Chamber Of Commerce Of The U.S. v. EPA

In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1237. On Petition for Review of an Order of the U.S. EPA. In this high-profile case which included the National Automobile Dealers Association (NADA) as an additional named petitioner, and the Commonwealth of Massachusetts and many other states as respondents, with additional amicus curiae briefs on behalf of both sides, the Appeals Court ruled, without addressing the merits of the case, in favor of EPA for "clean car standards" adopted by California and, later, thirteen more states and the District of Columbia.

 

    In their brief summary of the case, the Appeals Court said, "The Chamber of Commerce and the National Automobile Dealers Association petition for review of a decision by the Environmental Protection Agency (EPA) granting California a waiver from federal preemption under the Clean Air Act. The waiver allows California to implement its own regulations requiring automobile manufacturers to reduce fleet-average greenhouse gas emissions from new motor vehicles sold in the state. Because we lack jurisdiction to decide this case at this time in a suit brought by these petitioners, we dismiss the petition for review without reaching its merits."

 

    The opinion explains the history of the Clean Air Act and the provision that allowed the California waiver to adopt standards more strict than EPA's. Additionally, how EPA earlier denied the California request and then later reconsidered the request under the Obama Administration. EPA agreed to reconsider and, on July 8, 2009, after a public hearing and comment period, issued a decision granting the waiver. Decision Granting a Waiver of Clean Air Act Preemption, 74 Fed. Reg. 32,744, 32,783 (July 8, 2009).

The agency found that the California standards were intended at least in part to address a local or regional problem because of the "logical link between the local air pollution problem of ozone and . . . [greenhouse gases]."

    Since EPA's waiver decision, at least fourteen states have adopted California's greenhouse gas emissions standards pursuant to the Clean Air Act, Section 177. On September 8, 2009, the Chamber of Commerce and the National Automobile Dealers Association (NADA) petitioned for judicial review of EPA's waiver decision.

 

    Subsequently, on April 1, 2010, EPA and the National Highway Transportation Safety Administration (NHTSA) jointly issued a national program of greenhouse gas emissions and fuel economy standards for MYs 2012 to 2016. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards (Final Rule), 75 Fed. Reg. 25,324 (May 7, 2010). The product of an agreement between the federal government, California, and the major automobile manufacturers, the new rules make it possible for automobile manufacturers to sell a "single light-duty national fleet" that satisfies the standards of the EPA, NHTSA, California, and the Section 177 states.

 

    As the Appeals Court explained in the opinion, although the automobile manufacturers agreed not to contest EPA's grant of a waiver to California, the Chamber of Commerce and NADA did not join in that agreement. On behalf of their automobile dealer members, the Chamber and NADA bring this challenge to EPA's decision to grant California a preemption waiver under § 7543(b)(1). They argue that § 7543(b)(1)(B) unambiguously requires that EPA assess California's need for the particular standards it presents for a waiver, not for its state-specific emissions program as a whole. Even if there were any ambiguity, the petitioners argue, it was unreasonable for EPA to waive preemption for standards related to a global environmental problem based on California's continuing need to address state-specific conditions. Finally, the petitioners reject EPA's alternative conclusion that the California greenhouse gas standards are proper even under its 2008 test. In their view, California's standards will have no identifiable effect on increased global temperatures, and any effects of climate change in California are not sufficiently different from those experienced elsewhere in the country to justify California-specific regulations.

    The Appeals Court reiterated, "Before we may reach the merits of these arguments, we must assure ourselves that Article III of the Constitution grants  us jurisdiction to decide this case. See Steele Co. v. Citizens for a Better Env't., 523 U.S. 83 (1998). Because we conclude that we lack jurisdiction, we dismiss the petition for review."

 

    In determining the legal standing of the petitioners, the Appeals Court said, "Because the Chamber has not identified a single member who was or would be injured by EPA's waiver decision, it lacks standing to raise this challenge. Id. That flaw is inconsequential, however, because the Chamber's copetitioner, NADA, has identified allegedly injured members." The Appeals Court indicates that NADA petitioners do not assert that their dealer members had suffered an "actual" injury at the time they filed their petition for review. Rather, their concern is about "future injury."

 

    The Appeals Court said, "As we have noted before, 'any petitioner alleging only future injuries confronts a significantly more rigorous burden to establish standing." Citing: United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989). The Appeals Court explains additionally that, "With respect to the second and third elements of standing, the petitioners here face an additional problem: California's emissions standards do not regulate automobile dealers, but rather automobile manufacturers -- third parties that have declined to participate in this challenge." Further, in its discussion of petitioners standing, the Appeals Court indicates that, "Because MYs 2009-11 are now largely behind us, and because the federal government has promulgated national standards for MYs 2012-16, we divide our analysis of the injuries asserted by the petitioners into two time periods."

 

    The Appeals Court ruled:

In sum, even if NADA had standing when it initially sought review, "events have so transpired that [our] decision will neither presently affect the parties' rights nor have a morethan-speculative chance of affecting them in the future," Clarke, 915 F.2d at 701 (internal quotation marks omitted). Because "this case has 'lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law,'" Schmid, 455 U.S. at 103 (quoting Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam)), it is now moot.

     However, the Appeals Court reminded, "But the EPA decision at issue here is not unreviewable; it is only the challenge brought by the petitioners in this case that is beyond our authority to review. EPA's promulgation of national greenhouse gas emissions standards, and California's acquiescence in those standards, have rendered the dealers' already tentative claim of injury so speculative that a suit on their behalf cannot satisfy Article III's case-or-controversy requirement. If the suit had been brought on behalf of automobile manufacturers rather than dealers, however, it would not necessarily have been mooted by those developments -- provided that the manufacturers could persuasively show they would suffer additional injury from the costs of direct, albeit duplicative, regulation by California. To vacate the agency's action under the present circumstances would thus be akin to vacating a district court decision that was not appealed by either of the principal parties, but rather by an intervenor whose particular interest in the matter had evaporated before the appellate court could rule."

 

    Fred Krupp, President of Environmental Defense Fund (EDF), who intervened in defense of EPA's action, issued a statement saying, "This is a major victory not just for California, but also for the millions of Americans who are working together to unleash smart policies that will save families money at the gas pump, reduce dangerous pollution and break our dependence on imported oil. It is time for the U.S. Chamber of Commerce to stop obstructing made in America clean air solutions that are a trifecta for saving money, energy security, and a safer environment." Vickie Patton, EDF's General Counsel said, "This is a major victory for Americans who are tired of pouring out their hard-earned money at the gas pump. Cleaner cars will save their owners money -- as much as $3000 over the life of their vehicles. Cleaner cars also reduce dangerous air pollution, and help break our nation's dependence on imported oil."

 

    Access the complete opinion (click here). Access the release and statements from EDF (click here). [*Air, *Climate, *Transportation]

Aera Energy LLC v. Kenneth Salazar (DOI)

Apr 29:  In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5101. Appealed from the United States District Court for the District of Columbia. In its summary of the case, the Appeals Court indicated that in 1999, the Pacific Regional Director of the Interior Department's Minerals Management Service caused four oil and gas leases off the California coast, for which appellants had originally paid the United States over $140 million, to expire. The Regional Director later testified that he based his decision "solely on political considerations and that absent such considerations he would have instead extended the leases."

 

    The Appeals Court said, "Reviewing the matter de novo, however, the Interior Board of Land Appeals, acting without regard to political considerations and on the basis of scientific evidence, affirmed the original decision. The district court upheld that ruling, and appellants now appeal, arguing that in order to cure the Regional Director's original decision of political taint, the Board should have adopted the decision the Regional Director says he would have made absent political influence. Because we agree with the district court that appellants received all they were entitled to -- i.e., an agency decision on the merits without regard to extra-statutory, political factors -- we affirm."

 

    The Appeals Court ruled further, "We are keenly aware that administrative agencies making important and sometimes controversial decisions are often buffeted by political pressure. Indeed, public advocacy plays a healthy role in our system. Accordingly, 'we have never questioned the authority of congressional representatives to exert pressure, and we have held that congressional actions not targeted directly at [agency] decision makers -- such as contemporaneous hearings -- do not invalidate an agency decision.' ATX, 41 F.3d at 1528 (citing Volpe, 459 F.2d at 1249 and Koniag, 580 F.2d at 610) (emphasis in original). But sometimes political pressure crosses the line and prevents an agency from performing its statutorily prescribed duties. When that occurs, we have repeatedly declined to stand in the agency's shoes and take over its decision making function. Instead, we have directed the agency to use the traditional administrative tools at its disposal to render a politically untainted decision. Such an approach follows from the distinct roles Congress has assigned to administrative agencies and the courts: for agencies, to reach reasoned decisions based on the relevant statutory factors; and for the courts, to ensure that those agencies properly carry out their statutory responsibilities. Having found that the IBLA [Interior Board of Land Appeals] fulfilled its role, we have fulfilled ours and so affirm."

 

    Access the complete opinion (click here). [*Energy/OCS]

Southern Alliance for Clean Energy v. Duke Energy

Apr 14: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 08-2370, 09-1928, & 09-2113. Appealed from the United States District Court for the Western District of North Carolina, at Asheville.

In this Clean Air Act case, Duke Energy Carolinas, LLC (Duke Energy) challenges an attorneys' fees award by attacking the nature of the victory supporting the award, as well as the merits order on which the fee award was based -- summary judgment in favor of environmental group Plaintiffs Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conversation Association, Natural Resources Defense Council, and the Sierra Club (Plaintiffs).

 

    With its summary judgment victory, Plaintiffs forced Duke Energy to submit to administrative evaluations by the North Carolina

state regulators who administer the Clean Air Act. Those administrative proceedings constituted some success and thus supported an award of attorneys' fees under the Clean Air Act. The Appeals Court said, ". . .nothing this Court might hold with regard to the merits of the summary judgment determination could undo those proceedings or nullify Plaintiffs' success. We therefore affirm the district court's fee award."

 

    The Appeals Court said further, "Because Duke Energy's merits arguments are irrelevant to our determination that Plaintiffs achieved some success supporting the fee award -- the reversal of which is Duke Energy's sole goal on appeal -- we need not reach them. We hold that Plaintiffs' successes properly supported the award of attorneys' fees and costs and affirm the district

court."

 

    Access the complete opinion (click here). [*Air]

Yankee Gas Services Co. v. UGI Utilities., Inc.

Apr 13: In the U.S. Court of Appeals, Second Circuit, Case No. 10-1570. Appealed from the United States District Court for the Eastern District of New York. Plaintiffs Yankee Gas Services Company and The Connecticut Light and Power Company (CL&P), current owners of the sites of thirteen former manufactured gas plant facilities (MGPs) in Connecticut, sued defendant UGI Utilities, Inc. (UGI), the alleged past operator of the MGPs, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), to recover plaintiffs' costs in responding to MGP pollution from the period 1884 to 1941. Plaintiffs appealed from a judgment in favor of defendant entered after a bench trial at which the district court determined that UGI was not an operator of nine of the MGPs under the standard set forth in United States v. Bestfoods, 524 U.S. 51 (1998), and that the statute of limitations had run with respect to two of those nine MGPs.

 

    In a ruling by summary order, that does not have precedential effect, the Appeals Court said, "Because we identify no error of law or fact in the district court's operator determination, we affirm the judgment on that basis and need not address its limitations conclusion." The Appeals Court said further, ". . .we have reviewed the trial record, the district court's meticulous and well-reasoned opinion, and the parties' arguments on appeal, and we identify no legal error or clear factual error in the determination that UGI was not an operator of the subject MGPs during the period in question. . . Accordingly, we identify no error of law or fact in the district court's finding 'that Plaintiffs have failed to prove by a preponderance of the evidence that UGI and CL&P conducted operations at the MGPs in some sort of joint venture or joint undertaking, and that UGI's involvement with the individual MGPs was consistent with its role as an investor and shareholder of, and consultant to, CL&P.'"

 

    Access the complete order (click here). [*Remed]

Sierra Club v. U.S. Army COE

Apr 8: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-13613. An unpublished opinion appealed from the United States District Court for the Middle District of Florida. Intervenor Defendant-Appellant Mosaic Fertilizer, LLC (Mosaic), a phosphate mining company engaged in significant operations in Hardee County, Florida, appealed the order by the district court remanding a mining-permit issued by the United States Army Corps of Engineers (Corps) back to the agency and further enjoining Mosaic from conducting operations approved in that permit.

    Specifically, the district court concluded the permit's issuance did not comply with the requirements of the Clean Water Act, 33 U.S.C. §§ 1251-1376, and that the Plaintiff-Appellees had demonstrated they were entitled to preliminary injunctive relief. In this interlocutory appeal, Mosaic argues the district court's order was a de facto determination of the merits of the Clean Water Act issue that exceeded the proper scope of preliminary injunctive relief. Based upon our review of the briefs, and with the benefit of oral argument, we conclude the district court's remand of the permit to the Corps was improper because it was effectively a final judgment on the merits. The district court based the entry of the preliminary injunction entirely on letters from the Environmental Protection Agency which expressed concerns with the permit, and failed to apply the arbitrary and capricious standard in evaluating the Corps' practicable alternatives analysis.

    In a brief, 3-page decision, the Appeals Court ruled, "Based on the limited record before us, and the lack of a response from the Corps on appeal, we are presently no better equipped to resolve this dispute than was the district court. We therefore vacate the preliminary injunction, set aside the remand to the Corps, and remand this case to the district court for consideration on the merits, after receiving the full Administrative Record. Due to the unique circumstances presented by this case, we direct the

district court to stay the issuance of the permit for 90 days from the date of this order to permit the district court to proceed to a merits determination on the full record."

 

    Access the complete opinion (click here). [*Water]

Rhodes v. E.I. du Pont de Nemours and Company

Apr 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1166. Appealed from the United States District Court for the Southern District of West Virginia, at Parkersburg. The Appeals Court indicates that the case arose under the district court's diversity jurisdiction and involves the contamination of a public water supply in Parkersburg, West Virginia. The Appeals Court considered whether the plaintiffs, individuals who consumed the water but have not become ill as a result, demonstrated an injury sufficient to survive summary judgment on certain West Virginia common law tort claims. The Appeals Court also reviewed the district court's rulings denying class certification of those claims under Federal Rule of Civil Procedure 23(b). And, finally, the Appeals Court decided whether the plaintiffs, who obtained voluntary dismissals in the district court of their individual claims for medical monitoring, have standing to pursue an appeal of the district court's denial of class certification of those claims.

    The facts and procedural history in the case indicate that for an extended period of time, DuPont's plant discharged perfluorooctanoic acid (PFOA) into the environment surrounding the Parkersburg City Water Department plant. Measurable quantities of PFOA were detected in the water that is pumped by the Water Department into the plaintiffs' residences. PFOA also has accumulated in the plaintiffs' blood and has been detected in the homes of other customers of the Water Department.

 

    The plaintiffs asserted six common law claims, individually and on behalf of a class of customers of the Water Department, addressing the contamination of their municipal water supply and the resulting presence of PFOA in their blood. The plaintiffs sought damages with respect to claims of negligence, gross negligence, battery, trespass, and private nuisance. The plaintiffs also sought injunctive relief to obtain long-term diagnostic testing (medical monitoring) for latent diseases on behalf of a class of Water Department customers exposed to PFOA beginning in 2005. Additionally, the plaintiffs asserted individual and class claims for medical monitoring, a common law tort first recognized by the West Virginia Supreme Court of Appeals in 1991.

 

    The Appeals Court dismissed the plaintiffs' claim challenging the district court's denial of their class certification request for the medical monitoring claims, and affirmed the balance of the district court's judgment. The Appeals Court said, "In conclusion, we affirm the district court's award of summary judgment to DuPont on all the plaintiffs' traditional common law tort claims, namely, the claims of negligence, gross negligence, battery, trespass, private nuisance, and public nuisance. We do not address the separate matter of the district court's denial of class certification of these traditional common law tort claims as these issues are now moot. Finally, we dismiss the plaintiffs' appeal of the district court's class certification ruling on their medical monitoring claims for lack of jurisdiction."

 

Access the complete opinion (click here). [*Toxics, *Drink]

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