Webster v. USDA

Jul 13: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1739. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. The Appeals Court provides background saying that over thirty-five years ago, the Natural Resources Conservation Service (NRCS), working with local sponsors, devised a project to provide watershed protection, flood prevention, and recreation along the Lost River Subwatershed. The proposed project involved a combination of land-treatment measures and five dams and impoundments. In 1974, the NRCS issued an environmental impact statement relating to the project, and since that time, three dams and most of the land-treatment measures have been completed.

 

    After preparing a supplemental environmental impact statement in 2009, the NRCS issued a record of decision that eliminated one of the remaining dams from the project and authorized construction of the final dam for the added purpose of providing water supply. Appellants, seven individuals who allege that their land will be adversely affected by this final dam's construction, filed this action contending that the NRCS has failed to comply with the National Environmental Policy Act (NEPA).

 

    Appellants appeal the district court's order granting Appellees' motion for summary judgment. Because we determine that the The Appeals Court ruled, "NRCS has complied with the procedures mandated by the NEPA and taken a hard look at the project's environmental effects, we affirm."

 

    On one issue raised by Appellants the Appeals Court rules, "Even assuming that the NRCS did not ask the Army Corps to participate as a cooperating agency and that it should have done so, such error was harmless. See United States v. Coal.

for Buzzards Bay, 644 F.3d 26, 37 (1st Cir. 2011) (recognizing that harmless-error review applies to violations of the NEPA). Despite bearing the burden to establish harm, see id., Appellants fail to show, or even suggest, any harm that resulted from the failure to designate the Army Corps as a cooperating agency. Nor do we identify any harm resulting from this failure. In fact, the record reflects that the NRCS provided the Army Corps opportunities to participate in preparing both the 2007 SEIS and the 2009 SEIS, and that the Army Corps took advantage of at least some of these opportunities. . ."

 

    On another issue, "Appellants argue that the NRCS should not have issued the 2009 SEIS prior to receiving the Clean Water Act Section 404 permit from the Army Corps. But we are aware of no requirement that the NRCS obtain necessary permits before issuing an EIS. To the contrary, the CEQ's regulations mandate only that it list all necessary federal permits in a draft EIS. See 40 C.F.R. § 1502.25(b). Thus, the NRCS's issuance of the 2009 SEIS before obtaining the requisite permit from the Army Corps does not violate the NEPA."

 

    Access the complete opinion (click here). [#Water, #CA4]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals

Travelers Casualty & Surety Co. v. Providence Washington Ins

Jul 12: In the U.S. Court of Appeals, First Circuit, No. 11-2193. Appealed from the District Court of Rhode Island, Providence. In summarizing the case the Appeals Court indicates that, invoking diversity jurisdiction, appellant Travelers Casualty and Surety Company, Inc. (Travelers) sought a declaratory judgment that appellee Providence Washington Insurance Company, Inc. (PWIC) is obliged to join in the defense of New England Container Company, Inc. (NE Container or NECC), in connection with a contribution action involving clean-up costs for the Rhode Island Centredale Manor Superfund Site. Granting summary judgment to PWIC, the district court ruled that PWIC did not owe NE Container a duty to defend in the underlying action. The Appeals Court ruled, "On Travelers' appeal, we reverse the decision, vacate the judgment, and remand."

 

    The Appeals Court concludes, "In the end, we conclude that under the pleadings test, the Emhart complaint [Emhart Industries, Inc. also a responsible party] triggered PWIC's duty to defend under its policies issued in the mid-1980s. In so holding, we recognize that there is exponentially more to this sprawling litigation than the Emhart complaint and the PWIC policies. Litigation involving environmental damage at the Superfund Site was well on its way prior to the 2006 Emhart action, and the Emhart action had advanced beyond a nascent stage by the time Travelers pursued its 2010 action against PWIC. The duty to defend question before us, however, begins and ends with the Rhode Island pleadings test. Having concluded this task, our review is complete.

 

    "We reverse the district court's decision, vacate the judgment in favor of PWIC, and remand for the district court to enter judgment in favor of Travelers that the Emhart complaint triggered PWIC's defense obligations under its policies. Any remaining requests for relief sought by Travelers will be addressed by the district court in due course."

 

    Access the complete opinion (click here). [#Haz, #Remed, #CA1]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals

Kansas Gas & Electric Co. v. U.S.

Jul 12: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5044, 2011-5045. Appealed from the United States Court of Federal Claims. In this partially mixed opinion, Kansas Gas and Electric Company (KG&E), Kansas City Power & Light Company (KCPL), and Kansas Electric Power Cooperative, Inc. (KEPCO) (collectively the Kansas Companies) suffered damages due to the Government's partial breach of the Standard Contract for Disposal of Spent Nuclear Fuel And/Or High-Level Radioactive Waste (Standard Contract). In June 2010, the United States Court of Federal Claims conducted a nine-day trial and awarded the Kansas Companies $10,632,454.83.

 

    The majority indicated, "In determining the amount of damages, the trial court correctly did not award damages for cost of capital and for the costs associated with researching alternative storage options for spent nuclear fuel (SNF) and high level radioactive waste (HLW). The trial court also appropriately reduced the Kansas Companies' damages by the value of the benefit they received as a result of their mitigation activities. However, the trial court erred by not accepting the Kansas Companies' reasonable method for calculating overhead costs. Therefore, this court affirms-in-part and reverses-in-part the trial court's damages award."

 

    The majority court ruled, "The Kansas Companies' method for calculating over-head costs was reasonable and complied with FERC accounting standards. As such, this court reverses the trial court's refusal to accept these calculations. This court affirms the remainder of the trial court's decision. As such, there is no need to address the issues raised in the Government's cross-appeal."

 

    In a partial dissent, one Justice indicated, "The majority concludes that when the Kansas Companies used Federal Energy Regulatory Commission (FERC)-compliant accounting practices to allocate overhead to their mitigation efforts, they were dispositively entitled to recover the full amount of that overhead as damages. I respectfully disagree. When, as here, a trial court is presented with evidence that regulatory accounting practices were used to calculate the amount of overhead attributable to mitigation projects, that amount is presumptively a correct measure of damages for over-head. And our precedent firmly establishes that a trial court is not free to disregard it simply because it questions the precision of the accepted accounting practice."

 

    Access the complete opinion (click here). [#Haz/Nuclear, #CAFed]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals

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]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals

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]

 

GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals