Association of Irritated Residents v. EPA

Feb 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-71383. On Petition for Review of an Order of the U.S. EPA. The Association of Irritated Residents, Natural Resources Defense Council, and others petition for review of a final action by EPA approving in part and disapproving in part revisions to California's State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. The Appeals Court granted the petition for review and remanded the case to EPA for further consideration.

 

    In summary, the Appeals Court said, "EPA's approval of the 2003 SIP Revision was arbitrary and capricious. EPA should have ordered California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan. EPA should have required transportation control measures. EPA is required to determine whether the Pesticide Element has sufficient

enforcement mechanisms to satisfy the requirements of the Act. We grant the petition for review and remand to the EPA for further proceedings consistent with this opinion."

 

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Ocean County Landfill Corp v. US EPA

Feb 2: In the U.S. Court of Appeals, Third Circuit, Case No. 09-2937. On Petition for Review from the U.S. EPA Region II. U.S. EPA issued a letter opining that facilities operated by Ocean County Landfill Corporation (OCLC) and Manchester Renewal Power Holdings (MRPC) were under common control for the purposes of air emissions permitting. OCLC challenged that determination under subsection 307(b)(1) of the Clean Air Act. See 42 U.S.C. § 7607(b) (providing for judicial review of any "final action" by the EPA). The EPA moved to dismiss for lack of subject matter jurisdiction. The Appeals Court granted the EPA motion.

 

    The Appeals Court ruled, "the EPA's common control determination is not "final action" within the meaning of 42 U.S.C. § 7607(b). Therefore, we lack jurisdiction to hear OCLC's petition for review, and grant the motion to dismiss it."

 

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California Wilderness Coalition v. US Department of Energy

Feb 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-71074, 08-71823, 08-71829, 08-71831, 08-71845, 08-71870, 08-71872, 08-71884, 08-71908, 08-72423, 08-72644, 08-72835. In this case Petitioners including The Wilderness Society, Natural Resources Defense Council, California Wilderness Coalition, and many more environmental organizations, combined with Petitioner states including Pennsylvania, New Jersey, and Virginia; with Respondents United States Department of Energy and many Respondents-Intervenors including Allegheny Energy, Inc., American Public Power Association, Edison Electric Institute, Monongahela Power Company, and many more -- thirteen petitions in all for review challenge the Department of Energy's (DOE) implementation of the Energy Policy Act of 2005 (EPAct), which added a new section 216 to the Federal Power Act (FPA), codified as 16 U.S.C. § 824p (sometimes referred to as § 216).

 

    Petitioners offer three distinct challenges to DOE's actions: (1) DOE failed to consult with the affected States in undertaking the Congestion Study as required by § 824p(a)(1); (2) DOE failed to properly consider the potential environmental consequences of its designation of national interest electric transmission corridors (NIETCs); and (3) DOE's actual designations of the Mid-Atlantic Area National Corridor and the Southwest Area National Corridor are arbitrary, capricious, and not supported by the evidence.

 

    The Appeals Court in a split decision ruled, "We determine that DOE failed to properly consult with the affected States in conducting the Congestion Study and failed to undertake any environmental study for its NIETC Designation as required by the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(C). We also determine that these failings were not harmless errors. Accordingly, we vacate the Congestion Study and NIETC designation and remand the cases to the DOE for further proceedings. Because we vacate the NIETC designation, we do not consider the merits of petitioners' challenges to the specific national corridors other than as necessary to determine that DOE's failures to consult and to undertake an environmental study were not harmless errors."

 

    In the dissent, one Justice indicates, "This is a tale of two errors. First, the DOE erred by not consulting with affected states at the threshold of a massive, yearlong, nationwide study of electric transmission congestion. But this error was harmless. Petitioners have not shown that DOE's error prevented them from submitting information or making arguments to DOE, nor have they shown that DOE would have made a different decision absent the error. In short, they have failed to offer even a scintilla of evidence to establish prejudice. Under controlling Supreme Court precedent, therefore, we must uphold DOE's actions. Shinseki v. Sanders, 129 S.Ct. 1696, 1704-06 (2009).

 

    "But here is where the second error comes in, namely, the majority's ruling that DOE must complete the entire process again even though its consultation error caused no harm. Instead of recognizing that Sanders rejected the presumption of prejudice articulated in Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992), the majority employs this discredited approach to nullify DOE's efforts. In doing so, the majority inflicts the only real injury in this saga. I respectfully dissent."

 

    Access the complete opinion and dissent (beginning page 70 of 88) (click here).

Chico Service Station, Inc. v. Sol Puerto Rico Ltd.

Jan 26: In the U.S. Court of Appeals, First Circuit, Case No. 10-1200. Appealed from the U.S. District Court of Puerto Rico, San Juan. As explained by the Appeals Court, "This appeal requires us to assess the propriety of Burford abstention in a citizen suit under the federal Resource Conservation and Recovery Act (RCRA). Appellants Chico Service Station, Inc. and José Chico brought the suit in an effort to force the cleanup of contamination caused by leaking underground storage tanks (USTs) at a former gasoline filling station. Their citizen suit represents the latest in a long-running series of proceedings aimed at addressing contamination at the site. In addition to an investigatory proceeding at the Puerto Rico Environmental Quality Board (EQB) that has been ongoing since leaks were discovered in the early 1990s, appellants have filed two lawsuits in commonwealth courts over the past decade related to the contamination of the site."

   

    The Appeals Court said, "The pendency of these parallel state administrative proceedings led the district court to abstain from hearing the appellants' federal citizen suit, ordering dismissal on the authority of Burford v. Sun Oil Co., 319 U.S. 315 (1943). Application of the Burford abstention doctrine to RCRA citizen suits is an issue of first impression in this circuit. On careful

consideration, we find abstention to be inappropriate, and we therefore vacate the district court's judgment."

    In summary the Appeals Court said, "The circumstances that can sustain a federal court's abstention from the duty to exercise jurisdiction are rare. This is particularly true for citizen suits brought under RCRA. In light of the important federal interests at stake and the care with which Congress delineated the situations in which RCRA citizen suits will be barred, only exceptional circumstances could justify abstention. Because such circumstances are not present here, the district court erred in abstaining. Moreover, we conclude that neither the diligent prosecution bar nor mootness can independently support the district court's dismissal of Chico's suit. We must therefore vacate the judgment of the district court. Costs shall be awarded to the appellants."

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El Paso Natural Gas Company v. USA

Jan 28: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-5080 & 10-5090. The case concerns two sites on Navajo tribal lands that the Navajo Nation alleges were contaminated by World War II and Cold War era uranium mining. Pursuant to the Uranium Mill Tailings Remediation and Control Act (UMTRCA), which created a mechanism to cleanup after such activities, the Navajo Nation asked the Department of Energy to remediate both sites. The department refused, and the district court declined to review that decision, relying on a provision of UMTRCA stating that "designations made, and priorities established, by the Secretary under this section shall be final and not subject to judicial review." The Appeals Court affirmed the district court decision saying, ". . .this action falls squarely within UMTRCA's bar on judicial review. . ." 

 

    The Appeals Court said the Navajo Nation. urged the court to employ the "canon of statutory interpretation directing courts to liberally construe statutes in favor of Native Americans." The Appeals Court said, "This canon, however, has force only where a statute is ambiguous. . . and as we have explained, section 7912(d), read in light of UMTRCA's other provisions, is unambiguous."

 

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Northern California River Watch v. Wilcox

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15780, appealed from United States District Court for the Northern District of California. Northern California River Watch (River Watch) appeals the district court's grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively Defendants). River Watch contends that Defendants violated the Endangered Species Act (ESA). Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to "take" a listed plant on areas under federal jurisdiction.

 

    The district court granted Defendants' motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were "areas under Federal jurisdiction." The Appeals Court consider the meaning of the term "areas under Federal jurisdiction" as used in ESA § 9. River Watch argued that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as "waters of the United States" by the Army Corps of Engineers.

 

    The United States, representing the interests of the Department of the Interior's Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that the Appeals Court must apply the deference principles set forth in Chevron, U.S.A.,

Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an "area[ ] under Federal jurisdiction."

 

    The Appeals Court indicates that, "Although we agree that the term 'areas under Federal jurisdiction' is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (FWS), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that 'areas under Federal jurisdiction' does not include the privately-owned land at issue here. We therefore agree with the district court's ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants."

 

    The Appeals Court said additionally, "We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret 'areas under Federal jurisdiction' as not including all of the 'waters of the United States' as defined by the CWA and its regulations. Although our ruling will constitute 'binding law,' we recognize that under Brand X, we are not the 'authoritative interpreter' of 'areas under Federal jurisdiction.' See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'

 

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Precon Development Corporation v. US Army Corps

Jan 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-2239. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. As explained by the Appeals Court, the appeal arises out of a determination made by the Army Corps of Engineers (the Corps) that it has jurisdiction, under the Clean Water Act (CWA), over 4.8 acres of wetlands located on Precon Development Corporation's (Precon's) property, approximately seven miles from the nearest navigable water. The Corps subsequently denied Precon's application for a CWA permit to impact the wetlands through development.

 

    Precon appealed the determinations to the United States District Court for the Eastern District of Virginia under the Administrative Procedure Act (APA), 5 U.S.C. § 702, and the parties crossmoved for summary judgment. The district court granted

summary judgment to the Corps on September 4, 2009, upholding both its jurisdictional determination and its permit denial.

 

    On appeal, Precon challenged only the Corps' jurisdictional determination. The Appeals Court said, "Because we find the Corps' administrative record inadequate to support its conclusion that it had jurisdiction over Precon's wetlands, we vacate the district court's grant of summary judgment and remand to the district court with instructions to remand to the Corps for reconsideration of its jurisdiction over the wetlands in question."

 

    The Appeals Court explained further, ". . .we reverse the district court's holding that the Corps' administrative record adequately demonstrated that a significant nexus existed here, and remand to the Corps for reconsideration of its significant nexus determination. Cf. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 57 (1983) (remanding for further agency consideration when the agency's view of the facts was accepted but the Court 'appreciate[d] the limitations of th[e] record in supporting the agency's decision'); Cook v. Heckler, 783 F.2d 1168, 1174 (4th Cir. 1986) (remanding for further consideration where it was 'impossible to conclude that there [was] substantial evidence to support the Secretary's determination'). In doing so, we do not intend to place an unreasonable burden on the Corps. We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows us to meaningfully review the significance of the wetlands' impacts on downstream water quality."

 

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