State Of New York v. Solvent Chemical Co., Inc.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case Nos. 10-2026, 10-2166, 10-2383. The Appeals Court summarizes saying, "Plaintiff sought contribution under the Comprehensive Environmental Response and Compensation Act (CERCLA) for both past and future costs of cleaning up industrial pollution. The U.S. District Court for the Western District of New York awarded contribution for past cleanup costs but declined to issue a declaratory judgment as to future contribution. The Appeals Court reversed the denial of a declaratory judgment and indicated that numerous other issues raised on appeal are decided in a summary order issued simultaneously with the opinion.

 

    Plaintiff Solvent Chemical Company, Inc. (Solvent) sued two adjoining property owners, E.I. du Pont de Nemours & Co. (DuPont) and Olin Corporation (Olin), seeking contribution for costs that Solvent had incurred and continues to incur cleaning up hazardous waste pursuant to a consent decree with the State of New York. The district court declined to declare liability chiefly because the allocation of future costs would be premature.

 

    The Appeals Court indicates that, "The reasons given by the district court might justify a refusal to allocate cleanup responsibility; none of them, however, supports a refusal to grant a declaratory judgment as to liability itself. . . none of the factors identified by the court distinguishes between past and future cleanup. . . These factors require a district court to issue a declaratory judgment in this case. A declaratory judgment would 'serve a useful purpose' here for at least two reasons.

 

    "First, there is a short statute of limitations for a CERCLA contribution claim. . . Second, the 'costs and time involved in relitigating issues as complex as these where new costs are incurred would be massive and wasteful' . . . A declaratory judgment

with respect to liability saves litigants and courts substantial time and money, leaving for the future only the need to fix the amount of contribution and affording the court flexibility with respect to the time and manner for doing so. . .Accordingly, we conclude that: the judgment would 'serve a useful purpose in . . . settling the legal issues involved'. . ."

 

    Access the complete opinion (click here). [#Remed, #CA2]

 

GET THE REST OF TODAY'S NEWS (click here)

National Association of Home Builders v. US Army Corps

Dec 16: In the U.S. Court of Appeals D.C. Circuit, Case No. 10-5169. Appealed from the United States District Court for the District of Columbia. According to the Appeals Court, "Invoking its authority under § 404(e) of the Clean Water Act (CWA), 33 U.S.C. § 1344(e), the U.S. Army Corps of Engineers issued a generic nationwide permit (NWP 46) allowing persons to secure approval for qualifying discharges into 'waters of the United States' without going through the more laborious process of securing an individual permit."

 

    The National Association of Home Builders (NAHB) appealed the district court's dismissal of its challenge to the Corps's authority to issue the permit. Although the district court held that the NAHB had standing to pursue its claim, it ultimately granted summary judgment for the Corps on the merits, finding that the terms of the permit survived the NAHB's legal challenges. The Appeals Court, however said, "Because we find that the NAHB lacked standing to bring its suit, we vacate and remand with instructions to dismiss the case."

 

    The Appeals Court states further, "A membership organization such as the NAHB can assert standing on behalf of its members only if 'at least one' of these members would have standing on their own. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977)). Although it is undisputed that the NAHB qualifies to advance the claims of its members, we find that it has failed to show that any member had standing."

 

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

 

GET THE REST OF TODAY'S NEWS (click here)

 

Northern Plains Resources v. The Surface Transportation Bd.

Dec 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 97-70037, 97-70099, and 97-70217. On Petition for Review of Orders of the Surface Transportation Board, Department of Transportation.

 

    The Appeals Court indicates that the case arises out of three applications by the Tongue River Railroad Company, Inc. (TRRC) to build a 130-mile railroad line in Southeastern Montana to haul coal. The Surface Transportation Board (Board), or its predecessor, the Interstate Commerce Commission (ICC), approved each of the three applications (individually, TRRC I, II, and III). Northern Plains Resource Council, Inc. (NPRC), Mark Fix, the City of Forsyth, Native Action, Inc. (Native Action), and United Transportation Union-General Committee of Adjustment (UTU-GCA) (collectively, Petitioners) challenge TRRC II and III. Petitioners challenge the approval of TRRC II and III on a number of environmental and public convenience and necessity grounds.

 

    The Appeals Court said, "We hold that the Board failed to take the requisite 'hard look' at certain material environmental impacts inherent in TRRC II and III in the manner required by the National Environmental Policy Act (NEPA) prior to approving those applications. We further hold that the Board did not err in its public convenience and necessity analyses, except with respect to its reliance on the viability of TRRC II during the approval of TRRC III. Accordingly, we reverse and remand in part, and affirm in part."

 

    The Appeals Court indicates that, "Petitioners contend that the Board's cumulative impact analysis in TRRC III ignores the combined impacts of future coal bed methane (CBM) well development and coal mining projects that will also come into being in Southeastern Montana. Petitioners further contend that the Board failed to account for the combined effects of the referenced projects and the likely effects on air quality, wildlife, and water quality of the proposed construction and operation of the TRRC railroad. We agree with Petitioners' contentions concerning the cumulative foreseeable effects of CBM wells and the Otter Creek Coal Mine. . . we hold that the Board arbitrarily and capriciously relied on the five-year time frame, which resulted in a faulty analysis of the possible cumulative impacts from reasonably foreseeable CBM projects that could overlap construction of the railroad line." On other issues the Appeals Court ruled in favor of the Board.

 

    Access the complete opinion (click here). [#Transport, #Land, #CA9]

 

GET THE REST OF TODAY'S NEWS (click here)

New Jersey v. EPA

Dec 20: the U.S. Court of Appeals D.C. Circuit, Case No. 05-1097, consolidated with 40 other actions. The Appeals Court explains that this is a motion for fees and costs under section 307(f) of the Clean Air Act, which authorizes courts to -- award costs of litigation (including reasonable attorney and expert witness fees) whenever they determine that such award is appropriate. In the underlying litigation, movants, a group of Native American tribes and tribal associations, intervened on behalf of petitioners who were challenging EPA rules regulating mercury emissions from power plants. See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). The Tribes also filed a petition for review challenging an ancillary regulation not at issue here. The Appeals Court vacated the mercury rules because it agreed with petitioners that the rules violated the Clean Air Act. Id. Petitioners sought fees, and EPA agreed to pay.

 

    The Appeals Court indicates, "Tribal Intervenors, who also pressed for vacatur, albeit on the basis of different arguments that we never reached, now ask us to order EPA to pay their fees and costs. EPA objects, claiming that Tribal Intervenors are ineligible for fee shifting. EPA also argues that even were Tribal Intervenors eligible, the size of their fee request is unreasonable and should be reduced by more than two-thirds. . . we conclude that Tribal Intervenors merit a fee award. We decline, however, to weigh in now on the appropriate amount; instead, we direct the parties to our Appellate Mediation Program."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

GET THE REST OF TODAY'S NEWS (click here)

WIMS Environmental News Blogs

While we're on break it's a great time to check out our WIMS Environmental News Blogs -- 24/7 Environmental News. . .

• White House News
• Congressional News
• Federal Agencies News
• Industry News
• Environmental Group News
• Air Quality News
• Hazardous Waste News
• Transportation News

We'll be back on Tuesday, January 3, 2012.

Happy Holidays

 

Subscribers & Readers Note:

 

WIMS will be off the next two weeks for our annual Christmas/New Year's holiday break and return on Tuesday, January 3, 2012, to begin our 32nd year.

 

We wish all of our subscribers & readers a happy and safe holiday season and wish you well in the coming new year. Thank you all for your continuing support.

Dietrich Bergmann v. Michigan State Transportation Commission

Dec 15: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 10-1708/1770. Appealed from the Eastern District of Michigan at Detroit. In the brief, but somewhat complicated, 5-page opinion, the Appeals Court said, "The district court partially granted Dietrich Bergmann's motion to enforce a decades-old consent decree concerning some real estate he owned in Detroit. The Appeals Court said, "In deciding which portions of the decree are enforceable, however, the court incorrectly looked to Michigan's statute of limitations, rather than the doctrine of laches. We vacate and remand."

 

    In describing the background to the case, the Appeals Court indicates that in 1979, Bergmann bought land in Detroit from the Michigan State Transportation Commission. A decade later, he sued the Commission and the Michigan Department of Transportation under the Federal Comprehensive Environmental Response, Compensation, and Liability Act. He alleged that there was contamination on the site and sought the "costs of exploratory work and of remediating" the land. In its initial pleadings, the Department asserted sovereign immunity from suit. At that time, however, the Supreme Court had interpreted the Eleventh Amendment to allow states to be sued under CERCLA. See Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). The Department later dropped the sovereign-immunity defense in its answer to Bergmann's first amended complaint.

   

    The parties settled. The district court entered a consent decree on June 21, 1991. The decree required the Department to remediate Bergmann's property by March 31, 1995. If by then the Department failed to make a good-faith effort to remediate, the decree required the Department to pay Bergmann $2,000 per month in liquidated damages on the first day of every month until the remediation was complete.

 

    The Department failed to remediate the property or to pay the liquidated damages. On July 31, 2009 -- more than 14 years after those obligations came due -- Bergmann filed a motion with the same district court to enforce the decree. In response, the Department asserted sovereign immunity, citing a change in Supreme Court precedent. The district court eventually held that the Department had waived its sovereign immunity decades earlier by abandoning its argument that immunity barred the suit. The court then granted Bergmann's motion in part: It held that Michigan's 10-year statute of limitations barred enforcement of the Department's remediation obligation, but that each of the missed $2,000 payments triggered its own 10-year limitations period. Thus, the court awarded Bergmann damages for the period between August 1999 and March 26, 2010 (the date of its order).

 

    The Appeals Court explains its decision and cites the following cases in saying, "Both parties argue that the district court misapplied Michigan's statute of limitations. But we think the court should not have applied the statute at all. As Judge Posner has explained: 'From the standpoint of interpretation a consent decree is a contract, but from the standpoint of remedy it is an equitable decree.' Cooke v. City of Chicago, 192 F.3d 693, 695 (7th Cir. 1999) (collecting cases). Thus, if a party violates a consent decree, his opponent 'must ask the court for an equitable remedy[,]' which is then 'subject to the usual equitable defenses.' Id. For this reason, the Second Circuit holds that the equitable doctrine of laches -- and not the state statute of limitations -- governs the timeliness of motions to enforce consent decrees in nondiversity cases. See Brennan v. Nassau County, 352 F.3d 60, 63–64 (2d Cir. 2003) (per curiam). We agree with the Second Circuit. . ." [Note: the doctrine of laches indicates that failure to assert one's rights in a timely manner can result in a claim's being barred by laches].

 

    The Appeals Court ruled, "On remand, therefore, the district court should apply the doctrine of laches in deciding Bergmann's motion to enforce the decree. The district court's order partially enforcing the decree is vacated, and the case remanded for proceedings consistent with this opinion."

 

    Access the complete opinion (click here). [#Remed, #MIRemed, #CA6]

 

-- GET THE LINKS! -- ALL THE TIME. . . (click here)

AND, GET THE REST OF TODAY'S NEWS (click here)