Sue Pluck v. BP Oil Pipeline Company

May 12: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-4572. Appealed from the Northern District of Ohio at Akron. In this toxic tort case alleging exposure to benzene, plaintiffs-appellants Sue and Ray Pluck appeal the district court's order granting summary judgment to defendant-appellee BP Oil Pipeline Company (BP). The Plucks challenge the district court's grant of BP's motion in limine to exclude the testimony of their specific-causation expert, Dr. James Dahlgren, as unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). They also argue that the district court should have admitted Dahlgren's supplemental declaration, which contradicted his prior testimony and was untimely filed. Based upon the arguments, the Plucks contend that the district court erred in granting summary judgment to BP. The Appeals Court affirmed the district court in all respects.

 

    The Appeals Court explained further saying, "We have recognized that "[d]istrict courts have broad discretion to exclude untimely disclosed expert-witness testimony," particularly when these reports serve as a "transparent attempt to reopen" the Daubert inquiry after the weaknesses in the  expert's prior testimony have been revealed. Pride v. BIC Corp., 218 F.3d 566, 578–79 (6th Cir. 2000) (internal quotation marks omitted). In this case, the district court did not abuse its discretion in striking Dahlgren's untimely supplemental declaration, in which he attempted to bolster his deficient opinion by employing a new causation

methodology. We also conclude that, because Dahlgren did not provide a specific causation opinion satisfying the requirements of Rule 702, the district court did not err in granting summary judgment on behalf of BP."

 

    Access the complete opinion (click here).  [*Toxics, *Air, *CA6]

Ursack, Inc. v. Sierra Interagency Black Bear Group

May 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17152. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that the National Park Service and the United States Forest Service require backpackers who visit certain areas in the Sierras to store food in portable bear-resistant containers. Between 2001 and 2007, both the Park Service and the Forest Service required visitors to Yosemite National Park, Sequoia and Kings Canyon National Parks (SEKI), and the Inyo National Forest to use containers that had been tested and approved by the agencies. An informal body known as the Sierra Interagency Black Bear Group (SIBBG) tested privately manufactured bear-resistant containers and made recommendations to the Park and Forest Services regarding which containers to approve.

 

    Plaintiff-appellant Ursack, Incorporated manufactures a bear-resistant container called the Ursack. Between 2001 and 2007, it urged SIBBG to recommend the Ursack for inclusion on the agencies' lists of approved containers. Mostly it was unsuccessful, but in 2007, SIBBG recommended that the agencies grant conditional approval to the Ursack for the 2007 summer season. SIBBG recommended that the agencies withdraw approval if they determined that the container failed three or more times during the season. The agencies accepted the recommendation and granted conditional approval.

 

    At the end of the 2007 season, however, SIBBG determined that the Ursack had failed more than three times, and it recommended that the agencies withdraw conditional approval. The National Park Service accepted this recommendation and withdrew conditional approval, and to this day it refuses to permit backpackers to use the Ursack in the container-only areas of Yosemite and SEKI. The Forest Service, on the other hand, continues to allow backpackers to use the Ursack in Inyo National Forest.

 

    Ursack and three individual users of the Ursack brought the suit pursuant to the Administrative Procedure Act (APA) against SIBBG, the Park Service, the Forest Service, and the superintendents of the relevant national parks and forests, alleging that the decision to withdraw conditional approval of the Ursack was arbitrary and capricious and otherwise not in accordance with law. After reviewing the administrative record, the district court granted summary judgment to the agencies. Ursack and the three individuals appealed. The Appeals Court affirmed the district court decision in favor of the agencies.

 

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

SEACC v. State of Alaska

May 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35551. Appealed from the United States District Court for the District of Alaska. The issue in this environmental case is whether the district court properly ordered the State of Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. In a split decision, the Appeals Court held that the district court was correct under settled environmental law in its judgment in favor of Southeast Alaska Conservation Council and five other groups (collectively, SEACC) in their suit against the Federal Highway Administration (FHWA), the Department of Transportation, the Forest Service, the Department of Agriculture, and individual federal officials. 

 

    Intervenor State of Alaska appeals the district court's decision and argues the district court erred in holding that the Environmental Impact Statement (EIS) issued by the FHWA for the Juneau Access Improvements Project violated the National Environmental Policy Act (NEPA) by failing to consider as a project alternative any plan that would improve existing ferry services in Lynn Canal, Alaska, without the construction of new roads, ferries, or terminals. The district court vacated the FHWA's Record of Decision (ROD), which approved Alaska's preferred alternative for the project, and enjoined all construction and activities that depended on the issuance of a valid EIS, until one was prepared.

 

    The majority Appeals Court said the FHWA EIS "contains no analysis of ferry service to other areas, or of how the assignment of additional vessels to Lynn Canal would affect service elsewhere. Therefore, it does not provide any reasoned support for the FHWA's position that reassigning vessels was not a reasonable alternative that required detailed consideration in the EIS." Further, the majority said, "The district court therefore properly concluded that it was arbitrary for the FHWA to refuse to consider reassigning vessels as a project alternative on the basis that it would increase costs and reduce services elsewhere when the chosen project alternative could have been rejected for the same reason. By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, the EIS issued by the FHWA violated NEPA."

 

    The dissent Justice indicated, "The majority holds that the final environmental impact statement prepared by the State of Alaska and the Federal Highway Administration violates the National Environmental Policy Act. . . by failing to consider certain alternatives to the State's proposed plan to improve surface transportation to Juneau, Alaska. I respectfully dissent. . . Accordingly, the question in this case is not whether the final EIS prefers the wrong alternative, but rather whether it considers a reasonable range of alternatives."

 

    He argues that, "The majority holds that the final EIS fails to consider certain alternatives for improving surface transportation to

Juneau. According to the majority, the final EIS does not consider the possibility of improving ferry service by maximizing the use of existing infrastructure. . .In my view, however, the final EIS includes just such an alternative: the No Action Alternative. . ."

 

    Access the complete opinion and dissent (click here). [*Transport]

 

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USA v. George A. Whiting Paper Company

May 4: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-2480. Appeal from the United States District Court for the Eastern District of Wisconsin. In 2009, the United States and the State of Wisconsin (the Governments) filed suit in Federal district court against eleven of the potentially responsible parties (PRPs) in an environmental cleanup, seeking response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Shortly thereafter, the Governments filed notice of a de minimis consent decree pursuant to CERCLA § 122(g). Eventually, the Governments moved for settlement. Appleton Papers Inc. and NCR Corporation intervened.

 

    The district court granted the settlement motion over the intervenors' opposition. Later, the Governments moved for a de minimis settlement with a twelfth defendant, and the district court granted this motion. Appleton and NCR appealed the grant of both settlement motions. The Appeals Court affirmed the district court decision.

 

    By way of background, the case involves the Fox River in Wisconsin which is heavily contaminated with Polychlorinated biphenyls (PCBs). Appleton and NCR are responsible for much of the PCBs. They contributed significant amounts of Aroclor 1242, the most prevalent PCB in Fox River. The river also contains other PCBs, including Aroclor 1254 and Aroclor 1260. Appleton, NCR, and a few other PRPs are currently paying to clean up Fox River in compliance with a 2007 U.S. EPA order. Appleton and NCR are seeking contribution, in a separate suit, from many other PRPs.

 

    On one of the major issues in the case, i.e. the "rational basis" of the settlement, the Appeals Court said, "The district court concluded the consent decrees were substantively fair. Appleton and NCR argue that this conclusion has no rational basis in the record. A consent decree is substantively fair if its terms are based on comparative fault. . . The calculation of comparative

fault 'should be upheld unless it is arbitrary, capricious, and devoid of a rational basis.' Cannons Eng'g, 899 F.2d at 87 ('[W]hat constitutes the best measure of comparative fault . . . should be left largely to the EPA's expertise.')."

 

    The Appeals Court said, "Rarely does an appellate court conclude the district court had no factual basis to approve a consent decree. Appleton and NCR can point to only one such holding. . . We need not decide whether an unsupported estimate would be a sufficient factual basis to affirm a consent decree -- the Governments' estimate here has adequate support in the record." Other legal issues addressed by the Appeals Court in the opinion included: Consideration of non-1242 Aroclors; Unresolved Issue of Divisibility; Insufficient Discovery; and Improper Consideration of Equitable Factors.

 

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

 

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Jerry Adkins v. Kenneth Will (VIM Recycling Inc)

May 3: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-2237. Appealed from the United States District Court for the Northern District of Indiana, South Bend Division. The Appeals Court explains that the appeal presents questions regarding the citizen-suit provisions in the federal Resource Conservation and Recovery Act (RCRA), including when a narrower government enforcement lawsuit may preclude a broader citizen suit, and how the citizen-suit provisions interact with the federalism doctrines of Colorado River and Burford abstention. The district court in this case relied on statutory provisions and the abstention doctrines to dismiss the plaintiffs' citizen suit under RCRA. In a partially split decision, the Appeals Court reversed and remand which allows the plaintiffs to pursue their citizen suit. One justice indicated concurrence in part and dissented in part.

 

    The complicated legal action involves the relationships among three lawsuits: two state court actions filed by a state environmental agency and the Federal citizen suit. The majority concluded, "The plaintiffs' RCRA citizen suit should go forward, except as to the violation claims concerning 'C' grade waste that were part of the first IDEM [Indiana Department of Environmental Management] lawsuit against defendant VIM. In all other respects, the plaintiffs met the statutory requirements of RCRA. Because the plaintiffs satisfied the statutory requirements for bringing their citizen suit, abstention doctrines should not have been used to block the plaintiffs from pursuing the avenues that Congress gave them in RCRA. The district court's judgment dismissing the case is reversed and the action is remanded for further proceedings."

 

    Earlier in the decision the majority clarified that, "If IDEM should achieve comprehensive relief in its state court lawsuits, the federal judge will be entitled to press the citizen-plaintiffs as to what more they hope to accomplish in this suit. We emphasize, however, that the federal court in this case has a duty to press forward here. Congress has extended to these plaintiffs the right to pursue relief in a federal district court. The plaintiffs are not required to rely exclusively on the state agency in lawsuits in which they may only watch from the sidelines. The goal of RCRA is 'the prompt abatement of imminent and substantial endangerments,' and the district court has a duty not to allow progress toward that goal to be derailed or slowed because of possible delays in state proceedings."

 

    The dissenting Justice said, "I join the majority opinion on several issues, but I cannot agree with the majority's discussion and conclusion regarding abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). I therefore must respectfully dissent." The dissenting Justice indicated, "I concur with my colleagues on several issues." Then proceeded to outline at least four major areas of agreement and said, "Where I part company from my colleagues is with respect to their application of the Colorado River abstention doctrine. Even here, my disagreement is not total. Nevertheless, I view the position taken by my colleagues to be an overly rigid one, which, under the circumstances of this case, produces a result contrary to the overall intent of RCRA and a procedural straitjacket for district courts in future cases."

    Access the complete opinion and dissent (click here). [*Haz]

Alcoa Power Generating Inc. v. FERC

May 3: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1066. On Petition for Review of Orders of the Federal Energy Regulatory Commission (FERC). The Alcoa Power Generating Company petitions for review of two orders of FERC with respect to the relicensing of its Yadkin Project facilities in North Carolina. A precondition of licensing is receipt of a State certification that any discharges into navigable waters will comply with sections 301-03 and 306-07 of the Clean Water Act. Section 401(a)(1) of the Clean Water Act provides that State certification 'shall be waived with respect to such Federal application' if the State certifying agency 'fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request . . ..'

 

    When a State administrative law judge stayed pending appeal the water certification issued by the State agency, Alcoa Power petitioned the Commission for a declaratory order that the certifying agency had waived its authority by not issuing a certification that was effective and complete within one year. The Commission denied the petition, ruling there was no waiver because the State had 'act[ed] on' Alcoa Power's application within one year of its filing. Alcoa Power contends that the Commission misinterpreted the law and the facts and that the State violated the time limit in Section 401(a)(1) by linking the effectiveness of the certification to satisfaction of a bond requirement after the expiration of the one-year period, thereby waiving its right to issue a certification for the project. The Commission maintains that the petition for review is not ripe because, in accordance with its policy, it has not been able to act on Alcoa Power's application for licensure in view of on-going State administrative review and stay of the certification.

 

    The Appeals Court said, "We hold that the petition is ripe, because if the certification was waived, then the pendency of the State proceeding is no bar to the Commission acting on Alcoa Power's licensing application. We agree with the Commission's interpretation of Section 401 in ruling that there was no waiver by the State and, therefore, we deny the petition for review." The Appeals Court explains, "In sum, under Section 401, the State, acting through its Division of Water Quality, timely issued a water quality certification that complied with the requirements of Section 401. The Commission on rehearing made clear that it was free to commence its licensing proceeding but for its policy to stay such proceedings pending conclusion of the State proceeding, which policy Alcoa Power does not challenge. Because the "effective" clause in the bond condition of the 2009 Certification did not operate to block or delay the federal licensing proceeding, and it did not contravene Section 401(a)(1)'s waiver provision, much less the Commission's regulations, Alcoa Power's objections to the substantive content of the 2009 Certification is a matter of State law that is properly raised in the State proceeding, as Alcoa Power has done.

 

    "Alcoa Power's additional objection that the Commission failed to engage in reasoned decision-making by ignoring or misapprehending certain material facts fails. The allegedly ignored facts are that (i) the bond condition as written in the 2009 Certification is objectively impossible to satisfy, and (ii) the Division of Water Quality had ample time to request satisfaction of the bond condition within the one-year statutory period in view of the extended procedural history of Alcoa Power's requests for certification. These assertions became irrelevant to the Commission's waiver analysis once it concluded that neither Section 401 nor its own regulation required it to wait until the bond condition was satisfied before proceeding with Alcoa Power's license application. The Commission therefore had no reason to analyze these issues in greater depth."

 

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

High Court Decides Montana v. Wyoming Water Case

May 2: In the U.S. Supreme Court, Case No. 137, Original. As explained in the High Court's summary, the case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact [See WIMS 1/12/11]. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriving Montana's downstream pre-1950 appropriators of water to which they are entitled. A Special Master filed a First Interim Report determining, as relevant here, that Montana's allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. The Supreme Court agreed with the Special Master and overruled Montana's exception to that conclusion. 

 

    Justice Thomas delivered the opinion in which Justices Roberts Kennedy, Ginsburg, Breyer, Alito and Sotomayor all joined. Justice Scalia filed a dissenting opinion and Justice Kagan took no part in the consideration or decision of the case. The majority concluded, "We conclude that the plain terms of the Compact protect ordinary '[a]ppropriative rights to the beneficial uses of [water] . . . existing in each signatory State as of January 1, 1950.' Art. V(A), ibid. And the best evidence we have shows that the doctrine of appropriation in Wyoming and Montana allows appropriators to improve the efficiency of their irrigation systems, even to the detriment of downstream appropriators. Montana's allegation that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water users to increase their irrigation efficiency thus fails to state a claim. Accordingly, Montana's first exception to the Special Master's First Interim Report is overruled.

 

    As indicated in the docket for the case, the questions presented by Montana's exception are: 1. Whether the Special Master correctly concluded that Montana's increased-efficiency allegation does not state a claim for breach of the Compact; and, 2. Whether the Special Master correctly concluded that, to show that Wyoming has breached the Compact and caused Montana injury, Montana must show that its water users lack an intrastate remedy under Montana law.

 

    In his solo dissent Justice Scalia said, "Thanks to improved irrigation techniques, Wyoming's farmers and cattlemen appear to consume more of the water they divert from the Yellowstone River and its tributaries today than they did 60 years ago—that is to say, less of the diverted water ultimately finds its way back into the Yellowstone. The Court interprets the Yellowstone River Compact (Compact), see Act of Oct. 30,1951, ch. 629, 65 Stat. 663, to grant those Wyomans* the right to increase their consumption so long as they do not increase the volume of water they diverted beyond pre1950 levels. Thus, it holds, Montana cannot complain that the increased consumption interferes with its residents' pre-1950 appropriative water rights. I disagree because the Court's analysis substitutes its none-too-confident reading of the common law, see ante, at 7–8, and n. 5, for the Compact's definition of 'beneficial use.'" *Justice Scalia noted regarding his terminology "Wyomans" that, "The dictionary-approved term is "Wyomingite," which is also the name of a type of lava, see Webster's New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better."   

 

    Access the complete opinion and dissent (click here). Access links to the Special Master's report, briefs and the argument transcript (click here). Access the Supreme Court docket (click here). [*Water]

 

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