Greenwood 950, L.L.C. v. Chesapeake Louisiana, L.P

Jun 12: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30436. Appealed from the United States District Court for the Western District of Louisiana. Greenwood 950, L.L.C. (Greenwood), seeks consequential damages from Chesapeake Louisiana, L.P. (Chesapeake), under a mineral lease. Sitting in diversity and applying Louisiana law, the district court granted summary judgment for Chesapeake, finding that the lease did not give Greenwood the right to recover consequential damages. The Appeals Court said however, "We find that the relevant provision of the lease is ambiguous, so we vacate the summary judgment ruling and remand for further proceedings."

 

    On February 25, 2010, Greenwood filed a petition for damages in Louisiana state court, alleging that Chesapeake had damaged Greenwood's property, thereby preventing Greenwood from using it as planned. Specifically, Greenwood alleged that Chesapeake had 'greatly impacted the property to the extent of preventing further efforts for a subdivision, including taking control of the main road, placing their drill sites directly on the road, preventing the subdivision as designed, and preventing further sales of the property.' Greenwood further claimed that Chesapeake had agreed to pay for 'all damages caused by its operations,' which it contended should include the damages arising from its alleged inability to 'properly use, market, or manage its property.'"

 

    The Appeals Court said further, "Faced with Greenwood's internally consistent and reasonable alternative reading of the relevant contract language, we are persuaded that the lease is ambiguous with respect to consequential damages. Accordingly, we vacate the district court's summary judgment ruling and remand so that the district court may consider extrinsic evidence and, if necessary, construe the provision against its drafter."

 

    Access the complete opinion and concurring opinion (click here). [#Remed, #CA5]

Texas Oil & Gas Association, Et Al v. U.S. EPA

Jun 15: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60459. Petitions for Review of an Order of the Environmental Protection Agency. The Appeals Court determined that the opinion should not be published and is not precedent except under the limited circumstances.

 

    In the case, the BCCA Appeal Group, the State of Texas, the Texas Association of Manufacturers, and the Texas Oil & Gas Association (collectively BCCA) petition this Court for review of the Environmental Protection Agency's (EPA) final order disapproving a state implementation plan revision submitted by the State of Texas pursuant to the Clean Air Act. At issue is whether the EPA abused its discretion, acted arbitrarily and capriciously, and exceeded its statutory authority in denying the plan revision. The Appeals Court said, "We conclude that it did not and deny the petitions for review." One Justice issued a separate concurring opinion based on different reasoning from that of the majority.

 

    The majority Appeals Court said further, "BCCA asserts that the failure to cite an example of anyone attempting to use the plan to circumvent Major NSR thus far should prevent the EPA from suggesting that it could be used for such. The flaw in that argument is that the plan has not yet been approved by the EPA, a fact that in no way indicates that an improper attempt to circumvent Major NSR would somehow be prevented upon approval. The EPA's factual findings are entitled to substantial deference and should be upheld if they are supported by the administrative record, even if there are alternative findings supported by the record. See Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). The record in this matter establishes that the EPA considered the relevant factors in disapproving the program, that the action bears a rational relationship to the purpose of the statute, and that there is substantial evidence in the record to support it. Despite any interpretations to the contrary, the relevant portions of Senate Bill 1126 quoted previously herein support the EPA's finding that the revisions are not clearly limited to Minor NSR."

 

    Access the complete opinion and concurring opinion (click here). [#Air, #CA5]

 

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Temporary Break This Week; We're Back On June 18

WIMS is on break this week due to a family emergency.

 

We'll be back on June 18, 2012.

 

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Appeals Court "Game Changer" On Nuclear Waste In NY v. NRC

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1045, 11-1051, 11-1056, 11-1057. On Petitions for Review of Orders of the Nuclear Regulatory Commission (NRC). The Appeals Court explains that four states, an Indian community, and a number of environmental groups petition this Court for review of a NRC rulemaking regarding temporary storage and permanent disposal of nuclear waste. The Appeals Court rules, "We hold that the rulemaking at issue here constitutes a major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact. We further hold that the Commission's evaluation of the risks of spent nuclear fuel is deficient in two ways: First, in concluding that permanent storage will be available 'when necessary,' the Commission did not calculate the environmental effects of failing to secure permanent storage -- a possibility that cannot be ignored.

 

    "Second, in determining that spent fuel can safely be stored on site at nuclear plants for sixty years after the expiration of a plant's license, the Commission failed to properly examine future dangers and key consequences. For these reasons, we grant the petitions for review, vacate the Commission's orders, and remand for further proceedings."

 

    The Appeals Court further concludes, "We recognize that the Commission is in a difficult position given the political problems concerning the storage of spent nuclear fuel. Nonetheless, the Commission's obligations under NEPA require a more thorough analysis than provided for in the WCD [Waste Confidence Decision] Update. We note that the Commission is currently conducting an EIS regarding the environmental impacts of SNF [spent nuclear fuel] storage beyond the sixty-year post-license period at issue in this case, and some or all of the problems here may be addressed in such a rulemaking. In any event, we grant the petitions for review, vacate the WCD Update and TSR [Temporary Storage Rule], and remand for further proceedings consistent with this opinion."

 

    New York Attorney General Eric T. Schneiderman called the decision "a landmark victory." He said the decision means that the NRC cannot license or re-license any nuclear power plant, including the Indian Point facility in Westchester County, until it examines the dangers and consequences of long-term on-site storage of nuclear waste. He said the appeals court found that the spent nuclear fuel stored on-site "poses a dangerous, long-term health and environmental risk."

    Schneiderman said, "This is a landmark victory for New Yorkers, and people across the country living in the shadows of nuclear power plants. We fought back against the Nuclear Regulatory Commission's rubber stamp decision to allow radioactive waste at our nation's nuclear power plants to be stored for decades after they're shut down -- and we won. The Court was clear in agreeing with my office that this type of NRC 'business as usual' is simply unacceptable. The NRC cannot turn its back on federal law and ignore its obligation to thoroughly review the environmental, public health, and safety risks related to the creation of long-term nuclear waste storage sites within our communities. Whether you're for or against re-licensing Indian Point and our nation's aging nuclear power plants, the security of our residents who live in the areas that surround these facilities is paramount. I am committed to continuing to use the full force of my office to push the NRC to fully evaluate -- and ensure -- the safety of Indian Point and our other nuclear plants."

    Schneiderman indicated that the Court of Appeals agreed with him that the NRC violated NEPA when it found -- without conducting the necessary studies -- that no significant safety or environmental impacts will result from storing highly radioactive nuclear wastes onsite at the more than 100 operating reactors around the country, including from the Indian Point reactors in Westchester County, for 60 or more years after the reactors are closed. He said the Court also found that the NRC violated the law when it found "reasonable assurance" that sufficient, licensed, off-site storage capacity will be available to dispose of nuclear power plant waste "when necessary."  Efforts to site the only nuclear waste storage facility in the United States, the Yucca Mountain Repository in Nevada, were suspended in 2010 and no replacement facility has yet been identified. The appeals court wrote that the NRC "apparently has no long-term plan other than hoping for a geologic repository." 

    The Natural Resources Defense Council (NRDC) one of the parties in the case said the decision will send the NRC back to square one to determine the safety and consequences of allowing nuclear reactors to produce and accumulate radioactive nuclear waste, including the potential environmental effects of the failure to develop a geologic repository. Geoff Fettus, senior project attorney in the nuclear program at NRDC said, "This is a game changer. This forces the Nuclear Regulatory Commission to take a hard look at the environmental consequences of producing highly radioactive nuclear waste without a long-term disposal solution. The court found: 'The Commission apparently has no long-term plan other than hoping for a geologic repository.'"

    Representative Ed Markey (D- MA) released a statement saying, "It comes as no surprise that the court has no confidence in NRC's waste confidence decision. The NRC relied on what seemed to be a faith-based methodology to conclude that highly radioactive nuclear waste can be left simply sitting in the giant swimming pools and parking lots in which it is currently stored for an additional 60 years. There was a collective failure on the part of both Congress and the Department of Energy to enable a credible, science-based search for a permanent nuclear waste repository."

    The Nuclear Energy Institute's (NEI's) Ellen Ginsberg, vice president and general counsel, made the following remarks in reaction to the ruling saying, "We are disappointed by the court's decision as we believe that the NRC supported its conclusions in the waste confidence decision. Nonetheless, we urge the commission to act expeditiously to undertake the additional environmental analysis identified by the court in the remand. We also encourage the agency to reissue the rule as soon as possible. We are pleased that the court specifically affirmed the agency's discretion to address the environmental issues in a generic fashion using an environmental impact statement or an environmental assessment with a finding of no significant impact."

    Ironically, on June 6, Senator Pete Domenici and Dr. Pete Miller hosted the fourth and final event in the Bipartisan Policy Center (BPC) Nuclear Initiative event series -- Near-Term Progress on Nuclear Waste Management: Implementing the Recommendations of the Blue Ribbon Commission. Both BPC Nuclear Initiative Co-Chairmen believe there is an urgent need to break the current stalemate on nuclear waste management in the United States and to develop an effective system to manage the back end of the nuclear fuel cycle. Senator Domenici was a member of the Blue Ribbon Commission on America's Nuclear Future (BRC) which released a final report in January 2012 detailing recommendations for creating a safe, long-term solution for managing and disposing of the nation's spent nuclear fuel and high‐level radioactive waste [See WIMS 2/2/12].

    Senators Jeff Bingaman (D-NM) and Lisa Murkowski (R-AK), the Chairman and Ranking Member of the U.S. Senate Committee on Energy and Natural Resources, discussed their ongoing collaboration with Senators Feinstein (D-CA) and Alexander (R-TN) the Chairman and Ranking Member of the Senate Appropriations Committee Subcommittee on Energy and Water Development, to develop comprehensive bipartisan legislation on nuclear waste management. With taxpayer damages and liability obligations projected to reach $50 billion by 2021, Senator Murkowski expressed concern that inaction is hurting both the future of nuclear power in the United States and our country's fiscal situation. Senator Murkowski acknowledged that, while many legislators are focused solely on the potential Yucca Mountain repository, she is also looking at new options and strategies, particularly those that achieve local support.

 

    Senator Bingaman discussed the key issues that their legislative proposal will address. He emphasized the importance of having a unified, systematic approach that links interim storage to a final repository. While both Senators Bingaman and Murkowski were pessimistic about the potential to pass such legislation in this Congress, they both stressed the importance of laying out a clear legislative path forward and advancing the process one step further. Building on a successful year-long event series, the BPC Nuclear Initiative will release a high-level report this summer.

 

    Access the complete opinion (click here). Access a release from the NY AG (click here). Access a release from NRDC (click here). Access a release from Rep. Markey (click here). Access a lengthy meeting summary and links to related information from the BPC (click here). [#Haz/Nuclear, #Energy/Nuclear, #CADC]

 

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American Petroleum Institute v. U.S. EPA

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1038. On Petition for Review of a Final Action of the United States Environmental Protection Agency. The Appeals Court indicates that American Petroleum Institute (API) petitions for review of a 2008 EPA regulation deregulating many "hazardous secondary materials" under the Resource Conservation and Recovery Act (RCRA). Petitioner contends that EPA erred in not including in the deregulation a category of hazardous secondary material called "spent refinery catalysts," which API's members generate during the petroleum refining process.

 

    The Appeals Court rules, "After the parties completed briefing, EPA issued a notice of proposed rulemaking that, if made final, would significantly amend EPA's 2008 decision. As a result, we deem this controversy unripe as a prudential matter and order the case held in abeyance, subject to regular reports on the status of the proposed rulemaking."

 

    The Appeals Court explains the history saying, "API filed a petition for review of the 2008 Rule on January 27, 2009. The Sierra Club also petitioned for review of the 2008 Rule. On September 10, 2010, EPA entered into a settlement agreement with the Sierra Club. EPA agreed to propose, by June 30, 2011, a new rule addressing certain issues raised by the Sierra Club and to take final action on that rule by December 31, 2012.

 

    "In July 2011, soon after the close of briefing in this case, EPA published a new notice of proposed rulemaking in accordance with the settlement agreement to address the issues raised by the Sierra Club. In the proposed rule, EPA effectively revised the 2008 Rule in two relevant ways. First, spent hydrotreating and hydrorefining catalysts would now also be eligible for the generator-controlled exclusion from the definition of solid waste. 76 Fed. Reg. 44,094, 44,152 (July 22, 2011). Second, EPA proposed to eliminate altogether the transfer-based exclusion for hazardous secondary materials; those materials would again be considered solid waste -- and thus hazardous waste -- even if transferred to third parties for recycling and would be subject to an alternative Subtitle C standard. 76 Fed. Reg. at 44,108-10, 44,151. If this proposed rule were to become final without revision, then, spent refinery catalysts would be treated the same as other hazardous secondary materials: eligible for the generator-controlled exclusion from the definition of solid waste, but not eligible for a transfer-based exclusion, which would cease to exist."

 

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

 

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Karuk Tribe of California v. US Forest Service

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16801. Appealed from the United States District Court for the Northern District of California. In this en banc panel, the Appeals Court considers whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act (ESA) before allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any "agency action" that "may affect" a listed species or its critical habitat.

 

    The Appeals Court identified what it called "two substantive questions" -- The first is whether the Forest Service's approval of four NOIs to conduct mining in the Klamath National Forest is "agency action" within the meaning of Section 7. Under

established case law, they said, "there is 'agency action' whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs."

 

    They indicated that the second question is whether the approved mining activities "may affect" a listed species or its critical habitat. They said, "Forest Service regulations require a NOI for all proposed mining activities that 'might cause' disturbance of surface resources, which include fisheries and wildlife habitat. . . In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the 'may affect' standard.

 

    The Appeals Court in a 7-4 decision ruled, "We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest." In an footnote the majority also indicated that, "The parties appear to assume that if consultation is required under Section 7, it is required with both agencies [i.e. Fish and Wildlife Service and the NOAA Fisheries Service]. Without deciding the question, we also will so assume."

 

    The ruling overrules the previous 2-1 majority opinion that concluded, "We hold that the NOI process does not constitute an 'agency action,' as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because ' "inaction" is not "action" for section 7(a)(2) purposes,' W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process." [See WIMS 4/8/11].

 

    In its conclusion, the majority en banc panel said, "There is 'agency action' under Section 7 of the ESA whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. In approving the NOIs challenged in this case, the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria. By definition, mining activities requiring a NOI are those that 'might cause' disturbance of surface resources, including underwater fisheries habitat. The Forest Service does not dispute that the mining activities it approved in this case 'may affect' critical habitat of coho salmon in the Klamath River system. The Forest Service therefore had a duty under Section 7 of the ESA to consult with the relevant wildlife agencies before approving the NOIs. We reverse the district court's denial of summary judgment on the Karuk Tribe's ESA claim and remand for entry of judgment in favor of the Tribe."

 

    In a stinging dissenting opinion that opened by citing a passage from Jonathan Swift, Gulliver's Travels, Chapter 1; the minority 4 Justices said, "Here we go again. Until today, it was well-established that a regulatory agency's 'inaction' is not 'action' that triggers the Endangered Species Act's (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006). Yet the majority now flouts this crystal-clear and common sense precedent, and for the first time holds that an agency's decision not to act forces it into a bureaucratic morass. In my view [and those joining Justices], decisions such as this one, and some other environmental cases recently handed down by our court (see Part VII, infra), undermine the rule of law, and make poor Gulliver's situation seem fortunate when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions."

 

    The dissent concluded, "No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law."

 

    Access the complete opinion and dissent (click here). [#Wildlife, #CA9]

 

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National Association Regional Utility Commissioners v. U.S. DOE

Jun 1: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1066 & 11-1068. On Petitions for Review of Final Actions of the Department of Energy (DOE). The Appeals Court explains that petitioners, the National Association Regional Utility Commissioners nuclear power plant owners and operators, ask the court to review a November 2010 determination by the Secretary of Energy finding that there was no basis for suspending, or otherwise adjusting, annual fees collected from them totaling some $750 million a year. Those fees are intended to cover the full costs of the government's long-term disposal of civilian nuclear waste. But the Administration has discontinued development of Yucca Mountain, which was the designated location for the disposal of the waste.

 

    According to petitioners, the Secretary's 2010 determination, made subsequent to that decision, failed to examine (or even mention) the anticipated costs of disposal, or compare them to expected revenues from the fees (and associated interest and investment income). The Secretary's determination is claimed, thereby, to have violated the 1982 Nuclear Waste Policy Act (the Act), which obliges the Secretary to annually "evaluate whether collection of the fee will provide sufficient revenues" to offset program costs. In the absence of such evaluation, it is argued, the determination was invalid, and because no future program has replaced Yucca Mountain, petitioners contend that the Secretary is obliged to suspend the fees and report his action to Congress.

 

    The Appeals Court ruled, "We conclude that the Secretary has failed to perform a valid evaluation, as he is obliged to do under the Act, but we do not think it appropriate to order the suspension of the fee at this time. Instead, we remand to the Secretary with directions to comply with the statute within six months. The panel will retain jurisdiction over this case so that any further review would be expedited."

 

    NARUC President David Wright of South Carolina issued a statement saying, "Today's decision by the court is an important victory for nuclear-power consumers. The court made clear that the Energy Department has not justified continued payments into the Nuclear Waste Fund. Although the court did not suspend these payments, the Energy Department is on notice that they must do a thorough and complete assessment within six months as to whether the fees -- charged to nuclear utilities and passed through to their consumers -- are necessary. If the Department does not, the court stated that they have the authority to suspend the payments into the Fund. Nuclear-power utilities and their consumers have paid more than $30 billion into the Nuclear Waste Fund for nearly 30 years. To date they have nothing to show for their investment except political delays, bureaucratic red tape, and a hole in the Nevada desert. Today's decision will force the Energy Department to do its job and prove why it should continue fees for a nuclear-waste program that it says no longer exists. We believe the evidence demonstrates that until and unless a new nuclear-waste policy is developed, consumers should be given a break."

 

   Access the complete opinion (click here). Access the NARUC statement (click here). [#Energy/Nuclear, #Haz/Nuclear, #CADC]

 

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