Weavers Cove Energy v. RI Department of Environmental Management

May 2: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1235, consolidated with 07-1238. The cases involve key dredging permits in Massachusetts and Rhode Island According to the Appeals Court, Weaver’s Cove Energy, LLC (WCE) applied to the Rhode Island Department of Environmental Management (RIDEM) and the Massachusetts Department of Environmental Protection (MassDEP) for “certifications” that its proposed dredge-and-fill operations would comply with the Federal Clean Water Act (CWA). When a year had passed without the State agencies having issued final determinations one way or the other, WCE petitioned this court for review of their inaction, seeking a declaration that the States had “waived” their right to deny the requested certifications. The D.C Circuit said, "Instead, we must dismiss the petitions for want of a case or controversy under Article III of the Constitution of the United States."

The Appeals Court states that, under § 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), an applicant for any federal permit that “may result in any discharge into the navigable waters” of the United States -- such as a dredge-and-fill permit from the Army Corps -- “shall provide the ... permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions” of the Act. For the State to participate in the regulatory process, it must act expeditiously: “[I]f the State ... fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements ... shall be waived with respect to such Federal
application.”

Despite numerous claims and charges in defense of the State, the Appeals Court ruled, "We reach none of the States’ arguments, for we conclude sua sponte that WCE does not have standing to sue the States; the court therefore lacks jurisdiction over WCE’s petitions." The Appeals Court claims that WCE, in its standing defense, "does not claim to have been injured by it. On the contrary, WCE’s theory of the case is that it benefited from the agencies’ inaction; that is, the agencies, by failing to issue timely rulings on WCE’s applications, waived their rights to deny the certifications WCE seeks." The D.C. Circuit concludes, "In sum, WCE has not shown an injury caused by the state agencies that likely would be redressed by the declaration it seeks. We are therefore without jurisdiction over its petitions for review, which are, accordingly, dismissed."

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Islander East Pipeline Co. v. McCarthy

May 2: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5764. The Appeals Court denied a petition for review by Islander East Pipeline Company, LLC, who needed a water quality certification from the State of Connecticut Department of Environmental Protection (CTDEP) in order to secure Federal approval to build a natural gas pipeline across Long Island Sound. Islander East contended that the State's second denial of the certification was arbitrary and capricious.

The Appeals Court notes, citing previous decisions, that while the Natural Gas Act (NGA) generally preempts local permit and licensing requirements, the Clean Water and Coastal Zone Management Acts are notable in effecting a Federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the Federal government become the federal standard for that state. Under the Clean Water Act, state water quality standards approved by U.S. EPA becomes ‘the water quality standard for the applicable waters of that State. Consistent with that scheme, the two Acts require applicants for Federal permits to provide Federal licensing agencies such as the FERC [Federal Energy Regulatory Commission] with certifications from affected states confirming compliance with local standards.

In a 2-1 decision, the Appeals Court concluded, "To summarize, Islander East’s proposed installation of a natural gas pipeline from Connecticut to New York across Long Island Sound must comport with various statutes, including the Clean Water Act. The Clean Water Act requires Islander East to procure from the CTDEP a certification that the proposed pipeline will comply with state water quality standards. Record evidence supports the CTDEP’s finding that various techniques to be employed by Islander East in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. On such a record, we cannot conclude that the CTDEP’s decision to deny Islander East a certificate of compliance was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' Islander East’s petition for review is denied."

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Michigan Gambling Opposition v. Kempthorne

Apr 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5092. As explained by the Appeals Court, in 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Allegan County, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Tribe), to construct and operate a Class III casino. The decision followed Federal recognition of the Tribe in 1998.

A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.

As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.

MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.

The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."

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National Wildlife Federation. v. National Marine Fisheries Service

Apr 24: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35011 & 06-35019. According to the Appeals Court the consolidated appeals involve another round in the complex and longrunning battle in the Pacific Northwest over salmon and steelhead listed under the Endangered Species Act (ESA).

The action brought by the National Wildlife Federation and other plaintiffs (collectively NWF), deals with a November 2004 Biological Opinion (2004 BiOp) addressing the effects of proposed operations of Federal Columbia River Power System (FCRPS or Columbia River System) dams and related facilities on listed fish in the lower Columbia and Snake Rivers.

The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NMFS, now NOAA Fisheries), found that proposed FCRPS operations for 2004 through 2014 would not jeopardize the thirteen area salmonid species that are listed as threatened or endangered, nor adversely modify their critical habitat. NMFS and the State of Idaho (collectively NMFS) appeal from the district court’s determination that the 2004 BiOp was structurally flawed and from certain portions of its remand order. The Ninth Circuit affirmed the district court determination and said, "Its rejection of the 2004 BiOp was entirely appropriate, and it did not abuse its discretion in entering the remand order."

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Piney Run Preservation v. County Commissioners (Carroll Co. MD)

Apr 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1348. As explained by the Appeals Court, Piney Run is a small stream with its headwaters near the border of
Carroll and Baltimore counties in Maryland. For the second time, the Piney Run Preservation Association (the Association) has filed a citizen suit under the Clean Water Act (CWA) alleging that the County Commissioners of Carroll County are violating the CWA by discharging treated wastewater from the Hampstead Wastewater Treatment Plant into Piney Run.

The Association specifically contends that the temperature of the discharged effluent at times exceeds the thermal limitation set forth in the County’s National Pollutant Discharge Elimination System (NPDES) permit. On the County’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court found that the Maryland Department of the Environment (MDE) was "diligently prosecuting" a CWA enforcement action against the County for violating the NPDES permit. Consequently, the court held that the Association was barred by 33 U.S.C. § 1365(b)(1)(B) from maintaining this suit. The Association appealed the order of dismissal, arguing that the district court erred in its "diligent prosecution" determination.

The Appeals Court affirmed the decision of the district court saying, ". . .a CWA enforcement action will be considered diligent where it is capable of requiring compliance with the Act and is in good faith calculated to do so. Based on the record before us, we hold that the Association has failed to meet its high burden of establishing that the MDE enforcement action does not satisfy this standard.

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Benzman v. Whitman

Apr 22: In the U.S. Court of Appeals, Second Circuit, Case Nos. 06-1166, 06-1346, 06-1454. This interlocutory appeal and cross-appeal present issues concerning individual and governmental agency liability, in the aftermath of the 9/11 attack, for alleged breach of duties owed to a putative plaintiff class of people who reside, attend school, or work in lower Manhattan or Brooklyn. The principal claim is that Government officials misled the plaintiff class members by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices.

The Appeals Court indicates that the core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”

The Appeals Court ruled, "Whether or not Whitman’s resolution of such competing considerations was wise, indeed, even if her agency’s overall performance was as deficient as the Plaintiffs allege, she has not engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. . .

"Although the complaint contains numerous allegations that various employees within EPA were aware of data indicating health risks, there is no allegation that Whitman, from whom damages are sought in her personal capacity, was herself aware of such information. Perhaps, as a competent administrator, she should have been aware of significant information known to her
subordinates, but arguably inadequate management of a vast agency of 17,000 employees is not a basis for constitutional tort liability. . . alleging Whitman’s personal liability for damages for a denial of substantive due process, must be dismissed."

The Appeals Court concluded saying, "We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. . . Accordingly, the case is remanded with directions to dismiss the Complaint."

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Seven Up Pete Venture v. Schweitzer (Governor MT)

Apr 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35384. The Appeals Court indicates that the primary question before the court is whether the Eleventh Amendment precludes Federal jurisdiction over an action seeking compensation under the Fifth and Fourteenth Amendments for a taking of property by a State.

Seven Up Pete Venture (the Venture) and other plaintiffs acquired leases of Montana State property for the purpose of mining gold, silver and other trace minerals. Subsequently, voters of Montana enacted Initiative 137 (I-137), which banned open-pit mining for gold or silver by the cyanide heap leaching process. The Venture then brought the reverse condemnation action in Federal district court against the Governor of Montana and the Director of the Montana Department of Environmental Quality in their official capacities.

They argued that Initiative 137 effected a regulatory taking of their property, for which the State of Montana must pay just compensation under the Fifth and Fourteenth Amendments of the United States Constitution. At the same time, the Venture brought a reverse condemnation action in Montana State court. The Venture then obtained a stay of the Federal proceedings pending resolution of the State claims. After the Montana Supreme Court rejected the Venture’s claims, the district court dismissed the Federal takings claims under the Eleventh Amendment and, in the alternative, under the "doctrine of issue preclusion." The Venture then appealed that dismissal.

The Ninth Circuit said in its ruling, "We join a number of our sister circuits and hold that the Eleventh Amendment bars a reverse condemnation action brought in federal court against state officers in their official capacities. We therefore affirm the district court’s dismissal of the Venture’s takings claims on that ground without reaching the question of issue preclusion."

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