Tinicum Township v. US Department Of Transportation

Jul 6: In the U.S. Court of Appeals, Third Circuit, Case No. 11-1472 On Petition for Review of an Order of the United States Department of Transportation, Federal Aviation Administration. The Appeals Court explains this is an appeal of the Federal Aviation Administration's approval of a significant expansion of Philadelphia International Airport. Disputing the FAA's air quality analysis, Petitioners (collectively Tinicum) allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the consistency provision of the Airport and Airway Improvement Act, 49 U.S.C. § 47106(a)(1).

 

    The Appeals Court ruled, "Because we find the Federal Aviation Administration's decision was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' 5 U.S.C. § 706(2)(A), we will deny the petition for review." The Appeals Court said, "We review the FAA's action under the APA's arbitrary and capricious standard. . .  We confine our review to the administrative record upon which the FAA's Record of Decision was based."

 

    Further, the Appeals Court outlined the extent of its review saying, "Citing the EPA's comments, Tinicum alleges five technical errors in the FAA's air quality analysis that purportedly render its environmental review inadequate under NEPA. Each allegation pertains to a category of data excluded from the FAA analysis. While additional data might enable a more detailed environmental analysis, NEPA does not require maximum detail. Rather, it requires agencies to make a series of line-drawing decisions based on the significance and usefulness of additional information. . . With this in mind, we review the FAA's air quality analysis, considering each of the alleged technical defects. . ."

 

    The Appeals Court concluded, "In sum, the FAA gave serious consideration and reasonable responses to each of the EPA's concerns. As the lead agency, the FAA has some latitude to determine the level of analytical detail necessary to support an informed decision and to adequately disclose air quality impacts to the public. The technical errors alleged by Tinicum do not render the FAA's air quality analysis arbitrary or capricious." The Appeals Court also denied a request by the Township for a supplemental EIS, saying, "Where new information merely confirms the agency's original analysis, no supplemental EIS is indicated."

 

    Finally, Tinicum contends the FAA failed to comply with the consistency requirement of the Airport and Airway Improvement Act (AAIA), which provides that the FAA may only approve an airport project if it is "consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the airport." 49 U.S.C. § 47106(a)(1). The Appeals Court ruled, "The FAA reasonably looked to the DVRPC's [Delaware Valley Regional Planning Commission's] plans in making its consistency determination. Accordingly, that determination was neither arbitrary nor capricious."

 

    Access the complete opinion (click here). [#Air, #Transport, #Land, #CA3]

Delaware DNR v. US Army Corps of Engineers

Jul 3: In the U.S. Court of Appeals, Third Circuit, Case Nos. 11-1283 & 11-1421. Appealed from the United States District Court for the District of Delaware. According to the Appeals Court, at issue is whether the U.S. Army Corps of Engineers can deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive and at the same time, comply with statutes that protect the environment. The roots of the project trace back decades.

 

    In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next twenty years. Commencement was delayed for several reasons, but in the fall of 2009, the Corps was ready to proceed. In October 2009, New Jersey and Delaware filed suits in the District Courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel. They alleged violations of the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Coastal Zone Management Act (CZMA). Each District Court granted summary judgment to the Corps, holding no environmental statutes would be breached. The Appeals Court affirmed.

 

    Over the decades an Environmental Impact Statement, a Supplemental Environmental Impact Statement, and an updated  Environmental Assessment recommended the project proceed because its substantial economic benefits outweighed any possible adverse environmental effects. Citing numerous related decisions from other circuits, the Appeals Court said, "In our review of the Corps' conduct, we conclude that its publication of the 2009 EA was neither arbitrary nor capricious."

 

    The Appeals Court said further, "Despite the Corps' comprehensive public engagement, appellants contend it acted arbitrarily and capriciously under NEPA. They argue the Corps provided inadequate public notice; erred in declining to publish a FONSI alongside the EA; erred in not circulating a draft of the EA for public review before publication; and did not meaningfully review the comments submitted. None of these claims has merit."

 

    The Appeals Court concludes, "For over twenty years, the Corps has devoted substantial efforts to evaluating the proposed five foot deepening project for the Delaware River. It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies. Its decision in 2009 to proceed with the project was consistent with NEPA, the CWA, and the CZMA. Accordingly, we will affirm the judgments of the District Courts of New Jersey and Delaware."

 

    Access the complete opinion (click here). [#Water, #Wildlife, #Land, #CA3]

 

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Notice: July 4, 2012

Subscribers & Readers Note:

WIMS will not be publishing today,

July 4, 2012. We'll be back on July  5.

Be safe, stay cool, and

enjoy your July 4th holiday.

U.S. v. CB & I Constructors, Inc.

Jun 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55371. Appealed from the United States District Court for the Central District of California. According to the Appeals Court, defendant CB&I Constructors, Inc., (CB&I) negligently caused a June 2002 wildfire that burned roughly 18,000 acres of the Angeles National Forest in Southern California. The United States brought a civil action against CB&I to recover damages for harm caused by the fire. CB&I does not contest its liability or the jury's award of roughly $7.6 million in fire suppression, emergency mitigation, and resource protection costs. It challenges only the jury's additional award of $28.8 million in "intangible environmental damages."

 

    The district court denied CB&I's motions for judgment as a matter of law and a new trial or remittitur, concluding that under California law the government could recover damages for all of the harm caused by the fire, including intangible harm to the environment. The district court "held that the government provided sufficient evidence for the jury to determine the amount of environmental damages, and that the resulting award was not grossly excessive." The appeals Court affirmed the district court decision.

 

    In calculating the intangible harm, the jury also awarded the government an additional $28.8 million or $1,600 per acre of burned National Forest land. The Appeals Court indicated that CB&I and Amici argue that the government may not recover intangible environmental damages because noneconomic damages are not recoverable in negligence suits regarding harm to real property. However, the Appeals Court said, "CB&I and Amici err by relying on cases that merely limit damages for emotional distress or suffering. . . In sum, we see nothing in California law that prevents the federal government from recovering intangible, noneconomic environmental damages for a negligently set fire."

 

    Regarding the intangible harm, the government did not provide testimony on a specific dollar amount, but did provide testimony concerning the "extensive destruction and harm to animal habitats, soils, and plant life. This testimony included the harm caused by the fire to the endangered California red-legged frog and the destruction of the historic Hazel Dell mining camp." The Appeals Court said it agreed with the district court that the trial provided sufficient evidence for the jurors to quantify the intangible environmental harm.

 

    The Appeals Court said, "Given the scope of the environmental harm caused by the Copper Fire, we agree with the district court that the jury's damage award of $1,600 per acre was not grossly excessive or against the clear weight of the evidence. We conclude that the district court did not abuse its discretion by denying CB&I's motion for a new trial or remittitur."

 

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

 

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Snoqualmie Valley Preservation Alliance v. U.S. Army Corps

Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35459. Appealed from the United States District Court for the Western District of Washington. The Appeals Court explains that Puget Sound Energy (PSE) maintains and operates a hydroelectric power plant at the 268-foot-high Snoqualmie Falls in the State of Washington. The Snoqualmie River drains a large watershed above the falls, and all of the water from this area must pass through a single narrow channel before it reaches the falls, creating a bottleneck during heavy rains. This subjects the City of Snoqualmie, located just upstream of the falls, to persistent and significant flooding.

 

    In the process of upgrading and modifying the plant, PSE plans to lower the dam located in the channel above the falls in order to mitigate these upstream flooding problems. PSE has already obtained a license for the project from the Federal Energy Regulatory Commission (FERC). Because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the Clean Water Act (CWA) without a permit, PSE sought verification from the U.S. Army Corps of Engineers (Corps) that it could proceed under a series of general nationwide permits (NWPs) authorizing certain discharges, rather than applying to the Corps for an individual permit.

 

    The Corps verified that it could. Downstream property owners formed the Snoqualmie Valley Preservation Alliance (Alliance) to challenge this decision, which they contend will exacerbate flooding problems below the falls. The district court granted summary judgment for the Corps and the Appeals Court affirm the district court decision.

 

    The Alliance challenged a Verification Letter as inadequate, however, the Appeals Court said, "The Verification Letter at issue here does state reasons for the action taken: the agency verified that PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39. This conclusion is amply supported by facts in the administrative record. To require more would be contrary to the regulatory scheme, which devised the system of general nationwide permits to streamline the process, reduce redundancy, and conserve agency resources."

 

    The Appeals Court also responded to a NEPA challenge saying, "The Alliance bases its NEPA claim on the argument that the Corps was required by the CWA to inform PSE that it could not proceed under general nationwide permits, but instead must apply for an individual permit. However, because the Corps did not violate the CWA, it also did not violate NEPA. Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of the verification."

 

    Access the complete opinion (click here). [#Water, #Energy/Hydro, #CA9]

 

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GOP & Industry Groups Say GHG Decision Is "Devastating Blow"

Jun 27: As WIMS reported yesterday the unanimous decision by the U.S. Court of Appeals, D.C. Circuit in the case of Coalition for Responsible Regulation v. U.S. EPA, and related consolidated cases upholding EPA authority to regulated greenhouse gases (GHG) under the Clean Air Act [See WIMS 6/26/12] was widely applauded by Democratic leaders and environmental organizations. Reactions from Republican leaders and industry groups were not available at press time. The following reactions of Michigan's Representative Fred Upton, Senator Inhofe and the industry coalition involved in the lawsuits were released later in the day.

 

    House Energy and Commerce Committee Chairman Fred Upton (R-MI) issued a statement in response to the ruling saying, "While some in Washington may claim today's court ruling is a win for the Obama administration, it delivers a devastating blow to the U.S. economy and American consumers. After enduring 40 consecutive months of higher than eight percent unemployment, we cannot afford the EPA's continued expansion of red tape that is slowing economic growth and threatening to entangle millions of small businesses. EPA's rules will impose billions of dollars in compliance and delay costs and represent an unprecedented expansion of EPA authority that has the potential to affect virtually every sector of the economy and touch every household. We have a legislative solution that stands up for American workers. The House passed my bill, H.R.910, to stop this power-grab by the Obama administration and block EPA's cap-and-trade agenda that threatens to drive energy prices higher, destroy jobs, and hamstring our economic recovery.

   

    Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, and a major critic of the Administration's GHG regulations and climate change science commented the decision saying, "This 'big win' for the Obama EPA is a huge loss for every American, especially those in the heartland states which rely on fossil fuel development and the affordable energy that comes with it. EPA's massive and complicated regulatory barrage will continue to punish job creators and further undermine our economy. This is the true agenda that President Obama is trying to hide under disingenuous reelection rhetoric about an 'all of the above' approach to energy.

    "And what will Americans get in return for this regulatory nightmare? Even EPA Administrator Lisa Jackson said that these rules will have no effect on the climate so it will be all pain for no environmental gain. Today's court ruling should be a wake-up call for the United States Senate to do its job and prevent what an author of the Clean Air Act amendments, Representative Dingell, called a 'glorious mess.' Last year 64 Senators went on record as wanting to stop these devastating greenhouse gas regulations from taking effect -- it's time they actually do so."

    "The Obama administration is attempting to regulate greenhouse gases in the absence of legislation. Congress and the American people rejected cap-and-trade legislation, but unelected bureaucrats at the EPA are pushing through harmful regulations that will serve as a massive energy tax on American businesses and families. H.R.910 will reassert Congress' authority to direct public policy and will protect Americans from EPA's overreach."

    National Association of Manufacturers (NAM) President and CEO Jay Timmons released a statement on behalf of the industry coalition on the ruling by the U.S. Court of Appeals for the D.C. Circuit saying, "Today's ruling is a setback for businesses facing damaging regulations from the EPA. The Clean Air Act was not designed to regulate greenhouse gases, and even the EPA said that it could not comply with the statute as written to implement these regulations.

    "The EPA's decision to move forward with these regulations is one of the most costly, complex and burdensome regulations facing manufacturers. These regulations will harm their ability to hire, invest and grow. By moving forward, the EPA is adding to the mounting uncertainty facing manufacturers of all sizes. We will be considering all of our legal options when it comes to halting these devastating regulations. The debate to address climate change should take place in the U.S. Congress and should foster economic growth and job creation, not impose additional burdens on businesses."

    In a release, NAM said it is "reviewing the court's decision and will consider further legal options on appeal. The EPA's greenhouse gas regulations will eventually require new burdensome permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources such as universities, schools, hospitals and even American homes -- impacting every aspect of our economy."

    The members of the coalition include American Frozen Food Institute; American Fuel & Petrochemical Manufacturers; American Petroleum Institute; Brick Industry Association; Copper & Brass Fabricators Council, Inc.; Corn Refiners Association; Glass Association of North America; Glass Packaging Institute; Independent Petroleum Association of America; Indiana Cast Metals Association; Michigan Manufacturers Association; Mississippi Manufacturers Association; National Association of Home Builders; National Association of Manufacturers; National Oilseed Processors Association; NFIB Small Business Legal Center; North American Die Casting Association; Specialty Steel Industry of North America; Tennessee Chamber of Commerce & Industry; Western States Petroleum Association; West Virginia Manufacturers Association; and Wisconsin Manufacturers & Commerce.

    Access the statement from Rep. Upton (click here). Access the statement from Sen. Inhofe (click here). Access the NAM release (click here). Access the complete opinion (click here). [#Climate, #Air, #MIAir, #MIClimate, #CADC]

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Building Industry Association of WA v. WA State Bldg Code

Jun 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35207. Appeal from the United States District Court for the Western District of Washington. The Appeals Court explains that the Energy Policy and Conservation Act of 1975 (EPCA), establishes nationwide energy efficiency standards for certain residential home appliances, and expressly preempts state standards requiring greater efficiency than the Federal standards. It nonetheless exempts from preemption state building codes promoting energy efficiency, so long as those codes meet certain statutory conditions. This case is a challenge to the State of Washington's Building Code brought by the Building Industry Association of Washington (BIAW), along with individual builders and contractors.

 

   The impetus for the challenge is the State's 2009 requirement that new building construction meet heightened energy conservation goals. This is the first case at the appellate level to consider EPCA's preemption-exemption provision. Plaintiffs-

Appellants (Plaintiffs) argue that the Building Code does not satisfy EPCA's conditions for exemption. The district court, however, held that Washington had satisfied EPCA's conditions, and therefore was not preempted. The Appeals Court affirmed the district court decision and explains that to escape preemption, a state's building code must satisfy the seven conditions codified in 42 U.S.C. § 6297(f)(3). The two at issue here are § 6297(f)(3)(B) and (C).

 

    Under subsection (B), a state's building code cannot require a covered product -- energy consuming fixtures such as water heaters and refrigerators -- to be more efficient than the standards established by the United States Department of Energy

(DOE"). The State of Washington's Building Code requires builders to reduce a building's energy use by a certain amount, and provides a number of options from which a builder may choose how to meet that requirement. Some of the options involve the installation of products that have an efficiency that exceeds the federal standards. These options, according to the builders, also happen to be cheaper than the other options. The builders contend that they are therefore being "required" to use products that exceed the Federal standards, in violation of subsection (B).

 

    On the subsection (B) issue the Appeals Court rules, "We hold that a builder is not 'required' to select an option, within the meaning of subsection (B), simply because there is an economic incentive to do so. Section 6297(f)(3)(B) is violated when the code requires a builder, as a matter of law, to select a particular product or option. The Supreme Court has recognized this to be what a requirement entails. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445 (2005) (rejecting a preemption challenge, and holding that the term 'requirement' in a different statute means 'a rule of law that must be obeyed'). Plaintiffs in this case are thus not 'required' to choose the less expensive, more efficient option."

 

    Plaintiffs' also challenge under § 6297(f)(3)(C) of the Federal law which the Appeals Court said "is more factual in nature." Subsection (C) provides that a building code must grant credits on the basis of how much each option reduces energy use or cost, without favoring particular products or methods. Plaintiffs argue that the Building Code here does not satisfy this condition, because they contend its credits are not granted on a one-for-one equivalent energy use basis. The Appeals Court says their argument relies solely upon a BIAW member's declaration. The district court rejected the declaration after finding that the witness was not qualified as an expert to challenge the State's calculations of equivalent energy use savings produced by using particular products or building methods.

 

    The Appeals Court rules, "We hold there was no abuse of discretion in disallowing that evidence. The evidence that is in the record supports the district court's conclusion that the state-assigned credit values satisfy the 'one-for-one equivalent energy use' requirement of subsection (C). . . We therefore hold that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law and we affirm the judgment of the district court in favor of the State."

 

    Access the complete opinion (click here). [#Energy/Efficiency, #CA9]

 

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