Sackett v. U.S. EPA

Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No.08-35854. As the Appeals Court explains, the case must determine whether Federal courts have subject-matter jurisdiction to conduct review of administrative compliance orders issued by the U.S. EPA under the Clean Water Act (CWA)  before EPA has filed a lawsuit in Federal court to enforce the compliance order. The Appeals Court rules, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."

 

    In brief summary the Sacketts argued that a compliance order issued by EPA regarding a wetlands violation was: (1) arbitrary and capricious under the Administrative Procedure Act; (2) issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) issued on the basis of an "any information available" standard that is unconstitutionally vague. The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. It concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in Federal court. The Sacketts filed a Federal Rule of Civil Procedure 59(e) motion for clarification and reconsideration that was also denied.

 

    In making its ruling, the Appeals Court indicates that, ". . .we do not work from a blank slate. Every circuit that has confronted this issue has held that the "CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court." The Appeals Court cites cases from the 10th, 6th, 4th, and 7th Circuits and many Districts and says, "The reasoning of these courts is persuasive to us, as well as the broad uniformity of consensus on this issue."

 

    The Appeals Court summarizes, "In conclusion, we hold that it is 'fairly discernable' from the language and structure of the Clean Water Act that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to require that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order. Thus we do not see any sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA. Under these circumstances, preclusion of pre-enforcement judicial review does not violate the Sacketts' due process rights. The district

court properly dismissed this case for lack of subject-matter jurisdiction."

 

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Miccosukee Tribe of Indians v. U.S. Army Corps of Eng'rs.

Sep 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-14194, 09-14539 & 09-11891. The Appeals Court indicates that the Miccosukee Tribe of Indians of Florida (the Tribe) filed two lawsuits challenging the Federal government's plans to replace a mile of the ground-level Tamiami Trail (U.S. Highway 41) with a bridge, to increase the flow of water into Everglades National Park. The district courts dismissed the Tribe's claims for lack of subject matter jurisdiction, and the Appeals Court have consolidated the Tribe's appeals of those decisions.

 

    The district courts concluded that language Congress inserted in a spending bill partially repealed the environmental laws that the Tribe was invoking. The Tribe challenges that interpretation, and asserts the rulings violate the Constitution on several counts. However, Appeals Court concluded that "the act of Congress deprived the federal courts of subject matter jurisdiction over the Tribe's claims," and affirmed the judgments of the district courts.

 

    The Appeals Court provides background indicating, "Although the Trail [Tamiami Trail] remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.

 

    In 2000, the President signed the Water Resources Development Act, Pub. L. No. 106-541, § 601, 114 Stat. 2572, 2680 (WRDA), outlining the thirty-year Comprehensive Everglades Restoration Plan (CERP) that updated the original Central and Southern Florida plan for the Everglades. One element of CERP called for improvement of water flow through the Trail. On September 30, 2008, Congress passed a continuing appropriations act, Pub. L. No. 110-329, 122 Stat. 3574. Section 153 of the act spoke to the immediate building of the bridge saying, "SEC. 153. Amounts provided by section 101 for implementation of the Modified Water Deliveries to Everglades National Park shall be made available to the Army Corps of Engineers, which shall immediately carry out Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) as substantially described in the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008 . . . "

 

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Association of American Railroads v. South Coast Air Quality Mgmt.

Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55804. The Appeals Court explains that an array of Federal, state, and local laws governs the operation of railroads, including laws that regulate the effect of the railroad industry on the environment. In this case, a local governmental agency enacted rules aimed at limiting the air pollution created by idling trains. Several entities within the railroad industry filed suit. After a bench trial, the district court held that Federal law preempts the local rules.

 

    The Railroads contend that the Interstate Commerce Commission Termination Act of 1995 (ICCTA), Pub. L. No. 104-88, 109 Stat. 803, a Federal act that substantially deregulated the railroad industry, preempts the South Coast Air Quality Management District rules. On review, the Appeals Court cited Davis v. Yageo Corp., 481 F.3d 661, 673 (9th Cir. 2007); J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir. 2007), and affirmed the decision of the district court.

 

    The Appeals Court ruled in part, "Because the District's rules have the force and effect of state law, ICCTA preempts those rules unless they are rules of general applicability that do not unreasonably burden railroad activity. The District's rules plainly cannot meet that test. The rules apply exclusively and directly to railroad activity, requiring the railroads to reduce emissions and to provide, under threat of penalties, specific reports on its emissions and inventory. Because ICCTA 'preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation,' N.Y. Susquehanna, 500 F.3d at 252 (internal quotation marks omitted), ICCTA preempts the District's rules here."

 

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Hapner (Native Ecosystems) v. Tidwell (Forest Service)

Sep 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35896. The United States Forest Service (the Service) proposed the Smith Creek Project (the Project) in the Gallatin National Forest to reduce the risk of severe wildfire, to reduce the risk of insect infestation and disease, and to promote habitat diversity. Sharon Hapner, Alliance for Wild Rockies, and Native Ecosystems Council (collectively Plaintiffs) challenged the Project, contending that it violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). After a remand, the district court granted summary judgment to the Service on all of Plaintiffs' claims. The Appeals Court ruled, "We affirm the district court in almost all respects. We reverse on only one claim, holding that the Project violates NFMA by failing to comply with the elk-cover requirement contained in the Gallatin National Forest Plan."

 

    The Appeals Court explains that the Service argues that even if the Project violates the Gallatin Plan's elk-cover requirement, the error is harmless given the large elk populations in the Project area. But "[i]t is well-settled that the Forest Service's failure to comply with the provisions of a Forest Plan is a violation of NFMA." Native Ecosystems Council, 418 F.3d at 961. "If the Forest Service thinks any provision . . . of the Plan is no longer relevant, the agency should propose amendments to the . . . Plan altering its standards, in a process complying with NEPA and NFMA." Although current elk populations may meet or exceed Montana objectives, those objectives cannot replace Federal management objectives. The Appeals Court reminds that, the Service's own research scientists have written, in guidelines for elk management, "Reducing habitat effectiveness should never be considered

as a means of controlling elk populations. A population over target is not a Forest Service habitat problem." Therefore, the Appeals Court rules, "We therefore conclude that the Service has violated the Gallatin Plan, and NFMA, by not ensuring that the Project complies with the current Gallatin Plan elk-cover requirement. We remand to the Service to remedy this error."

 

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City Of Emeryville v. Robinson

Sep 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15018. The Sherwin-Williams Company (Sherwin-Williams) appealed from an order of the district court granting in part, and denying in part, a motion for declaratory and injunctive relief. Sherwin-Williams brought the motion to enforce a 2001 court-approved settlement (the 2001 Settlement), which it negotiated with appellees City of Emeryville and the Emeryville Redevelopment Agency (collectively, Emeryville) to resolve a lawsuit filed by Emeryville in 1999 in the Northern District of California pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act  (CERCLA). That suit (the Site A litigation) sought to recover clean-up costs as to a 14.5-acre parcel (Site A) where Sherwin-Williams manufactured, stored, and distributed pesticides from the 1920s through the 1960s.

 

    Under the terms of the 2001 Settlement, Sherwin-Williams paid Emeryville $6.5 million for Site A clean-up, and agreed to a cost-sharing formula for future groundwater remediation. In the instant action, the district court concluded that the release provision in the 2001 Settlement was intended to bar the claims Emeryville is currently asserting against Sherwin-Williams in a separate action, which the Emeryville Redevelopment Agency filed in 2006 in Alameda County Superior Court (the State Court Action) to recover $32 million in clean-up costs from Sherwin-Williams and others for a different parcel (Site B), but only to the extent the Site B claims arose from or were related to contaminants that "emanated from" Site A.

 

    Appellees and intervenors Howard F. Robinson, Jr., Christopher D. Adam, and Hilary A. Jackson (collectively, Intervenors) are recent or current owners of portions of Site B, who were also named as defendants in the State Court Action, but they were not parties to and did not have notice of the Site A litigation or the 2001 Settlement. Intervenors are also, however, cross-claimants in the State Court Action, who were allowed to intervene in this case to prevent the extinguishment of rights of contribution they seek to enforce against Sherwin-Williams for contamination of their properties at Site B.

 

    The Appeals Court determined that in the instant action, the district court ruled that the contribution bar in the 2001 Settlement does not apply to the Intervenors' cross-claims against Sherwin-Williams. The district court had jurisdiction under the express terms of the 2001 Settlement and affirmed the district court ruling.

 

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South Coast Air Quality Mgmt. Dist. v. FERC

Sep 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-72265. This case involves the interstate natural gas pipeline system as regulated by the Federal Energy Regulatory Commission (FERC); the varying quality of natural gas as measured by the Wobbe Index (WI); and the resulting air pollution from burning varying qualities of natural gas.

 

    In general, FERC issued an order approving a project, which authorized the construction of new facilities to allow for the northward flow of gas by North Baja Pipeline, LLC. The order confirmed FERC's earlier environmental review and adopted twenty-one enumerated environmental conditions relating to the construction of the pipeline and its continued transport of gas. FERC also required that the North Baja pipeline only deliver gas that meets the strictest gas quality standards imposed by state regulatory agencies on downstream end-users and pipelines, which, in light of California's gas standards, meant that the North Baja gas could not exceed a WI level of 1385. FERC found that compliance with these standards "should not result in a material increase in air pollutant emissions and, therefore, should not result in material changes in air quality in the Basin."

 

    South Coast Air Quality Management District (South Coast) argued for a maximum WI of 1360 in California, however, FERC observed that "[t]he record contains no analysis or evidence showing a material change in air quality impacts as a result of the consumption of natural gas with a WI of 1385 . . . compared to that of [South Coast's] proposed WI limit of 1360." South Coast, acting alone, filed a Request for Rehearing of FERC's Order. FERC denied the request and South Coast filed the instant petition for review with the Appeals Court.

 

    The Appeals Court ruled in part, ". . . while South Coast correctly states that the gas quality of the North Baja gas 'would be up to a 1385 Wobbe Index,' this number does not take into account any blending or conditioning of gases that may occur in either the North Baja pipeline itself or the California pipeline system, nor does it reflect the WI of gas in the Basin at the time it is actually burned. Indeed, because the actual WI of the North Baja gas by the time it reaches the Basin is unknown at this time, the expected NOx emissions and resulting environmental harm that may occur are equally unknown. Again, even South Coast acknowledged this uncertainty during its challenge to the CPUC proceedings. Consequently, the emissions that may result from the consumptive burning of North Baja gas are not reasonably foreseeable within the definition provided by the EPA's regulations.

 

    "Because the CAA does not require that FERC attempt to 'leverage its legal authority to influence or control' state air quality issues, and because there remains substantial uncertainty regarding the eventual burning of North Baja gas, FERC is not obligated to perform a full conformity determination regarding such burning under the CAA. South Coast's petition for review is denied."

 

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Chevron Corp. v. 3TM International, Inc.

Sep 8: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20389. The case is appealed from the Southern District of Texas (Houston Division) and involves a group of Ecuadorian citizens (the plaintiffs) who have sued Chevron Corporation in Ecuador appeal from the district court's order allowing Chevron to depose their consultant, 3TM.

 

    In 2003, the plaintiffs sued Chevron in Ecuador, seeking to hold Chevron liable as the successor to Texaco Petroleum Company. The plaintiffs allege that Texaco polluted the Ecuadorian Amazon Rainforest over the course of several decades while engaging in oil extraction in the region. The appeal arises out of the plaintiffs' Ecuadorian lawsuit against Chevron. Specifically, it concerns Richard Stalin Cabrera Vega (Cabrera), an individual appointed by the Ecuadorian court to serve as a neutral expert in the Ecuadorian proceedings. In 2008, Cabrera released a report recommending that Chevron be held liable for $27.3 billion in damages, but the Ecuadorian court has yet to render a judgment against Chevron.

 

    Despite Cabrera's professed impartiality, Chevron claims that Cabrera actually worked closely with the plaintiffs to produce his report, much of which Chevron alleges was secretly ghostwritten by the plaintiffs' U.S. consultants. Chevron filed a § 1782(a) application seeking discovery from 3TM, an environmental consultancy firm in Houston. The plaintiffs' consultant Stratus retained 3TM to assist the plaintiffs in mediation and settlement discussions with Chevron in 2007, and Chevron alleges that 3TM and Stratus produced a report that Cabrera integrated into his report, without disclosing his reliance on it. After the plaintiffs intervened to quash Chevron's subpoena of 3TM, the district court ordered 3TM to submit to limited discovery.

 

    The court concluded that discovery was appropriate based on the Intel factors that the Supreme Court has directed courts to consider in reviewing requests for discovery in aid of foreign proceedings. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The court also found that although some of the documents and information sought by Chevron could be protected under various privileges, this protection would have been waived by the provision of any documents to Cabrera.

 

    The Appeals Court affirmed the district court's order requiring 3TM to submit to a foundational deposition, and remanded the case for further proceedings consistent with the opinion and said, ". . .the district court did not err in ordering a foundational deposition, despite the lack of definite evidence of a waiver. Although we approve of the course chosen by the district court, we believe the terms that the court set for the deposition should be further refined. As already explained, the court ordered that 3TM's deposition be limited to 'whether 3TM collaborated with Cabrera' and 'the extent to which 3TM recognizes its work in the Cabrera report.' However, the district court did not clearly specify the level of similarity between the Cabrera report and 3TM work product necessary to show that a waiver of immunity from discovery occurred. Depending on 3TM's interpretation of the district court's order, it could conceivably 'recognize' material in the Cabrera report as its own that actually has another provenance. As such, for remand, we stress that similarities between the Cabrera report and 3TM work product are only relevant to the extent that they collectively show that Cabrera more likely than not incorporated 3TM work product into his report. We also note that if disputes between the parties persist after the foundational deposition, the district court may review the Cabrera report and any relevant 3TM work product in camera to help it determine whether a waiver occurred."

 

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