Cannon v. Gates (Defense Department)

Aug 26: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-4107. Plaintiffs-Appellants F. Douglas Cannon, et al (the Cannons) brought suit against the Defendants-Appellees claiming two violations of the Solid Waste Disposal Act and one violation of the Administrative Procedures Act. The district court dismissed the case for lack of subject matter jurisdiction pursuant to the jurisdiction-stripping provision at 42 U.S.C. § 9613(h). The Appeals Court concluded that the district court properly applied § 9613(h) because the Cannons’ suit constitutes a challenge to the Government’s selected removal action, and therefore affirmed the dismissal.

Cannon owned over 1,416 acres of land in Tooele County, Utah and in 1945 entered into a six-month lease with the U.S. War Department, in return for one dollar, which permitted the Government to enter his land to conduct Project Sphinx, which was designed to test means of battling Japanese forces entrenched in caves in the Pacific Islands. The Government agreed that, at the expiration of the lease, it would “leave the property of the owner in as good condition as it is on the date of the government’s entry.”

As part of that testing, the Government used incendiary weapons, including aviation fuel, butane, gasoline, napalm, PT jell, and napalm-gas mixtures. The Government also used chemical weapons, such as phosgene, hydrogen cyanide, mustard gas, and defoliants. Finally, the Government dropped conventional bombs on Cannon’s property. In the 1970s, the Government initiated efforts to study the contamination at the adjacent Dugway Proving Grounds, and included the Cannon property in some of these efforts. The Government, however, did not clean up the Cannon property at that time, and has yet to do so.

Frustrated by the slow progress in the Government’s clean up efforts, two of Cannon’s children, sued the U.S. in 1998 under the Federal Tort Claims Act (FTCA). Following a bench trial, the district court found that the Government had diminished the value of the Cannons’ land from $176.26 to $25 an acre, and awarded them $160,937 in damages. The Tenth Circuit, however, reversed that judgment and held that the statute of limitations barred the Cannons’ FTCA claims.

In November 2005, the Cannons tried a different approach and initiated legal action alleging two claims under the Solid Waste Disposal Act (SWDA). The Cannons alleged under two sections of SWDA that the United States was in violation of federal and Utah regulations applicable to generators of hazardous waste; and that the U.S. has contributed to conditions on their property that endanger the Cannons, other individuals mining on the property, and members of the general public who come onto the Cannons’ property. The Cannons also made a claim under the Administrative Procedures Act (APA), to “compel agency action unlawfully withheld or unreasonably delayed.”

The district court said SWDA § 9613(h) deprives federal courts of jurisdiction to consider “any challenges to removal or remedial action selected.” The Cannons' appealed and the Appeals Court determined that the "Government has already undertaken several
steps toward determining how it will address the contamination present on the Cannons’ property"; and thus, "the Government’s removal actions are therefore sufficient to trigger § 9613(h)." The Appeals Court said, "We are sympathetic to the Cannons’ frustration with the long delays; however, their suit falls within the broad ambit of § 9613(h)."

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U.S. v. MV Sanctuary

Aug 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2123. According to the Appeals Court, the main issue in the appeal is whether U.S. EPA may obtain an administrative warrant to carry out its authority under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq., to inspect places containing regulated chemical substances. The Appeals Court ruled that EPA has such authority, and affirmed the district court’s issuance of a warrant authorizing the Agency to inspect the M/V Sanctuary for polychlorinated biphenyls (PCBs). The Appeals Court also affirmed the district court’s preliminary injunction order preventing the Sanctuary’s owner, Potomac Navigation, Inc., from moving a ship from the pier in Baltimore where it was docked.

The Appeals Court cites the relevant sections of TSCA and indicates TSCA provides EPA with inspection authority. Specifically, "[f]or purposes of administering [TSCA]," EPA "may inspect any establishment, facility, or other premises in which" substances regulated by the Act "are manufactured, processed, stored, or held before or after their distribution in commerce." 15 U.S.C. § 2610(a). In addition, this inspection authority reaches "any conveyance being used to transport" a regulated substance "in connection with distribution in commerce." Id. EPA’s inspection powers "extend to all things within the premises or conveyance inspected" that "bear[ ] on whether the requirements of [TSCA]" have been met with respect to regulated substances "within such premises or conveyance."

The Sanctuary, built in 1944, was once a U.S. Navy hospital ship. The ship was stricken from the Naval Vessel Reports in 1989, and the government sold the ship later that year to Project Life, Inc. (formerly Life International) for $10, with the stipulation that the ship would be used to provide humanitarian services. Project Life docked the Sanctuary at a Maryland Port Authority (MPA) pier in Baltimore, with the announced purpose of converting the ship into a facility for women suffering from addiction. The conversion was never accomplished, and Project Life failed to pay MPA dockage and related charges that became due. Later, sampling data showed that PCBs were present in paint coatings on the Sanctuary. Moreover, as EPA’s research revealed, it was likely that PCBs were in, or exposed on the surfaces of, other components, equipment, and materials on the ship. It was also likely that the PCBs would be in, or on the surfaces of, items that were not being maintained "in a totally enclosed manner."

In early November 2007, pursuant to its authority under TSCA, EPA requested permission from Potomac to inspect the Sanctuary for materials containing PCBs. Potomac denied EPA’s request. Shortly thereafter, EPA (1) applied to the district court for an administrative warrant authorizing the inspection, and (2) moved for a preliminary injunction to prohibit Potomac from moving the Sanctuary from the Baltimore pier until EPA could complete the inspection and determine whether enforcement action was necessary. The district court issued the warrant for the inspection of the Sanctuary and granted the preliminary injunction.

Potomac appeals, contending that the district court erred in (1) concluding that EPA has warrant authority under TSCA, (2) finding probable cause to support issuance of the administrative warrant, (3) concluding that the Sanctuary was a proper location for inspection under TSCA, (4) denying Potomac’s request for a Franks hearing, and (5) granting the preliminary injunction that enjoined the towage of the Sanctuary from Baltimore.

The Appeals Court concluded, "Given the serious health and environmental consequences associated with PCBs, the district court did not clearly err in finding that the balance of harms tipped sharply in favor of EPA (and the public interest). In short, the district court did not abuse its discretion in granting a preliminary injunction (of limited duration) that prevented the Sanctuary from being moved from the United States while EPA executed its inspection warrant and considered what, if any, regulatory or enforcement action was warranted."

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James River Insurance v. Ground Down Engineering

Aug 20: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13207. James River Insurance Company appealed the district court’s dismissal of its claim seeking a declaratory judgment that it is not obligated to provide a legal defense to Ground Down Engineering under the insurance policy Ground Down purchased from James River. James River also appealed the denial of its summary judgment motion. James River argues that the “pollution exclusion” in the policy excuses it from the obligation to defend Ground Down and Ground Down’s engineer, Laurel Hall, in a suit filed by Priority Development for "negligently failing to discover construction debris and fuel tanks during an environmental site
assessment."

In its decision, the Appeals Court concluded that the district court erred in holding that the pollution exclusion does not apply. and vacated the district court’s dismissal and remanded the case with instructions for the district court to enter an order granting summary judgment to James River.

In its decision, the Appeals Court said, "Appellees argument fails for two reasons. First, Priority’s complaint states that the damages associated with the construction debris come from the elevated levels of methane gas caused by the debris and lists the debris under the heading 'environmental contamination.' Second, the pollution exclusion is not actually limited to irritants or contaminants. The definition for pollutants states that 'irritants or contaminants' covers 'waste' which includes 'all . . . materials to be disposed of, recycled, stored, reconditioned, or reclaimed.' Only a strained reading of this language would exclude construction debris causing elevated levels of methane gas from this definition. Finally, the first sentence of the exclusion states that 'Pollution / environmental impairment / contamination is not covered under this policy.' The construction debris described in Priority’s complaint, even without the methane gas, would be considered an environmental impairment."

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El Comite para el Bienestar de Earlimart v. Warmerdam

Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-16000, 06-16131. As explained by the Appeals Court, the case involves a challenge under § 304 of the Clean Air Act (CAA), see 42 U.S.C. § 7604(a) -- the citizen suit provision. A coalition of community organizations (El Comité) brought suit against California state officials (California) responsible for designing and implementing the State air quality plan. The complicated approval process for the State Implementation Plan (SIP) required extensive back-and-forth between California and U.S. EPA.

El Comité takes issue with both the process by which California obtained EPA approval of the SIP and the final outcome of that approval process. In particular, El Comité argues that California violated Federal law by failing to adhere to the SIP approved by the EPA, which it argues required California to implement additional regulations in five areas where air quality standards for reducing harmful emissions have not been met. They charge, "California went astray. . . by using the wrong data to calculate the baseline for its emission standards and by ignoring deadlines that were intended to be incorporated into EPA’s final approval of the SIP." The Appeals Court said, "El Comité’s claim turns on determination of what documents were incorporated into the final SIP and the EPA rule, and interpretation of what the SIP, and hence federal law, requires of California."

The district court concluded that it did not have jurisdiction to review El Comité’s claim regarding the data and methodology used by California to calculate the baseline for emissions standards. The court agreed, however, with El Comité’s expansive interpretation of the SIP, and ordered relief based on that interpretation. That relief was also built on the methodology El Comité advocated for use in calculating the baseline -- the same methodology the district court had held it was without jurisdiction to review.

The Appeals Court indicates that, "As it [district court] carefully worked through the parties’ labyrinthine administrative law arguments, the court acknowledged that its rulings were potentially incongruous. We agree. In our view, the district court ultimately exceeded its jurisdiction. Because § 304 of the CAA provides jurisdiction only to enforce an 'emission standard or limitation,' and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy."

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Sierra Club v. U.S. EPA

Aug 19: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 04-1243, 07-1039. As explained by the majority in this 2-1 split decision, the 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include “monitoring . . . requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. § 7661c(c). Sometimes, existing monitoring requirements do not “assure compliance.” The U.S. EPA promulgated a rule preventing state and local authorities from supplementing these inadequate monitoring requirements. The majority opinion vacated the rule saying that, ". . . it is contrary to the statutory directive that each permit must include adequate monitoring requirements."

The majority clarifies the issue by citing an example. ". . . suppose there is a standard that limits emission from a given stationary source to X units of pollutant per day. Suppose also that the standard requires annual monitoring. Where annual testing cannot assure compliance with a daily emission limit, may the permitting authority supplement the monitoring requirement 'to assure compliance with the permit terms and conditions,' as the Act commands? 42 U.S.C. § 7661c(c)."

The majority notes that EPA's position on the issue has varied over time. In 1997, EPA took the position that state and local permitting authorities could supplement periodic monitoring requirements that failed to assure compliance. The Appeals Court cites a letter from Winston A. Smith, Director, Air, Pesticides & Toxics Mgmt. Div., EPA, to Howard L. Rhodes, Director, Air Res. Mgmt. Div., Fla. Dep’t of Envtl. Prot. (Dec. 11, 1997). Then in 2004, EPA issued a rule which provided that nothing in the Part 70 Rules authorized permitting authorities to supplement inadequate monitoring requirements. See 69 Fed. Reg. 3202 (Jan. 22, 2004). EPA said that it alone would remedy inadequate monitoring requirements by undertaking a “programmatic” strategy. The Appeals Court vacated the 2004 rule because EPA had not allowed for notice and comment [Envtl. Integrity Project v. EPA, 425 F.3d 992, 998 (D.C. Cir. 2005)], and then EPA noticed and adopted an identical rule in December 2006 [71 Fed. Reg. 75,422 (Dec. 15, 2006) (2006 rule)].

In vacating the 2006 rule, the Appeals Court majority said, ". . . we have concluded the Act requires: a permitting authority may supplement an inadequate monitoring requirement so that the requirement will 'assure compliance with the permit terms and conditions.' Because § 70.6(c)(1) can be reasonably read this way, we uphold the monitoring provisions of the Part 70 Rules as consistent with the Act. . . We grant the petition for review with respect to the 2006 rule, which we vacate. We deny the petition for review with respect to the monitoring provisions of the Part 70 Rules."

In dissent, one of the three Justices said, "I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule. . . The dispute in this case boils down to the following: When issuing permits, can state and local permitting authorities independently determine whether, in their view, those pre-existing monitoring requirements are sufficient “to assure compliance” with emission limits -- and if they think not, impose additional monitoring requirements? The legal question here is: Who Decides? According to petitioners, the statute says that state and local permitting authorities can decide on their own to impose additional monitoring requirements as they see fit. EPA responds that it possesses the statutory authority and discretion to decide whether state and local permitting authorities can impose additional monitoring requirements. The statutory text resolves that question; the statute grants EPA the authority to determine whether state and local permitting authorities can impose additional monitoring requirements. . ."

Earthjustice challenged the 2006 EPA rule on behalf of the Environmental Integrity Project, Environmental Defense Fund, Natural Resources Defense Council and Sierra Club. They said the rule specifically prohibited permitting authorities from including stronger air pollution monitoring requirements in permits for approximately 18,000 major stationary pollution sources, even where needed to guarantee compliance with emission limits. Earthjustice attorney Keri Powell who argued the case in court said, “This is a huge victory for everyone who breathes. We can’t have strong enforcement of our clean air laws unless we know what polluters are putting into the air.”

Sierra Club Executive Director Carl Pope issued a statement saying, "This is a huge victory against one of the most egregious rollbacks of environmental protections in our nation’s history. . ." American Petroleum Institute, who intervened on behalf of U.S. EPA, did not issue a statement on the decision.

Access the complete opinion and dissent (click here). Access a release from Earthjustice (click here). Access a statement from Sierra Club (click here).

Center For Biological Diversity v. NHTSA

Aug 18: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-71891, 06-72317, 06-72694, 06-73807, and 06-73826. The Appeals Court vacated and withdrew its opinion filed on November 15, 2007 [See WIMS 11/15/07] and denied respondents’ petition for an en banc rehearing as moot. The Appeals Court replaced its opinion filed simultaneously with an order and new opinion.

In the original case before the Appeals Court, eleven states, the District of Columbia, the City of New York, and four public interest organizations petitioned for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 Fed. Reg. 17,566 (Apr. 6, 2006) (Final Rule) (codified at 49 C.F.R. pt. 533). Pursuant to the Energy Policy and Conservation Act of 1975 (EPCA), 49 U.S.C. §§ 32901-32919 (2007), the Final Rule sets corporate average fuel economy (CAFE) standards for light trucks, defined by NHTSA to include many Sport Utility Vehicles (SUVs), minivans, and pickup trucks, for Model Years (MYs) 2008-2011. For MYs 2008-2010, the Final Rule sets new CAFE standards using its traditional method, fleet-wide average (Unreformed CAFE). For MY 2011 and beyond, the Final Rule creates a new CAFE structure that sets varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix (Reformed CAFE).

The Petitioners, the Center For Biological Diversity (CBD), et al, argued that NHTSA's Final Rule was arbitrary, capricious and contrary to the EPCA; that the Environmental Assessment was inadequate; and a full Environmental Impact Statement was required. NHTSA disputed all charges. The Ninth Circuit ruled in the original opinion that, "the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (GVWR) class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement."

In its new order and opinion, the Ninth Circuit the Ninth Circuit Court of Appeals denied the Administration’s request to revisit the court’s November 2007 decision. The ruling was based in part on the administration’s failure to analyze the impact of the standards on greenhouse-gas emissions and global warming. Existing law requires the administration to set fuel-economy standards at the “maximum feasible level” and to fully analyze the environmental consequences of the standards chosen. In a release, CBD commented on the ruling saying, ". . .the court affirmed the decision in every significant respect, making only minor modifications.

Among other changes, the Ninth Circuit clarified that NHTSA must promulgate new standards as expeditiously as possible and prepare "either a revised Environmental Assessment or an Environmental Impact Statement." [emphasis added] On this issue the Appeals Court said, "The distinction -- between cases where it is appropriate to order immediate preparation of an EIS and those where it is not -- is implicit in this circuit’s NEPA jurisprudence, and has been explicitly recognized elsewhere. . . So, if there is uncertainty over whether the proposed project may have a significant impact, including uncertainty caused by an incomplete administrative record or an inadequate EA, the court should ordinarily remand for the agency to either prepare a revised EA or reconsider whether an EIS is required. . . Whether to require an EIS now is a very close question. Petitioners’ evidence demonstrates, overwhelmingly, the environmental significance of CO2 emissions and the effect of those emissions on global warming. How NHTSA can, on remand, prepare an EA that takes proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact is questionable. . . We nonetheless give the benefit of the doubt to NHTSA and decline to order the immediate preparation of an EIS . . ."

Kassie Siegel, climate program director for the Center for Biological Diversity and an attorney on the case said, “As the Court of Appeals has affirmed, the law requires the Bush administration to set fuel-economy standards at the maximum feasible level in order to conserve oil, reduce greenhouse gas pollution, and protect consumers from increasing energy prices.Yet the administration’s current proposal still allows oil use and greenhouse gas emissions to spiral upwards while protecting nothing but the profits of the oil and auto industries.”

In the release including a chart of the Administration's Proposed Fuel Economy Standards for MY 2011-2015, Mickey Moritz, another CBD staff member said, “According to the Bush administration, we should strive to achieve lower fuel economy in 2015 than cars on the road achieve today. We can and must do better, and we will hold this administration accountable for complying with the law and requiring automakers to provide state-of-the-art, fuel-efficient vehicles.” CBD said, "The administration kept the proposed standards low by employing numerous assumptions that defy common sense and violate the law."

For example, CBD indicates that Administration officials assumed that gas will cost $2.36 per gallon in 2020 and $2.51 in 2030, whereas increasing gas prices by 88 cents per gallon in 2016 would have increased the gas-mileage standard by nearly 7 mpg for passenger cars. The officials also assumed that technological solutions available today, such as the use of plug-in hybrids and electric vehicles, could not be employed by automakers for model years 2011-2015. And the officials assumed that automakers "need not and would not change" their existing vehicle redesign schedules in order to provide more fuel-efficient vehicles. The NHTSA's comment period on its Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards also ended on August 18.

Access the complete opinion (click here). Access a release from CBD with links to additional information (click here). Access the NHTSA's docket including its notice, supporting information and public comments (click here).

Galveston-Houston Association For Smog Prevention v. U.S. EPA

Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 06-61030. Petitioner Galveston-Houston Association for Smog Prevention (GHASP) sought a review of the U.S. EPA's final rulemaking action approving the Mid-Course Review State Implementation Plan (MCR SIP) submitted by the State of Texas for the Houston-Galveston-Brazoria Severe Ozone Nonattainment Area (HGB area). Texas submitted the MCR SIP to satisfy one of the enforceable commitments contained in a previously approved State Implementation Plan (SIP) for the HGB area. GHASP argues that: (1) EPA acted arbitrarily and capriciously in approving the MCR SIP because it did not demonstrate attainment of specified emissions reductions; (2) EPA acted arbitrarily and capriciously when it relied on "weight of evidence" analysis to excuse modeled nonattainment; and (3) by approving the MCR SIP, the EPA violated the non-interference or anti-backsliding provision of the Clean Air Act.

The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.

"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."

Access the complete opinion (click here).