State Of Mississippi v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. No. 08-1200, consolidated with 08-1202, 08-1203, 08-1204, 08-1206. On Petition for Review of a Final Rule Issued by U.S. EPA. In this high profile case, involving dozens of attorneys, the Appeals Court summarizes briefly saying, ". . .we consider several challenges to the Environmental Protection Agency's most recent revisions to the primary and secondary National Ambient Air Quality Standards for ozone. For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration."

 

    By way of background and summarizing the overall opinion, the Appeals Court says, "Challenging the revised primary and secondary NAAQS, various parties, including several states, the District of Columbia, New York City, and several industry, environmental, and public health groups, filed these petitions for review. We then granted EPA's unopposed motion to hold these cases in abeyance to allow the agency to review the 2008 revisions and determine whether they should be reconsidered. In September 2011, EPA indicated that it was withdrawing its reconsideration proceedings and would instead be completing the reconsideration in conjunction with the next periodic review. Several parties filed petitions for review, challenging EPA's withdrawal of the reconsideration rulemaking. Finding that we lacked jurisdiction over EPA's non-final action, we dismissed the petitions and set a briefing schedule for the present case.

 

    "We now confront the parties' competing petitions for review. One set of petitioners -- comprising several states, the District of Columbia, New York City, and a number of environmental and public health groups -- thinks the primary and secondary NAAQS are not protective enough, while the other set -- comprising the state of Mississippi and several industry groups -- thinks they are too protective.

    "This opinion considers each of these claims in turn. We reject Mississippi and the industry groups' challenge to the primary and secondary standards in Part II. We explain our denial of the governmental and environmental petitions with respect to the primary standard in Part III and our grant of these petitions with respect to the secondary standard in Part IV.

    "In considering challenges to NAAQS, 'we apply the same highly deferential standard of review that we use under the Administrative Procedure Act.' ATA III, 283 F.3d at 362. Accordingly, 'we will set aside the Agency's determination only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." ' National Environmental Development Ass'n's Clean Air Project v. EPA, 686 F.3d 803, 809–10 (D.C. Cir. 2012) (quoting 42 U.S.C. § 7607(d)(9)(A)). And 'we do not look at the decision as would a scientist, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.' Id. at 810 (internal quotation marks omitted). That said, "we perform a searching and careful inquiry into the underlying facts." ATA III, 283 F.3d at 362 (internal quotation marks omitted)."

    In its conclusion, the Appeals Court says, "Because EPA failed to determine what level of protection was "requisite to protect the public welfare," EPA's explanation for the secondary standard violates the Act. We therefore remand this portion of the final rule for further explanation or reconsideration by EPA. In the meantime, we leave the standard in place rather than vacating the rule. . . Given these principles, neither EPA nor petitioners advocate vacatur. For the foregoing reasons, we remand the secondary NAAQS to EPA for reconsideration in view of this opinion. In all other respects, the petitions for review are denied.

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

State of Alaska v. Lubchenko (NOAA)

Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35201, consolidated with 12-35203, & 12-35204. Appealed from the United States District Court for the District of Alaska. The Appeals Court explains, the western Distinct Population Segment of the Steller sea lions (wDPS) live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress.

 

    In 2010, the National Marine Fisheries Service (NMFS or the agency) therefore limited commercial fishing in those waters, causing representatives of the fishing industry and the State of Alaska (Plaintiffs) to file this action challenging the limitations.

 

    The plaintiffs' principal argument is that the NMFS violated the Endangered Species Act (ESA) because it based the fishing restrictions on declines in sub-regions rather than in the entire population of the endangered species. Plaintiffs also contend the agency utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline.

 

    The Appeals Court said, "We hold that use of subregions did not violate the ESA and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. We therefore affirm the district court's judgment rejecting plaintiffs' claims."

 

    Reinforcing its decision, the Appeals Court said, "Applying its regulation, the agency indisputably found that the fisheries were removing prey species of the wDPS. It also found evidence of nutritional stress. While the agency admitted it could not find a direct link between the fisheries and the species's decline, it found that the indirect effect of the fisheries was the removal of wDPS's food. The agency was not required to find that the fisheries were the direct cause of the species's decline. . . The district court's order granting summary judgment to the defendants on the ESA claims and injunction on the NEPA claims are affirmed."

   

    Colin O'Brien, attorney for Earthjustice said, "This decision reinforces the importance of maintaining strong measures to protect Steller sea lions from the adverse effects of fishing, particularly in the western and central Aleutians. Not only is it important to protect sea lions in their own right, but the species is a key indicator of overall ecosystem health and fishery sustainability." John Hocevar, Oceans Campaign Director, Greenpeace said, "Instead of attacking the science, it's time for Alaska's fishing industry to start thinking about what can be done to prevent fur seals and other fish-eating species from joining sea lions on the endangered list. The court's decision to uphold protections is great news for endangered Steller sea lions. There's no reason why we can't have both productive commercial fisheries and a healthy ecosystem, but we won't be able to do that unless decisions are based on the best available science and a precautionary approach."

   

    Access the complete opinion (click here). Access a release from Earthjustice with more comments on the decision (click here). [#Wildlife, #CA9]

WildEarth Guardians v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-9559. On Petition for Review of an Order of U.S. EPA. Petitioner WildEarth Guardians seeks review of an order of the EPA denying in part Petitioner's petition for an objection to a Title V operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado, d/b/a Xcel Energy, for its coal-fired power station located in Morgan County, Colorado.

    In its petition for an objection, Petitioner argued, among other things, that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act's Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or "major modification" of a stationary source of air pollution had been triggered when the station underwent major modifications in 1994, 1997, and possibly other years. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002.

 

    However, EPA denied Petitioner's petition for an objection on this ground, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner's additional evidence also failed to demonstrate a violation. The EPA further held the State agency had adequately responded to Petitioner's comments regarding the PSD requirements before it issued the permit. The EPA thus denied the petition for an objection on this ground as well. Petitioner seeks review of the EPA's denial of the petition on these two grounds.

 

    Importantly, the Appeals Court said, "We are not persuaded by the Second Circuit's contrary conclusion that an NOV suffices to demonstrate non-compliance, see N.Y. Pub. Interest Research Grp., Inc., 427 F.3d at 181-82, since this conclusion fails to adequately take into account the preliminary nature of an NOV. Instead, like the Sixth and Eleventh Circuits, we find the EPA's interpretation of the demonstration requirement to be persuasive and thus entitled to deference. Nothing about the statute requires the EPA to find that a petitioner has demonstrated noncompliance simply by pointing to the existence of an NOV, and we will defer to the EPA's persuasive conclusion that an NOV alone is insufficient to meet this burden of demonstration."

 

    The Appeals Court rules further, "We further conclude that the agency did not act arbitrarily or capriciously in concluding that Petitioner failed to demonstrate noncompliance in this case. The agency held that Petitioner had not demonstrated PSD noncompliance because Petitioner's evidence failed to show there had been a major modification as defined by the Colorado SIP, which requires, among other things, consideration of the actual emissions increase resulting from a particular modification, as well as 'a determination of any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.' (J.A. at 200-01.) As the agency explained, Petitioner's evidence did not address key parts of this test, particularly the question of net emissions increases. . . Viewing the record as a whole, we are not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under our deferential standard of review, we affirm the EPA's denial of the petition on this ground."

 

    On the second claim, the Appeals Court says, "Finally, Petitioner argues the EPA erred in concluding that CDPHE adequately responded to Petitioner's comments during the public comment period. For support, Petitioner relies mainly on a prior EPA order where the EPA held that a state agency had failed to adequately respond to a petitioner's comments. However, the state agency's response in the previous case contained only two sentences referring vaguely to 'the rules that existed at the time of each modification.' (J.A. at 229.) Here, the state agency gave a much more thorough explanation in its response, and we are not persuaded that the EPA acted arbitrarily or capriciously in concluding this response was adequate. We therefore affirm the EPA's denial of the petition on this ground as well."

 

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

CA Sportfishing Protection Alliance v. Chico Scrap Metal

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16959. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that the Federal Water Pollution Control Act, or Clean Water Act (the Act) allows a citizen to sue to enforce the Act's prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; et al, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.

 

    The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff's claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. The Appeals Court rules, "We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court 'to require compliance' with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action comparable to one under the Act. We therefore reverse the judgment of the district court and remand for further proceedings." The Appeals Court says in a footnote that, "We express no view on the merits of any of Plaintiff's claims."

 

    § 1365(b)(1)(B)  bars a citizen suit as stated: "(B) if [a state or federal authority] has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order . . . ."

 

    The Appeals Court says, "Because Congress omitted any reference to 'comparable' state standards in § 1365, and because § 1365(b)(1)(B) specifically refers to an action 'to require compliance with the standard, limitation, or order' that is the subject of the citizen suit, we hold that its bar applies only if the government's action seeks to do exactly that. . . In sum, because the 2007 and 2008 proceedings aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action."

 

    On another bar claim by Defendants, the Appeals Court rules, "Because California has commenced no administrative penalty proceeding that is comparable to a proceeding by the EPA under § 1319(g), the statutory bar of § 1319(g)(6)(A)(ii) does not apply to Plaintiff's claims."

 

    In conclusion the Appeals Court says, "Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the

Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiff's citizen suit to enforce California's storm water general permit. -- Reversed and Remanded."

 

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

U.S. v. Truckee-Carson Irrigation District

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15474, 12-15476, 12-15595, & 12-15599. Appeal from the United States District Court for the District of Nevada. The Appeals Court explains that in this case it deals with "what essentially amounts to a footnote to the long-running litigation over how much water from the Truckee and Carson Rivers should be diverted to irrigation and how much should flow into Pyramid Lake for the benefit of the Pyramid Lake Paiute Indian Tribe." The Federal government and the Tribe are now requesting the Appeals Court to reconsider one aspect of its most recent opinion.

 

    The Appeals Court indicates that, "The district court had rejected claims of excess diversions in the other years between 1973 and 1988. In our concluding paragraph, we remanded for recalculation of the

effect of gauge error in the four specific years in which the district court had found excess diversions. . . On remand, the government asked the court to recalculate gauge error for those and additional years, but the district court limited its recalculation to the four years specified in the conclusion of the Bell opinion. It now appears that our understanding of the scope of the gauge error claim was mistaken and that the government was claiming the gauge error calculation had affected the flow measurement in other years as well."

 

    The Appeals Court indicates, "We do not ordinarily disturb a judgment of the court after the mandate has issued. See Calderon v. Thompson, 523 U.S. 538, 550 (1998). . . The government has candidly acknowledged that it should have moved for reconsideration of our prior opinion, but that it did not recognize the mistake until the matter was before the district court on remand. . .

 

    "We cannot fault the district court in any way, for it correctly followed our 2010 mandate. It was the mandate that was in error, and that only we can correct. . . We accordingly withdraw our earlier mandate and clarify it by changing the final paragraph of our previous opinion . . Our previous mandate in Bell is withdrawn and amended as provided in this opinion. The judgment of the district court on remand is vacated. The matter is remanded for proceedings in accordance with the Bell mandate as amended."

 

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

Angelex LTD. v. U.S.

Jul 22: In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-1610. Appealed from the United States District Court for the Eastern District of Virginia, at Norfolk. The Appeals Court summarizes saying the U.S. Coast Guard, and the U.S. Customs and Border Protection Agency (collectively, Respondents or the government) appeal the district court's order, which, upon an emergency petition filed in the Eastern District of Virginia, (1) altered the terms of a bond the Coast Guard had fixed for the release of a detained ship that was under investigation; and (2) restricted the types of penalties the government could seek for the ship's potential violations of certain ocean pollution prevention statutes. The matter was not subject to review in the district court because the Coast Guard's actions were committed to agency discretion by law. As a result, the district court lacked jurisdiction to consider the petition and the Appeals Court also determined, ". . .we reverse and remand for dismissal of the Petition for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1)."

 

    The case involves the fact that the U.S. is a signatory to MARPOL, which is a multi-national treaty aimed at achieving the complete elimination of international pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances. In fulfilling its obligations pursuant to MARPOL, Congress enacted the Act to Prevent Pollution from Ships (APPS). which requires the Secretary of the Department of Homeland Security  (DHS) to administer and enforce" MARPOL, as well as statutes and regulations designed to preserve the marine environment.

 

    There are two Petitioners in this appeal: the Antonis G. Pappadakis (Pappadakis or the vessel), an ocean-going bulk cargo carrier, which was built in 1995 and registered in Malta; and Angelex Ltd. (Angelex), a company that purchased the vessel on March 9, 2007. Kassian, a Greek company, serves as the vessel's operator.

 

    In this complicated case involving pollution by the vessel and subsequent detaining of the vessel by the Coast Guard subject to posting a bond, the amount of which was in dispute, Angelex asserts that the Coast Guard acted "arbitrarily, capriciously, and unreasonably" in detaining the Pappadakis, setting a bond which Angelex cannot post, and demanding a security agreement with terms that are not authorized by the operative statute.

 

    The Appeals Court says, ". . .we disagree with Appellees' characterization of the Petition as an attack on the statutory authority or constitutionality of the Coast Guard's actions. First, Appellees cannot with a straight face argue that the Coast Guard has acted outside the bounds of § 1908(e). Indeed, those bounds are quite limitless. The Coast Guard may demand a low bond, a high bond, or may refuse to grant clearance altogether. . . In short, the Coast Guard's stringent conformity to § 1908(e) simply does not give rise to a reviewable claim."

 

    The Appeals Court also notes that, "APPS contains a built-in safeguard to governmental abuses, which further convinces us that Angelex's Petition is out of place and time. In addition to the criminal and civil penalties that APPS authorizes the United States to seek, APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard. . . the Coast Guard's decisions regarding bond conditions with regard to the Pappadakis are unreviewable, and the district court thereby did not possess subject matter jurisdiction under the APA."

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

State Of Oklahoma v. U.S. EPA

Jul 19: In the U.S. Court of Appeals, Tenth Circuit, Case No. 12-9526 & 12-9527. Petition for review of final decision issued by U.S. EPA Re: EPA-R06-OAR-2010-0190. The Appeals Court explains that in these consolidated petitions for review, petitioners challenge a final rule promulgated by U.S. EPA under the Clean Air Act. The petitioners -- Oklahoma, the Oklahoma Industrial Energy Consumers interest group, and the Oklahoma Gas and Electric Company -- argue that the EPA impermissibly rejected Oklahoma's plan to limit the emissions of sulfur dioxide at Oklahoma Gas and Electric (OG&E) Company power plants and replaced it with its own more stringent regulations, which petitioners contend usurped the State's authority and will require sizable expenditures on unnecessary technology. In a split decision, the Majority Appeals Court ruled, "We conclude that the EPA has authority to review the state's plan and that it lawfully exercised that authority in rejecting it and promulgating its own. Exercising our jurisdiction under 42 U.S.C. § 7607(b)(1), we deny the petitions for review."

 

    On one claim by petitioners that EPA violated procedural requirements of the Clean Air Act, the Majority rules that, "The statute itself makes clear that the mere filing of a SIP by Oklahoma does not relieve the EPA of its duty. And the petitioners do not point to any language that requires the EPA to delay its promulgation of a FIP until it rules on a proposed SIP. As the EPA points out, such a rule would essentially nullify any time limits the EPA placed on states. States could forestall the promulgation of a FIP by submitting one inadequate SIP after another."

 

    The Majority explains on one of the contested issues that, petitioners argue that EPA lost authority to promulgate its FIP [Federal Implementation Plan] because more than two years had passed since the EPA made its initial finding that Oklahoma failed to submit a SIP [State Implementation Plan]. The Majority said, "Although the statute undoubtedly requires that the EPA promulgate a FIP within two years, it does not stand to reason that it loses its ability to do so after this two-year period expires. Rather, the appropriate remedy when the EPA violates the statute is an order compelling agency action."

 

    The Majority cites the Supreme Court decision of Brock v. Pierce County, 476 U.S. 253 (1986) and said, "The petitioners do not explain why the principles of Brock would not also control this case. The provision here is 'clearly intended to spur [the EPA] to action, not to limit the scope of [its] authority.' Id. at 265. In the absence of any other indication from Congress, the appropriate remedy is simply a suit to compel agency action, not to eliminate the EPA's authority to file a FIP." [citing Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1190-91 (9th Cir. 2012)].

 

    In a dissenting opinion that also concurred in part, one Justice said, "Although I agree with much of the court's analysis, I dissent with respect to whether certain EPA actions were arbitrary and capricious. See Ct. Op. Pt. IV(A) (analyzing the EPA's calculations of baseline emissions and its determination regarding the technical feasibility of the smaller scrubbers on which it based its cost/benefit analysis). Therefore, I would grant the petition for review."

 

    The dissent concludes, "Although the EPA has at least some authority to review BART [best available retrofit technology] determinations within a state's SIP, it has no authority to condition approval of a SIP based simply on a preference for a particular control measure. . .  Oklahoma considered the cost and resulting benefit of such a large investment in scrubbers, and its conclusion was not unreasonable. Assuming the EPA has authority to review Oklahoma's SIP in the manner it did, its rejection of the SIP and promulgation of its own FIP was arbitrary and capricious. Accordingly, I respectfully dissent on this issue."

 

    Sierra Club, a party in the case, issued a release calling the decision "major victory." Whitney Pearson, with Sierra Club said, "Today the court has upheld a common-sense solution to a serious pollution problem. Both in Oklahoma and around the nation, we see smart utilities showing leadership and making the right choices for our pocketbooks and our health. Now we have another signal that OG&E needs to make these smart choices too." David Ocamb, director of the Oklahoma Chapter of the Sierra Club said, "OG&E sends hundreds of millions of dollars out of state each year to import coal and the pollution that comes with it. For a state with abundant, homegrown natural resources, this makes no sense,. The Court upheld the law and acted in Oklahoma's best interests when OG&E wouldn't. It's time for OG&E to do what's right and phase out their coal plants. "

 

    Access the complete opinion and dissent (click here). Access the release from Sierra Club (click here). [#Air, #CA10]