Jan 31: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-2131. As explained by the Fourth Circuit, in 1933, Congress created the Tennessee Valley Authority (TVA) "in the interest of the national defense[,] for agricultural and industrial development, . . . to improve navigation in the Tennessee River[,] and to control the destructive flood waters in the Tennessee River and Mississippi River Basins." As part of its mission, the TVA operates coal-fired power plants in Tennessee, Alabama, and Kentucky.
The State of North Carolina brought a "common-law nuisance action" against the TVA, contending that these plants emit various pollutants which travel through the atmosphere into North Carolina, adversely impacting human health and environmental
quality. North Carolina seeks an injunction prohibiting the TVA from operating its plants in a harmful manner and requiring it to abate the alleged nuisance.
The TVA moved to dismiss North Carolina’s suit, arguing that it is barred by (1) the "discretionary function doctrine," (2) the Supremacy Clause, and (3) the holding of Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928). The district court rejected each of these arguments and denied the motion to dismiss. The district court then certified its decision for immediate appeal pursuant to 28 U.S.C. § 1292(b), and the Appeals Court accepted the appeal. The Appeals Court said, "The TVA now reasserts the same arguments it raised in the district court" and affirmed the decision of the district court. The case involved 20 intervening states supporting North Carolina. Two judges affirmed the opinion and one judge wrote an opinion concurring in part and dissenting in part.
In the case, the State of North Carolina sues TVA under the North Carolina common law of nuisance to enjoin the way that the TVA operates its coal-fired power plants in other States, namely Tennessee, Alabama, and Kentucky. North Carolina alleges that the "lawful emissions" from the TVA’s power plants in other States travel downwind and reach North Carolina airspace, where they damage human health and the environment in North Carolina. "Even though such emissions are regulated by and in compliance with the federal Clean Air Act and State law at the location of the plants," North Carolina contends that the emissions, whether permitted under applicable statutory laws, nonetheless create a public nuisance under North Carolina common law.
In his concurring/dissenting opinion, Judge Niemeyer explains, "The threshold question presented to us is whether the TVA, a federal agency, is immune from such a suit. Arguing that it is not, North Carolina points to waivers of immunity contained in the TVA Act, 16 U.S.C. § 831c. . . and in the Clean Air Act, 42 U.S.C. § 7418(a). . . The majority concludes that North Carolina may proceed under either waiver, as either is sufficiently broad to authorize North Carolina’s suit against the TVA. While I agree that the language of both statutes is sufficiently broad to authorize the district court to consider the North Carolina suit on its merits, I conclude that 16 U.S.C. § 831c must be read in light of the Constitution’s separation of powers doctrine, which precludes a suit challenging a governmental agency’s exercise of its discretionary functions. . ."
North Carolina's Attorney General Roy Cooper issued a brief statement saying, "Clean air is critical to our health and our economy. This ruling clears the way for us to make TVA clean up its pollution that’s dirtying our air and making North Carolinians sick.” He said North Carolina can now move forward with its suit seeking to get TVA to clean up air pollution from its power plants. Cooper filed suit against the TVA in January of 2006 seeking to stop "dirty air from TVA coal-fired power plants that harms North Carolina’s health, environment and economy." North Carolina’s case against TVA pollution is currently pending trial in federal district court in Asheville before United States District Judge Lacy H. Thornburg.
Access the complete majority opinion and the concurring/dissenting opinion (click here). Access the statement from AG Cooper (click here).
Friday, February 1, 2008
Friday, January 25, 2008
Contractors Equip. Maint. Co., Inc. v. Bechtel Hanford, Inc.
Jan 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35310. United Coastal Insurance Company (UCIC) appeals the district court’s order granting Bechtel Hanford, Inc.’s (Bechtel’s) motion for judgment on a supersedeas bond.
The case is the product of a breach of contract dispute in an environmental remediation project. Bechtel contracted with the United States Department of Energy (DOE) to perform environmental clean-up work at the Hanford Nuclear Reservation in Washington. P.W. Stephens Contractors, Inc. (PWS) entered a subcontract with Bechtel to work under Bechtel’s prime contract with DOE and obtained a performance bond from Acstar Insurance Co. (Acstar). When PWS defaulted on the subcontract, Contractors Equipment Maintenance Company, Inc., a second-tier subcontractor, sued Bechtel, PWS and Acstar. Bechtel subsequently filed cross-claims against PWS and Acstar.
Bechtel was awarded a judgment in 2004 against Acstar and PWS. Acstar obtained a supersedeas bond from UCIC and appealed the judgment against it. After the Ninth Circuit affirmed in part and reversed in part, Bechtel moved to collect the entire 2004 judgment from UCIC. The district court concluded that the supersedeas bond covered the judgment against both Acstar and PWS and granted Bechtel’s motion, ordering UCIC to pay the entire underlying judgment.
On appeal, UCIC claims that the bond secured only Bechtel’s judgment against Acstar. The Appeals Court said it agreed with UCIC that the bond secures only Acstar’s obligations on the underlying judgment and therefore reversed the district court decision. The Appeals Court said, "Because Acstar’s liability has been satisfied, we direct entry of judgment in favor of UCIC."
Access the complete opinion (click here).
The case is the product of a breach of contract dispute in an environmental remediation project. Bechtel contracted with the United States Department of Energy (DOE) to perform environmental clean-up work at the Hanford Nuclear Reservation in Washington. P.W. Stephens Contractors, Inc. (PWS) entered a subcontract with Bechtel to work under Bechtel’s prime contract with DOE and obtained a performance bond from Acstar Insurance Co. (Acstar). When PWS defaulted on the subcontract, Contractors Equipment Maintenance Company, Inc., a second-tier subcontractor, sued Bechtel, PWS and Acstar. Bechtel subsequently filed cross-claims against PWS and Acstar.
Bechtel was awarded a judgment in 2004 against Acstar and PWS. Acstar obtained a supersedeas bond from UCIC and appealed the judgment against it. After the Ninth Circuit affirmed in part and reversed in part, Bechtel moved to collect the entire 2004 judgment from UCIC. The district court concluded that the supersedeas bond covered the judgment against both Acstar and PWS and granted Bechtel’s motion, ordering UCIC to pay the entire underlying judgment.
On appeal, UCIC claims that the bond secured only Bechtel’s judgment against Acstar. The Appeals Court said it agreed with UCIC that the bond secures only Acstar’s obligations on the underlying judgment and therefore reversed the district court decision. The Appeals Court said, "Because Acstar’s liability has been satisfied, we direct entry of judgment in favor of UCIC."
Access the complete opinion (click here).
Wednesday, January 23, 2008
Natural Resources Defense Council v. U.S. EPA
Jan 22: In the U.S. Court of Appeals, DC Circuit, Case No. 07-1040. Cemtura Corporation and the American Chemistry Council were intervenors in the case [See WIMS 12/19/06]. In the case, Natural Resources Defense Council challenges U.S. EPA's 2007 “critical use” exemption for methyl bromide on the grounds that it applies an unreasonable interpretation of the Clean Air Act and that it is arbitrary and capricious in light of the United States’ agreements with other nations on reducing the use of methyl bromide and other ozone-depleting chemicals.
The 2007 exemption applied a framework that EPA adopted in a 2004 rule -- a rule that NRDC challenged previously and that the DC Circuit affirmed. [See NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006)]. The Appeal Court said that NRDC’s claim has not changed: in the first case it argued that the 2004 framework was invalid as adopted and applied to determine the 2005 exemption, and now it challenges the 2004 framework -- which EPA left unchanged -- as applied to determine the 2007 exemption. The Appeals Court said, "Under principles of claim preclusion, the first case bars NRDC’s new challenge."
The Appeals Court explained further, "A subsequent lawsuit is barred by claim preclusion 'if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.' Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). Because NRDC involved the same parties and proceeded to final judgment in this court, the current petition for review is precluded by our prior judgment if it involves “the same claims.” We hold that it does."
The Appeals Court ruled finally, "NRDC doesn’t get a second bite at that same apple. The petition for review is barred by the preclusive effect of our prior decision adjudicating its claims against EPA’s framework for adopting critical use exemptions."
Access the complete opinion (click here).
The 2007 exemption applied a framework that EPA adopted in a 2004 rule -- a rule that NRDC challenged previously and that the DC Circuit affirmed. [See NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006)]. The Appeal Court said that NRDC’s claim has not changed: in the first case it argued that the 2004 framework was invalid as adopted and applied to determine the 2005 exemption, and now it challenges the 2004 framework -- which EPA left unchanged -- as applied to determine the 2007 exemption. The Appeals Court said, "Under principles of claim preclusion, the first case bars NRDC’s new challenge."
The Appeals Court explained further, "A subsequent lawsuit is barred by claim preclusion 'if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.' Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). Because NRDC involved the same parties and proceeded to final judgment in this court, the current petition for review is precluded by our prior judgment if it involves “the same claims.” We hold that it does."
The Appeals Court ruled finally, "NRDC doesn’t get a second bite at that same apple. The petition for review is barred by the preclusive effect of our prior decision adjudicating its claims against EPA’s framework for adopting critical use exemptions."
Access the complete opinion (click here).
Monday, January 21, 2008
Nascimento v. Preferred Mutual Insurance Co.
Jan 18: In the U.S. Court of Appeals, First Circuit, Case No. 07-1792. Jack Nascimento appeals a district court judgment from the State of Massachusetts declaring that Preferred Mutual Insurance Company (Preferred Mutual) is under no contractual obligation to defend him in an environmental liability suit brought against him by his neighbors, Tiago and Maria Leal. The Appeals Court said, "We affirm, albeit on slightly different grounds than those relied upon by the district court."
On March 25, 2005, Nascimento placed a claim with Preferred Mutual requesting it to defend and indemnify him under his Commercial General Liability (CGL) policy effective from November 9, 1996 to November 9, 1997. On April 15, 2005, Preferred Mutual denied coverage under the CGL policy’s total pollution exclusion.
According to the Appeals Court, the district court based its decision solely on section f(2)(a) of the total pollution exclusion. The district court held that all of the damages claims set out in the Leal complaint involved remediation costs. Relying solely upon section (f)(2)(a), the district court held that the CGL policy excluded coverage for such "remediation damages." Nascimento, concedes that section (f)(2)(a) bars remediation damages, however, he says the Leal complaint seeks "both remediation and non-remediation damages."
Following the district court’s decision in this case and during the pendency of this appeal, the Massachusetts Supreme Judicial Court decided McGregor, in which "it interpreted the same total pollution exclusion clause as appears in Nascimento’s policy." Under McGregor, the total pollution exclusion in Nascimento’s CGL policy bars "all" of the Leals’ claims. McGregor holds that once the oil becomes a pollutant, the total pollution exclusion of the CGL policy is triggered and coverage for remediation and non-remediation claims is barred.
The Appeals Court concluded, "In this case, the home heating oil leaked from the UST Nascimento continuously used. The leak caused the pollution damage for which the Leals seek reimbursement. Therefore, section f(1)(a) of the total pollution exclusion was triggered, and Preferred Mutual has no duty to defend Nascimento in the Leal suit."
Access the complete opinion (click here).
On March 25, 2005, Nascimento placed a claim with Preferred Mutual requesting it to defend and indemnify him under his Commercial General Liability (CGL) policy effective from November 9, 1996 to November 9, 1997. On April 15, 2005, Preferred Mutual denied coverage under the CGL policy’s total pollution exclusion.
According to the Appeals Court, the district court based its decision solely on section f(2)(a) of the total pollution exclusion. The district court held that all of the damages claims set out in the Leal complaint involved remediation costs. Relying solely upon section (f)(2)(a), the district court held that the CGL policy excluded coverage for such "remediation damages." Nascimento, concedes that section (f)(2)(a) bars remediation damages, however, he says the Leal complaint seeks "both remediation and non-remediation damages."
Following the district court’s decision in this case and during the pendency of this appeal, the Massachusetts Supreme Judicial Court decided McGregor, in which "it interpreted the same total pollution exclusion clause as appears in Nascimento’s policy." Under McGregor, the total pollution exclusion in Nascimento’s CGL policy bars "all" of the Leals’ claims. McGregor holds that once the oil becomes a pollutant, the total pollution exclusion of the CGL policy is triggered and coverage for remediation and non-remediation claims is barred.
The Appeals Court concluded, "In this case, the home heating oil leaked from the UST Nascimento continuously used. The leak caused the pollution damage for which the Leals seek reimbursement. Therefore, section f(1)(a) of the total pollution exclusion was triggered, and Preferred Mutual has no duty to defend Nascimento in the Leal suit."
Access the complete opinion (click here).
Tuesday, January 15, 2008
National Mining Association v. Kempthorne
Jan 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-5199. The Appeals Court says, "The Secretary of the Interior has interpreted the phrase 'valid existing rights' in the Surface Mining Control and Reclamation Act to foreclose surface mining operations in sensitive areas. The National Mining Association [NMA] challenges this reading of the statute, but we conclude that we must defer to the Secretary’s reasonable interpretation of this ambiguous phrase."
In 1977, Congress enacted the Surface Mining Control and Reclamation Act (SMCRA), “to protect society and the environment from the adverse effects of surface coal mining operations.” Section 522(b) of the SMCRA authorizes the Secretary of the Interior (Secretary) to prohibit surface coal mining operations on Federal lands if he determines them to be unsuitable for that purpose. Section 522(e) bans outright surface mining in statutorily designated areas. In the appeal, D.C. Circuit is asked to determine how Congress intended that ban to work.
The relevant text of § 522(e) provides: "After August 3, 1977, and subject to valid existing rights no surface coal mining operations except those which exist on August 3, 1977, shall be permitted [in the statutorily designated areas]." The Appeals Court says, "Because one must show 'valid existing rights' (VER) to start a surface mining operation in a § 522(e) area, the meaning of the phrase is critical. For decades, the Secretary and the courts have wrestled with how best to understand VER and determine what it protects. We need not recount this history. Suffice it to say that VER has occasioned a spectrum of agency interpretations, ranging from a relaxed 'ownership and authority' standard, which required only that the miner show a property right in the coal, to a more exacting 'all permits' standard, which called for a showing that surface mining licenses had been issued prior to the date § 522(e) took effect."
In its final analysis the Appeals Court says, "At oral argument, the NMA did not claim that the government would be on the hook for a 'massive and unforeseen' sum, paid out to frustrated miners as just compensation... The record is devoid of evidence suggesting it is so. Given this implicit concession that the 1999 Rule will have relatively insignificant takings implications that can be readily addressed in the Court of Claims, there is no serious constitutional problem to be avoided. '[T]he avoidance canon is not applicable when the statute or regulation would effect a taking, if at all, only in certain situations.' Nat’l Mining Ass’n v. Babbitt, 172 F.3d 906, 917 (D.C. Cir. 1999). The usual Chevron analysis is therefore applied to the 1999 Rule, which results in our deferring to the Secretary’s reasonable interpretation of an ambiguous statutory term. The district court properly accorded Chevron deference to the Secretary’s interpretative rule. The judgment is affirmed."
Access the complete opinion (click here).
In 1977, Congress enacted the Surface Mining Control and Reclamation Act (SMCRA), “to protect society and the environment from the adverse effects of surface coal mining operations.” Section 522(b) of the SMCRA authorizes the Secretary of the Interior (Secretary) to prohibit surface coal mining operations on Federal lands if he determines them to be unsuitable for that purpose. Section 522(e) bans outright surface mining in statutorily designated areas. In the appeal, D.C. Circuit is asked to determine how Congress intended that ban to work.
The relevant text of § 522(e) provides: "After August 3, 1977, and subject to valid existing rights no surface coal mining operations except those which exist on August 3, 1977, shall be permitted [in the statutorily designated areas]." The Appeals Court says, "Because one must show 'valid existing rights' (VER) to start a surface mining operation in a § 522(e) area, the meaning of the phrase is critical. For decades, the Secretary and the courts have wrestled with how best to understand VER and determine what it protects. We need not recount this history. Suffice it to say that VER has occasioned a spectrum of agency interpretations, ranging from a relaxed 'ownership and authority' standard, which required only that the miner show a property right in the coal, to a more exacting 'all permits' standard, which called for a showing that surface mining licenses had been issued prior to the date § 522(e) took effect."
In its final analysis the Appeals Court says, "At oral argument, the NMA did not claim that the government would be on the hook for a 'massive and unforeseen' sum, paid out to frustrated miners as just compensation... The record is devoid of evidence suggesting it is so. Given this implicit concession that the 1999 Rule will have relatively insignificant takings implications that can be readily addressed in the Court of Claims, there is no serious constitutional problem to be avoided. '[T]he avoidance canon is not applicable when the statute or regulation would effect a taking, if at all, only in certain situations.' Nat’l Mining Ass’n v. Babbitt, 172 F.3d 906, 917 (D.C. Cir. 1999). The usual Chevron analysis is therefore applied to the 1999 Rule, which results in our deferring to the Secretary’s reasonable interpretation of an ambiguous statutory term. The district court properly accorded Chevron deference to the Secretary’s interpretative rule. The judgment is affirmed."
Access the complete opinion (click here).
Friday, January 11, 2008
Feldman v. Bomar (National Park Service)
Jan 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-55675. Richard Feldman, Robert Lee Puddicombe, and In Defense of Animals (IDA) (collectively Appellants) appeal the judgment in favor of the Nature Conservancy (TNC), the National Park Service (NPS), NPS’s director, and the Chief of Natural Resources Management at Channel Islands National Park (collectively Appellees) on their claims that Appellees violated the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) in adopting NPS’s program to restore and protect Santa Cruz Island by, in part, eradicating its feral pig population.
Appellants do not dispute that the pigs threatened Santa Cruz Island’s ecological and archeological infrastructure; however, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the
mainland, and they challenge NPS’s process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation, and because Appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, the Appeals Court granted Appellees’ motion to dismiss the appeal as moot. The Appeals Court said, "Appellees have met their heavy burden of demonstrating that 'no effective relief for the alleged violation[s] can be given,'" citing, Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).
Access the complete opinion (click here).
Appellants do not dispute that the pigs threatened Santa Cruz Island’s ecological and archeological infrastructure; however, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the
mainland, and they challenge NPS’s process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation, and because Appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, the Appeals Court granted Appellees’ motion to dismiss the appeal as moot. The Appeals Court said, "Appellees have met their heavy burden of demonstrating that 'no effective relief for the alleged violation[s] can be given,'" citing, Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).
Access the complete opinion (click here).
Friday, January 4, 2008
Bering Strait Citizens v. US Army Corps of Engineers
Jan 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35506. The appeal concerns a permit issued to Defendant-Appellee Alaska Gold Company (AGC), by Defendant-Appellee Army Corps of Engineers (the Corps) for a major gold-mining project near Nome, Alaska. The permit was issued pursuant to Section 404 of the Clean Water Act (CWA) which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. The project, known as the “Rock Creek Mine Project,” would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering and processing gold ore. Once the project is commenced, about 15,592,411 cubic yards of fill from the mine will be placed in wetlands totaling 346.5 acres.
Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, et al (collectively, BSC), allege that the Corps violated the CWA and the National Environmental Policy Act (NEPA) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. The Appeals Court concluded that the Corps complied with the requirements of the CWA and NEPA, and affirmed the judgment of the district court.
In its decision, the Ninth Circuit said regarding the CWA issues, "The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD [Permit Evaluation and Decision Document] reflects the Corps consideration of 24 different alternatives, including different placements of the mine pits and related facilities, alternative designs for the pits and tailings storage facilities, 'co-disposal' of tailings and development rock together, and relocation of access roads. After extensive consultation with AGC, the Corps determined that all alternatives were impracticable because the nearby uplands were too steep to stabilize the facilities, because the alternative designs would require the destruction of higher value wetlands, or would expand the project’s footprint, or because alternatives were cost prohibitive or undesirable for other reasons. This rationale is acceptable under the CWA."
On the NEPA issues the Appeals Court concluded, "The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law... On balance, we conclude that the Rock Creek Mine Project has no significant detrimental effect on the environment in and near Nome. Accordingly, the Corps was not required to prepare an EIS based on the issues raised by BSC or by the EPA."
Access the complete opinion (click here).
Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, et al (collectively, BSC), allege that the Corps violated the CWA and the National Environmental Policy Act (NEPA) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. The Appeals Court concluded that the Corps complied with the requirements of the CWA and NEPA, and affirmed the judgment of the district court.
In its decision, the Ninth Circuit said regarding the CWA issues, "The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD [Permit Evaluation and Decision Document] reflects the Corps consideration of 24 different alternatives, including different placements of the mine pits and related facilities, alternative designs for the pits and tailings storage facilities, 'co-disposal' of tailings and development rock together, and relocation of access roads. After extensive consultation with AGC, the Corps determined that all alternatives were impracticable because the nearby uplands were too steep to stabilize the facilities, because the alternative designs would require the destruction of higher value wetlands, or would expand the project’s footprint, or because alternatives were cost prohibitive or undesirable for other reasons. This rationale is acceptable under the CWA."
On the NEPA issues the Appeals Court concluded, "The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law... On balance, we conclude that the Rock Creek Mine Project has no significant detrimental effect on the environment in and near Nome. Accordingly, the Corps was not required to prepare an EIS based on the issues raised by BSC or by the EPA."
Access the complete opinion (click here).
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