Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71868 & 07-72555. Petitioners Public Citizen, Inc., San Luis Obispo Mothers For Peace, the State of New York, and amicus State of California (Petitioners) challenge the Nuclear Regulatory Commission’s (NRC or Commission) modification of the Design Basis Threat (DBT) rule and partial denial of the Committee to Bridge the Gap’s (CBG) petition for rulemaking. Petitioners claim the Commission acted arbitrarily and capriciously and contrary to law by refusing to include the threat of air attacks in the final revised DBT rule. Petitioners also claim NRC violated the National Environmental Policy Act (NEPA) by not considering the risk of an airborne terrorist attack in its Environmental Assessment (EA), and that this risk creates a potentially significant impact on the environment necessitating a full Environmental Impact Statement (EIS). In a split, 2-1 decision, the Appeals Court denied the petition.
In denying the petition, the majority said in part, "Because the Commission acted within its discretion in concluding that air-based threats were beyond the scope of the DBT rule, however, it was unnecessary for the Commission to consider that decision as an alternative course within the scope of the rule. The Commission’s determination that air-based threats were outside the scope of the DBT rule distinguishes this case from a case like Center for Biological Diversity [538 F.3d at 1215], where we held an agency must consider a broad range of alternative actions within the scope of the rule at issue, beyond those alternatives the agency seriously considered. We decline to extend that holding to create a rule that ignores reasonable boundaries in the scope of an EA alternative action analysis. The Commission did not merely select among a range of options, but instead determined air-based threats were not properly addressed by the DBT rule. As noted above, this decision was within the Commission’s discretion and it need not include an analysis of airbased threats within the EA alternative action section."
The dissenting opinion states in conclusion, "Although we owe the NRC considerable deference, the NRC owes the public a rational and reasonable explanation why it would exclude from its rule consideration of terrorist air attacks on nuclear facilities. In the face of near-uniform scientific studies warning of serious risk, bare assurances by the NRC that we are safe do not satisfy this minimal agency burden."
Access the complete opinion (click here).
Tuesday, July 28, 2009
WildEarth Guardians v. US Forest Service
Jul 24: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1089. The appellant, Mountain Coal Company (MCC), owns and operates the West Elk Mine, a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado. After the United States Forest Service approved plans for venting methane gas from the mine, WildEarth Guardians brought suit against the Forest Service, the Department of Interior, and several of their officials under the Administrative Procedure Act, contending that the approval violated the National Environmental Policy Act (NEPA). MCC moved to intervene under Federal Rule of Civil Procedure 24.
The district court denied the motion and MCC appealed. Because “[a]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action,” Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of the Interior, 100 F.3d 837, 839 (10th Cir. 1996) (Coalition). The Appeals Court concluded that MCC is entitled to intervene as of right, and accordingly reversed the district court’s decision and remanded the case with instructions to grant MCC’s motion to intervene.
The Appeals Court ruled, "We are convinced that MCC has established a possibility of inadequate representation. . . the government has multiple objectives and could well decide to embrace some of the environmental goals of WildEarth. Therefore, MCC should not be required to rely on the defendants to represent its interests."
Access the complete opinion (click here).
The district court denied the motion and MCC appealed. Because “[a]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action,” Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of the Interior, 100 F.3d 837, 839 (10th Cir. 1996) (Coalition). The Appeals Court concluded that MCC is entitled to intervene as of right, and accordingly reversed the district court’s decision and remanded the case with instructions to grant MCC’s motion to intervene.
The Appeals Court ruled, "We are convinced that MCC has established a possibility of inadequate representation. . . the government has multiple objectives and could well decide to embrace some of the environmental goals of WildEarth. Therefore, MCC should not be required to rely on the defendants to represent its interests."
Access the complete opinion (click here).
Wednesday, July 22, 2009
River Runners For Wilderness v. Martin
Jul 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15112. The National Park Service entered a decision adopting a 2006 Colorado River Management Plan that the Plaintiff-Appellants contend is unlawful. Plaintiffs sought to have that decision set aside by the district court as arbitrary and capricious under the Administrative Procedure Act. The district court granted summary judgment to all defendants (i.e. Superintendent of Grand Canyon National Park, National Park Service, Department of Interior, et al).
The Appeals Court said, "The district court wrote an extensive and well-reasoned order, which is attached as an appendix. We agree with the order and adopt it as the opinion of our court." In its decision the district court explained that the case concerns the National Parks Service’s decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contended that such motorized activities impair the wilderness character of the Canyon and that the Park Service’s decision violates its management policies and various federal statutes. The district court ruled that for reasons which it explains in its order that, "Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA."
Access the complete opinion (click here).
The Appeals Court said, "The district court wrote an extensive and well-reasoned order, which is attached as an appendix. We agree with the order and adopt it as the opinion of our court." In its decision the district court explained that the case concerns the National Parks Service’s decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contended that such motorized activities impair the wilderness character of the Canyon and that the Park Service’s decision violates its management policies and various federal statutes. The district court ruled that for reasons which it explains in its order that, "Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA."
Access the complete opinion (click here).
Tuesday, July 21, 2009
California Trout v. FERC
Jul 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-73664, 07-74494 & 08-71593. According to the Ninth Circuit, the Supreme Court has long stressed that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress [has] confided the responsibility for substantive judgments.” [Citing: Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25 (1978)].
The Appeals Court said, "Agencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions. In this respect, an agency’s procedural rules operate much as our own rules of procedure do: we require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms. So long as an agency’s procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act (APA) and the Constitution, we are not free to 'improperly intrude[ ] into the agency’s decision-making process' and second-guess its administrative tradeoffs. Id. at 525.
In the instant case, petitioners California Trout (CalTrout) and Friends of the River (FOR) contend that the Federal Energy Regulatory Commission (FERC, the Commission) applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. The Appeals Court, in a split decision said, "Although petitioners have set forth evidence that their late intervention would not prejudice the Commission’s proceeding, under the circumstances we cannot find that the Commission’s decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate 'good cause' for its untimely motion. Because we find that the Commission reasonably determined that petitioners lacked good cause for their untimely attempt to intervene, we deny the petition for review."
In its final argument, the majority ruled, "Finally, we observe that the Commission’s procedural rules are no less important -- and, therefore, no less deserving of respect -- than our own code of procedure. Such rules provide for orderly decision-making and constitute advance notice of the process by which our institutions will conduct themselves. The petitioners knew the rules of the game and assumed the risks of their decision not to intervene. The Commission had no obligation, by statute or by rule, to provide relief for petitioners’ failure to intervene in a timely fashion."
The dissenting Justice said, "I respectfully dissent and would grant the petition because the Commission has erected an unreasonably high barrier to good cause for late intervention, and without explanation or justification has departed from its own precedent of routinely granting late intervention where there is no risk of prejudice. In denying Petitioners’ motions for late intervention, the Federal Energy Regulatory Commission (the Commission) has arbitrarily imposed a good cause requirement far more stringent than indicated by analogous precedent and at odds with the liberal standard it has applied consistently in similar cases. Moreover, it should not go unnoticed that in denying leave to intervene, the Commission has silenced any party wishing to advance Petitioners’ environmental concerns."
Access the complete opinion and dissent (click here).
The Appeals Court said, "Agencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions. In this respect, an agency’s procedural rules operate much as our own rules of procedure do: we require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms. So long as an agency’s procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act (APA) and the Constitution, we are not free to 'improperly intrude[ ] into the agency’s decision-making process' and second-guess its administrative tradeoffs. Id. at 525.
In the instant case, petitioners California Trout (CalTrout) and Friends of the River (FOR) contend that the Federal Energy Regulatory Commission (FERC, the Commission) applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. The Appeals Court, in a split decision said, "Although petitioners have set forth evidence that their late intervention would not prejudice the Commission’s proceeding, under the circumstances we cannot find that the Commission’s decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate 'good cause' for its untimely motion. Because we find that the Commission reasonably determined that petitioners lacked good cause for their untimely attempt to intervene, we deny the petition for review."
In its final argument, the majority ruled, "Finally, we observe that the Commission’s procedural rules are no less important -- and, therefore, no less deserving of respect -- than our own code of procedure. Such rules provide for orderly decision-making and constitute advance notice of the process by which our institutions will conduct themselves. The petitioners knew the rules of the game and assumed the risks of their decision not to intervene. The Commission had no obligation, by statute or by rule, to provide relief for petitioners’ failure to intervene in a timely fashion."
The dissenting Justice said, "I respectfully dissent and would grant the petition because the Commission has erected an unreasonably high barrier to good cause for late intervention, and without explanation or justification has departed from its own precedent of routinely granting late intervention where there is no risk of prejudice. In denying Petitioners’ motions for late intervention, the Federal Energy Regulatory Commission (the Commission) has arbitrarily imposed a good cause requirement far more stringent than indicated by analogous precedent and at odds with the liberal standard it has applied consistently in similar cases. Moreover, it should not go unnoticed that in denying leave to intervene, the Commission has silenced any party wishing to advance Petitioners’ environmental concerns."
Access the complete opinion and dissent (click here).
Friday, July 17, 2009
St. John's Organic Farm v. Gem County Mosquito Abatement
Jul 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35797. Plaintiffs Saint John’s Organic Farm and Peter Dill (collectively, Dill) filed suit under the citizen-suit provisions of the Clean Water Act (CWA) against the Gem County Mosquito Abatement District and Gem County (collectively, GCMAD). Dill alleged that GCMAD’s discharges of pesticides directly into the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit violated the CWA. Dill and GCMAD settled the suit.
The Settlement Agreement (Agreement) limited GCMAD’s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court. The district court denied Dill’s attorney’s fees application, holding under § 1365(d) that Dill was not a “prevailing or substantially prevailing party” and, in the alternative, that it was not “appropriate” to grant fees to Dill.
The Appeals Court reversed the district court decision holding "that Dill was a prevailing party under § 1365(d)." The case was remanded to the district court to consider whether fees are appropriate under the standard articulated in this opinion. In a separate concurring opinion one of the Justices explains, "we employ 'a two-pronged test to determine whether special circumstances exist to justify denying attorney’s fees.' . . .This test requires a showing whether (1) 'awarding the attorney’s fees would further the purposes' of the statute, and (2) 'the balance of equities favors or disfavors the denial of fees.'"
The Justice said further, ". . .the policy implications of today’s holding concern me. Courts should not be interpreting attorney’s fee requirements in such a way as to discourage settlement. If today’s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement."
Access the complete opinion (click here).
The Settlement Agreement (Agreement) limited GCMAD’s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court. The district court denied Dill’s attorney’s fees application, holding under § 1365(d) that Dill was not a “prevailing or substantially prevailing party” and, in the alternative, that it was not “appropriate” to grant fees to Dill.
The Appeals Court reversed the district court decision holding "that Dill was a prevailing party under § 1365(d)." The case was remanded to the district court to consider whether fees are appropriate under the standard articulated in this opinion. In a separate concurring opinion one of the Justices explains, "we employ 'a two-pronged test to determine whether special circumstances exist to justify denying attorney’s fees.' . . .This test requires a showing whether (1) 'awarding the attorney’s fees would further the purposes' of the statute, and (2) 'the balance of equities favors or disfavors the denial of fees.'"
The Justice said further, ". . .the policy implications of today’s holding concern me. Courts should not be interpreting attorney’s fee requirements in such a way as to discourage settlement. If today’s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement."
Access the complete opinion (click here).
Monday, July 13, 2009
Natural Resources Defense Council v. U.S. EPA
Jul 10: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-1045, consolidated with 06-1046, 06-1047, 06-1214, 07-1311. As explained by the Appeals Court, in 1997, the EPA revised the National Ambient Air Quality Standard (NAAQS) for ozone from a 1-hour standard to an 8-hour standard. These consolidated petitions for review challenge aspects of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Phase 2, 70 Fed. Reg. 71,612 (2005) (Phase 2 Rule), and Phase 2 of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Notice of Reconsideration, 72 Fed. Reg. 31,727 (2007) (Reconsideration Notice).
The Appeals Court ruled, "We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate. We further hold the EPA arbitrarily
eliminated one safeguard and violated the anti-backsliding provision of the Act insofar as it eliminated another from its regulations governing review of new sources of pollution. We therefore grant the petitions with respect to those aspects of the Phase 2 Rule.
"In view of our decision in North Carolina v. EPA, 531 F.3d 896 (2008) [See WIMS 7/14/08, & 1/5/09], in which we granted a petition for review of the Clean Air Interstate Rule (CAIR), we defer consideration of the Phase 2 Rule and Reconsideration Notice insofar as they relate to the CAIR program. We deny the petitions in all other respects."
Earthjustice filed the suit, representing the Natural Resources Defense Council (NRDC). The states of New Jersey, New York and Connecticut also joined in part of the challenge. In a release, NRDC said, "The U.S. Court of Appeals for the D.C. Circuit found the Environmental Protection Agency rules illegally let plants buy rights to pollute -- sometimes from plants hundreds of miles away -- instead of installing modern emission controls. The court also invalidated parts of the rule that weakened pollution limits for major new or expanded factories and power plants in cities with unhealthful air."
David Baron, Earthjustice attorney said, “Rejecting these waivers is a breath of fresh air to millions of Americans living in cities that violate clean air standards. The EPA rule let power plants pump uncontrolled air pollution into regions that already had dangerous smog levels. We said that violated the law, and the court agreed.”
NRDC indicated that the case grew out of an air pollution trading program aimed at reducing pollution that travels between states. The EPA rule overturned created loopholes by allowing power plants in already polluted communities to avoid installing controls by buying pollution credits from another plant that could be hundreds of miles away. Earthjustice argued that the waiver violated the Clean Air Act. Twenty-two states are members of this interstate program, and most of them contain areas that are already very polluted, officially known as “non-attainment areas.” These include cities like Chicago, Pittsburgh, Baltimore, New York and Philadelphia.
Access the complete opinion (click here). Access a release from NRDC (click here).
The Appeals Court ruled, "We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate. We further hold the EPA arbitrarily
eliminated one safeguard and violated the anti-backsliding provision of the Act insofar as it eliminated another from its regulations governing review of new sources of pollution. We therefore grant the petitions with respect to those aspects of the Phase 2 Rule.
"In view of our decision in North Carolina v. EPA, 531 F.3d 896 (2008) [See WIMS 7/14/08, & 1/5/09], in which we granted a petition for review of the Clean Air Interstate Rule (CAIR), we defer consideration of the Phase 2 Rule and Reconsideration Notice insofar as they relate to the CAIR program. We deny the petitions in all other respects."
Earthjustice filed the suit, representing the Natural Resources Defense Council (NRDC). The states of New Jersey, New York and Connecticut also joined in part of the challenge. In a release, NRDC said, "The U.S. Court of Appeals for the D.C. Circuit found the Environmental Protection Agency rules illegally let plants buy rights to pollute -- sometimes from plants hundreds of miles away -- instead of installing modern emission controls. The court also invalidated parts of the rule that weakened pollution limits for major new or expanded factories and power plants in cities with unhealthful air."
David Baron, Earthjustice attorney said, “Rejecting these waivers is a breath of fresh air to millions of Americans living in cities that violate clean air standards. The EPA rule let power plants pump uncontrolled air pollution into regions that already had dangerous smog levels. We said that violated the law, and the court agreed.”
NRDC indicated that the case grew out of an air pollution trading program aimed at reducing pollution that travels between states. The EPA rule overturned created loopholes by allowing power plants in already polluted communities to avoid installing controls by buying pollution credits from another plant that could be hundreds of miles away. Earthjustice argued that the waiver violated the Clean Air Act. Twenty-two states are members of this interstate program, and most of them contain areas that are already very polluted, officially known as “non-attainment areas.” These include cities like Chicago, Pittsburgh, Baltimore, New York and Philadelphia.
Access the complete opinion (click here). Access a release from NRDC (click here).
Greater Yellowstone Coalition v. Kimball
Jul 10: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-8083. Petitioners-Appellants Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, and Wyoming Outdoor Council (collectively GYC) sent a letter to the United States Forest Service (Forest Service”) and the United States Bureau of Land Management (BLM) requesting the agencies to undertake environmental analyses of Wyoming elk feedgrounds located on Federal land. In the letter, GYC alleged the environmental analyses were required pursuant to the National Environmental Policy Act (NEPA).
Unsatisfied with the agencies’ response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various Federal permitting regulations in connection with the feedgrounds’ authorizations. In addition to seeking review of the agencies’ actions, GYC requested injunctive relief requiring the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed the decision and the Appeals Court vacated the portions of the district court order that have become moot and affirmed the other portions.
The Appeals Court ruled further, "GYC’s claims as to the six feedgrounds included in the July 2008 environmental analysis are moot. We therefore vacate the portions of the district court opinion addressing those feedgrounds." Additionally, ". . .we conclude BLM’s actions with regard to the four Wyoming feedgrounds in question were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and affirm the district court’s denial of GYC’s request to compel BLM to undertake environmental analyses of these feedgrounds."
Access the complete opinion (click here).
Unsatisfied with the agencies’ response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various Federal permitting regulations in connection with the feedgrounds’ authorizations. In addition to seeking review of the agencies’ actions, GYC requested injunctive relief requiring the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed the decision and the Appeals Court vacated the portions of the district court order that have become moot and affirmed the other portions.
The Appeals Court ruled further, "GYC’s claims as to the six feedgrounds included in the July 2008 environmental analysis are moot. We therefore vacate the portions of the district court opinion addressing those feedgrounds." Additionally, ". . .we conclude BLM’s actions with regard to the four Wyoming feedgrounds in question were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and affirm the district court’s denial of GYC’s request to compel BLM to undertake environmental analyses of these feedgrounds."
Access the complete opinion (click here).
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