Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

Feb 25: In the U.S. Court of Appeals, First Circuit, Case Nos. 12-1404, 12-1772. Petitions for review of orders of the Nuclear Regulatory Commission (NRC). The Appeals Court indicates that, "Under the applicable standards of judicial review, we deny the petition for review."

 

   The Appeals Court explains that the Commonwealth of Massachusetts petitions for review from the NRC March 8, 2012, order denying the Commonwealth's petition for review of the Atomic Safety and Licensing Board's (ASLB) denial of Massachusetts's motion to admit a new contention, and other related requests. The NRC rejected the Commonwealth's claims that the environmental findings in the environmental impact statement (EIS), prepared under the National Environmental Policy Act (NEPA), were inadequate in light of the damage to the Fukushima Daiichi (Fukushima) nuclear power plant in Japan in March of 2011. The Commonwealth also petitions for review from the NRC's May 25, 2012, vote to renew the license of the Pilgrim Nuclear Power Station in Plymouth, Massachusetts, and the May 29, 2012 renewed license.

 

    The Commonwealth's substantive challenges to the NRC's decisions are not based in any alleged failure on the part of the NRC to ensure basic health and safety under the Atomic Energy Act (AEA). Rather, the Commonwealth argues that the Commission's failure to file supplemental analysis on the environmental impacts of relicensing in light of purported new and significant information learned from Fukushima violated its obligations under NEPA and NRC regulations.

 

    The claims made by Massachusetts to the NRC roughly fall into three categories. The first two categories go to whether, in light of Fukushima, the EIS was adequate in its environmental assessments of: (1) spent fuel pool fires; and (2) core damage events. The third category questions whether the decision to proceed with relicensing was contrary to law. The Commonwealth also asserts that the NRC failed to sufficiently consider its own Task Force's report that contained purportedly new and significant information, or explain why it did not require supplementation of the EIS, and Massachusetts claims that it was denied a hearing in violation of the AEA.

 

    In its conclusion, citing the case of Town of Winthrop, 535 F.3d 1, the Appeals Court said it, ". . .found that it was reasonable for an agency to decline to study, in a supplemental EIS, a pollutant for which there was not yet a standard method of measurement or analysis. . . It is similarly reasonable not to delay relicensing until even more information becomes available because the process could otherwise become unending, as new information is always developing. Cf. Marsh, 490 U.S. at 373 (explaining that requiring an updated EIS every time new information arises is not practical because agencies would always be 'awaiting updated information only to find the new information outdated by the time a decision is made'). NEPA imposed no obligation on the NRC to withhold the granting of a renewed license here because of the possibility that currently unavailable information might become available in the future."

 

    Access the complete opinion (click here). [#Energy/Nuclear, #Haz/Nuclear, #CA1]

 

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Dow AgroSciences LLC v. National Marine Fisheries Service

Feb 21: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-2337. Appealed from the United States District Court for the District of Maryland, at Greenbelt. In summary, the Appeals Court reversed, the agency's biological opinion vacated, and the case remanded by published opinion.

 

    In this appeal, the Appeals Court decides whether a "biological opinion" (BiOp) issued by the National Marine Fisheries Service

(Fisheries Service or the Service) to U.S. EPA is arbitrary and capricious under the Administrative Procedure Act. The BiOp,

which the Fisheries Service provided as part of the EPA's process of reregistering the pesticides chlorpyrifos, diazinon, and malathion, concluded that these pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and therefore used without substantial restriction.

 

    Three manufacturers of the pesticides commenced the legal action, challenging the BiOp by contending that it rested on numerous unsupported assumptions and conclusions and faulty analyses and that therefore it was arbitrary and capricious. The district court, unpersuaded, granted the Fisheries Service's motion for summary judgment, finding that the BiOp was rationally supported by the "voluminous facts and studies considered by the [Fisheries Service]."

 

    The Appeals Court ruled, "On appeal, we reverse, concluding that the BiOp was not the product of reasoned decision-making in that the Fisheries Service failed to explain or support several assumptions critical to its opinion. To enable a renewed agency process, we vacate the BiOp and remand this case to the district court with instructions to remand it to the Fisheries Service for further proceedings consistent with this opinion."

 

    In its conclusion, the Appeals Court said further, "In sum, the Fisheries Service's November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational. While the Service may have had good and satisfactory explanations for its choices, the BiOp did not explain them with sufficient clarity to enable us to review their reasonableness. For that reason, we conclude the BiOp is arbitrary and capricious. In reaching this conclusion, we have addressed what we consider to be the more obvious flaws, but others are claimed to exist. We have not addressed all of the Pesticide Manufacturers' complaints because, on remand, they can be aired and addressed in the renewed agency process. We find it sufficient at this point to vacate the BiOp in its present form and require the Fisheries Service to address not only the flaws we identified but also any additional matters that may be raised on remand. . . "

 

    Access the complete opinion (click here). [#Toxics, #CA4]

 

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Menasha Corporation v. DOJ

Menasha Corporation v. DOJ - Feb 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-1720. Appeal from the United States District Court for the Eastern District of Wisconsin. As explained by the Appeals Court, this appeal is about whether the attorney work product privilege protects from pretrial discovery work product exchanged between Justice Department lawyers who are assigned to provide legal assistance to Federal agencies that have conflicting interests.

 

    In 2010 the United States, on behalf of U.S. EPA and the Department of the Interior, filed, jointly with the State of Wisconsin, a suit in a federal district court in Wisconsin against a number of public and private entities. The suit (United States v. NCR Corp., No. 10-C-910, E.D. Wis.) charged that the defendants had polluted the 39-mile long Lower Fox River, plus 1000 square miles of Green Bay (both bodies of water in Wisconsin), with PCBs (polychlorinated biphenyls), a toxic chemical, and that by doing so they had incurred liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

 

    As part of a settlement agreement, embodied in a consent decree the United States offered to contribute $4.5 million to the clean up of the polluted site. The Appeals Court notes that a consent decree requires judicial approval. A court considering a proposed CERCLA consent decree must ensure that it was negotiated fairly. Menasha opposes the proposed consent decree, which has not yet been approved and "contends that the federal agencies' activities increased the costs of the pollution at the Superfund site by far more than $4.5 million, which is only three-tenths of one percent of the estimated potential liability of all

the polluters of the site." The Appeals Court notes that Menasha's opposition to the proposed decree is based on suspicions concerning the bona fides of the negotiations within the Justice Department that led up to the modest estimate of the government's liability.

 

    The team of lawyers in the Justice Department's Environment and Natural Resources Division that is handling the government's case is drawn from two of the Division's sections: the Environmental Enforcement Section, which represents the United States in suits to enforce environmental laws, and the Environmental Defense Section, which defends the United States from suits to enforce

those laws. The case involves Menasha's attempt to obtain communications back and forth between the two sections.

 

    In its conclusion and reversal, the Appeals Court rules, "The Justice Department contends that some of the documents sought by Menasha are also protected by other common law privileges, such as the attorney client privilege and the deliberative process privilege, and also by the privilege for information the disclosure of which could interfere with federal law enforcement. 5 U.S.C. § 552(b)(7)(A). We need not consider these contentions, because all the documents at issue are protected by the work product privilege."

 

    The Appeals Court explains earlier in the opinion that, "Were Menasha's position sound, the Justice Department could never shield attorney work product in a case like this -- a case, not unusual, in which the federal government by virtue of its size and diversity has internal conflicts -- without a crippling reorganization of the Department. Suppose the Department decided (were

we to affirm the district court) that to protect its work product it must create an impermeable membrane between the enforcement section and the defense section. Each section would have to draft its own proposed consent decree. . ."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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Republic Of Ecuador v. Chevron

Feb 13: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 12-20122, consolidated with 12-20123. Appealed from the United States District Court for the Southern District of Texas. The Republic of Ecuador (Appellant) seeks discovery from Appellees John Connor and GSI Environmental, his company, for use in a foreign arbitration against Chevron. During the course of extended litigation with Ecuador, Chevron, an intervenor in the district court, has benefitted repeatedly by arguing against Ecuador and others that the arbitration is a "foreign or international tribunal." Because Chevron's previous positions are inconsistent with its current argument, judicial estoppel is appropriate to make discovery under § 1782 available to Ecuador. The Appeals Court reversed the decision of the district court and remanded the case "for determination of the scope of discovery."

 

    By was of background the Appeals Court explains, Chevron, as successor to Texaco, became embroiled in litigation over the alleged environmental contamination of oil fields in Ecuador. The litigation spans nearly two decades and dozens of courts. A court in Lago Agrio, Ecuador finally issued a multi-billion dollar judgment against Chevron. Chevron filed for arbitration under the rules, as allowed by the US-Ecuador Bilateral Investment Treaty (BIT). Chevron charged that miscarriages of justice in the Ecuadorian courts and participation by Ecuador in the plaintiffs' fraud violated its rights. Ecuador applied to the district court for ancillary discovery from Appellees for use in the arbitration and Chevron intervened to protect its interests.

 

    According to the Appeals Court, the district court, felt compelled by prior Fifth Circuit decisions to deny Ecuador's discovery request. Following those cases, the court concluded, the BIT arbitration represents a bilateral investment dispute that is not pending in a "foreign or international tribunal" as the statute requires.

 

    The Appeals Court concludes, "Chevron has deliberately taken inconsistent positions on the availability of § 1782 discovery for use in 'international tribunals.' Chevron successfully obtained such discovery by persuading courts to reject Ecuadorian (and related parties') objections and by contending, opposite to its current position, that the BIT arbitration is an 'international tribunal.' Finally, if Chevron is permitted to shield itself under Biedermann against Ecuador's current discovery request, it will have gained an unfair advantage over its adversary. Chevron should be judicially estopped from asserting its legally contrary position here. Consequently, we need not and do not opine on whether the BIT arbitration is in an 'international tribunal.' On remand, the district court should proceed in its discretion to evaluate Ecuador's request for discovery pursuant to § 1782."

 

    Access the complete opinion (click here). [#Remed, #CA5]

 

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Vitol v. Primerose Shipping Co.

Feb 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1900. Appealed from the United States District Court for the District of Maryland, at Baltimore. The Appeals Court summarizes that Vitol, S.A. (Vitol) brought the underlying action in the district court against Spartacus Navigation Corp. (Spartacus) and Primerose Shipping Company (Primerose) (collectively S&P) seeking to "pierce the corporate veil" and enforce a judgment against S&P it had previously obtained against Capri Marine, Ltd. (Capri Marine). After determining that its exercise of admiralty jurisdiction was proper, the district court granted motions to dismiss and to vacate attachment filed by S&P. The Appeals Court affirmed the judgment of the district court.

 

    By way of background, the Appeals Court explains, "In September 2000, the vessel ALAMBRA was involved in a marine pollution incident (the Oil Spill) while in port in the country of Estonia. The ALAMBRA was owned by Capri Marine and chartered by Vitol at the time of the Oil Spill. Vitol brought suit against Capri Marine in the English High Court of Justice, Queen's Bench Division, Commercial Court, alleging that Capri Marine breached certain warrantees of seaworthiness resulting in the Oil Spill and resulting damages. Vitol prevailed in the English court, and obtained a judgment in 2005 against Capri Marine in the amount of $6.1 million plus costs and interest (the English Judgment). The English Judgment remains unpaid and now totals over $9 million with accrued interest. During the English litigation, the ALAMBRA was sold for scrap by Capri Marine to Aurora Maritime (Aurora) for approximately $2 million."

   

    The Appeals Court concludes, "In sum, we agree with the district court's holding that the allegations in the Amended Verified Complaint fail to state a claim upon which relief may be granted, and dismissal was therefore warranted pursuant to Rule 12(b)(6). Vitol's allegations are conclusory and contain legal conclusions couched as factual allegations. To the extent that the Amended Verified Complaint does properly allege facts, those facts do not show more than 'a sheer possibility that a defendant has acted unlawfully.' See Iqbal, 556 U.S. at 678. Because 'the well-pleaded facts do not permit [this] [C]ourt to infer more than the mere possibility of misconduct, the complaint has alleged but it has not "shown"—'that the pleader is entitled to relief."' See id. at 679. As with the Supplemental Rule E analysis, we conclude the district court did not err in granting S&P's Rule 12(b)(6) motion to dismiss the Amended Verified Complaint."

 

    Access the complete opinion (click here). [#Energy/OilSpill, #CA4]

 

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Center For Biological Diversity v. Salazar (DOI/BLM)

Feb 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17843. Appealed from the United States District Court for the District of Arizona. The Appeals Court explains that Appellants Center for Biological Diversity, Grand Canyon Trust, Sierra Club, Kaibab Band of Paiute Indians, and Havasupai Tribe contend that Appellees Ken Salazar, Secretary of the Interior, and the U.S. Bureau of Land Management (collectively, BLM) violated the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and its own regulations, by permitting Denison Mines Corp. and Denison Arizona Strip, LLC (collectively, Denison) to restart mining operations at the Arizona 1 Mine in 2009, after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988.

 

    The district court denied the motion for preliminary injunction, holding that the 1988 plan of operations had not become ineffective and that BLM did not have to prepare a supplemental NEPA analysis prior to Denison recommencing mining operations. A panel of the Appeals Court affirmed the district court's denial of the preliminary injunction in an unpublished memorandum disposition.

 

    After further proceedings in the district court, both parties moved for summary judgment. The district court granted summary judgment in favor of Appellees as to all of Appellants' claims, with one exception. The district court determined that BLM "provided no more than a 'cursory statement' of no cumulatively significant impacts in applying the categorical exclusion" when issuing Mohave County the "Free Use Permit" to remove gravel from Robinson Wash and remanded the issue to the BLM. A short time later, BLM provided further explanation as to its use of the categorical exclusion. The district court found that BLM had presented

a rational explanation for its use of the categorical exclusion. Accordingly, the district court concluded that use of the categorical exclusion as to the gravel permit was not arbitrary and capricious. The district court thus granted summary judgment on the categorical exclusion issue in favor of Appellees.

 

    The Appeals Court concluded, "In sum, we conclude that BLM's invocation of the categorical exclusion was not arbitrary and capricious or otherwise not in accordance with law. Alaska Ctr. for Env't v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999). We thus affirm the district court's summary judgment against Appellants as to BLM's invocation of the categorical exclusion for issuance of the Robinson Wash gravel permit."

 

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

 

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American Petroleum Institute v. U.S. EPA

Jan 25: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1139. The Appeals Court explains that, "This case arises out of Congress's command that the Environmental Protection Agency make predictions about a promising technology. While the program as a whole is plainly intended to promote that technology, we are not convinced that Congress meant for EPA to let that intent color its work as a predictor, to let the wish be father to the thought."

 

    Further the Appeals Court indicates that in 2005 and again in 2007, Congress amended the Clean Air Act (Act) to establish a renewable fuel standard (RFS) program, now codified at 42 U.S.C. § 7545(o). See Energy Policy Act of 2005, Pub. L. No. 109-58; Energy Independence and Security Act of 2007, Pub. L. No. 110-140. Under the RFS program, EPA must promulgate regulations to ensure that transportation fuel sold or introduced into commerce (hereafter collectively, sold) in the 48 contiguous U.S. states contains an increasing measure of renewable fuel through 2022. See generally 42 U.S.C. § 7545(o)(2). The Act enumerates yearly "applicable volume" requirements not only for renewable fuel but also for a subclass known as "advanced biofuels," which produce lower greenhouse gas emissions than conventional renewable fuels such as corn-based ethanol. Id. §§ 7545(o)(1)(B) (definition of advanced biofuel), 7545(o)(2)(B) (applicable volumes). The "applicable volume" for a particular fuel (a phrase used repeatedly in the statute and thus in this opinion) determines how much of that fuel refiners, importers and blenders must purchase each year in order to comply with the RFS program. Id. § 7545(o)(3)(B).

 

    The Act requires that more than three quarters of advanced biofuel sold in the United States after January 1, 2022 be cellulosic biofuel. When Congress introduced the cellulosic biofuel requirement in 2007, there was no commercial-scale production at all. Yet Congress mandated cellulosic biofuel sales in the U.S. of 100 million gallons in 2010, 250 million in 2011, and half a billion in 2012. However, Congress provided an escape valve in case those levels could not be reached and called for a determination by EPA of the "projected volume of cellulosic biofuel production" for each calendar year. The Administrator "may also reduce the applicable volume of renewable fuel and advanced biofuels" required for that year.

 

    The Appeals Court indicates, "In a January 2012 Final Rule (the 2012 RFS rule), EPA projected that 8.65 million gallons of cellulosic biofuel (10.45 million ethanol-equivalent gallons) would be produced in 2012, well short of the 500 million ethanol-equivalent gallons mandated by the Act for that year. . . In the same rule, EPA considered but rejected a reduction in the volume of total advanced biofuels required for 2012, stating that other kinds of advanced biofuels could make up for the shortfall...

 

    "Petitioner American Petroleum Institute (API) objects both to EPA's 2012 projection for cellulosic biofuel and to its refusal to reduce the applicable advanced biofuels volume for 2012. We reject API's argument that EPA failed to justify its determination not to reduce the applicable advanced biofuels volume for 2012. But we agree with API that because EPA's methodology for making its cellulosic biofuel projection did not take neutral aim at accuracy, it was an unreasonable exercise of agency discretion. . . We accordingly vacate that aspect of the 2012 RFS rule and remand for further proceedings consistent with this opinion."

 

    The Appeals Court noted further that, "The agency adequately grounded its determination in historical data on sugarcane ethanol imports and biodiesel production, as well as governmental and non-governmental projections for future production of those fuels. See 77 Fed. Reg. at 1,331-37. We find especially relevant EIA's projection of 300 million gallons of sugarcane ethanol imports for 2012 and EPA's estimation of 2.4 billion gallons in U.S. biodiesel production capacity. See id. at 1,332, 1,334. These data plausibly suggest that some combination of the two sources of advanced biofuels will be available to make up for the shortfall in cellulosic biofuel. Moreover, in sharp distinction with cellulosic biofuel, there appears to be no great obstacle to the production of advanced biofuel generally; to the extent that estimates in the record are relatively low, that seems to be based on want of a market, which of course continued pressure will tend to solve."

 

        In a release from API on the decision, Group Downstream Director Bob Greco said, "We are glad the court has put a stop to EPA's pattern of setting impossible mandates for a biofuel that does not even exist. This absurd mandate acts as a stealth tax on gasoline with no environmental benefit that could have ultimately burdened consumers. This decision relieves refiners of complying with the unachievable 2012 mandate and forces EPA to adopt a more realistic approach for setting future cellulosic biofuel mandates. The court has provided yet another confirmation that EPA's renewable fuels program is unworkable and must be scrapped."

    Greco said API continues to recommend that "EPA base its prediction on the previous year of actual cellulosic biofuel production in the current year when establishing the mandated volumes for the following year. This approach would provide a more realistic assessment of potential future production rather than simply relying on the assertions of companies whose ability to produce the cellulosic biofuel volumes EPA hopes for is questionable."

 

    Access the complete opinion (click here). Access a release from API (click here). [#Energy/RFS, #Energy/Biofuel, #CADC]

 

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