Town Of Barnstable, MA v. FAA

Oct 28:  In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1276. The Appeals Court summarizes that, Cape Wind Associates has proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound -- an area roughly the size of Manhattan island [See WIMS 4/28/10, & WIMS 4/29/10]. If constructed, the project would be the nation's first offshore wind farm.

 

    The Appeals Court explains that as required by federal regulations, Cape Wind notified the Federal Aviation Administration (FAA) of its proposed construction. After a preliminary investigation, the FAA issued a Notice of Presumed Hazard, and initiated more extensive aeronautical studies to decide whether the project would "result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace." The FAA also circulated a public notice of these

studies and invited interested persons to submit comments.

 

    The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines. In the determinations, the FAA concluded that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." Although it ultimately decided that the project was not a hazard, its decision was contingent on Cape Wind's implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

 

    Petitioners -- the town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound, a non-profit organization of private citizens and other organizations -- challenge these No Hazard determinations. They argue that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. In response, the FAA claims that petitioners lack standing to challenge the FAA's determinations and that their merits

claims are faulty. The Appeals Court found that petitioners do have standing and that the FAA did misread its regulations, "leaving the challenged determinations inadequately justified."

 

    The Appeals Court points out, "After discussing the adverse effects the turbines would have on nearby radar facilities, the FAA's Determination addressed the impact on VFR operations, purporting to find no adverse effect on such operations. In so doing, the FAA relied solely on § 6-3-8(c)1 of the handbook, which says: 'A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within 2 statute miles of any regularly used VFR route.'. . After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

 

    The Appeals Court ruled, "The FAA repeatedly notes in its brief that the handbook 'largely consists of criteria rather than rules to follow.' . . We agree. Any sensible reading of the handbook, and of § 6-3-8(c)1 in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure. . . the FAA catapulted over the real issues and the analytical work required by its handbook.

 

    "Whether in fact an application of the handbook's guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion. . . The FAA's misplaced reliance on § 6-3-8(c)1 is no substitute. The petitions for review are accordingly granted, and the FAA's determinations are Vacated and Remanded."

 

    Access the complete opinion (click here). Access the DOI website for the project for complete background information and extensive documents (click here). [#Energy/Wind, #CADC]

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Natural Resources Defense Council v. U.S. EPA

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1105. On Petition for Review of a Final Rule of the Environmental Protection Agency. The Appeals Court explains that the case follows up a D.C. Circuit decision in Environmental Defense, Inc. v. EPA, 509 F.3d 553 (D.C. Cir. 2007), in which the Appeals Court reviewed U.S. EPA's promulgation of a final rule for "PM2.5 and PM10 Hot Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards," 71 Fed. Reg. 12,468 (Mar. 10, 2006) (the 2006 Rule).

 

    The "conformity determinations" referred to in the rule's title are approvals needed under the Clean Air Act (CAA) for Federally funded transportation projects in an area that is designated "nonattainment" or "maintenance" with respect to the National Ambient Air Quality Standards (NAAQS) -- approvals required in order to assure that the project "conforms" to the applicable State Implementation Plan (SIP). See Environmental Defense, 509 F.3d at 555–58. "Hot spot" analysis means simply analysis of a project's localized impact. See 2006 Rule, 71 Fed. Reg. at 12,469/3.

 

    In a brief, 10-page opinion the Appeals Court said, "We start with a quick review of the statutory and regulatory provisions at issue in our remand in Environmental Defense, explain the nature of that remand, describe the EPA's response to the remand, and (finally) explain the adequacy of that response."

 

    Much of the case looks at the 1990 Congress amended CAA's conformity provisions to provide that [c]onformity to an implementation plan means— . . . "(B) that such activities will not— (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or milestones in any area."

    The Appeals Court indicates that, "The pertinent passage of the 2006 Rule, however, appeared to disregard subsection (B)(iii). It provided that a new transportation project:

must not [1] cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or [2] increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied . . . if it is demonstrated that . . . no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.

    ". . .Obviously the segments designated [1] and [2] neatly match (B)(i) and (B)(ii), and are paralleled in the sentence beginning 'This criterion is satisfied if . . . .' But if the statutory language 'any area' required application of the (B)(i) and (B)(ii) requirements at the local level, then the EPA's seeming failure to address B(iii), or to explain its not doing so, was arbitrary and capricious."

    In summation, the Appeals Court rules, ". . .given the EPA's clarification that (B)(iii) applies to local projects and its persuasive explanation of how the substance of the "delay" condition is met, we are satisfied that the 2010 Rule is not arbitrary, capricious, or inconsistent with law for the reasons raised in Environmental Defense. In particular, it is now clear that a project giving rise to the 'counterbalance' hypothetical we described in that case would not be deemed conforming." Accordingly, the petition of three environmental organizations is denied.

    Access the complete opinion (click here). [#Air, #CADC]
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ASPCA v. Feld Entertainment, Inc

Oct 28: Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. The Appeals Court summarizes, "In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals [i.e. American Society for Prevention of Cruelty to Animals (ASPCA)] allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants -- bullhooks and chains -- harms the animals in violation of the Endangered Species Act. But the district court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree."

 

    The Appeals Court indicates that the district court held a six-week bench trial, heard testimony from approximately thirty witnesses, reviewed hundreds of documents entered into the evidentiary record, and concluded that both Rider (Tom Rider, a barn helper) and API (another plaintiff, Animal Protection Institute) had failed to establish standing. The district court found that Rider was "essentially a paid plaintiff and fact witness" whose trial testimony, and particularly his claim that he had developed an attachment to the elephants, lacked credibility. The district court also rejected API's two theories of standing.

 

    Following an exhaustive analysis of standing issues, the Appeals Court indicates, "Because Rider has failed to show that the district court applied an erroneous legal standard, we are left to review the district court's fact-findings and credibility determination for clear error. . . we see no basis for finding clear error." The Appeals Court also rejects claims of "informational standing" [i.e. FEC v. Akins, 524 U.S. 11, 21 (1998)] and "Havens Standing [i.e. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)] and ultimately concludes that, "API and Rider lack Article III standing to maintain this action. We therefore affirm."

 

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

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State Of Wyoming v. USDA Forest Service

Oct 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 08-8061 & 09-8075. Appealed from the United States District Court for the District of Wyoming. Defendants Forest Service and Defendants-Intervenors-Appellants Environmental Groups appeal the Wyoming district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule), which the Forest Service promulgated in 2001. Intervening Environmental Groups include the Biodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.

 

    In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act), and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups ask the Appeals Court to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. The Appeals Court indicates that, "Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction."

 

    Plaintiff-Appellee State of Wyoming and Intervenor-Appellee Colorado Mining Association (CMA) request the Appeals Court to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. The Appeals Court indicates that, "In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple-Use Sustained-Yield Act (MUSYA), and also the National Forest Management Act (NFMA).

 

    In a lengthy 120-page opinion, the Appeals Court reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. On the NFMA issue the Appeals Court ruled, ". . .because the Roadless Rule was promulgated under the authority of the Organic Act and MUSYA, and was not otherwise governed by NFMA, the Forest Service was not required to comply with NFMA's provisions.

Wyoming's NFMA claim must therefore fail."

 

    Regarding the permanent injunction remedy the Appeals Court said, "The district court permanently enjoined the Roadless Rule on a nationwide basis. . . Although the district court acknowledged that the issuance of a permanent injunction 'is an extraordinary remedy,' it nevertheless found that a permanent injunction was proper. . . In order to obtain a permanent injunction, a party must prove: '(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.' . . We review a district court's grant of a permanent injunction for an abuse of discretion. . . examining its factual findings for clear error and its legal determinations de novo. . .  As discussed. . .  Wyoming failed to demonstrate that the Forest Service's promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims."

 

    A release from the environmental groups indicates that the "long-awaited, landmark decision" secures "critical legal protections for nearly 50 million acres of pristine National Forest lands" by protecting wild national forests and grasslands from new road building, logging, and development. This decision formally ends an injunction against the Rule's enforcement imposed by a Wyoming federal district court in 2008.

 

    Tim Preso, an Earthjustice attorney representing the conservation groups said, "The  public forests we've fought so hard to protect are now safe. All Americans can now know that a key part of our nation's natural heritage won't be destroyed." The 2001 Roadless Area Conservation Rule was the product of the most comprehensive rulemaking process in the nation's history, including more than 2 million comments from members of the public, hundreds of public hearings and open houses, and a detailed environmental review. The rule came under relentless attack by logging and resource extraction interests, certain states, and the Bush administration."

 

    Mike Francis with The Wilderness Society said, "This is a great victory for the American people who have spoken out, time and again and in record numbers, for protection of these wild public lands." Mary Scurlock of Pacific Rivers Council said, "Roadless areas protect our rivers and streams -- protect our salmon, trout, drinking water. The Roadless Rule is common-sense, and finally the question of its legality is settled."

 

    The groups said, "Now, conservation, faith, and recreation groups trust that the Obama administration will support and enforce the 2001 Roadless Rule as the law of the land, including defending its protections for all 58.5 million acres of roadless lands in the country. That includes national forests in Alaska, currently subject to a separate legal challenge and national forests in Idaho, whose roadless area protections were weakened in 2008." The groups cited candidate President Obama who said: "Road construction in national forests can harm fish and wildlife habitats while polluting local lakes, rivers, and streams. The Roadless Area Conservation Rule -- which was made on the basis of extensive citizen input -- protects 58.5 million acres of national forest from such harmful building. I will be proud to support and defend it."

 

    Access the complete opinion (click here). Access the release from environmental groups (click here). [#Land, #CA10]

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Neal Parker v. Schmiede Machine & Tool Corporation

Oct 21: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 10-14703 & 10-14741. Appealed from the United States District Court for the Northern District of Georgia. In this unpublished opinion the plaintiffs are all current or former employees of the Lockheed Martin Corporation (Lockheed) who worked in its aircraft manufacturing plant in Marietta, Georgia. They have had a variety of different job responsibilities, time periods of employment, and work areas at the Lockheed facility, but they all have worked with and around beryllium-containing products.

 

    According to the Plaintiffs, any action that disturbs the surface layer of beryllium ceramic or metal can produce respirable particles. Sandblasting, polishing, drilling, and other types of high-velocity abrading are especially likely to generate respirable particles. In 1948, the Atomic Energy Commission established an exposure standard for beryllium of 2.0 μg/m³. This exposure standard was adopted by the Occupational Safety and Health Administration (OSHA") and remains in place today. The Plaintiffs assert that even though this remains OSHA's standard, the beryllium manufacturing industry has long known that this standard is

inadequate to keep workers safe from the effects of respirable beryllium.

 

    The Plaintiffs claim that their handling of beryllium or their presence in areas where beryllium was being handled led to three of them contracting chronic beryllium disease (CBD), and nine of them getting beryllium sensitization, a precursor to CBD. The plaintiffs sued Lockheed and various manufacturers of beryllium parts in Georgia state court alleging a number of claims, of which only the failure-to-warn claims remain. The defendants removed the action to the District Court for the Northern District of Georgia.

 

    After a year-and-a-half of extensive discovery, the defendants moved for summary judgment. Although the district court originally denied the defendants' motions for summary judgment, the court later reversed itself and, in September 2010, granted summary judgment on the basis of the "sophisticated user doctrine" and the lack of direct causation. The plaintiffs appealed the rulings.

 

    The Appeals Court agreed with the district court and ruled, ". . . the Plaintiffs have failed to make a showing sufficient to create a genuine issue of fact that the Defendants possessed information regarding a hazard of beryllium and that Lockheed lacked actual knowledge of that hazard. The Plaintiffs have failed with respect to both prongs; the Plaintiffs have failed to show either that Lockheed lacked knowledge of a particular hazard, or that these Defendants did have knowledge of that hazard. The overwhelming evidence in this record shows that Lockheed was a learned and sophisticated user of beryllium, and, if anything, possessed knowledge superior to that of these four Defendants.

 

    After a review of the briefs and the evidence cited by the parties. . . as well as the benefit of oral argument, we conclude that the Plaintiffs have not adduced any evidence that would rebut the Defendants' defense that Lockheed Martin was a learned intermediary and a sophisticated user of beryllium. Accordingly, we affirm the judgment of the district court."

 

    Access the complete opinion (click here). [#Toxics, #CA11]

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Cunney v. Board. Of Trustees Village Of Grand View

Oct 19: In the U.S. Court of Appeals, Second Circuit, Case No.10-0485. Appealed from the United States District Court for the Southern District  of New York. Brendan Cunney appealed from the December 18, 2009 order and the January 20, 2010 judgment of the District Court which dismissed his complaint against the Board of Trustees of the Village of Grand View-on-Hudson, the Zoning Board of Appeals (ZBA) for the Village, and Joseph W.

Knizeski, in his capacity as the Village's building inspector (collectively, the Village Defendants).

 

    The Appeals Court held that "the relevant provision of the Village Zoning Law as applied to Cunney's property is unconstitutionally vague." Accordingly the Appeals Court reversed the district court's grant of summary judgment in favor of the Village Defendants on Cunney's "void-for-vagueness" claim, and directed the district court to enter summary judgment in favor of Cunney on his claim. In addition, the Appeals Court vacated the district court's grant of summary judgment in favor of the Village Defendants on Cunney's "substantive due process" claim, and remanded the case for further proceedings consistent with the opinion.

 

    By way of background, the Appeals Court explains that Cunney brought this action against the Village Defendants alleging a violation of his constitutional rights as a result of the ZBA's denial of his application for a certificate of occupancy (CO") for his newly-built home. Specifically, Cunney asserted that the Village Zoning Law, Chapter IX, Section E is "void for vagueness" and that the Village Defendants violated his substantive due process rights by denying him a CO.

 

    The district court granted summary judgment in favor of the Village Defendants on both claims. The district court concluded that Cunney's vagueness claim failed because a reasonable person could discern that section E prohibited the building of structures that rise more than four and one-half feet above the easterly side of River Road. Despite the district The court also determined that Cunney's substantive due process claim failed because Cunney did not possess a legitimate claim of entitlement to a CO.

 

    The Appeals Court ruled, "We hold that section E of the Village Zoning Law is unconstitutionally vague as applied to Cunney's property because it provides inadequate notice of the elevation point on River Road from which Cunney should measure the height of his house to determine compliance, and because it authorizes arbitrary and discriminatory enforcement. Furthermore, we hold that the ordinance's constitutionality is not otherwise saved by its core meaning because a reasonable enforcement officer could find that the height of Cunney's house is in compliance with section E's restrictions. We therefore reverse the district court's grant of summary judgment in favor of the Village Defendants on Cunney's void-for-vagueness claim, and direct the court to enter summary judgment in favor of Cunney on this claim. In addition, we vacate the grant of summary judgment in favor of the Village Defendants on Cunney's substantive due process claim, and remand for further proceedings consistent with this opinion."

   

    Access the complete opinion (click here). [#Land, #CA2]

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Redondo Waste Systems, Inc. v. Lopez-Freytes

Oct 18: In the U.S. Court of Appeals, First Circuit, Case No. 10-1865. Appealed from the U.S. District Court for the District of Puerto Rico. Plaintiffs Redondo Waste Systems, Inc., and Big Blue Corp. (collectively Redondo) appealed the district court's dismissal of their complaint alleging various malfeasance by the Puerto Rico Environmental Quality Board (EQB). The Appeals Court said, "Because Redondo's complaint states no plausible claim against any identifiable defendant, we affirm."

 

    Redondo is a Puerto Rico-based business engaged in the treatment and disposal of regulated biomedical waste (sometimes abbreviated RBW). On November 17, 2008, Redondo filed the complaint at issue against the members of EQB's Governing Board. Redondo's complaint alleges that EQB treated Redondo's competitor BFI/Stericycle much more favorably than it treated Redondo.

 

    The Appeals Court ruled, "Redondo's complaint did not meet even minimal pleading standards; therefore, we affirm the district court's dismissal order. The district court correctly denied Redondo's belated attempt to remedy the complaint's deficiencies; therefore, we affirm the district court's denial of Redondo's motion to alter or amend. Costs to appellees. So ordered."

 

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

 

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Thiebaut vs. Colorado Springs Utilities

Oct 12: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1471. The Appeals Court explains that in 2005, Bill Thiebaut -- the District Attorney for the Tenth Judicial District of Colorado -- filed a lawsuit pursuant to section 1365(a) of the Clean Water Act (CWA) against the City of Colorado Springs (City). Thiebaut named three plaintiffs: (1) himself, in his official capacity as District Attorney, (2) the Office of the District Attorney for the Tenth Judicial District of Colorado, and (3) the People of the State of Colorado (collectively Thiebaut). Thiebaut sought injunctive relief and civil penalties against the City for its alleged discharge of pollutants into a creek in violation of the CWA. The district court granted the City's motion for summary judgment, concluding that Thiebaut lacked standing to bring his claims. Thiebaut has appealed that ruling. The Appeals Court affirmed the district court's grant of summary judgment in favor of the City and also held that Thiebaut lacked standing.

 

    Fountain Creek is a watershed that flows through Colorado Springs, Colorado and Pueblo County, Colorado. From 1998 through at least 2007, the City allegedly discharged raw sewage, non-potable water, and chlorine into Fountain Creek in violation of the CWA. The discharges have had a significant adverse impact on Fountain Creek and the recreational opportunities and economy in Pueblo County, Colorado.

 

    The district court rejected all of Thiebaut's arguments. It first stated that Thiebaut did not have direct standing to assert his CWA claims in his official capacity because the Colorado Legislature has not authorized him to file a CWA citizen suit in

federal court. It further stated that Thiebaut did not have parens patriae [i.e. "parent of the nation" or the power and authority of the state to protect persons who are legally unable to act on their own] standing because the Colorado Legislature has not authorized him to invoke the sovereign capacity of the State of Colorado and because "the citizens of Colorado are . . . able to act for themselves in this matter." Finally, the court concluded Thiebaut did not have associational standing because, "[e]ven assuming that the Tenth Judicial District is an 'association' and [that] its citizens are 'members,'" the interests Thiebaut's suit sought to protect are not "germane to his office's purpose."

 

    Thiebaut argued that the district court should have permitted him to remain as a plaintiff in this case after it determined that the Sierra Club had standing. The Appeals Court said, "In other words, Mr. Thiebaut argues that once a court has found that one plaintiff in a case has standing, it must permit all co-plaintiffs to remain in the case even if it determines they do not have standing. We disagree."

 

    The Appeals Court agreed and said in conclusion, "We hold that Mr. Thiebaut does not qualify for parens patriae or associational standing. Additionally, we reject Mr. Thiebaut's 'standing for one is standing for all' theory as applied to this case and hold that the district court did not err in dismissing Mr. Thiebaut's claims even though it determined that the Sierra Club had standing. Because Mr. Thiebaut lacks standing, we affirm the district court's grant of summary judgment in favor of the City and dismiss this appeal."

 

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

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Russell Country Sportsmen v. U.S. Forest Service

Oct 11: In the U.S. Court of Appeals, Ninth Circuit, Case 10-35623 & 10-35784. Appealed from the United States District Court for the District of Montana. In this case the Appeals Court considers whether the United States Forest Service's (Service) 2007 Travel Management Plan for parts of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study Area, violates the Montana Wilderness Study Act of 1977 (Study Act) and the National Environmental Policy Act (NEPA).

 

    The Appeals Court said, "We hold that nothing in the Study Act, which requires the Service to manage a wilderness study area so as to 'maintain' its wilderness character as it existed in 1977, prohibits the Service from exercising its discretion to enhance the wilderness character of a study area. We also hold that NEPA does not require the Service to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision makes only minor changes and is qualitatively within the spectrum of the alternatives discussed in the draft EIS. We accordingly reverse the judgment of the district court."

 

    Nine recreational groups having an interest in motorized recreation subsequently filed suit against the Service, seeking to invalidate the travel plan as violating NEPA and the Study Act. The Montana Wilderness Association intervened as a defendant, and the parties filed cross-motions for summary judgment.

 

    The district court granted the recreational groups' motion for summary judgment and denied the Service's cross-motion. The district court concluded that the Service failed to comply with NEPA by adopting a final decision that "fell outside the range of alternatives [considered in the draft environmental impact statement (DEIS)] and made numerous, significant changes to the DEIS" without preparing a supplemental environmental impact statement as required by 40 C.F.R. § 1502.9(c), which states that "[a]gencies . . . [s]hall prepare supplements to either draft or final environmental impact statements if . . . [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns." The district court concluded that the final decision departed from the range of alternatives discussed in the DEIS in four areas.

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

 

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Raritan Baykeeper v. NL Industries, Inc.

Oct 3: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2591. Appealed from the United States District Court for the District of New Jersey. Raritan Baykeeper and the Edison Wetlands Association (collectively, Raritan Baykeeper) brought the suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) to bring about the remediation of contaminated sediments in the Raritan River. The District Court, citing the involvement and expertise of the New Jersey Department of Environmental Protection, dismissed the action on abstention grounds. The Appeals Court said it concluded that "this case does not call for abstention, and we will vacate the judgment of the District Court."

 

     From the 1930s until 1982, NL Industries (NL) manufactured titanium dioxide pigments on a 440-acre plot of land (the site) surrounded on three sides by the Raritan River. Although NL ceased its operations on the site in 1982, it retained ownership of the property and leased portions of it to other companies, who manufactured sulfuric acid on the site. NL continued to own the site until 2005, when the Sayreville Economic and Redevelopment Agency (SERA) acquired the site by eminent domain. SERA chose O'Neill Properties Group, L.P. (O'Neill) as the site's developer and O'Neill, in turn, formed Sayreville Seaport Associates, L.P. (SSA) to purchase and redevelop the site. SERA, O'Neill, SSA, and the County of Middlesex entered into an agreement controlling the sale of the site. Although the agreement made SSA responsible for most environmental issues at the site, it provided that NL would retain liability for contamination of sediments in the Raritan River. The agreement does not, however, call for any remediation of the sediments.

 

    In 2009, however, the United States Environmental Protection Agency (EPA) ordered remediation of river sediments upstream from the site. Shortly after the EPA action, Raritan Baykeeper brought this suit against NL, SERA, SSA, O'Neill, and an array of government officials and agencies. Under RCRA and CWA Raritan Baykeeper sought injunctive relief requiring the Defendants to remediate sediments in the Raritan River.

 

    The Appeals Court said, "In sum, we conclude that neither primary jurisdiction nor the Burford doctrine calls for abstention in this case. This outcome is consistent with the decisions of our sister circuits. The First Circuit explained that federal courts must ' exercise great caution in considering abstention, ' and that ' the circumstances justifying abstention will be exceedingly rare, ' because declining to hear a case for a reason not enumerated in the RCRA ' would substitute our judgment for that of Congress about the correct balance between respect for state administrative processes and the need for consistent and timely enforcement of RCRA. ' Chico Serv. Station, Inc., 633 F.3d at 31, 32. Similarly, the Seventh Circuit observed that, while ' there may be room for applying the doctrines of abstention or primary jurisdiction . . . in cases in which a state has a formal administrative proceeding in progress that the citizens' suit would disrupt, ' abstention in RCRA ordinarily would amount to ' an end run around the RCRA.' PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998).

 

    "The same logic also applies to CWA actions, since that statute similarly provides for citizen suits except under specific, enumerated circumstances, none of which apply here. Raritan Baykeeper asks us to go a step further and hold that primary jurisdiction and Burford abstention never apply to RCRA and CWA actions. Like our sister circuits, we decline to impose such a general rule. As Judge Posner noted in PMC, Inc., 151 F.3d at 619, abstention might be appropriate in cases with heightened state involvement as evidenced by ' a formal administrative proceeding in process that the citizens' suit would disrupt. ' But such a case is truly the exception, not the rule, and is not present here."

 

    Access the complete opinion (click here). [#Haz, #Water, #CA3]

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Mining Association Sues To Stop Cross-State Air Pollution Rule
Senate Committee Hears From Shale Gas Advisors
Trade Agreements For Korea, Colombia & Panama
DOI Report On Impacts Of Climate Change On Freshwater Resources
DOE Receives 1st Entry In Commercial Air Conditioner Challenge
Senate Hearing On Nutrient Reduction Approaches
Maryland Man Sells $9 Million In Phony Renewable Fuel Credits

SCOTUS Denies Challenge To CA Indirect Air Source Rule

Oct 3: The U.S. Supreme Court refused to hear a case appealed by the National Association of Home Builders (NAHB) regarding the San Joaquin Valley Unified Air Pollution District "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. NAHB sued the District, claiming that Rule 9510 is preempted by the Clean Air Act. The district court held that Rule 9510 is not preempted and in a split decision, the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed." [See WIMS 12/8/10]. On June 16, 2011, NAHB petitioned for review in the Supreme Court (Case No. 10-1528. 

 

  A release from Earthjustice indicated, the regulation, known as the Indirect Source Rule (ISR) was adopted by the San Joaquin Valley Unified Air Pollution Control District in December 2005 and took effect in March 2006. It requires developers to mitigate pollution from the increased traffic generated by new development. Developers can either incorporate into their projects, elements that will minimize traffic-related emissions such as building near public transit, adding bicycle lanes, or building walkable shopping into the plans, or pay a mitigation fee to the district to be used to purchase off-site emission reductions.

    Paul Cort an attorney for Earthjustice who participated in the litigation of the issue in the lower courts and filed an opposition to the Homebuilders petition for Supreme Court review said, "We were glad to stand with the San Joaquin air district to defend this rule. No special interest should have a free ride in a region where schools and parents are frequently warned to keep children indoors on bad air days." Timothy O'Connor of the Environmental Defense Fund said, "The Supreme Court's action supports this common sense regulation to clean up the air in one of the most polluted areas in the country. Now the trade associations will have to follow the lead of the hundreds of California developers who have complied with this pollution-cutting measure."

    Gordon Nipp of the Sierra Club's Bakersfield chapter said, "Every sector must do its part to help clean up our air in the San Joaquin Valley, some of the worst in the nation. Agriculture is learning to comply with the federal Clean Air Act, and now the homebuilders will join the fight against air pollution, despite their past legal recalcitrance." Earthjustice represented Environmental Defense and the Kern-Kaweah (Bakersfield), Tehipite (Fresno), and Mother Lode (Sacramento) Chapters of the Sierra Club in the lower court litigation.

    Access the Supreme Court denial (click here, see page 71). Access the Supreme Court docket (click here). Access the Earthjustice release (click here). Access the Ninth Circuit opinion (click here). [#Land, #Air, #SupCt]

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