Georgia-Pacific v. Northwest Environmental Defense Center

Jun 25: The U.S. Supreme Court has agreed to hear the appeal of Georgia-Pacific (GP) West, Inc. v. Northwest Environmental Defense Center (NEDC), Sup.Ct. No. 11-347, commonly referred to as the "forest roads" case. The case asks the Supreme Court to overturn a 2011 ruling by a three-judge panel of the U.S. Ninth Circuit Court which GP says reverses 35 years of law governing how rainwater runoff from forest roads is managed [See WIMS 12/14/12]. The Ninth Circuit's ruling said forest road operators in the states under its jurisdiction will be required to obtain Clean Water Act discharge permits for ditches, drains and culverts that channel rain runoff from their roads -- treating rain runoff the same as industrial sources.

    Mike Adams, Georgia-Pacific senior vice president of sourcing and fiber supply said, "We are pleased for the 2.5 million people and thousands of local economies that depend on forest products that the Supreme Court has decided to hear our appeal in this critical case. Today's decision is a significant step forward in protecting these jobs, especially in those states under the Ninth Circuit's jurisdiction. We along with numerous experts continue to believe the long-standing practice of regulating forest roads through state forestry best management practices is the most environmentally responsible way to oversee management of the nation's forest roads. We look forward to arguing our case before the Supreme Court in its next term."

    According to a release from GP, the U.S. Forest Service has estimated that, if the Ninth Circuit ruling were applied nationally, it alone would have to obtain 400,000 permits. Oregon counties estimate the decision will cost them $56 million to secure permits for their 20,000 culverts. Federal and state regulators will have to completely redesign forestry programs that have been in place for a generation. In the states of the Ninth Circuit -- Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii -- the timber industry employs a million people. Nationally, it supports 2.5 million jobs and $87 billion a year in wages.

 

   Timothy Bishop, lead appellate attorney for the forestry industry said, "The Ninth Circuit's decision changing 35 years of law was a mistake in law as well as a mistake for jobs and the environment. EPA has said for 35 years that the most effective approach to managing rainwater runoff from forest roads is through state forestry best management practices designed for local conditions. In place of this long-standing and successful regulatory method, the Ninth Circuit substituted the rigid and costly national permitting scheme used to regulate discharges from factories, chemical plants, mines and other industrial facilities. The circuit's decision is contrary to the plain meaning of the law. And its requirements make no economic or environmental sense when applied to tens of thousands of miles of remote and dispersed roads -- roads that are used for multiple purposes including fire-fighting, recreation and intermittent logging.

 

    NEDC had advised the Supreme Court not to take on the controversial logging pollution lawsuit that began in Oregon. Mark Riskedahl of NEDC said, "If there was regulation of pollution coming off of highways and off of even residential streets, why shouldn't there be regulation of pollution coming off of industrial logging roads." Federal lawyers filed a brief to the court saying the court should leave it to Congress and the Environmental Protection Agency, to sort the issue out.

 

Access the SupCt docket for the case (click here). Access a release from GP (click here). Access a release from NEDC and link to the Federal brief (click here). [#Water, #Land]

 

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State of Oklahoma, et al v. U.S. EPA

Jun 22: In the U.S. Court of appeals, Tenth Circuit, Case Nos. 12-9526 & 12-9527. The Appeals Court issued a brief order indicating, "Petitioners, the State of Oklahoma, Oklahoma Industrial Energy Consumers, and the Oklahoma Gas & Electric Company, seek a stay pending review of that portion of the Environmental Protection Agency's final rule requiring the reduction of sulfur dioxide emissions at four electric generating units. We conclude that the stay factors have been met in this case, and we therefore grant the motion for stay pending hearing by the merits panel."

 

    The Oklahoma Attorney General, Scott Pruitt, issued a statement in response to the order saying, "This is a significant victory for the State of Oklahoma, and it temporarily prevents the EPA from enforcing a federal plan that will raise utility rates for Oklahoma consumers. The EPA exceeded its authority under the Clean Air Act and we will continue to challenge that decision to preserve the ability of Oklahoma stakeholders to create an Oklahoma solution."

 

    On June 7, U.S. EPA issued a final rule [77 FR 33642-33659], effective August 6, 2012, that finalizes revisions to the rules pertaining to the regional haze program. The rule finalizes EPA's finding that the trading programs in the Transport Rule, also known as the Cross-State Air Pollution Rule (CSAPR), achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule [See WIMS 6/7/12].

 

    Access the Order (click here). Access the statement from the OK AG (click here). Access an AP article on the order (click here). Access the complete FR Final Rule (click here). Access an EPA fact sheet on the final action (click here). Access EPA's Regional Haze Program website for more information (click here). [#Air]

 

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Defenders Of Wildlife v. Bureau Of Ocean Energy Management

Jun 22: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-12598 & 11-12599. Petitions for Review of a Decision of the Department of the Interior. The case concerns a challenge to an exploratory drilling plan under the Outer Continental Shelf Lands Act (OCSLA). 43 U.S.C. § 1331 et seq. The Bureau of Ocean Energy Management (BOEM) approved the Shell Exploration Plan S-7444 (Shell EP) to conduct drilling in the Gulf of Mexico. The Shell EP covers ten exploratory wells on offshore Alabama leases in the Central Gulf of Mexico between 7,100 and 7,300 feet deep.

 

    The case is a consolidated appeal in which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et al. (Petitioners), filed comments on the Shell EP, participated in the administrative proceeding, and filed the petition for review. The only issues on petition for review are whether the Shell EP violates the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), 16 U.S.C. § 1536 et seq. The Appeals Court ruled, "After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we deny the petition for review."

 

    The Appeals Court said, "Petitioners insist, BOEM's decision not to prepare an EIS and its subsequent FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our extremely deferential 'arbitrary or capricious' standard of review." Among other items, Petitioners argue that BOEM failed to include a site-specific analysis of potential catastrophic spills and underestimated the likelihood of a spill. However, the Appeals Court indicates, "To the contrary, the EA extensively analyzes the risks and consequences of such an event. Appendix B of the EA, 'Catastrophic Spill Event Analysis,' evaluates the impact of a low-probability catastrophic spill. After taking into account regulations put into effect after the Deepwater Horizon disaster, BOEM determined that the risk of another spill was low. While this analysis is derived from a generalized scenario, it is based on the only two large spill disasters in the Gulf of Mexico -- the 1979 Ixtoc blowout in the Bay of Campeche Mexico and the 2010 Deepwater Horizon disaster. An oil spill is an unexpected event, and its parameters cannot be precisely known in advance. Thus, it is appropriate for BOEM to summarize potential impacts resulting from a hypothetical oil spill."

 

    Further the Petitioners argued that BOEM's failed to evaluate the worst case discharge spill of 405,000 barrels of oil per day, but the appeals Court ruled, ". . .BOEM is not required to base its NEPA analysis on a worst case scenario. . . NEPA does not require a 'worst case discharge' analysis. Thus, we conclude that BOEM's reliance on analysis based on a lower spill rate, which it determined to be more likely than the worst case discharge, was not arbitrary or capricious or in violation of NEPA."

 

    Additionally, Petitioners' final complaint with BOEM's site-specific analysis is that the EA fails to discuss some endangered species present in the Gulf, including the piping plover, Gulf sturgeon, and various species of beach mice. The Appeals Court said, "Petitioners suggest that every EA requires a detailed analysis of each species that could possibly be affected by a potential oil spill. NEPA clearly does not require such analysis. An EA is intended to be a document that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].' 40 C.F.R. § 1508.9(a)(1). Although the EA does not describe every possible environmental effect of an oil spill, BOEM took a hard look at environmental impacts, and its site-specific analysis of expected drilling operations is consistent with NEPA."

 

    Access the complete opinion (click here). [#Energy/OCS, #Wildlife, #Water]

 

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National Association of Home Builders v. U.S. EPA

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1183. On Petition for Review of a Final Rule of the Environmental Protection Agency. The case involves the 2008 rule issued by the U.S. EPA regulating renovation and remodeling activities that create health hazards arising from lead paint. The rule contained an "opt-out" provision, which exempted owner-occupied housing from the rule's requirements if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision.

 

    The National Association of Home Builders (NAHB) and other trade associations petitioned for review of the amended rule on two grounds: (1) that the decision to abandon the opt-out provision was arbitrary and capricious, in violation of the Administrative Procedure Act (APA); and (2) that EPA failed to convene a panel of representatives of small businesses before issuing the new rule, in violation of the Regulatory Flexibility Act. The Appeals Court ruled, "Because we conclude that EPA's decision was not arbitrary or capricious, and because we lack jurisdiction to entertain the petitioners' second challenge, we deny the petition for review."

 

    NAHB argued that it was arbitrary and capricious for EPA to change its mind about the opt-out provision. In 2008, they said, EPA "provided a reasoned basis for its approach that was consistent with congressional intent." In contrast, they said, "EPA has provided no justification for its decision to reverse course . . . that is grounded in any information or experience that was not available to the Agency when it included the Opt Out Provision in the original rule."

 

    The Appeals Court said, "This kind of argument is largely foreclosed by FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), in which the Supreme Court declared that there is 'no basis in the Administrative Procedure Act or in our opinions for a

requirement that all agency change be subjected to more searching review.'" The Appeals Court said further, "In light of Fox, we must reject the petitioners' contention that, 'because the Rule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.' The fact that the original opt-out provision was consistent with congressional intent is irrelevant as long as the amended rule is also 'permissible under the statute.'" The Appeals Court also ruled that EPA satisfied the core requirement that Fox makes clear that an agency must meet when changing course: it must "provide reasoned explanation for its action," which "would ordinarily demand that it display awareness that it is changing position."

 

    On the second issue, the Appeals Court indicates that the small business advocacy review panel requirement "is a purely procedural device, a process by which interested parties can present their views to the agency. . . And courts may not, under the guise of the APA's arbitrary-and-capricious review standard, impose procedural requirements that the APA's procedural provisions. . .do not themselves impose."

 

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

 

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Patton Boggs, LLP v. Chevron Corporation

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-7082 & 11-7089. Appeals from the United States District Court for the District of Columbia. The Appeals Court explains this case is but a small part of a long-running and now sprawling international litigation battle in which various indigenous Ecuadorian groups claim that Chevron Corporation is liable for environmental harm caused in the Amazon over three decades. Patton Boggs LLP represents the plaintiffs and would like to continue to do so. The Appeals Court said, "The district court denied Patton Boggs both a declaratory judgment that it could not be disqualified from that representation and leave to amend its complaint with claims that Chevron and its counsel, Gibson, Dunn & Crutcher LLP, tortiously interfered with the firm's contract with its clients. . . we affirm the district court."

 

    The Appeals Court said further, "The complaint does not allege the requisite 'plausible scenario' that could show Patton Boggs is entitled to relief. Jones, 634 F.3d at 595. We agree with the district court that the allegation is nothing but 'an unadorned, the-defendant-unlawfully-harmed-me accusation.' Chevron II, 825 F. Supp. 2d at 42 (quoting Iqbal, 556 U.S. at 678). . ."

 

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

 

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Southern Union Co. v. United States

Jun 21: In the U.S. Supreme Court, Case No. 11-94. Appealed from the U.S. Court of Appeals, First Circuit [See WIMS 1/4/11]. Justices Sotomayor, Roberts, Scalia, Thomas, Ginsburg and Kagan were in the majority. Justice Breyer filed a dissenting opinion in which Kennedy and Alito joined. The case raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.

 

    In summary, the majority says, "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000); Blakely v. Washington, 542 U. S. 296 (2004). We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does."

 

    In this case, Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Island. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mercury, and spread it around the facility and complex. The complex's residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.

 

    Violations of the RCRA are punishable by, inter alia, "a fine of not more than $50,000 for each day of violation." §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation's approximate start date (i.e., "on or about"), and argued that the court's instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require fact-finding by the court, in contravention of Apprendi.

 

    The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the "content and context of the verdict all together" that the jury found a 762-day violation.

    The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a "community service obligatio[n]" of $12 million. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court's conclusion that the jury necessarily found a violation of 762 days. But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. Other Circuits have reached the opposite conclusion. The majority Supreme Court said, "We granted certiorari to resolve the conflict. . . and now reverse. . . We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

    The High Court explains, "Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U. S., at 490. The 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not 'inflict[to] punishment that the jury's verdict alone does not allow.'"

    The dissenting opinion indicates, "Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts -- facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that 'the finding of a particular fact' of this kind was ordinarily a matter for a judge and not necessarily 'within "the domain of the jury."' Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court's contrary conclusion, I believe, is a historical and will lead to increased problems of unfairness in the administration of our criminal justice system."

    Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access the oral argument transcript (click here). Access the briefs filed in the case (click here). [#Haz, #Remed, #SupCt]

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The Save The Peaks Coalition v. U.S. Forest Service

Jun 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona [See WIMS 2/10/12]. The Appeals Court explains that Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's

fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, "grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate."

 

    The Appeals Court indicates, ". . .we find that Shanker's conduct merits sanctions against him personally. As detailed in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), Shanker grossly abused the judicial process in bringing this case solely 'to ensure further delay and forestall development' at Snowbowl. Save the Peaks Coal., 669 F.3d at 1028. Shanker acted with subjective bad faith. He engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). His intent was to harass Snowbowl. Therefore, we conclude that Shanker is subject to sanctions under § 1927. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002); New Alaska Dev. Corp., 869 F.2d at 1306."

 

    The Appeals Court says, "As an appropriate remedy, we hold Shanker 'personally liable for excessive costs for unreasonably multiplying proceedings.' Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney's fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl's favor against Shanker. Therefore, the court awards costs in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896) to Snowbowl, to be paid entirely by Shanker, counsel for Plaintiffs-Appellants. Thus, Snowbowl's Motion for Attorneys' Fees is denied, and its accompanying motion for costs is granted, as modified by this order."

 

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

 

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