and necessary' to regulate mercury emissions from coal- and oil-fired power plants under section 112 and listed these EGUs as sources of HAPs regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these EGUs from the section 112 list. Thereafter it promulgated CAMR under section 111. EPA’s removal of these EGUs from the section 112 list violates the CAA because section 112(c)(9) requires EPA to make specific findings before removing a source listed under section 112; EPA concedes it never made such findings. Because coal-fired EGUs are listed sources under section 112, regulation of existing coalfired EGUs’ mercury emissions under section 111 is prohibited, effectively invalidating CAMR’s regulatory approach. Accordingly, the court grants the petitions and vacates both rules."

New Jersey Attorney General Anne Milgram issued a release saying, "In ruling as it did, the U.S. Court of Appeals for the District of Columbia agreed with New Jersey and other states, as well as numerous environmental petitioners that EPA cannot avoid its legal duty to promulgate strict limits on mercury emissions from all power plants -- and do so expeditiously. The ruling means elimination of the EPA’s cap-and-trade approach to regulating mercury emissions. Cap-and-trade allows power plants to purchase emissions reduction credits from other plants that have cut emissions below targeted levels, rather than meet strict emission levels by installing stringent pollution controls to reduce mercury emissions at their own plants."

Milgram added, “From the beginning we have maintained that the EPA adopted standards for regulating mercury, a dangerous neurotoxin, which were weak, ineffectual and ran counter to the clear intent of the Clean Air Act.” Milgram's release indicates that, "Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per year nationwide. EPA finalized its cap-and-trade system for regulating mercury emissions from power plants in May 2006 despite reports that called into question the conclusions underlying the rule. Research funded by the EPA itself found that wet mercury deposition rates from local coal-fired industrial sources were many times higher than EPA projections. The research, conducted in Steubenville, Ohio, bolstered arguments that there was significant potential for uncontrolled local emission sources to perpetuate mercury hot-spots."

Vickie Patton, an attorney with Environmental Defense, which along with Sierra Club and the National Wildlife Federation was represented by Earthjustice in the lawsuit said, “The federal court agrees with the American Medical Association that EPA's flawed mercury program for coal plants is hazardous to our health. This decision is a victory for the health of all Americans, but especially for our children who can suffer permanent brain damage from toxic mercury pollution.” Alice McKeown, coal analyst for the Sierra Club said, “Coal company claims of ‘clean coal’ will now be put to the test. These mercury pollution reductions will be an important trial run to see if coal is still viable in a cleaner energy future.” The environmental groups said that approximately 1,100 coal-fired units at more than 450 existing power plants account for the emissions of 48 tons of mercury annually. Yet only 1/70th of a teaspoon of mercury is needed to contaminate a 25-acre lake to the point where fish are unsafe to eat.

Access the complete 18-page opinion (click here). Access a release from the New Jersey AG (click here). Access a release from Environmental Defense (click here).