Earth Island Institute v. Carlton (USFS)

Nov 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16914. Earth Island Institute (Earth Island) appealed interlocutorily the district court's order denying its motion for a preliminary injunction seeking to enjoin the United States Forest Service (USFS) from conducting post-wildfire logging in the Plumas National Forest. The district court concluded: that the applicable forest plan required only the assessment of habitat for the black-backed woodpecker (woodpecker) at the project level; that the Forest Service met that requirement; that the Forest Service adequately responded to Earth Island's dissenting scientific opinions in the project adoption phases; and that the Forest Service's tree mortality guidelines were not legally enforceable. In a split decision, the Appeals Court majority affirmed the district courts decision.

 

    The majority concluded, "In short, the district court used the correct standard for analyzing Earth Island's likelihood of success on the merits and did not abuse its discretion in finding that Earth Island failed to show that it was likely to succeed on the merits of its NFMA claims. . . the district court correctly analyzed the likelihood of irreparable harm in sufficient depth without impermissibly conflating this with the other required factors. . . The court concluded that if the injunction was granted, the public would lose the immediate benefits of the reforestation efforts. It did not abuse its discretion in doing so."

 

    In a dissenting opinion, one of the Justices said, "The majority's denial of a preliminary injunction, like the district court's before it, rests on two fundamental errors. First, the majority concludes that the Forest Service has no obligation to ensure species viability in the Plumas National Forest despite numerous clear statements to the contrary in the Plumas National Forest Plan. Second, it concludes that the RHT Hazard Tree Marking Guidelines are not binding on the Forest Service despite the fact that the Forest Service itself acknowledges that they are. The district court rested its denial of a preliminary injunction almost entirely on its erroneous conclusions regarding Earth Island's likelihood of success on the merits. I would therefore grant a temporary injunction and remand to the district court to reconsider Earth Island's application. . ."

 

    Access the complete opinion (click here).

West Virginia Highlands Conservancy v. Huffman (WVDEP)

Nov 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1474. The West Virginia Department of Environmental Protection (WVDEP) appealed an injunction requiring it to obtain National Pollutant Discharge Elimination System permits under the Clean Water Act (CWA) for reclamation efforts at abandoned coal mining sites. The injunction was based on the district court's conclusion that the plain language of the CWA and applicable U.S. EPA regulations require such a permit. The Appeals Court said the trial court's ruling was correct.

 

    The text of the CWA, as well as the corresponding regulations issued by EPA, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. The Appeals Court said, "Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States. In fact, the statute contains no exceptions for state agencies engaging in reclamation efforts; to the contrary, it explicitly includes them within its scope. At bottom, WVDEP's arguments stem from little more than policy disagreements with the statutory text. Finding that to be an insufficient basis for deviating from the law as written, we affirm the judgment of the district court."

 

    The Appeals Court states further in its conclusion, "In sum, WVDEP's state law obligations to take over bond forfeiture sites and engage in reclamation efforts invoke Clean Water Act obligations to obtain NPDES permits. Permit requirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the problems private companies leave behind. Or WVDEP can address the other side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the bonds mining companies must post before beginning their work. Instead of availing itself of these various options, however, WVDEP asks us to bring about the very same results by misconstruing the Clean Water Act. There are better audiences for that invitation. We therefore affirm the judgment of the district court."

 

    Access the complete opinion (click here).

Akiak Native Community v. U.S. EPA

Nov 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-74872. Petitioner Akiak Native Community and other petitioners and intervenors (collectively Petitioners or Akiak) seek review of the approval by the United States Environmental Protection Agency (EPA) of the State of Alaska's application to assume responsibility for administration of portions of the National Pollutant Discharge Elimination System (NPDES), pursuant to section 402(b) of the Clean Water Act (CWA). Petitioners contend that EPA did not adequately ensure: (1) that Alaska state law will provide the same opportunities for judicial review of permitting decisions as required by federal law; (2) that the State has the necessary enforcement tools to abate permit violations; and, (3) that subsistence resources will be protected as mandated by the Alaskan National Interest Lands Conservation Act (ANILCA).

 

    In a split decision, the Appeals Court majority said, "We conclude that the EPA's decision to transfer authority to the State of Alaska was not arbitrary or capricious. Accordingly, we deny the petition for review." In part, the majority said, " The Supreme Court's recent decision in Home Builders [National Association of Home Builders v. Defenders of Wildlife (No. 06-340), See WIMS 6/26/07] provides guidance as to whether the EPA's transfer of the NPDES program to the State of Alaska triggers the requirement of a subsistence evaluation under ANILCA. In Home Builders, public interest groups challenged the EPA's transfer of the NPDES program to the State of Arizona, arguing that the EPA failed to consider the effects such transfer would have on endangered and threatened species under section 7(a) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a). 551 U.S. at 649. The Supreme Court held that requiring the EPA to comply with section 7(a) of the ESA would place the CWA and the ESA in conflict, for it would add a tenth criteria to the nine established criteria a state program must meet for transfer approval under section 402(b) of the CWA, 33 U.S.C. § 1342(b). Id. at 663-64. The Court noted that '§ 402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer "shall" be approved if the specified criteria are met.' Id. at 663. The Court concluded that requiring compliance with section 7(a) would "effectively repeal § 402(b)'s statutory mandate by engrafting a tenth criterion onto the CWA."

 

    The dissenting (in part) decision said, "I agree that the ANILCA provision and the lack of administrative penalties in Alaska law do not undermine the grant of NPDES authority from the EPA to the State of Alaska, but I strongly disagree with the majority's conclusion that Alaska's 'loser pays' attorney's fee system will not adversely affect the public's ability to bring state court challenges to permitting decisions."

 

    Access the complete opinion and dissent (click here). Access the Supreme Court decision in Home Builders, the Syllabus and the dissenting opinions (click here).

Animal Welfare Institute v. Martin, Commissioner

Oct 20: In the U.S. Court of Appeals, First Circuit, Case No. 09-2643. Appealed from the District Court of Maine in Bangor. The case is about the Canada lynx. The Endangered Species Act makes it unlawful to "take" a member of an endangered species. By regulation, it is also unlawful to "take" a "threatened" species, i.e. one likely to become endangered in the foreseeable future. The term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."

 

    The Canada lynx is a wild cat, weighing about 20 pounds, which eats small animals, particularly the snowshoe hare, and is most commonly found in Canada. It is not listed as an endangered species. In 2000, the U.S. Fish and Wildlife Service (FWS) of the federal Department of the Interior listed the Canada lynx as a "threatened" species throughout its U.S. range -- certain states contiguous to Canada, as well as certain Western states. In Maine, a listed state, Canada lynx are found primarily in the northern portion of the state, in state Wildlife Management Districts (WMD) 1 through 11. Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other furbearing animals.

 

    The appeal is from the district court's denial of plaintiffs' motion to enjoin Maine state officials from allowing the use of any foothold traps, which are used to legally trap other species, in WMDs 1 through 11. Plaintiffs argued this relief was necessary to prevent "incidental takes" of lynx in these traps. The district court held that plaintiffs had not shown irreparable injury, even recognizing the special emphasis in the Endangered Species Act (ESA) on protecting threatened species. The Appeals Court affirmed the district court decision.

 

     In its opinion, the Appeals Court indicated that the Animal Welfare Institute (AWI) argues the district court erred in not granting other relief, such as a new working group or new regulations. The Appeals Court said, "This argument fails because AWI expressly disavowed such remedies before the district court. It may well have done so for tactical reasons, preferring to stress the

inadequacy of other remedies in order to strengthen its case for injunctive relief against foothold traps. Parties are held to their choices and AWI's bait and switch tactics in the courts are to be deplored, not rewarded. The judgment for defendants is affirmed. Costs are awarded to defendants."

 

    Access the complete opinion (click here).

Sierra Club v. Abigail Kimbell (U.S. Forest Service)

Oct 18: In the U.S. Court of Appeals, Eighth Circuit, Case No: 09-1639, appealed from U.S. District Court for the District of Minnesota - Minneapolis. 

 

    In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest (the forest plan). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, Sierra Club) sought judicial review of the forest plan in the district court. As relevant to the appeal, Sierra Club argued that the Forest Service's assessment of the forest plan's environmental impacts violated the National Environmental Policy Act (NEPA). In particular, Sierra Club claimed that the Forest Service had failed to consider the plan's effects on the Boundary Waters Canoe Area Wilderness (BWCAW). The district court determined that the Forest Service had considered adequately the impacts on the nearby BWCAW wilderness area in accordance with NEPA, and therefore granted the Agency's motion for summary judgment. The Appeals Court affirmed the district court decision.

 

    In final summary, the Appeals Court said, ". . .the agency's clear intention to act with neutrality towards the BWCAW, the evaluation of specific impacts to the wilderness area (including certain 'edge effects'), and the inclusion of the BWCAW within broader environmental analyses persuade us that the Forest Service took the 'hard look' required of it under NEPA. We thus conclude that the Forest Service did not act arbitrarily or capriciously in its development of the FEIS [final environmental impact statement]."

 

    Access the complete opinion (click here).

U.S. v. State of New York & Cinergy Corp

Oct 12: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3344. More than a decade ago the Environmental Protection Agency brought this suit against affiliated owners (i.e. Cinergy et al) of a number of coal-fired electric power plants in the Midwest. The suit claims that Cinergy violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by modifying a number of the plants without first obtaining from the agency a permit that the agency contends was required by a regulation, 40 C.F.R. § 52.21(a)(2)(iii), because the modifications were "major" and would produce increases in emissions of nitrogen oxide and sulfur dioxide.

 

    Cinergy argued; the regulation does not require a permit for modifications unless they will increase the hourly rate at which a plant can emit pollutants, even if they will increase the plant's annual emissions by enabling the plant to be operated for more hours during the year. The district judge rejected Cinergy's interpretation. Without the required permit, Cinergy was liable for increased pollution caused by the modifications, and faced the prospect of an injunction that would require it to shut down the plants, plus civil penalties of $25,000 for each day that it had violated the permit requirement.

 

    Cinergy took an interlocutory appeal under from the judge's ruling on the hourly capacity versus actual-emissions interpretation of the regulation. The Appeals Court affirmed that district court decision, agreeing that the regulation required application of the actual emissions standard. United States v. Cinergy Corp., 458 F.3d 705 (7th Cir. 2006). However, the Appeals Court says that one point in that opinion is worth repeating because it bears on an issue in the present appeals.

 

    The Appeals Court indicates, "Cinergy's hourly-capacity interpretation would if adopted give a company that had a choice between making a physical modification that would increase the hourly emissions rate and one that would enable an increase in the number of hours of operation an incentive to make the latter modification even if that would produce a higher annual level of emissions. For that modification would elude the permit requirement and thus shelter the company from liability for the increased emissions. It would also distort the choice between rebuilding an old plant and replacing it with a new one. The Clean Air Act treats old plants more leniently than new ones because it is expensive to retrofit a plant with pollution-control equipment. Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 909 (7th Cir. 1990).

 

    "But there is an expectation that old plants will wear out and be replaced by new ones that will thus be subject to the more stringent pollution controls that the Act imposes on new plants. A spur to replacing an old plant is that aging produces more frequent breakdowns and so reduces a plant's hours of operation and hence its output unless the owner invests in continuous, and cumulatively costly, replacement of worn-out parts to keep the plant going. Cinergy's interpretation would if adopted have given the company an artificial incentive instead to renovate its old plants, and by so doing increase their hours of operation, rather than to replace the plants even if replacing them would cost less. For by renovating the plants rather than replacing them, the company could increase their output without having to invest in measures for preventing the enhanced output from generating increased pollution."

 

    The current case follows a jury trial where the verdict was mixed requiring fourteen modification projects at three plants which were at issue; the jury found liability with respect to four of the projects, all at Cinergy's plant in Wabash, Indiana, and all undertaken between 1989 and 1992. These modifications, the jury found, had been likely to increase the plant's annual emissions of sulfur dioxide and nitrogen oxide and therefore Cinergy should have sought a permit.

 

    However, on appeal, the Appeals Court ruled, "Without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution; for the government doesn't contest Cinergy's claim that if the testimony of the government's experts should have been excluded, Cinergy is entitled to judgment. Earlier we said that the government cannot prevail with respect to the plant's emissions of sulfur dioxide. Therefore the judgment must be reversed with instructions to enter judgment for Cinergy. The parties have made other arguments, but they are either too feeble to merit discussion. . . The cross-appeal is therefore dismissed, while the judgment in the government's favor is, as we said, reversed."

 

    Access the complete opinion (click here).

Western Watersheds v. Interior Board Of Land

Oct 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35708. In brief summary, the appeal involves the interplay between the issuance or renewal of Bureau of Land Management (BLM) grazing permits and the fee-shifting provisions of the Equal Access to Justice Act (EAJA). Western Watersheds Project (Western Watersheds) appeals a summary judgment determination that EAJA fees were not available to Western Watersheds because its environmental claims were brought in a grazing permit renewal proceeding. The Appeals Court agreed with the district court's reasoning and affirmed its decision. The Appeals Court concluded, "Because Western Watersheds' commendable efforts to insure environmental compliance occurred within a proceeding Congress excepted from EAJA recovery, we affirm the district court's determination in that regard."

   

    Access the complete opinion (click here).