General Electric Company v. U.S. EPA

Jun 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-5092. In this case, which included amicus briefs from the U.S. Chamber of Commerce (for GE) and Natural Resources Defense Council (NRDC, for EPA), the appellant, General Electric challenges the constitutionality of a statutory scheme that authorizes U.S. EPA to issue orders, known as "unilateral administrative orders" (UAOs), directing companies and others to clean up hazardous waste for which they are responsible.

 

    General Electric argues that the statute, as well as the way in which EPA administers it, violates the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. The Appeals Court said, "We disagree. To the extent the UAO regime implicates constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court."  The Appeals Court indicates that General Electric insists that the UAO scheme and EPA's implementation of it nonetheless violate due process because the mere issuance of a UAO can inflict immediate, serious, and irreparable damage by depressing the recipient's stock price, harming its brand value, and increasing its cost of financing.

 

    But, the Appeals Court answers, ". . .such -- 'consequential' injuries -- injuries resulting not from EPA's issuance of the UAO, but from market reactions to it -- are insufficient to merit Due Process Clause protection. We therefore affirm the district court's grant of summary judgment to EPA.

 

    In final summary, the Appeals Court says further, "We fully understand, as GE argues, that the financial consequences of UAOs can be substantial. We also understand that other administrative enforcement schemes that address matters of public health and safety may provide greater process than does CERCLA." The Appeals Court refers to sections of the Appellant's brief and the Chamber's amicus brief; but counters with a referral to the NRDC amicus brief which it says argues that "numerous environmental statutes other than CERCLA establish regimes in which an agency orders an entity to comply with a statute without prior . . . trial-type hearings."

 

    However, the Appeals Court says such concerns ". . .do not implicate the constitutionality of CERCLA or of the policies and practices by which EPA implements it. Even if  -- '[i]n the best of all worlds,' greater process -- 'might be desirable, . . . Congress . . . struck a different balance' in designing CERCLA's UAO regime. . . Because our judicial task is limited to determining whether CERCLA's UAO provisions violate the Fifth Amendment either on their face or as administered by EPA, we affirm the decisions of the district court [in favor of EPA]."

 

    Access the complete opinion (click here).

Supreme Court Decides Monsanto Co. v. Geertson Seed Farms

Jun 21: The U.S. Supreme Court decided the case of Monsanto Co. v. Geertson Seed Farms, Docket No. 09-475 [See WIMS 4/27/10]. In this case, after finding a violation of the National Environmental Policy Act (NEPA), the district court imposed, and the Ninth Circuit affirmed [See WIMS 7/2/09], a permanent nationwide injunction against any further planting of a valuable genetically engineered crop, despite overwhelming evidence that less restrictive measures proposed by an expert Federal agency would eliminate any non-trivial risk of harm. In a 7-1 decision the High Court reversed and remanded the decision of the Appeals Court. The decision was written by Justice Alito and joined by Justices Roberts, Scalia, Kennedy, Thomas, Ginsburg and Sotomayor. Justice Stevens filed a dissenting opinion. Justice Breyer took no part in the consideration or decision of the case.

 

    The opening of the opinion indicates, "This case arises out of a decision by the Animal and Plant Health Inspection Service (APHIS) to deregulate a variety of genetically engineered alfalfa. The District Court held that APHIS violated the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., by issuing its deregulation decision without first completing a detailed assessment of the environmental consequences of its proposed course of action. To remedy that violation, the District Court vacated the agency's decision completely deregulating the alfalfa variety in question; ordered APHIS not to act on the deregulation petition in whole or in part until it had completed a detailed environmental review; and enjoined almost all future planting of the genetically engineered alfalfa pending the completion of that review. The Court of Appeals affirmed the District Court's entry of permanent injunctive relief. The main issue now in dispute concerns the breadth of that relief. For the reasons set forth below, we reverse and remand for further proceedings."

 

    In a summary of its opinion, the Supreme Court ruled, "In sum, the District Court abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

　In his dissent, Justice Stevens said, "The Court does not dispute the District Court's critical findings of fact: First, Roundup Ready Alfalfa (RRA) can contaminate other plants. . . Second, even planting in a controlled setting had led to contamination in some instances. . . Third, the Animal and Plant Health Inspection Service (APHIS) has limited ability to monitor or enforce limitations on planting. . . And fourth, genetic contamination from RRA could decimate farmers' livelihoods and the American alfalfa market for years to come. . . Instead, the majority faults the District Court for 'enjoining APHIS from partially deregulating RRA.' In my view, the District Court may not have actually ordered such relief, and we should not so readily assume that it did. Regardless, the District Court did not abuse its discretion when, after considering the voluminous record and making the aforementioned findings, it issued the order now before us."

     Access the complete opinion (click here). Access an overview of the decision and links to more information from the SCOTUS blog (click here). Access the Supreme Court docket (click here). Access the oral argument transcript (click here). Access the Monsanto SCOTUSwiki page for links to all merit and amicus briefs, background, previews, media reports and more (click here).

Biodiversity Conservation Alliance v. Bureau of Land Management

Jun 18: In the U.S Court of Appeals, Tenth Circuit, Case No. 09-8011. In this appeal, several environmental and citizens' groups challenge a 2003 Bureau of Land Management (BLM) resource management plan amendment allowing natural gas development in Wyoming's Powder River Basin. The groups argue that the Bureau violated the National Environmental Policy Act when it refused to study in detail their proposal to phase development in the Basin over decades.

 

    The district court held that the Bureau adequately considered their suggested alternative. The Appeals Court affirmed the decision and said, "The Bureau reasonably refused to give detailed study to a plan that would not meet the project's purposes. . .

the Bureau reasonably concluded that phased development was impractical and would not meet the project's purposes. This ground is an adequate basis for the Bureau's decision. We therefore decline to review any of the Bureau's other reasons for excluding phased development from further study."

 

    Access the complete opinion (click here).

Te-Moak Tribe Of Western v. U.S. DOE

Jun 18: In the U.S Court of Appeals, Ninth Circuit, Case No. 07-16336. Te-Moak Tribe of Western Shoshone of Nevada, a Federally-recognized Indian tribe (the Tribe), the Western Shoshone Defense Project (WSDP), and Great Basin Mine Watch (GBMW) (collectively,Plaintiffs) appeal the district court's denial of their motion for summary judgment, and the grant of summary judgment to the Department of the Interior (DOI), the Bureau of Land Management (BLM), several officers of the BLM, and intervenor Cortez Gold Mines, Inc. (Cortez) (collectively, Defendants). Plaintiffs contend that the BLM's approval of Cortez's amendment to a plan of operations for an existing mineral exploration project in Nevada violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Federal Land Policy and Management Act (FLPMA).

 

    Under the original Horse Canyon/Cortez Unified Exploration Project (the HC/CUEP) for mineral exploration, Cortez was permitted to disturb a total of 50 acres of land within the entire project area over the course of all three phases of the project. In July 2003, Cortez proposed an amendment to the HC/CUEP plan of operations (the Amendment) that would permit Cortez to disturb a total of 250 acres throughout the project area -- five times the amount approved by the BLM for the original project.

 

    In summary, the Appeals Court affirmed the district court with respect to Plaintiffs' NHPA and FLPMA claims, and reversed and remand for further proceedings with respect to one of their NEPA claims. The Appeals Court said, "Because the BLM approved the Amendment to the HC/CUEP in violation of NEPA, we reverse the district court's award of summary judgment to Defendants and remand to the district court so that it may enter summary judgment in favor of Plaintiffs on their NEPA claim and remand the matter to the BLM for further proceedings. On the NHPA and FLPMA claims, we affirm the district court's grant of summary judgment to Defendants. "

 

    Access the complete opinion (click here).

U.S. Supreme Court Says State Did Not "Take" Beachfront

Jun 17: The U.S. Supreme Court considered a "takings" case from the State of Florida -- Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection -- Case No. 08–1151. The opinion indicates, "We consider a claim that the decision of a State's court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the States through the Fourteenth." Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, in which Justices Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor joined, and an opinion with respect to Parts II and III, in which Justices Roberts, Thomas, Alito joined. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Sotomayor joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg joined. Justice Stevens took no part in the decision of the case.

 

        In deciding the case, the High Court said, "Petitioner argues that the Florida Supreme Court took two of the property rights of the Members by declaring that those rights did not exist: the right to accretions, and the right to have littoral property touch the water (which petitioner distinguishes from the mere right of access to the water). Under petitioner's theory, because no prior Florida decision had said that the State's filling of sub-merged tidal lands could have the effect of depriving a littoral owner of contact with the water and denying him future accretions, the Florida Supreme Court's judgment in the present case abolished those two easements to which littoral property owners had been entitled. This puts the burden on the wrong party. There is no taking unless petitioner can show that, before the Florida Supreme Court's decision, littoral-property owners had rights to future accretions and contact with the water superior to the State's right to fill in its submerged land. Though some may think the question close, in our view the show-ing cannot be made. . .

    "Because the Florida Supreme Court's decision did not contravene the established property rights of petitioner's Members, Florida has not violated the Fifth and Fourteenth Amendments. The judgment of the Florida Supreme Court is therefore affirmed."

 

    Access the complete opinion (click here). Access various media reports on the decision (click here).

Norfolk Southern Railway v. City of Alexandria

Jun 16: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1566 & 09-1608. The Court explains that the appeals concern whether three separate provisions of Federal law serve to preempt an ordinance enacted by the City of Alexandria, Virginia (the City). The City's ordinance has been applied to Norfolk Southern Railway Company (Norfolk Southern) through a series of haul permits. In its appeal, the City maintains that the district court erred in ruling that two Federal statutes -- the Interstate Commerce Commission Termination Act (the ICCTA) and the Hazardous Materials Transportation Act (the HMTA) -- preempt the ordinance and haul permits. By cross-appeal, Norfolk Southern challenges the court's conclusion that a third statute, the Federal Rail Safety Act (the FRSA), does not also preempt the ordinance and permits.

 

    The majority opinion affirmed in part, dismissed in part, and vacated in part. The Appeals Court said, ". . .we affirm the district court's decision on preemption with respect to the ICCTA. Because that disposition renders moot the alternative bases for federal preemption, we dismiss the HMTA aspect of the City's appeal, as well as the cross-appeal. Finally, we vacate the court's judgment on the HMTA and FRSA preemption claims." The third Judge, wrote an opinion concurring in part and dissenting in part.

 

    The dissent said, "I join the majority in affirming the district court's ruling on the ICCTA issue, but respectfully disagree with its decision to vacate the district court's rulings on the HMTA and FRSA issues. Rather than vacating those rulings, I would affirm the district court's judgment on the ICCTA issue, dismiss the City's appeal of the court's HMTA ruling, and dismiss Norfolk Southern's cross-appeal of the FRSA ruling."

 

    Access the complete opinion and dissent (click here).

Hydro Resources, Inc. v. EPA

Jun 15: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-9506. In this highly complicated case involving regulation on Indian Country and various related definitions, the majority Appeals Court said, "Everyone agrees that Hydro Resources, Inc. (HRI) must obtain a Safe Drinking Water Act (SDWA" or the Act) permit to mine its property. The only question is: from whom?" The Environmental Protection Agency (EPA or the Agency), which administers the Act, has chosen to delegate its permitting authority in the State of New Mexico to the New Mexico Environment Department (NMED), but with one exception: EPA has not delegated its authority to issue permits for mining activities on "Indian lands."

 

    The majority Appeals Court said, "Thinking its land hardly qualified as 'Indian land' -- HRI owns its property in fee, it pays county real estate taxes, the land is uninhabited, and it is not inside any Indian reservation or otherwise set aside and superintended for Indian use -- the company proceeded to apply for, and obtain, a permit from NMED. Initially, EPA professed no quarrel with this, and it has never questioned NMED's administration of the Act. But eventually a dispute broke out over the status of HRI's land and, after years of regulatory wrangling, EPA issued a 'final land status determination' expressing its judgment that HRI's land qualifies as 'Indian land.' As a result, EPA ruled, HRI must seek and obtain its SDWA permit from it rather than NMED."

 

    In a split decision of the full panel the majority Appeals Court ruled, ". . .we cannot help but conclude that EPA's final land

status determination under review is inconsistent with the statute's terms as a matter of law and cannot stand. The panel opinion is vacated, the petition for review is granted, and the EPA's final land determination is vacated.

 

    However, one of the minority opinions notes, "The lengthy opinions generated by this case and the division within this court as to the proper interpretation of 18 U.S.C. § 1151(b) attest to the confusion surrounding this area of the law. This confusion is unfortunate, and the consequences are likely to be enormous, reintroducing checkerboard jurisdiction into the southwest on a grand scale and disrupting a field of law that had been settled for decades. In overturning our community-of-reference test, the majority today reaches a result not compelled by either Supreme Court or Tenth Circuit precedent. Before all is said and done, this confusion and the serious consequences generated by today's opinion may ultimately require resolution by the Supreme Court."

 

    Access the complete opinions and all dissents (click here).

Commuter Rail Division v. STB

Jun 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1346. Canadian Pacific Railway Corporation (CPR), along with its indirect subsidiary Soo Line Holding Company (Soo Holding), and Dakota, Minnesota & Eastern Railroad Corporation (DME), along with its subsidiary Iowa, Chicago & Eastern Railroad Corporation (ICE), (collectively Applicants) applied to the Surface Transportation Board (STB or Board) for approval of a merger in which Soo Holding (and indirectly CPR) was to acquire DME and ICE. They filed the application under 49 U.S.C. § 11324, which authorizes the Board to initiate a proceeding to approve various transactions within its jurisdiction, including the acquisition of one or more railroads by another railroad.

    The STB approved the acquisition. Metra, which operates two rail lines that are potentially affected by CPR's acquisition, and the Sierra Club seek review of the STB's decision approving the acquisition. Metra challenges the Board's refusal to attach "conditions" to the approval, in order to protect Metra's rights over its track line running north from Chicago toward Wisconsin over which Soo Holding has trackage rights and for which CPR is the dispatcher. Sierra Club challenges the Board's decision to defer preparation of an environmental impact study (EIS) until CPR decides whether to move forward with the construction of a line connecting DME's track in South Dakota to certain coal mines located in Wyoming's Powder River Basin (PRB).

 

    The Appeals Court dismissed Sierra Club's petition for lack of constitutional standing and denied Metra's petition because "the Board's approval of the merger was not an abuse of its discretion." On the Sierra Club challenge, the Appeals Court concludes: "Because Sierra Club has not shown, as it must, 'a causal connection between the government action that supposedly required the disregarded procedure' -- here, approval of the DME acquisition -- 'and some reasonably increased risk of injury to its particularized interest,' we dismiss its petition for lack of standing." The Appeals Court cites Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).

 

    Access the complete opinion (click here).

Lyondell Chemical Co v. Albemarle Corp

Jun 8: In the U.S. Court of Appeals, Fifth Circuit, Case No. 08-40060. Both sides to this appeal concede liability for environmental cleanup at a hazardous waste site near the Houston Ship Channel but fault the district court's equitable allocation of the associated costs. More specifically, the appeal concerns the reliability of expert witness testimony under Daubert [Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)], the admission of alleged settlement communications into evidence, the district court's choice of methodologies in allocating costs, and some of the court's factual findings. The Appeals Court said, "We find error in the admission of settlement communications only and remand to the district court for further proceedings."

 

    A key point in the litigation involves the "Smythe Reports." The Appeals Court indicates that Occidental objected to the district court's admission of the Smythe Reports, which the district court used to develop the "intermediate" estimate of Occidental's waste. Occidental asserted that the reports are "settlement communications" inadmissible under Federal Rule of Evidence 408. That rule excludes from admission certain evidence "offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount," including "conduct or statements made in compromise negotiations regarding the claim.

 

    In the conclusion, the Appeals Court said, "In sum, because admission of the Smythe Reports was harmful error, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here).

USA v. Aerojet General Corporation

Jun 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-55996. In this important case involving the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Appeals Court explains that "CERCLA requires certain polluters to pay for cleaning up contaminated sites. After identifying a contaminated site, U.S. EPA and state environmental agencies typically negotiate with potentially responsible parties (PRPs) over their shares of comparative responsibility for cleanup costs. CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably. But CERCLA bars contribution claims against PRPs that have obtained administratively or judicially approved settlements with the government. CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs."

 

    The Appeals Court said, "We consider a question that has split the federal courts: May a non-settling PRP intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is 'yes.'" In its conclusion the Appeals Court rules, ". . .we hold that Applicants have a right to intervene under Rule 24(a)(2) and § 113(i) of CERCLA to protect their interests in contribution and in the fairness of the proposed consent decree. We therefore reverse and remand for further proceedings consistent with this opinion."

 

    Explaining further, the Appeals Court says, "Under Rule 24(a)(2), Applicants bear the burden of showing that their interests are not adequately represented by the existing parties. Under § 113(i), the government bears the burden of showing the non-settling PRPs' interests are adequately represented. Under either standard, we conclude that the interests of the non-settling PRPs are not adequately represented by the existing parties." And, the Appeals Court says, ". . .§ 113(i) confers a right to intervene on 'any person' who 'claims an interest' in the litigation, should the disposition of the action 'impair or impede' that interest. Section 113(i) contains no restriction on intervention by non-settling PRPs. See Union Elec., 64 F.3d at 1165. Nor does the right of intervention in § 113(i) need to be restricted in order to give effect to the contribution provisions of § 113(f). Indeed, precisely because § 113(f)(2) cuts off the contribution right of nonsettling PRPs, § 113(i) gives them the right to intervene upon timely application. We therefore hold that Applicants have significant protectable interests that support intervention as of right."

 

    In its opinion, the Appeals Court references the 8th & 10th Circuit cases, which have held that such PRPs have interests sufficient to support intervention as of right, and some of the competing district court ruling: "See United States v. Albert Inv. Co., Inc., 585 F.3d 1386 (10th Cir. 2009); United States v. Union Elec. Co., 64 F.3d 1152 (8th Cir. 1995). District courts have split on the question. Compare United States v. Acorn Eng'g Co., 221 F.R.D. 530, 534-39 (C.D. Cal. 2004) (holding interest not legally sufficient to support intervention as of right), United States v. ABC Indus., 153 F.R.D. 603, 607-08 (W.D. Mich. 1993) (same), and Arizona v. Motorola, Inc., 139 F.R.D. 141, 145-46 (D. Ariz.1991) (same), with United States v. Exxonmobil Corp., 264 F.R.D. 242, 246-48 (N.D. W. Va. 2010) (holding interest legally sufficient); United States v. Acton Corp., 131 F.R.D. 431, 433-34 (D.N.J. 1990) (same)."

 

    Access the complete opinion (click here).

Butte Environmental Council v. U.S. Army Corps

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15363. The Appeals Court indicates that it must decide whether the decisions of two Federal agencies approving the construction of a business park on protected wetlands in California were arbitrary and capricious. The statutes involved are the Clean Water Act (CWA and the Endangered Species Act (ESA).

 

    After years of researching potential sites for economic development, the City of Redding, California, decided to construct a business park on a 678-acre site located on wetlands along Stillwater Creek, and started to draft an environmental impact statement (EIS). The proposed site contains critical habitat for several ESA-listed species under the jurisdiction of the Secretary of the Interior, including the threatened vernal pool fairy shrimp, the endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass. The ESA-listed species occupy the site's vernal pools -- shallow depressions that fill with rainwater in the fall and winter and then dry up in the spring.

 

    Butte Environmental Council filed suit against the Corps, FWS and the City in federal district court. The Council sought judicial review under the Administrative Procedure Act (APA), of the Corps' decision to issue a permit for the City's proposed project and the FWS's biological opinion that the project would not adversely modify the critical habitat for endangered and threatened species.

 

    The district court granted summary judgment in favor of the agencies and the City. It held that "the Corps was neither arbitrary nor capricious when rationally concluding the Stillwater site was the [least environmentally damaging practicable alternative]," and that the FWS's biological opinion stated "a rational connection between the facts found and the conclusion reached." The Appeals Court affirmed the judgment of the district court.

 

    In reviewing the CWA issues, the Appeals Court said, "In sum, the Corps stated a rational connection between the facts found and the conclusion that the proposed Stillwater site was the least environmentally damaging practicable alternative. We therefore conclude that the Corps' decision to issue the City a permit was neither arbitrary nor capricious." The Appeals Court ruled on a number of sub-issues related to the ESA claims; however it said, "We therefore reject the Council's contention that the FWS applied a definition of 'adverse modification' that ignored the value of critical habitat for the recovery of the affected species."

 

    Access the complete opinion (click here).