Medina County Environmental v. Surface Transportation Board

Apr 6: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-60108. The Appeals Court explains that the petitioner, the Medina County Environmental Action Association (MCEAA), sought review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas, without meeting the prior approval requirements imposed by 49 U.S.C. § 10901.

 

    MCEAA petitioned the court directly for review of the Decision. At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS), complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was "not likely to jeopardize the continued existence of any endangered species" before approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA challenges the respondents' finding that the proposed rail and its "cumulative effects" are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County.

 

    The Appeals Court denied MCEAA's petition for review of the Decision and also denied a separate motion to supplement the administrative record. The Appeals Court ruled, "The information that MCEAA urges from the proffered documents can be reduced to a simple proposition: When the golden-cheeked warbler's habitat is marginalized or destroyed by what MCEAA refers to as the 'edge effects' of development -- for example, land clearing, noise, lighting, and vibration -- the warbler will move, if possible, to an area where the habitat is better. All of the survey evidence available to the STB and FWS, however, showed that there were no listed species in the proposed rail and Phase One area -- rendering any analysis of whether the rail line and quarry activities would drive them out of that area superfluous.

 

    "Furthermore, the EIS documents discussed the quality and extent of potential habitat in the proposed rail and Phase One areas and gave extensive consideration to how construction and operations could proceed while best preserving the small amount of 'low quality' habitat present in the Phase One area. The documents with which MCEAA proposes to supplement the administrative record do not contain information potentially adverse to the Decision and do not set out additional factors that the STB and FWS failed to consider. Accordingly, we deny the motion to supplement the administrative record."

 

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Natural Resources Defense Council, Inc. v. FAA

May 1: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5267. The Panama City-Bay County Airport and Industrial District (the sponsor), a state-chartered entity that owns and operates Panama City-Bay County International Airport proposed to close the existing airport at Panama City FL and to construct a new airport in western Bay County (the West Bay Site). Pursuant to the Airport and Airway Improvement Act (AAIA), the Sponsor sought and obtained approval for the construction project from the Federal Aviation Administration (FAA).

Petitioners Natural Resources Defense Council et al (NRDC) challenged the FAA's decision as a violation of the AAIA and the National Environmental Policy Act (NEPA), and requested that the court enjoin the FAA from implementing its decision. The Appeals Court concluded that, "Because the FAA's decision is not 'arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law,' we deny the petition for review and the relief sought therein."

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Moshe Leib v. Hillsborough County Public Transportation

Feb 19: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-14271. Moshe Leib (Leib) appealed from the district court’s dismissal of his suit, brought under 42 U.S.C. § 1983, against the Hillsborough County Public Transportation Commission (HCPTC, or the Commission) for denying him permission to operate a Toyota Prius as one of the limousines offered by his transportation service. Leib argues that the HCPTC violated his due process and equal protection rights, and that the Commission’s rules are unconstitutionally vague and impermissibly burden interstate commerce. The district court dismissed Leib’s complaint under Rule 12(b)(6) and the Appeals Court affirmed the decision.

Leib owns and operates TB Limo.com, a limousine service in the Tampa Bay area. Seeking to offer customers an "environmentally-friendly” alternative to traditional limousines, Leib bought a Prius. In order to operate the Prius as a limousine within Hillsborough County, Leib had to obtain a permit from the HCPTC, the administrative agency charged by the Florida State Legislature with regulating the operation of public vehicles on Hillsborough County’s public highways. The Commission denied Leib’s request on the ground that the Prius did not qualify as a “luxury” vehicle, and thus did not meet the definition of “limousine” in HCPTC Taxi Rule 1.15. A subsequent waiver request was also denied by HCPTC.

The Appeals Court said, ". . .Leib’s argument rests on a factual mistake: he argues that 'environmentally-friendly passengers that desire to utilize ecologically superior transportation are left with no alternative options whatsoever as a result of the HCPTC’s complete prohibition of eco-friendly vehicles for use as limousines.' This is simply false: an environmentally-friendly vehicle may qualify as a limousine so long as it meets Rule 1.15’s luxury and other requirements. Accordingly, Leib’s interstate commerce claim was properly dismissed."

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Town of Marshfield v. Federal Aviation Administration

Dec 18: In the U.S. Court of Appeals, First Circuit, Case No. 07-2820. The Federal Aviation Administration (FAA) has authority to prescribe aircraft approach and departure patterns in order to minimize noise and ensure safety. In 2002, the agency approved a change in the runway layout of Logan Airport in Boston to include a new runway and, at the same time, began a study of improved noise abatement measures. The outcome was the "Boston Overflight Noise Study" (BONS), conducted with advice and participation by various organizations.

In implementing BONS, FAA adopted some of the report's "phase I" measures for the rerouting of aircraft to increase use of Logan approaches and departures over the ocean with shoreline crossings at higher altitudes. In finding that these measures required no environmental assessment (EA) or environmental impact statement (EIS), the FAA relied upon noise studies to measure the impact on surrounding communities. The Town of Marshfield, MA, opposed the new phase 1 measures, arguing that the new flight patterns would adversely affect its residents and sought review of the FAA's decision claiming violations of the National Environmental Policy Act (NEPA), the Federal Advisory Committee Act (FACA), and the FAA's own rules.

In analyzing the NEPA issues and denying the petition for review, the Appeals Court determined that FAA's noise exposure finding "is adequately based." Additionally, the Appeals Court said, "Marshfield seems to assert that an EA or EIS was required so long as the phase 1 measures were 'highly controversial,' which it regards as covering any introduction of new noise over inhabited areas and with opposition by a town or city. Although FAA Order 10501.1E, para. 304, uses the phrase 'highly controversial,' it makes clear that controversy is not decisive but is merely to be weighed in deciding what documents to prepare."

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South Carolina Wildlife Federation v. Limehouse

Dec 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1431. The South Carolina Wildlife Federation and co-plaintiffs (collectively SCWF) brought suit against Federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act (NEPA), arising from the proposed construction of the Briggs-DeLaine-Pearson Connector (the Connector) in South Carolina.

The Appeals Court notes that relevant to the appeal, the Director of the South Carolina Department of Transportation (the Director), who was sued in his official capacity, moved to dismiss the case on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director’s motion, and he filed this interlocutory appeal. The Appeals Court affirmed the district court decision.

In its analysis, the Appeals Court said, "We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members’ ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes." The Appeals Court also said that SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns."

The Appeals Court cited the now famous, historic global warming Supreme Court case Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) [See WIMS 4/2/07] saying, "the redressability of an injury to a procedural right turns on the potential impact of the court’s action on the injury-causing party. Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) (requiring that a litigant seeking to vindicate a procedural right show 'some possibility that the requested relief will prompt the injury-causing party to reconsider' the decision). The Appeals Court concluded, "The district court properly found that SCWF stated a cause of action for prospective relief under NEPA and that the Director was party to the suit. Accordingly, we affirm the order of the district court."

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Andrews v. Columbia Gas

Oct 10: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3632. The case involved a property agreement initiated in 1947 with previous owners to allow an Ohio gas company to construct and maintain gas pipelines. Until 2004, Columbia Gas (current owner) made no efforts to clear a right of way around its pipelines on plaintiffs’ property. In June 2004, a work crew informed Donald Andrews that the location of the pipeline required them to remove a stand of the pine trees on his property and Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately eighty feet. In April 2005 the company informed plaintiff that the company planned to enter the property and remove the trees.

Plaintiffs filed suit in Licking County Court and the company removed the action to the U.S. District Court for the Southern District of Ohio based on diversity jurisdiction. After trial, the magistrate judge entered judgment in favor of Columbia Gas. Plaintiffs appealed making four arguments: (1) that the magistrate judge incorrectly construed the right of way agreement as granting Columbia Gas a fifty-foot easement to operate and maintain each of its pipelines on plaintiffs’ property; (2) that the doctrines of laches, estoppel, and waiver, as well as the statute of limitations, precluded Columbia Gas from clearing the right of way forty years after the trees were planted; (3) that they are entitled to damages for the removed trees; and (4) challenging the district court’s denial of their motion for additional time to serve a jury demand. After review of all plaintiff claims, the Appeals court affirmed the decision of the district court.

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Center For Biological Diversity v. NHTSA

Aug 18: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-71891, 06-72317, 06-72694, 06-73807, and 06-73826. The Appeals Court vacated and withdrew its opinion filed on November 15, 2007 [See WIMS 11/15/07] and denied respondents’ petition for an en banc rehearing as moot. The Appeals Court replaced its opinion filed simultaneously with an order and new opinion.

In the original case before the Appeals Court, eleven states, the District of Columbia, the City of New York, and four public interest organizations petitioned for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 Fed. Reg. 17,566 (Apr. 6, 2006) (Final Rule) (codified at 49 C.F.R. pt. 533). Pursuant to the Energy Policy and Conservation Act of 1975 (EPCA), 49 U.S.C. §§ 32901-32919 (2007), the Final Rule sets corporate average fuel economy (CAFE) standards for light trucks, defined by NHTSA to include many Sport Utility Vehicles (SUVs), minivans, and pickup trucks, for Model Years (MYs) 2008-2011. For MYs 2008-2010, the Final Rule sets new CAFE standards using its traditional method, fleet-wide average (Unreformed CAFE). For MY 2011 and beyond, the Final Rule creates a new CAFE structure that sets varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix (Reformed CAFE).

The Petitioners, the Center For Biological Diversity (CBD), et al, argued that NHTSA's Final Rule was arbitrary, capricious and contrary to the EPCA; that the Environmental Assessment was inadequate; and a full Environmental Impact Statement was required. NHTSA disputed all charges. The Ninth Circuit ruled in the original opinion that, "the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (GVWR) class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement."

In its new order and opinion, the Ninth Circuit the Ninth Circuit Court of Appeals denied the Administration’s request to revisit the court’s November 2007 decision. The ruling was based in part on the administration’s failure to analyze the impact of the standards on greenhouse-gas emissions and global warming. Existing law requires the administration to set fuel-economy standards at the “maximum feasible level” and to fully analyze the environmental consequences of the standards chosen. In a release, CBD commented on the ruling saying, ". . .the court affirmed the decision in every significant respect, making only minor modifications.

Among other changes, the Ninth Circuit clarified that NHTSA must promulgate new standards as expeditiously as possible and prepare "either a revised Environmental Assessment or an Environmental Impact Statement." [emphasis added] On this issue the Appeals Court said, "The distinction -- between cases where it is appropriate to order immediate preparation of an EIS and those where it is not -- is implicit in this circuit’s NEPA jurisprudence, and has been explicitly recognized elsewhere. . . So, if there is uncertainty over whether the proposed project may have a significant impact, including uncertainty caused by an incomplete administrative record or an inadequate EA, the court should ordinarily remand for the agency to either prepare a revised EA or reconsider whether an EIS is required. . . Whether to require an EIS now is a very close question. Petitioners’ evidence demonstrates, overwhelmingly, the environmental significance of CO2 emissions and the effect of those emissions on global warming. How NHTSA can, on remand, prepare an EA that takes proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact is questionable. . . We nonetheless give the benefit of the doubt to NHTSA and decline to order the immediate preparation of an EIS . . ."

Kassie Siegel, climate program director for the Center for Biological Diversity and an attorney on the case said, “As the Court of Appeals has affirmed, the law requires the Bush administration to set fuel-economy standards at the maximum feasible level in order to conserve oil, reduce greenhouse gas pollution, and protect consumers from increasing energy prices.Yet the administration’s current proposal still allows oil use and greenhouse gas emissions to spiral upwards while protecting nothing but the profits of the oil and auto industries.”

In the release including a chart of the Administration's Proposed Fuel Economy Standards for MY 2011-2015, Mickey Moritz, another CBD staff member said, “According to the Bush administration, we should strive to achieve lower fuel economy in 2015 than cars on the road achieve today. We can and must do better, and we will hold this administration accountable for complying with the law and requiring automakers to provide state-of-the-art, fuel-efficient vehicles.” CBD said, "The administration kept the proposed standards low by employing numerous assumptions that defy common sense and violate the law."

For example, CBD indicates that Administration officials assumed that gas will cost $2.36 per gallon in 2020 and $2.51 in 2030, whereas increasing gas prices by 88 cents per gallon in 2016 would have increased the gas-mileage standard by nearly 7 mpg for passenger cars. The officials also assumed that technological solutions available today, such as the use of plug-in hybrids and electric vehicles, could not be employed by automakers for model years 2011-2015. And the officials assumed that automakers "need not and would not change" their existing vehicle redesign schedules in order to provide more fuel-efficient vehicles. The NHTSA's comment period on its Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards also ended on August 18.

Access the complete opinion (click here). Access a release from CBD with links to additional information (click here). Access the NHTSA's docket including its notice, supporting information and public comments (click here).

U.S. v. Wilderness Society

May 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-15596. As explained by the Appeals Court, this is a dispute over the status of a road on U.S. Forest Service land in Elko County, Nevada. The case was before the Ninth Circuit for the first time in 2002. See United States v. Carpenter, 298 F.3d 1122 (9th Cir. 2002). At that time, the intervenor-appellant environmental groups wanted to object to the terms of a proposed settlement between the United States and Elko County that effectively allowed the County to repair the road. The Appeals Court ordered the district court to grant the motion to intervene.

The intervenor-appellants are now back, claiming that the district court disregarded the Appeals Court mandate by not permitting them to intervene in the Quiet Title Act portion of the suit that was the subject of the proposed settlement and therefore was the critical part of the litigation. The district court, after the Appeals Court decision, permitted the intervenor-appellants to appear only as amici during the settlement approval proceedings; it denied their motion to participate in an evidentiary hearing. After the hearing, the court ruled against their position on the merits without, in appellants’ view, permitting them adequate participation. The intervenor-appellants Appealed and requested the Ninth Circuit not only to vacate the approval so they can fully present their position, but they also request the Appeals Court to reach the merits and rule in their favor.

For their part, the United States and the County defend the settlement, contending that the intervenors’ participation was adequate because the district court properly, in appellees’ view, ruled that the intervenors lacked standing to participate as a party in the quiet title proceedings in light of their lack of any property interest in the disputed right of way for the road. The Appeals Court ruled, "pursuant to our earlier mandate, we hold that the district court must permit the intervenors to participate as parties in advocating their position in the Quiet Title Act action. We must vacate the settlement approval to effectuate that result. We also hold that the intervenors’ cross-claims are reviewable under the APA. The approval of the settlement of the Quiet Title Act claim is vacated, as is the district court’s order denying the appellants’ motion to intervene. The district court’s dismissal of the appellants’ cross-claims is reversed. The case is remanded for further proceedings consistent with this opinion."

Access the complete opinion (click here).

Michigan Gambling Opposition v. Kempthorne

Apr 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5092. As explained by the Appeals Court, in 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Allegan County, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Tribe), to construct and operate a Class III casino. The decision followed Federal recognition of the Tribe in 1998.

A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.

As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.

MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.

The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."

Access the complete opinion (click here).