Boston Gas Company v. Century Indemnity Company

Jan 18: In the U.S. Court of Appeals, First Circuit, Case No. 11-1931. Appealed from the U.S. District Court for the District of Massachusetts, Boston. In this very detailed and highly complicated decision the Appeals Court explains that this appeal is the latest chapter in a long-running dispute between Boston Gas Company (Boston Gas) and one of its insurers, Century Indemnity Company (Century). What's more, the insured's activities giving rise to the dispute stretch back more than a century. During the latter part of the 19th and well into the 20th century, Boston Gas produced gas fuel at facilities known as manufactured gas plants (MGPs). Faced with liability under Massachusetts law for the costs of investigating and remediating environmental contamination discovered at a number of former MGP sites, see Mass. Gen. Laws ch. 21E (2006), Boston Gas filed this diversity action seeking a declaratory judgment as to Century's obligations under general commercial insurance (GCL) policies issued to Boston Gas by Century's predecessor and damages for breach thereof.

 

    As relevant to the appeal, jury trials were held with respect to two of the sites included in the cleanup, the Everett and Commercial Point sites. Boston Gas operated MGPs at the Everett and Commercial Point sites during the periods 1908-1969 and 1886-1930, respectively, and insured both sites with Century from 1951-1969. The Everett site litigation was the first to go to trial. The jury awarded Boston Gas over $6.1 million in past remediation expenses, and the district court issued a declaratory judgment obligating Century to pay all future costs associated with the cleanup of the site.

 

    On appeal, a central issue involved the proper method under Massachusetts law for allocating liability for long-term environmental contamination where the defendant GCL insurer had provided coverage for the risk for only a portion of the time during which the contamination took place. Based on an existing intermediate state court decision, the district court had applied an "all sums" or "joint and several" allocation method, whereby an insurer is responsible for an insured's total remediation costs as long as some property damage for which the insured is liable occurs during the policy period. Noting that the Commonwealth's highest court had not yet ruled on the issue, which was "determinative of the scope of Boston Gas' claim," a panel of this court certified the allocation question to the Supreme Judicial Court (SJC).

 

    The SJC rejected an "all sums" approach in favor of pro rata allocation, pursuant to which each insurer is obligated to pay only those costs associated with damage occurring during its policy period. . . The court held that the preferred method for allocating damages on a pro rata basis is a "fact-based" determination of the losses occurring during each policy period, but in the event that the evidence does not permit such an allocation, losses should be allocated based on the insurer's "time on the risk."

 

    The trial judge deferred ruling on post-trial motions and entry of final judgment pending the outcome of the Everett appeal. The Appeals Court said, "Those motions now having been resolved, and entry of judgment in the Commercial Point litigation stipulated to, Boston Gas appeals on multiple grounds. For the reasons set forth below, we affirm in all respects." Further, the Appeals Court concluded the following:

"Discerning no abuse of discretion in the district court's application of judicial estoppel, we affirm its entry of judgment allocating damages evenly across the 121-year span from the time of plant operations to trial. Consequently, Century is, as was found below, liable for 14.9% of the sum total of Boston Gas's recoverable costs."

 

"A reasonable jury could determine from this evidence that inhalation risks related solely to Boston Gas's use of its own property and presented no potential for third party impact. Absent such potential, Boston Gas's motion for judgment as a matter of law on the owned property exclusion was properly denied."

 

"Unable to reconcile the damages award with the arguments and evidence presented at trial, the district court properly vacated the verdict as being against the clear weight of the evidence. While Boston Gas accuses the district court of improperly invading the province of the jury, we view its decision to grant a new trial as designed to avoid just that. In short, there was no abuse of discretion."

    Finally, the Appeals Court concludes, ". . .we affirm the district court in all respects and remand for further proceedings in accordance with this opinion. We do so noting, once again, that '[t]his litigation, plainly unusually complicated, has been well handled by the district court,' and urge 'the parties . . . to consider whether a settlement between them is feasible before more time and expense is devoted to further litigation.' Boston Gas, 588 F.3d at 23-24."

 

    Access the complete opinion (click here). [#Remed, #CA1]

 

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Grocery Manufacturers Association v. U.S. EPA

Jan 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1380, Consolidated with 10-1414, 11-1002, 11-1046, 11-1072, 11-1086. On Petitions for Rehearing En Banc. Plaintiffs seek a hearing of the full Court of Appeals following a split 2-1 decision of the Appeals Court in the case for review of two EPA decisions approving the introduction of E15 -- a blend of gasoline and 15 percent ethanol -- for use in select motor vehicles and engines [See WIMS 8/17/12]. In the controversial decision, the majority Appeals Court ruled, "Because we hold that no petitioner has standing to bring this action, we dismiss all petitions for lack of jurisdiction."

 

    In the order, the Appeals Court indicates, "The petition of the American Petroleum Institute and the Food Petitioners for rehearing en banc; the petition of the Engine Products Group for rehearing en banc; and the petition of American Fuel & Petrochemical Manufacturers and International Liquid Terminals Association for rehearing en banc, and the responses to the petitions were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petitions. Upon consideration of the foregoing, it is ordered that the petitions be denied."

 

    Judge Kavanaugh indicated that he would grant the petitions and issued a statement dissenting from the denial of the petition for rehearing en banc. In his dissent, Judge Kavanaugh said, "This case concerns a challenge to EPA's E15 waiver decision. The E15 waiver, in conjunction with the statutory renewable fuel mandate, will require petroleum producers to refine and sell E15, a blend of gasoline that contains 15 percent ethanol. The E15 waiver also will increase the demand for corn and thus increase corn prices for food producers. Two industry groups separately challenged the E15 waivers -- the food producers who will pay higher prices for corn and the petroleum producers who will be forced to refine and sell E15. They contended that the E15 waiver will palpably and negatively affect the American food and petroleum industries, with corresponding impacts on American consumers. And they argued that the E15 waiver is unlawful because it exceeds EPA's statutory authority.

 

    "Even though EPA did not raise a challenge to the standing of the food producers or the petroleum producers, the panel dismissed the case on standing grounds. The panel determined that the food producers have Article III standing but lack prudential standing because, according to the panel, the food producers are not within the zone of interests under the relevant ethanol-related statute. The panel separately held that the petroleum producers lack Article III standing. We must reach the merits if either the food producers or the petroleum producers have standing. In my view, both groups plainly have standing."

 

    In a footnote to his dissent, Judge Kavanaugh noted, "Although not my focus here, I also note that the E15 waiver apparently will harm some cars' engines, a point made by a third set of petitioners in this case (the engine manufacturers). Indeed, just a few weeks ago, the American Automobile Association warned of the damage E15 will cause to car engines and took the extraordinary step of publicly asking EPA to block the sale of E15." [See Gary Strauss, AAA Warns E15 Gasoline Could Cause Car Damage, USA TODAY, November 30, 2012.]

   

    The American Fuel & Petrochemical Manufacturers (AFPM), General Counsel Rich Moskowitz, responded to the decision saying, "We are disappointed that the DC Circuit will not rehear the case and will let stand a procedural block that prevents the court from reaching the merits of this important issue. We remain concerned that EPA's partial waiver will result in significant misfueling and will harm consumers. EPA has authorized the sale of an ethanol blend that virtually every automobile manufacturer has warned will damage existing vehicles. We are analyzing the decision and will determine whether to seek review by the Supreme Court. Judge Kavanaugh issued a strong dissent based on EPA's acknowledgment that E15 damages cars and specifically referenced a recent AAA warning calling upon EPA to block the sale of E15." 

 

    AFPM indicated that several studies have shown that E15 causes engine damage to passenger vehicles, boats and outdoor power equipment, including chainsaws and lawnmowers, and has led AFPM and other industry groups to raise concerns about a fuel not approved for use by the manufacturers of more than 228 million vehicles on the road today. A recent survey by the American Automobile Association (AAA) reported that 95 percent of consumers surveyed had not heard of E15 gasoline which lends credence to the potential for misuse and engine harm as well as creating safety, liability and warranty issues.

 

    Access the order denying an en banc hearing and the dissent (click here). Access the complete original opinion and dissents (click here). Access a release from AFPM (click here). [#Energy/Ethanol, #CADC]

 

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American Road & Transportation v. U.S. EPA

Jan 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1256. On Petition for Review of Final Agency Action of the Environmental Protection Agency. In its introductory summary, the Appeals Court explains, "The American Road & Transportation Builders Association has repeatedly sought judicial review of Environmental Protection Agency regulations relating to nonroad engines and vehicles. But ARTBA began bringing those challenges several years after the regulations were promulgated. As we have explained before, ARTBA's challenge to EPA's regulations is time-barred under the Clean Air Act's 60-day filing period. See American Road & Transportation Builders Association v. EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009). In this case, ARTBA is also challenging EPA's approval of California's State Implementation Plan, but that challenge must be brought in the Ninth Circuit. We therefore dismiss the petition for review."

 

    The case involves Section 209(e) of the Clean Air Act which preempts certain state regulation of nonroad engines. See 42 U.S.C. § 7543(e). The term "nonroad engine" covers a wide variety of internal combustion engines, including those found in tractors, construction equipment, lawnmowers, locomotives, and marine craft. In 2002, ARTBA petitioned EPA to amend its Section 209(e) regulations to broaden their preemptive effect. In 2008, EPA rejected that petition. Shortly thereafter, ARTBA brought suit in this Court to challenge the denial of its petition. The D.C. Circuit dismissed that suit for lack of jurisdiction, holding that ARTBA's claims were time-barred under the Clean Air Act.

 

    The latest appeal by ARTBA challenges two EPA actions: (i) EPA's approval of revisions to the California SIP; and (ii) EPA's denial of ARTBA's petition to amend the Section 209(e) preemption regulations. On the first action the Appeals Court ruled, "In this case, then, a challenge to the California SIP revision must be -- and, notably, already has been -- filed in the Ninth Circuit. See Petition for Review, American Road & Transportation Builders Association v. EPA, No. 11-71897 (9th Cir. July 8, 2011). Because venue is proper in the Ninth Circuit and not in this Court, we dismiss ARTBA's challenge to EPA's approval of the California SIP revision."

 

    On the second action, the Appeals Court reiterated its decision in ARTBA I and said further, ". . .if the mere application of a regulation in a SIP approval were sufficient to constitute an after-arising ground and trigger a new 60-day statute of limitations period, ARTBA I's concerns about preserving "the consequences" of failing to bring a challenge within 60 days of a regulation's promulgation would be meaningless. See ARTBA I, 588 F.3d at 1113; see also National Mining, 70 F.3d at 1351 ('Such an interpretation would make a mockery of Congress' careful effort to force potential litigants to bring challenges to a rule issued under this statute at the outset . . . .'). There would be no pressure to challenge regulations within the 60-day period after their promulgation if any petitioner could simply wait to test the substance of those regulations once EPA applies them, for example, in an approval of a state SIP revision – as ARTBA has attempted to do here. Therefore, as we did in ARTBA I, we hold that ARTBA's challenge to EPA's Section 209(e) regulations is time-barred."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

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U.S. v. El Dorado County

Jan 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17134. Appeal from the United States District Court for the Eastern District of California. A staff summary of the case indicates that the panel dismissed for lack of jurisdiction, due to lack of a final appealable order, an appeal from the district court's order suspending a consent decree between the Federal government and El Dorado County, pending further hearings. The panel held that if a district court order deals with a consent decree that has injunctive effects, an appeal from it should be analyzed under the requirements set out in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). The panel held that the Federal government failed to satisfy the Carson factors, and concluded that the court lacked jurisdiction at this time to review the district court's order.

 

    The Appeals Court said, "The United States of America (government) entered into a consent decree with El Dorado County (County) concerning the clean up of an abandoned landfill located near Lake Tahoe in California. The County shortly thereafter moved to modify the decree, and the district court suspended the decree pending further hearings. The government appealed. The County later moved to dismiss for lack of jurisdiction, arguing that the order was not appealable because it is nonfinal. We have jurisdiction to determine our own jurisdiction, Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004), and we dismiss the appeal."

 

    Further, the Appeals Court ruled, "The government has not shown that it will suffer serious, perhaps irreparable harm if we do not review the district court's order now. The government argues that if the order freeing the County from its obligations is allowed to stand even temporarily, further damage to the landfill site is a serious possibility. However, at worst, the government must pay for the clean up activities itself and then be reimbursed. This kind of harm does not qualify. . .

 

    "Nor has the government shown that the order can only be challenged by immediate appeal. Once the district court has held its evidentiary hearing and enters the final judgment, the government can appeal the same legal issues. The government argues that the order can only be appealed now because the project will fail if the County is not required to continue clean up. This is merely a repetition of the government's harm arguments, and fails for the same reason. As stated before, at worst, the government must pay for the clean up itself and then be reimbursed. That situation has no impact on the reviewability of the underlying legal issue. Because the government has failed to satisfy the Carson factors, we do not have jurisdiction at this time. The motion to dismiss is therefore granted."

 

    Access the complete opinion (click here). [#Solid, #Remed, #CA9]

 

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Indian Harbor Insurance Co. v. U.S.

Jan 11: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-5030. Appealed from the United States Court of Federal Claims. The Appeals Court explains that Indian Harbor Insurance Company (Indian Harbor) appeals the final judgment of the Court of Federal Claims dismissing Indian Harbor's Second Amended Complaint. In that complaint, Indian Harbor sought reimbursement under Section 330 of the National Defense Authorization Act of 1993, Pub. L. No. 102-484, (Nov. 30, 1993) (Section 330) for environmental cleanup costs associated with the development of property formerly used as a military base. The Court of Federal Claims determined that Indian Harbor failed to identify a "claim for personal injury or property" that triggered the government's duty to indemnify under Section 330, Indian Harbor Insurance Co. v. United States, 100 Fed. Cl. 239, 240 (Fed. Cl. 2011) and, thus, dismissed the complaint under Rule 12(b)(6) of its rules.

 

    The Appeals Court summarizes saying, "Because we disagree with the trial court's interpretation of the requirements of Section 330, we reverse the decision of the Court of Federal Claims and remand for proceedings in accordance with this decision." In further background the Appeals Court indicates that, "Indian Harbor subsequently filed suit in the Court of Federal Claims seeking $5,331,872.09, plus interest and any additional amounts proven at trial, pursuant to Section 330. The United States moved to dismiss. Following briefing by the parties, oral argument was held on June 20, 2011. On June 28, 2011, the Court of Federal Claims granted Indian Harbor's unopposed motion to file its First Amended Complaint, which clarified Count II of the Complaint. On July 5, 2011, the Court of Federal Claims granted the Defendant's motion in part, dismissing Count I of Indian Harbor's Complaint on grounds that Indian Harbor failed to allege facts plausibly suggesting the existence of a 'claim for personal injury or property damage' as required under Section 330."

    The Appeals Court said, "Although the plain language of Section 330 is clear that there must be a "suit, claim, demand or  action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage," we find no support for the proposition that the claim for personal injury or property damage must be adversarial. . . Thus, we see no reading of the plain language resulting in the conclusion that the RWQCB's [Regional Water Quality Control Board's] communications with TLCP [Tustin Legacy Community Partners, LLC] do not constitute a "claim" under Section 330."

 

    Finally, the Appeals Court concludes, "There is nothing to suggest that addition of the phrase 'claim for personal injury or property damage' was intended to limit the scope of governmental indemnification in a way that ignores the original purpose of the Act. The Court of Federal Claims reads far too much into that clause; we decline to do so."

 

    Access the complete opinion (click here). [#Remed, #CAFed]

 

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Lost Tree Village Corporation v. U.S.

Jan 10: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-5008. Appealed from the United States Court of Federal Claims. The Appeals Court explains that the U.S. Court of Federal Claims determined

that the Army Corps of Engineers did not effect a regulatory taking compensable under the Fifth Amendment when it denied Lost Tree Village Corporation's application for a permit to fill wetlands on its 4.99 acre plat (Plat 57). In reaching this conclusion, the Court of Federal Claims found Lost Tree's parcel as a whole includes Plat 57, a neighboring upland plat (Plat 55), and scattered wetlands in the vicinity owned by Lost Tree at the time the permit was denied. The Appeals Court ruled, "Because the Court of

Federal Claims erred in its determination of the relevant parcel, this court reverses and remands for further proceedings."

 

    In this complicated Florida land development case, the Appeals Court concludes further, "After a careful review of the entire record, this court determines that the relevant parcel is Plat 57 alone. The trial court's factual findings support the conclusion that Lost Tree had distinct economic expectations for each of Plat 57, Plat 55, and its scattered wetland holdings in the vicinity. Because the Court of Federal Claims erred in its determination of the relevant parcel, this court reverses the judgment and remands for further proceedings. On remand, the court first should determine the loss in economic value to Plat 57 suffered by Lost Tree as a result of the Corps' denial of the § 404 permit, and then apply the appropriate framework to determine whether a compensable taking occurred. In determining the loss in value to Plat 57, the court may revisit the property values it adopted in the course of determining the impact of the Plat 57 permit denial on Lost Tree under its definition of the relevant parcel."

 

    Access the complete opinion which includes a map of the development and parcels in question (click here). [#Land, #Water, #CAFed]

 

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WildEarth Guardians v. National Park Service

Jan 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-1192. Appealed from the U.S. District Court for the District of Colorado. The Appeals Court explains that the appeal concerns WildEarth Guardians' challenge to the National Park Service's elk and vegetation management plan for Rocky Mountain National Park. WildEarth filed suit in Federal district court challenging the plan and the final environmental impact statement the National Park Service (NPS) prepared in conjunction with the plan. WildEarth contends the NPS violated the National Environmental Policy Act (NEPA) by failing to include the reintroduction of a naturally reproducing wolf population as one of the alternatives considered in the environmental impact statement. WildEarth also challenges the agency's proposal to allow volunteers to assist the agency in reducing the elk population.

 

    The district court affirmed the agency action, and WildEarth appealed. The Appeals Court ruled, "We find the record supports the agency's decision to exclude consideration of a natural wolf alternative from its environmental impact statement. We also find the agency's interpretation of the National Parks Organic Act and Rocky Mountain National Park Enabling Act persuasive, and that its elk management plan does not violate those statutes. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm."

 

    The Appeals Court explains an underlying fact in the case that Rocky Mountain National Park (RMNP), located in northern Colorado, was established in 1915. The Rocky Mountain National Park Enabling Act (RMNP Act) bans hunting or killing wildlife within the park, with very limited exceptions. The park has always had a substantial elk population. But most elk predators, especially wolves and grizzly bears, were exterminated in the park area prior to its establishment, and Congress's decision to ban hunting in RMNP allowed the park's elk population to grow without constraint.

 

    WildEarth argues the natural wolf alternative fit the purpose and need of the proposed action, and thus required the NPS to consider it in an EIS. It argues the natural wolf alternative was practical. In particular, WildEarth points to studies, emails, and other documents in the record discussing the benefits of this alternative. The Appeals Court said, "While the record supports some benefits to a natural wolf option, that is not what guides us. What guides us is a rule of reason, where the agency explains its decision to take certain proposed options off the table because of a lack of practicality."

 

    The Appeals Court indicates that the NPS found the natural wolf alternative would be impractical despite some marginal upside, and the record supports that decision. For example, wolf reintroduction may have been successful in Yellowstone and Banff, but the record reflects that those parks are not a good comparator for RMNP. The NPS determined RMNP has relatively little suitable wolf habitat due to its small size and abundance of steep, high-altitude terrain, which wolves dislike. And as a consequence of the lack of habitat and wolves' natural tendency to disperse, NPS experts predicted that any wolves in RMNP would be very likely to leave the park boundaries, prompting conflicts with neighboring communities. Such conflicts would likely include predation on livestock and pets.

 

    The Appeals Court concluded, "The record reflects that the NPS's elk management plan is meant to control the number of elk in RMNP. Elk will not be killed when they are within the target range. Culls will be closely supervised by NPS employees. Some cullers may enjoy the experience, but this is irrelevant so long as they kill elk for management purposes pursuant to the procedures and supervision of the NPS. The primary purpose of hunting is not for controlling a population of detrimental animals but for food and sport. Because the purpose of the NPS's plan is to control the population of the park's elk and their effect on vegetation, it is distinguishable from hunting, regardless of whether members of the public volunteer to participate in culls."

 

    However, the Appeals Court noted in a footnote, "In reaching this holding, we do not mean to suggest that the NPS may authorize hunting in RMNP simply by covering it with the fig leaf of population control. As discussed, § 198c unambiguously bars anyone from hunting in RMNP. The culls contemplated by the NPS in its management plan will be tightly controlled and are sufficiently distinct from hunting that they do not run afoul of § 198c's restriction. But § 198c would clearly prevent the NPS from

creating a scheme similar to a state-regulated hunt by, for example, selling tags to licensed hunters and allowing them to freely roam the park every autumn to shoot elk, even if the agency's reason for doing so was to reduce RMNP's elk population."

 

    Access the complete opinion (click here). [#Wildlife, #CA10]

 

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