Apr 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1348. As explained by the Appeals Court, Piney Run is a small stream with its headwaters near the border of
Carroll and Baltimore counties in Maryland. For the second time, the Piney Run Preservation Association (the Association) has filed a citizen suit under the Clean Water Act (CWA) alleging that the County Commissioners of Carroll County are violating the CWA by discharging treated wastewater from the Hampstead Wastewater Treatment Plant into Piney Run.
The Association specifically contends that the temperature of the discharged effluent at times exceeds the thermal limitation set forth in the County’s National Pollutant Discharge Elimination System (NPDES) permit. On the County’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court found that the Maryland Department of the Environment (MDE) was "diligently prosecuting" a CWA enforcement action against the County for violating the NPDES permit. Consequently, the court held that the Association was barred by 33 U.S.C. § 1365(b)(1)(B) from maintaining this suit. The Association appealed the order of dismissal, arguing that the district court erred in its "diligent prosecution" determination.
The Appeals Court affirmed the decision of the district court saying, ". . .a CWA enforcement action will be considered diligent where it is capable of requiring compliance with the Act and is in good faith calculated to do so. Based on the record before us, we hold that the Association has failed to meet its high burden of establishing that the MDE enforcement action does not satisfy this standard.
Access the complete opinion (click here).
Thursday, April 24, 2008
Benzman v. Whitman
Apr 22: In the U.S. Court of Appeals, Second Circuit, Case Nos. 06-1166, 06-1346, 06-1454. This interlocutory appeal and cross-appeal present issues concerning individual and governmental agency liability, in the aftermath of the 9/11 attack, for alleged breach of duties owed to a putative plaintiff class of people who reside, attend school, or work in lower Manhattan or Brooklyn. The principal claim is that Government officials misled the plaintiff class members by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices.
The Appeals Court indicates that the core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”
The Appeals Court ruled, "Whether or not Whitman’s resolution of such competing considerations was wise, indeed, even if her agency’s overall performance was as deficient as the Plaintiffs allege, she has not engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. . .
"Although the complaint contains numerous allegations that various employees within EPA were aware of data indicating health risks, there is no allegation that Whitman, from whom damages are sought in her personal capacity, was herself aware of such information. Perhaps, as a competent administrator, she should have been aware of significant information known to her
subordinates, but arguably inadequate management of a vast agency of 17,000 employees is not a basis for constitutional tort liability. . . alleging Whitman’s personal liability for damages for a denial of substantive due process, must be dismissed."
The Appeals Court concluded saying, "We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. . . Accordingly, the case is remanded with directions to dismiss the Complaint."
Access the complete opinion (click here).
The Appeals Court indicates that the core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”
The Appeals Court ruled, "Whether or not Whitman’s resolution of such competing considerations was wise, indeed, even if her agency’s overall performance was as deficient as the Plaintiffs allege, she has not engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. . .
"Although the complaint contains numerous allegations that various employees within EPA were aware of data indicating health risks, there is no allegation that Whitman, from whom damages are sought in her personal capacity, was herself aware of such information. Perhaps, as a competent administrator, she should have been aware of significant information known to her
subordinates, but arguably inadequate management of a vast agency of 17,000 employees is not a basis for constitutional tort liability. . . alleging Whitman’s personal liability for damages for a denial of substantive due process, must be dismissed."
The Appeals Court concluded saying, "We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. . . Accordingly, the case is remanded with directions to dismiss the Complaint."
Access the complete opinion (click here).
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