Lovgren v. Locke

Nov 28: In the U.S. Court of Appeals, First Circuit, Case No. 11-1952. Appealed from the District of Massachusetts, Boston. This case involves legal challenges to recent Federal management actions taken in New England's sensitive Multispecies Groundfish Fishery. In brief summary the Appeals Court says, "We reject the many  challenges and affirm entry of summary judgment for the federal defendants."

 

    The Appeals Court explains further that under the Magnuson-Stevens Fishery Conservation and Management Act the New England Fishery Management Council (N.E. Council) regulates fishery resources within the Federal waters off New England's coast. It does so primarily through Fishery Management Plans (FMPs), which it reevaluates biennially in light of the latest scientific information and congressionally imposed mandates and deadlines to prevent overfishing. Those mandates and deadlines were recently altered by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which introduced a suite of stringent protections for depleted fisheries.

 

    The litigation centers on the N.E. Council's adjustments to the FMP governing the Northeast Multispecies Groundfish Fishery (Fishery). The N.E. Council was required by law to implement changes to the Fishery's 2004 FMP by the 2010 fishing year, taking into account both the Reauthorization Act's new protections and the results of a study conducted in 2008 on the health of the Fishery's stocks of fish. The study results showed that the situation was worse than previously believed. A number of groundfish stocks were overfished and subject to overfishing; only two stocks had improved since the 2004 FMP's implementation. This trend has continued to the present.

 

    The N.E. Council adopted a new proposed groundfish FMP, Amendment 16, after 3 years' work, which included several publications in the Federal Register, eight public hearings, and receipt of numerous comments. The Federal environmental impact

statement prepared for Amendment 16 acknowledged the severe economic hardships facing New England's fishing communities.

 

    On January 21, 2010, Amendment 16 was upheld on administrative review by the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce. The NMFS promulgated Amendment 16 through three related sets of regulations that, inter alia, altered and expanded the Fishery's preexisting "sector allocation program" and established new restrictions on fishing activities to end and prevent overfishing. The regulations took effect on May 1, 2010.

 

    Plaintiffs then filed suit in Federal court alleging that Amendment 16 conflicts with the Reauthorization Act's provisions governing "limited access privilege programs," with the ten "national standards" applicable to all FMPs and with the requirements of the National Environmental Policy Act. They unsuccessfully sought to enjoin implementation of Amendment 16. The district court granted summary judgment for defendants as to all claims. The Appeals Court affirmed.

 

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

 

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Hornbeck Offshore Services, et al v. Kenneth Salazar (Interior Dept.)

Nov 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30936. The case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. The explosion killed 11 workers, caused the drilling platform to sink, and resulted in a major uncontrolled release of oil. At Presidential direction, those

events prompted the Department of the Interior to prohibit all new and existing oil and gas drilling operations on the Outer Continental Shelf for six months.

 

    The district court preliminarily enjoined enforcement of the moratorium. The single issue on appeal is whether Interior's subsequent actions violated a specific provision of the court's injunction, justifying a finding of civil contempt. The district court was certainly correct that Interior immediately took steps to avoid the effect of the injunction, but in a split decision, the majority Appeals Court concluded that "none of those actions violated the court's order" and reversed the decision. The majority further ruled:

"Interior was carrying out a policy decision made by the President. On display throughout was the 'decision, activity . . . and dispatch' that the Framers envisioned for the Executive Department of government. THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Litigation was not able to keep pace with these developments. See id. (discussing the Executive's unique role 'in the most critical emergencies of the state'). The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding. The controversial policy decisions that the May and July Directives reflected were made at the highest level of government. In implementing those decisions, we do not discern a violation of a clear provision of the district court's order by the words expressed or actions taken by the Secretary.

 

"The district court dealt expeditiously and forcefully with extremely significant litigation. The potential APA violations that led to the initial injunction are not at issue today, but such violations, if significant, would justify a district court's consideration of an injunction. Our decision is a narrow one. We conclude that there is no clear and convincing evidence that Interior's actions after the injunction violated the clear terms of the injunction as drafted. Therefore, there was no civil contempt."

    The dissenting Justice said in a lengthy dissent, "Because I would hold that the district court did not abuse its discretion in holding Interior in contempt, I respectfully dissent. While the majority views Interior's acts in isolation, the totality of the circumstances supports the able district court's decision."

 

    And, concluded, "As the majority opinion states, the 'controversial policy decisions' at issue here were 'made at the highest levels of government.' But that does not insulate those decisions from judicial review. The district court determined that the Interior's actions amounted to a 'determined disregard' of its preliminary injunction order. The court's power to enforce its orders must remain intact, even in the midst of the most critical emergencies of the state. Simply put, the Judiciary may be the least dangerous branch, but it is not entirely toothless."

 

    Access the complete opinion and dissent (click here). [#Energy/OCS, #Energy/OilSpill, #CA5]

 

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Decker v. NEDC Set For Oral Arguments

Nov 26: The National Alliance of Forest Owners (NAFO) reports that all briefs are filed at the U.S. Supreme Court for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC). Oral arguments are scheduled for December 3, 2012 and a decision is expected next spring. The three questions at hand are:

• Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
• Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
• Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final?

    NAFO indicates that fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.

    One group of law professors supported the petitioners on a specific legal point regarding deference to EPA's administrative and statutory interpretations. Two groups of law professors supported NEDC -- one arguing that deference is not appropriate in this case and the other arguing the case was properly filed under the CWA. The brief on deference argues that other courts have questioned the validity of the Silvicultural Rule and that while legislation to add the Rule to the CWA has been introduced in the past, Congress did not do so. This brief conveniently ignores that several courts have upheld the Silvicultural Rule and that congressional support for the legislation forced EPA to withdraw its proposed repeal of the Rule thus making the CWA amendment unnecessary.

    Thirty-eight forestry professors, two forestry schools, the leading U.S. professional forestry associations, and retired U.S. Forest Service employees supported the petitioners. Fifteen former EPA and state regulators supported NEDC. A number of forestry associations supported the petitioners (including NAFO), plus several agricultural and business groups and a wildlife conservation group. Several local northwest environmental and fishery groups plus a few national groups supported NEDC.

    NAFO said that competent legal arguments were raised on both sides. Some of the briefs, however, raised technical arguments. For example, the former EPA employees argue that forestry-related sediment is a leading source of water quality impairment to rivers and streams nationwide. However, NAFO said the impaired waters data on EPA's website show otherwise. Forestry ranks far down the list of impairment causes, with only a small percentage of the overall stream segments lists under CWA section 303(d) by the states as impaired.

    Some briefs argue that NPDES permitting for logging roads is feasible, flexible, and not unduly burdensome as it will focus on an easily identified subset of forest roads and will employ a general permit, referencing the Multi-Sector Stormwater General Permit as an example. These briefs do not attempt to define what constitutes a forest road, let alone explain how EPA would define a subset deserving of regulation. As for the Multi-Sector Stormwater General Permit, this provides a variety of approaches to a number of industrial sectors focused on relatively identifiable facility sites, with complex paperwork and monitoring requirements, some of which must be conducted immediately after a rain event. Hardly flexible and easily costly.

    Finally, some briefs detailed the water quality and aquatic ecosystem problems caused by sediment from forest road runoff. Sediment is precisely why state-administered Best Management Practices (BMPs) exist. NAFO indicates that what is in dispute is whether NPDES permits are the best way to control runoff and thus improve water quality. Not one brief cited any study or report showing that permits are a better control system than BMPs. One brief detailed several federal court decisions finding procedural flaws with the use of BMPs in various water programs in Oregon. The brief filed by professional and academic foresters, however, cited study after study showing the effectiveness of BMPs and the high compliance rates even in states where BMPs are not mandatory.

    Access a release from NAFO (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). [#Water, #Land, #SupCt, #CA9]

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Friends Of The Everglades v. U.S. EPA

Oct 26: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 08-13652, 08-13653, 08-13657, 08-14921, & 08-16283. Petitions for Review of a Decision of U.S. EPA. The case involves determining whether the Appeals Court has original subject matter jurisdiction over several petitions for review of an administrative rule that exempts transfers of waters of the United States from the requirements for a permit under the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether the Appeals Court may avoid deciding that question and instead exercise hypothetical jurisdiction to decide the merits of the petitions. Friends of the Everglades, several other environmental organizations, nine states (NY, CT, DE, IL, ME, MI, MN, MO, WA), the province of Manitoba, Canada, and the Miccosukee Tribe argue that original jurisdiction belongs in a district court, but they filed protective petitions for review of the water-transfer rule in this and another circuit [Second Circuit] after the Administrator of the Environmental Protection Agency stated her position that the initial judicial review of the rule could be had only in the circuit courts of appeals.

 

    The Judicial Panel on Multidistrict Litigation consolidated the petitions in this Court. The South Florida Water Management District and the United States Sugar Corporation intervened to defend the rule along side the Administrator. United States Sugar urges the Appeals Court to exercise hypothetical jurisdiction and deny the petitions. But the Appeals Court held that, "under the plain language of the governing statute, id. §1369(b)(1), we lack original subject matter jurisdiction to review the petitions and we may not exercise hypothetical jurisdiction over them. We dismiss the petitions."

 

    Explaining further, the Appeals Court said, "The Administrator argues that we should read section 1369(b)(1)(F) to apply to any 'regulations relating to permitting itself,' but this interpretation is contrary to the statutory text and was persuasively rejected in Northwest Environmental Advocates. The Ninth Circuit held that it did not have jurisdiction under section 1369(b)(1)(F) to review a regulation creating new exemptions from the permit program. Nw. Envtl. Advocates. 537 F.3d at 1018. The Ninth Circuit explained that a new exemption will never produce a permit decision to be reviewed under section 1369(b)(1)(F) before the court of appeals is able to review the underlying regulation, so there is no reason to read the section as providing original subject matter jurisdiction to review the exemption. Id Although the Sixth Circuit later adopted the interpretation advanced by the Administrator, Nat'l Cotton Council of Am. v. EPA. 553 F.3d 927, 933 (6th Cir. 2009), it did so in an opinion that provided no analysis of the provision and that cited two decisions of the Ninth Circuit that the Ninth Circuit had distinguished in Northwest Environmental Advocates, see id. We lack original jurisdiction to review a permanent exemption from the permit program."

 

    Regarding the hypothetical jurisdiction issue, the Appeals Court said, "We cannot exercise hypothetical jurisdiction any more than we can issue a hypothetical judgment. 'Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.' Kokkonen v. Guardian Life Ins. Co. of Am.. 511 U.S. 375,377,114 S. Ct. 1673, 1675 (1994) (internal citations omitted). Because we conclude that section 1369(b)(1) does not grant original subject matter jurisdiction over these petitions, we may not address the merits of this controversy."

    Access the complete opinion (click here). [#Water, #MIWater, #CA11]

 

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Center For Biological Diversity v. U.S. BLM

Oct 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-72356, 10-72552, 10-72762, 10-72768, & 10-72775. On Petition for Review of Orders of the Bureau of Land Management and the Fish and Wildlife Service.

 

    The Appeals Court explains that the case concerns a decision by the Bureau of Land Management (BLM) to authorize the Ruby Pipeline Project (Project). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of Federal lands and crosses 209 rivers and streams that support Federally endangered and threatened fish species. According to a Biological Opinion (the Biological Opinion or the Opinion) formulated by the Fish and Wildlife Service (FWS), the project 'would adversely affect' nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project 'would not jeopardize these species or adversely modify their critical habitat.' The propriety of the FWS's 'no jeopardy' conclusion, and the BLM's reliance on that conclusion in issuing its Record of Decision, are at the heart of this case."

 

    The opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. Specifically, the Appeals Court resolves petitioners' claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion's "no jeopardy" and "no adverse modification" determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a "dry-ditch construction method" for water crossings; and (4) the Incidental Take Statement placed no limit on the number of "eggs and fry" of threatened Lahontan cutthroat trout to be taken during construction.

 

    The Appeals Court concludes, "We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion." Further, the Appeals Court rules, ". . .we vacate the FWS's Biological Opinion and remand for the agency to formulate a revised Biological Opinion that: (1) addresses the impacts, if any, of Ruby's groundwater withdrawals on listed fish species and critical habitat; and (2) categorizes and treats the Conservation Action Plan measures as 'interrelated actions' or excludes any reliance on their beneficial effects in making a revised jeopardy and adverse modification. We otherwise deny the petition as to the issues discussed in this opinion. We also vacate and remand the BLM's Record of Decision."

 

    Amy Atwood, senior attorney at the Center for Biological Diversity (CBD) said, "We wish the Ruby pipeline had never been built, but since it was, it's crucial that everything possible is done to minimize harm to the endangered fish that live along its route. With this victory, these rare fish will be better protected, and the public won't have to bear the whole cost of the pipeline's destructive impacts."

 

    Access the complete opinion (click here). Access a release from CBD (click here). [#Energy/Pipeline, #Wildlife, #CA9]

 

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Luminant Generation Company, et al v. U.S. EPA

Oct 12: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60934. Petitions for Review of Orders of the Environmental Protection Agency. In this high-profile case that was decided by the Fifth Circuit on July 30, 2012 [See WIMS 8/1/12], the Appeals Court has ordered that the opinion previously filed in this case is withdrawn and a new opinion is substituted.

 

    The Appeals Court explains, "Two sets of petitioners, hereinafter referred to as 'Industry Petitioners' and 'Environmental Petitioners,' seek review of the United States Environmental Protection Agency's (EPA) final rule partially approving and

partially disapproving the most recent revision to Texas's State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) pursuant to the Clean Air Act (CAA or the Act), 42 U.S.C. § 7401 et seq. Because we find that the EPA did not act arbitrarily or capriciously, or contrary to law, or in excess of its statutory authority, in its partial approval and

partial disapproval of Texas's SIP revision, we deny both petitions for review."

 

    The substituted opinion appears to reach the same conclusion, "we conclude that the EPA did not act arbitrarily or capriciously, contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas's SIP revision. We therefore deny the petitions for review submitted by both Environmental Petitioners and Industry Petitioners."

 

    Access the complete substituted opinion (click here). Access the complete original opinion (click here). [#Air, #CA5]

 

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Alcoa, Inc. v. Bonneville Power Administration

Oct 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-70211, 10-70707, 10-70743, 10-70782, 10-70813, & 10-70843. On Petition for Review of an Order of the Bonneville Power Administration. The consolidated petitions for review challenge a contract between the Bonneville Power Administration (BPA) and one of its long-time customers, Alcoa Inc. BPA's preference customers, as well as other entities and organizations in the Pacific Northwest, filed the petition for review, requesting that the Appeals Court hold that the contract is unlawful because it is inconsistent with the agency's statutory mandate to act in accordance with sound business principles.

 

    The Petitioners claim that instead of entering into a contract to sell power to Alcoa at the statutorily required Industrial Firm power (IP) rate (a costbased rate prescribed by 16 U.S.C. § 839e(c)(1) for sales of power to customers such as Alcoa), BPA should sell to other buyers at the market rate. BPA's decision not to do so, petitioners allege, forgoes revenue that could otherwise be used to lower the rates charged to its preference customers. They further argue that BPA relied on flawed data in determining it would make a modest profit by selling surplus power to Alcoa.

 

    Alcoa also petitions for review, asking the court to hold that the Equivalent Benefits standard is contrary to BPA's governing statutes, Alcoa makes the request because such a judicial determination is a condition precedent for the commencement of a five-year period (the Second Period of the Alcoa Contract) during which time BPA would continue to sell power to Alcoa at the contracted rate. In May 2012, the Alcoa Contract was amended to remove all references to the Second Period.

 

    In a partially split decision, the majority Appeals Court said, "We dismiss the petitioners' and Alcoa's challenge in part as moot, and otherwise reject their claims." Additionally, one Justice wrote a separate and concurring opinion. In conclusion, the majority said, "The petitioners' challenges to the Alcoa Contract ask us to second-guess BPA's policy judgment regarding the costs and benefits of its sale of electric power. But the belief that another approach might have been wiser is not a valid basis for jettisoning an agency action as arbitrary and capricious. We therefore deny the petitions for review insofar as they pertain to the Initial Period. Because the potential for BPA and Alcoa to enter into the Second Period of the contract is no longer before us, we dismiss those portions of the petitions. Finally, we hold that because BPA relied on a categorical exclusion to NEPA's requirements, declining to complete an EIS was not arbitrary and capricious. Accordingly, we deny petitioners' NEPA claim. Dismissed in part and denied in part."

 

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

 

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