Natural Resources Defense Council v. U.S. EPA

Mar 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1151. State authorities submit air pollution emissions data to U.S. EPA. EPA monitors the data in order to evaluate regional compliance with national air pollution standards. In 2007, EPA promulgated a regulation governing the exclusion of emissions data during “exceptional events” such as natural disasters. The Natural Resources Defense Council (NRDC) brought petitions for review, seeking to set aside the rule’s definition of “natural events” and to vacate several statements in the preamble to the rule concerning types of events that may qualify as “exceptional.”

In a split decision the majority rules that, "Even if the statements in the preamble were reviewable under the Clean Air Act, they are not ripe for review at this time. The statements about exceptional events are 'hypothetical and non-specific.' Kennecott, 88 F.3d at 1223. NRDC has not demonstrated that any of the statements has immediate legal or practical consequences. How EPA will use or rely on or interpret what it said in the preamble is uncertain. . . We can see no significant hardship to the parties from waiting for a real case to emerge. As EPA points out in its brief, the Clean Air Act 'provides for judicial review of any EPA decision to determine the attainment status of an area, or to designate or redesignate an area, based on EPA’s decision to exclude exceptional events data or other information.'"

In a separate opinion concurring in part, and dissenting in part, the Justice said, "When an agency receives comments that object to its application of a statutory term as being contrary to the plain text of the statute, what is the agency to understand is the target of the objection? The specific application or the agency’s underlying interpretation of the term or both? The court
responds only the application. But the answer depends on how the comments are phrased. If, as here, the comments address a specific application by pointing out that it reflects an interpretation of a statutory term that contradicts the plain text of the statute, how can the agency respond to the comments without considering whether its definition is consistent with the statute, much less how would it not be on notice that the comments extended to the agency’s interpretation of the statutory term?"

Access the complete opinion (click here).

Trout Unlimited v. Lohn (National Marine Fisheries Service)

Mar 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35623 & 07-35750. According to the Appeals Court, in this case involving many competing parties, "We must decide whether the National Marine Fisheries Service [NMFS] may distinguish between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the Endangered Species Act [ESA]."

By way of background, the Appeals Court explains that Pacific Coast salmon are anadromous fish, meaning that they can survive both in saltwater and in freshwater. The salmon hatch out of eggs laid in freshwater rivers and streams, then migrate often hundreds of miles to the ocean, where they live for years before returning to their natal streams to spawn and to die. Steelhead, a closely related species, perform the same migration but are able to spawn multiple times. In the Pacific Northwest, anadromous salmon and steelhead populate the Columbia River and its tributaries, including the Willamette River, the Snake River, the Okanogan River, and the Yakima River.

The appeals primarily involve NMFS’s decision, in accordance with the 2005 Hatchery Listing Policy, to downlist a population of Upper Columbia River steelhead from endangered to threatened. Trout Unlimited and other environmental conservation organizations brought the action challenging: (1) NMFS’s rejection of Trout Unlimited’s petitions to separate natural fish and hatchery fish into different ESUs [evolutionarily significant units], and (2) the downlisting of the Upper Columbia River steelhead ESU from “endangered” to “threatened.” As part of its second claim, Trout Unlimited argues that the 2005 Hatchery Listing Policy impermissibly requires NMFS to consider the status of the entire ESU rather than just the natural components of the ESU when making listing determinations. Trout Unlimited maintains that both NMFS decisions are arbitrary and capricious and thus unlawful under the Administrative Procedure Act and that both fail to employ “the best scientific and commercial data available” in violation of the ESA.

In the end, the Appeals Court concludes explaining, "In the same way that pruning involves the destruction of some branches of a tree to allow the remaining portions to grow, the § 4(d) regulations at issue here represent the agency’s reasonable judgment
that permitting the destruction of some members of an ESU to enable the remaining portions to flourish. Given the agency’s finding that conservation and recovery efforts may be affected by the yearly variation in size and composition of the ESUs, we cannot conclude that regulatory changes giving the agency the flexibility to manage these variations are arbitrary and capricious. . .Based on the foregoing, the opinion of the district court is affirmed in part, reversed in part and remanded with instructions."

Access the complete opinion (click here).

Eastern Niagara Public Power v. FERC

Mar 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1472. From 1958 to 2007, the New York Power Authority (NYPA) operated the Niagara Power Project, a hydroelectric facility about five miles downriver from Niagara Falls, pursuant to a 50-year license granted by what is now the Federal Energy Regulatory Commission (FERC). In 2007, FERC approved NYPA’s relicensing application and granted a new 50-year license. Several communities in western New York have challenged FERC’s 2007 licensing decision as arbitrary and capricious and unsupported by substantial evidence. However, the Appeals Court decided, "We deny their petition because FERC’s decision to issue the new license was reasonable and reasonably explained."

Petitioners argue that a 50-year license is too long and inconsistent with Agency practice regarding the terms of licenses, but the Appeals Court said, "FERC possesses express statutory authority to set license terms between 30 and 50 years." Second, petitioners argue that FERC undervalued the project’s output in considering the appropriate length of the new license, but the Appeals Court said, "Applying the deferential arbitrary-and-capricious standard, we have no room to overturn that reasoned and reasonable determination."

Third, petitioners contend that FERC, as a condition of granting the license, should have required NYPA to mitigate certain adverse environmental impacts allegedly caused by the project, but the Appeals Court said, "FERC mandated measures to mitigate any such impact. In short, FERC acted entirely reasonably in addressing possible adverse environmental impacts."
Fourth, petitioners assert that FERC should have considered the consequences of “off-license” agreements that NYPA reached with interested communities and organizations in the area saying, the "agreements represented NYPA’s not-so-subtle efforts to buy off community opposition." (e.g. NYPA promised to pay the Tuscarora Nation tribe, $21.8 million if FERC approved NYPA’s relicensing). The Appeals Court said, "But the off-license agreements are not related to project operations and are irrelevant to FERC’s statutorily mandated assessment of the relicensing application. . . Therefore, FERC properly refused to consider the off-license agreements in deciding whether to reissue the license to NYPA."

Finally, petitioners also appear to directly challenge the off-license agreements as "unlawful." The Appeals Court said, "The source of law on which petitioners are relying for this argument is rather murky. In any event, petitioners lack standing to bring such a claim against FERC. The parties to the off-license agreements were NYPA and certain communities and organizations affected by the project. FERC did not approve those agreements, and FERC does not and cannot control the agreements’ terms."

Access the complete opinion (click here).

Delaware Department of Natural Resources v. FERC

Mar 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1007. Petitioner Delaware seeks review of two Federal Energy Regulatory Commission (FERC or Commission) orders by which the Commission conditionally approved an application to site, construct, and operate a liquid natural gas terminal near the mouth of the Delaware River. The Appeals Court dismissed the petition citing a "lack of jurisdiction: Delaware lacks standing because it has not suffered an injury-infact."

According to the background in the case, in September 2004, Crown Landing LLC, a wholly-owned subsidiary of BP America Production Company, filed an application with the Commission to site, construct, and operate a liquid natural gas import terminal at the mouth of the Delaware River. Onshore portions of the proposed project were to be located in New Jersey, but a pier designed for the unloading of tanker ships was planned to extend beyond New Jersey waters into that portion of the river which appertains to neighboring Delaware.

Section 3 of the Natural Gas Act (NGA), prohibits the importation of foreign natural gas without prior authorization by the Commission. The NGA specifically provides for the protection of rights granted to the states under the Coastal Zone Management Act of 1972 (CZMA), and the Clean Air Act (CAA). Crown Landing did not file a CZMA certification with Delaware but did request a status decision from the state.

On February 3, 2005, the Delaware Department of Natural Resources and Environmental Control, petitioner here, issued its decision and rejected the project. On appeal, Delaware’s Coastal Zone Industrial Control Board unanimously affirmed that decision. Meanwhile, New Jersey filed an original action before the Supreme Court challenging Delaware’s jurisdiction to regulate the Crown Landing terminal pursuant to its authority under the CZMA. The Supreme Court confirmed that Delaware indeed possesses this authority. New Jersey v. Delaware, 128 S. Ct. 1410, 1427-8 (2008) [See WIMS 3/31/08].

On June 20, 2006, the Commission issued an order approving Crown Landing’s application subject to some sixty-seven conditions precedent. The Commission acknowledged that the Crown Landing proposal is subject to coastal zone consistency reviews in New Jersey, Delaware, and Pennsylvania and thus concluded that the company must obtain the concurrence of the relevant state agencies prior to Commission approval of the commencement of construction.

The Appeals Court said finally, "In sum, because FERC’s order -- as it stands now -- cannot possibly authorize Crown Landing’s project absent the approval of Delaware, the state has suffered no injury-in-fact, and thus lacks standing. For the foregoing reasons, the petition for review is dismissed."

Access the complete opinion (click here).

Hempstead County Hunting Club v. Southwestern Electric Power

Mar 12: In the U.S. Court of Appeals, Third Circuit, Case No. 08-2613. Hempstead County Hunting Club (HCHC) filed a citizen's suit against Southwestern Electric Power Company (SWEPCO) pursuant to the Clean Air Act (CAA), seeking a preliminary and permanent injunction to prevent SWEPCO from commencing construction, constructing, or continuing construction of its 600-megawatt pulverized coal-fired power plant in Hempstead County, Arkansas, without first obtaining a Prevention of Significant Deterioration (PSD) permit as required by the CAA.

On the same day that it filed its complaint, HCHC filed a motion for temporary restraining order and preliminary injunction. The
district court denied the motion, and HCHC filed an interlocutory appeal, arguing that the district court abused its discretion in
denying the preliminary injunction because "SWEPCO has proposed to construct and is constructing its Hempstead Plant, although it does not have a CAA permit."

SWEPCO filed a motion to dismiss the appeal, arguing that the appeal is moot because it has now received the CAA permit and has lawfully begun construction at the site, rendering HCHC's appeal of the denial of its motion for a preliminary injunction to halt preconstruction activities moot. The Appeals Court agreed and dismissed the appeal as moot.

The Appeals Court said, "HCHC's allegation that SWEPCO is acting illegally rests on its argument that SWEPCO is engaging in construction activities without a permit. Therefore, the present case is comparable to Mississippi River Revival in which, after the MPCA issued storm permits, the district court dismissed the environmental organizations' complaints as moot, as the complaints were based on the allegation that the Cities were discharging storm waters without required permits."

Access the complete opinion (click here).

American Bird Conservancy v. Kempthorne

Mar 11: In the U.S. Court of Appeals, Third Circuit, Case No. 07-4609. In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (FWS) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency.

On June 13, 2006, before the FWS made a final determination, appellants filed a complaint in the U.S. District Court for the District of New Jersey claiming (1) that the denial of emergency rulemaking was arbitrary and capricious, in violation of the Endangered Species Act (ESA), and (2) that the FWS violated the ESA by failing to issue timely findings on the petition.

The FWS issued its final determination -- that the listing of the red knot was warranted but precluded by higher-priority listing activity -- in its periodic Candidate Notice of Review (CNOR) published on September 12, 2006. In response, appellants dismissed their timeliness claim, but persisted with their challenge to the denial of emergency rulemaking. In an opinion and order dated October 11, 2007, the District Court dismissed the complaint for lack of subject matter jurisdiction, finding that the FWS’s denial of the emergency listing request was not reviewable under either the ESA or the Administrative Procedure Act (APA). Given this finding, the District Court did not find it necessary to reach the FWS’s claim that the publication of the warranted but precluded listing determination in the CNOR rendered moot appellants’ challenge to the denial of emergency rulemaking. The appeal followed.

The Appeals Court dismissed the appeal as moot; however, it said, "We note, as we conclude, that appellants have received quite substantial relief. Now that the CNOR has issued, the red knot is on the agency’s watchlist. This means that the emergency monitoring system set forth at 16 U.S.C. § 1533(b)(3)(C)(iii) has become available in the event of exigent circumstances that warrant immediate protection of the red knot."

Access the complete opinion (click here).

Alaska Wilderness v. Kempthorne

Mar 6: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 07-71457, 07-71989, & 07-72183. In a brief order, the Appeals Court said, "The opinion and dissent filed on November 20, 2008, and published at 548 F.3d 815 (9th Cir. 2008), are hereby vacated and withdrawn [See WIMS 11/20/08]. Respondents’ petition for rehearing and suggestion for rehearing en banc is denied as moot. All pending motions to file amicus briefs in support of rehearing are likewise denied as moot. The opinion vacated and withdrawn will be replaced by a new opinion. Our denial of the petition for rehearing with suggestion for rehearing en banc is made without prejudice to any party who may wish to file a petition for rehearing or petition for rehearing en banc with regard to the new opinion."

The case involved six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenged the Minerals Management Service’s (MMS) approval of an exploration plan submitted by Shell Offshore Inc. (Shell). Shell seeks to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea. In the November 20, split 2-1 decision the Appeals Court, vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."

Access the Order (click here).