Tuesday, May 14, 2013

Supreme Court Won't Hear NPDES Permit Case

May 13: The U.S. Supreme Court denied a request to hear the case Upper Blackstone Water Pollution Abatement Dist. v. U.S. EPA, Case No. 12-797, appealed from the First Circuit decision supporting a U.S. EPA decision regarding certain effluent limitations imposed by EPA in a National Pollutant Discharge Elimination System and a model the EPA incorporated into its analysis of the nitrogen-fueled cultural eutrophication [See WIMS 8/6/12].
 
    In the case, the Appeals Court ruled, "Where the agency follows the proper procedures and acts with a reasonable basis, both its choice of scientific data and interpretation and application of that data to real world conditions are entitled to deference. . . Where the EPA did rely on the MERL model, the record reflects that it fully accounted for the model's shortcomings. . . The District's argument that the MERL model should have been excluded from consideration entirely is without merit. . . The EPA also followed the proper procedures for ensuring that the model received scrutiny not only from the permittee, but from the scientific community and the public. . . The EPA's determination, based on its analysis of the evidence before it as a whole, that a nitrogen limit of 5.0 mg/L was necessary to achieve Rhode Island's water quality standards was not a 'hunch[] or wild guess[]' but a rational exercise of judgment."
 
    Access the Supreme Court Order (click here). Access the Supreme Court docket (click here). Access the complete First Circuit opinion (click here). [#Water, #CA1, #SupCt]
 
GET THE REST OF TODAY'S NEWS
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals
Posted by JPMcJ at 4:29 PM 0 comments

Wednesday, May 1, 2013

REDOIL v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-70518. On Petition for Review of an Order of the EPA Environmental Appeals Board. In summary, the panel denied a petition for review by Resisting Environmental. Destruction on Indigenous Lands (REDOIL), and upheld a decision of EPA granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The panel upheld the EPA's statutory and regulatory interpretations. The case involves Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. (collectively Shell) who purchased lease blocks in the Chukchi and Beaufort Seas off the North Slope of Alaska for oil and gas exploration which has now been suspended by the company.
 
    The Appeals Court explains that since 1990, EPA has been responsible for regulating air pollution from offshore sources on the Outer Continental Shelf (OCS) under the Clean Air Act (the Act). "We consider here whether the EPA's Environmental Appeals Board (EAB) properly upheld two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The petition for review challenges two aspects of the permits: (1) the determination that support vessels, unlike the drillship itself, do not require the best available control technology (BACT) to control emissions; and (2) the exemption of the area within a 500-meter radius of the drillship from ambient air quality standards.
 
    "The application of BACT to support vessels requires us to reconcile conflicting provisions of the Act. In doing so, under Chevron U.S.A., Inc. v. NRDC, Inc., we defer to the EAB's reasonable interpretation of those provisions and related regulations. 467 U.S. 837 (1984). Likewise, we evaluate whether the EAB's decision on the ambient air boundary is a permissible application of the EPA's regulations. In both cases, we uphold the EPA's statutory and regulatory interpretations, and we deny the petition."
 
    Two permits are at issue, one for operation in the Chukchi Sea and the other for the Beaufort Sea. The permits allow Shell, subject to conditions, to construct and operate its Discoverer drillship and use its associated fleet for exploratory drilling activities between July 1 and November 30 each year. The Chukchi permit underwent two rounds of notice-and-comment before it was issued in March 2010. The Beaufort permit underwent one round of notice-and-comment before it was issued in April 2010. The EAB addressed the two permits together in the administrative proceedings that followed.
 
    The Appeals Court ruled in part, "The EPA's regulations in turn define 'marine engine' as 'a nonroad engine that is installed or intended to be installed on a marine vessel.'. .  Reading § 7627 within the context of the PSD provisions points to the conclusion that PSD requirements should apply to stationary sources on the OCS, but not mobile marine vessels. We agree with the EAB ruling that this distinction between stationary and mobile sources is consistent with application of BACT to installations attached to the seabed but not to vessels, such as those in the associated fleet, moving freely in the waters above the OCS. . . Whether Congress expressed an intention that BACT were to apply to associated vessels that are not attached to an OCS source is, at the very least, ambiguous. . . In sum, we conclude that while the BACT requirement clearly applies to an OCS source, the statute is ambiguous as to application of BACT to associated vessels within 25 miles of an OCS source. We defer to the EPA's reasonable construction of the statute, as adopted by the EAB, that BACT does not apply to mobile support vessels unattached to the drillship."
 
    Additionally on the other matter, of the 500-meter radius "ambient air" exemption, the Appeals Court ruled, "The EAB's assessment that the agency 'requires some leeway' in determining how to apply 'the regulation and the interpretive letter to an "overwater" situation' is just common sense. Id. Constructing a fence in the Arctic Ocean would make little sense, and the EPA has previously recognized a safety zone established by the Coast Guard as evidence of sufficient ownership or control over open water areas to qualify as a boundary for defining ambient air. Here, as in that precedent, the EPA imposed conditions that approximated the criteria in the Costle letter -- control of property and limited public access -- for a marine environment. We conclude that the EPA's grant of an ambient air exemption to Shell conditioned on an effective safety zone excluding the public is a permissible interpretation of its ambient air regulation and earlier letter ruling."
 
    Access the complete opinion (click here). [#Energy/OCS, #Air, #CA9]
 
GET THE REST OF TODAY'S NEWS
You can review recent issues of eNewsUSA (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals
 
Posted by JPMcJ at 3:50 PM 0 comments

Tuesday, April 30, 2013

Village Of Bald Head Island v. USACE

Apr 15: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 11-2366 & 11-2368. Appealed from the United States District Court for the Eastern District of North Carolina, at Wilmington. The Village of Bald Head Island, a coastal town in North Carolina, commenced the action under the Administrative Procedure Act (APA) and admiralty jurisdiction against the U.S. Army Corps of Engineers (USACE) to require it, through an order of specific performance and injunction, to honor commitments made to the Village and other North Carolina towns when developing its plans to widen, deepen, and realign portions of the Cape Fear River navigation channel. The Village alleged that when implementing the project, the Corps failed to honor commitments to protect the adjacent beaches against the adverse effects of the project and to restore sand to the beaches, in violation of the National Environmental Policy Act, the Coastal Zone Management Act, the Rivers and Harbors Act, Corps Regulation 33 C.F.R. § 337.10, and contract principles.
 
    The district court dismissed the complaint for lack of subject-matter jurisdiction, concluding that the Corps' alleged failure to implement the project in accordance with its commitments was not "final agency action" that was subject to judicial review under the APA and that it lacked admiralty jurisdiction over the complaint's contract claims.
 
    The Appeals Court agreed with the district court's holding saying,  "that the Corps' failure to implement 'commitments' made to the Village during development of the plans for the project was not final agency action subject to judicial review, and we also conclude that the alleged contracts on which the Village relies for its contract claims are not maritime contracts that justify the exercise of admiralty jurisdiction. Accordingly, we affirm."
 
    Access the complete opinion (click here). [#Water, #CA4]
 
GET THE REST OF TODAY'S NEWS
You can review recent issues of eNewsUSA (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals
Posted by JPMcJ at 4:26 PM 0 comments

Monday, April 29, 2013

Kentucky Riverkeeper, Inc. v. Robert Rowlette, Jr.

Apr 22: In the U.S. Court of Appeals, Sixth Circuit, Case No. 11-6083, Eastern District of Kentucky at Pikeville. The Appeals Court explains that Plaintiffs-Appellants Kentucky Riverkeeper, Inc., Kentucky Waterways Alliance, Inc., and Kentuckians for the Commonwealth, Inc. (collectively Riverkeeper) sued the Army Corps of Engineers alleging violations of the Clean Water Act (CWA), the National Environmental Protection Act (NEPA), and the Administrative Procedure Act (APA), during the Corps' issuance of two nationwide coal-mining waste-discharge permits in 2007. The district court granted summary judgment to the Corps, and Riverkeeper appealed. During Riverkeeper's appeal, the two permits at issue expired. The Appeals Court said, ". . .the case remains in controversy and we reverse the district court's judgment in part."
 
    In more detail, the Appeals Court said, "Both in its briefing and at oral argument, the Corps relied on its procedures overseeing individual projects' success in mitigating environmental impacts. . . Yet these post-issuance mechanisms do not explain how the Corps arrived at its preissuance minimal cumulative-impact findings. The Corps fails to make this showing despite Hurst's earlier adverse decision on the point. See Hurst, 604 F. Supp. 2d at 887 (deeming 'conclusory' the Corps' 'unsupported belief in the success of mitigation measures' and explaining that the Corps' '"mere listing" of mitigation measures and processes, without any analysis, cannot support a cumulative impacts determination'). . . We acknowledge that the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts, but in making a minimal-cumulative-impact finding, it must, at a minimum, provide some documented information supporting that finding."
 
    In conclusion, the Appeals Court rules, "Though we generally give greatest deference to an agency's 'complex scientific determination[s] within its area of special expertise,' Balt. Gas & Elec. Co., 462 U.S. at 103, we may not excuse an agency's failure to follow the procedures required by duly promulgated regulations. . . During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper's demands. This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency's action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). We hereby invalidate permit 21 as arbitrary and capricious, 5 U.S.C. § 706(2)(A), but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies."
 
    Sierra Club and other groups called the decision a "big win on mining pollution." Mary Anne Hitt, Director of the Sierra Club's Beyond Coal Campaign, issued a statement saying, "Our allies deserve immense credit and warm congratulations for winning an 8 year battle against a permit that serves mountaintop removal mining interests to the great detriment of our Appalachian heritage. The 2007 Nationwide Permit 21 was an ill-conceived permit that allowed mountaintop removal mining to pollute our rivers and streams while doing nothing to protect people or the waterways they rely on.

    "Public Justice, Appalachian Mountain Advocates, and all the organizations they represent have been dogged in their determination to ensure that our waters are safe and mountaintop removal coal mines take responsibility for their own pollution. Today's decision reinforces the need for deep consideration of the human and environmental costs of one of the most destructive forms of mining. While we can never get back the mountains that have been destroyed over the last few decades we will continue the fight to end the practice and ensure that mountaintop removal companies clean up their own pollution. State and federal agencies alike must be held accountable when they fail in their duty to protect our environment and our communities. It's time for binding water quality safeguards which will ensure the protection of our most vital natural resources and the well being of our communities  We couldn't ask for more thoughtful or stronger allies in that fight."

    Access the complete opinion (click here). Access the release from Sierra Club (click here). [#Energy/Coal, #Land, #Water, #CA6]

GET THE REST OF TODAY'S NEWS
You can review recent issues of eNewsUSA (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals
Posted by JPMcJ at 5:00 PM 0 comments

Conservation Northwest v. Sherman (U.S. Agencies)

Apr 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35729. Appealed from the United States District Court for the Western District of Washington. The Appeals Court indicates that it must decide whether a district court may approve resolution of litigation involving a Federal agency through a consent decree, which substantially and permanently amends regulations that the agency could only otherwise amend by complying with statutory rulemaking procedures.
 
    The Conservation Northwest and a coalition of other environmental groups (Plaintiffs) sued the Bureau of Land Management (BLM), Forest Service, and Fish and Wildlife Service (collectively, the Agencies), challenging changes to the "Survey and Manage Standard" [Survey and Manage or the Standard of the Northwest Forest Plan (NFP)]. Plaintiffs and the Agencies (together, Appellees) negotiated a settlement which the district court approved and entered in the form of a consent decree. Defendant-Intervenor D.R. Johnson Lumber Company (D.R. Johnson) appeals from the district court's approval of the consent decree contending that it was an abuse of discretion because: (1) the consent decree conflicts with applicable law by amending Survey and Manage without following applicable procedural requirements; and (2) its application to lands subject to the Oregon and California Railroad and Coos Bay Wagon Road Grants Land Act (O & C Act) violates the terms of that Act. 
 
    The Appeals Court ruled, "We conclude that D.R. Johnson's first argument is meritorious, but that its second argument was waived. Accordingly, we reverse the district court." Finally, the Appeals Court concludes, "Because the consent decree allows for substantial, permanent amendments to Survey and Manage, it impermissibly conflicts with laws governing the process for such amendments. It was therefore an abuse of discretion for the district court to approve it in its current form. We reverse and remand for further proceedings consistent with this opinion."
 
    Access the complete opinion (click here). [#Land, #Wildlife, #CA9]
 
GET THE REST OF TODAY'S NEWS
You can review recent issues of eNewsUSA (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals
Posted by JPMcJ at 4:58 PM 0 comments

Monday, April 15, 2013

WIMS Spring Break

WIMS will be taking our Spring publication break the next two weeks. 
 
We will resume regular publication on Monday, April 29, 2013.
 
During our break you may want to
follow some of the news on our:
 
GET THE REST OF TODAY'S NEWS
You can review recent issues of eNewsUSA (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals 
 
Posted by JPMcJ at 4:55 PM 0 comments

Wednesday, April 10, 2013

Paskar v. U.S. DOT

Apr 9: In the U.S. Court of Appeals, Second Circuit, Case No. 10-4612. In summary, the Appeals Court indicates that petitioners seek review of a letter written by the Federal Aviation Administration (FAA) to the City of New York (City) on September 2, 2010 (the Letter). Petitioners contend the Letter is a "final order" subject to review by the Court. The Letter states that the FAA agrees with an expert panel's finding that the City's plan to reopen a coastal garbage transfer facility in College Point, Queens, would be compatible with safe air operations as long as several recommendations are followed. The facility, the North Shore Marine Transfer Station (Station), is 2,206 feet across Flushing Bay from the landing threshold of Runway 31 at LaGuardia Airport and 585 feet perpendicular to its extended centerline. The Appeals Court rules, "We hold that, because the Letter is not a 'final order' for purposes of 49 U.S.C. § 46110(a), we are without jurisdiction to review it. The petition for review is therefore dismissed."
 
    Petitioners in this case, a general aviation pilot and a not-for-profit corporation interested in the safety of aviation, filed this petition for review on October 29, 2010, seeking review by the Court alleged that they had "a substantial interest in the Letter's subject matter, that the Letter was a final order reviewable by this Court, and that it was arbitrary and capricious." Respondents moved to dismiss the petition on the ground that the Letter was not an "order," and that the court of appeals therefore lacks subject matter jurisdiction to hear the petition. A motions panel of this Court denied the motion to dismiss, holding that the Letter was an order subject to review. The Appeals Court indicates that, "A merits panel may revisit a decision made by a motions panel."
 
    The Appeals Court says, "No term in the Letter 'imposes an obligation' on the City, 'denies a right' of the City, or 'fixes some legal relationship' with the City" and concludes, "The FAA letter and inter-agency panel report did not deny a right, impose an obligation, or have legal consequence. It was not a "final order," and we lack jurisdiction to review it. The petition for review is dismissed."
 
    Access the complete opinion (click here). [#Solid, #Wildlife, #Transport, #CA2]
 
GET THE REST OF TODAY'S NEWS
You can review recent issues of eNewsUSA (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals
Posted by JPMcJ at 4:11 PM 0 comments
Subscribe to: Posts (Atom)