Coalition for Responsible Regulation v. U.S. EPA

Dec 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with dozens of other cases and involving hundreds of attorneys. On Petitions for Rehearing En Banc. On June 26, 2012, the D.C. Circuit delivered a unanimous decision in support of U.S. EPA and Administration's ability to regulate greenhouse gases (GHG) under the Clean Air Act [See WIMS 6/26/12]. Now, the full Appeals Court has issued an order denying the request for a hearing before the full panel.

 

    Petitioners, including various states (including Michigan) and industry groups, argued that EPA's rules were based on improper constructions of the CAA and were otherwise arbitrary and capricious. The Appeals Court ruled in June, ". . .we conclude: (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and (3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."

 

    The various parties then petitioned the Appeals Court for the en banc hearing. On consideration, in brief summary, the Appeals Court Order indicates, "The petition of the Chamber of Commerce of the United States of America, joined by the State of Alaska, Peabody Energy Company, Southeastern Legal Foundation, et al., State Petitioners and Intervenors for Petitioners, for rehearing en banc; and the petition of the National Association of Manufacturers, et al. for rehearing en banc in No. 10-1073, et al. and No. 10-1167, et al., and the responses to the petitions were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petitions. Upon consideration of the foregoing, it is ordered that the petitions be denied."

 

    The majority of Justices concluded, "To be sure, the stakes here are high. The underlying policy questions and the outcome of this case are undoubtedly matters of exceptional importance. The legal issues presented, however, are straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent. There is no cause for en banc review." Two Justices issued dissenting opinions.

 

    Vickie Patton, General Counsel of Environmental Defense Fund (EDF) said in a release, "America's clean air laws are clear; EPA has the authority and the responsibility to address the carbon pollution that has profound consequences for our nation's health, safety and prosperity. It is now time for EPA to address the dangerous carbon pollution that comes from power plants by working with the dozens of states that have forged common sense clean energy solutions, as well as the numerous businesses that asked the President to carry out cost-saving energy efficiency solutions in reducing carbon pollution, and the communities across our nation afflicted by the clear and present danger of extreme weather that's linked to climate change."

 

    The National Association of Manufacturers (NAM) President and CEO Jay Timmons issued a statement on behalf of the industry coalition saying, "While it is unfortunate that the Court denied our rehearing petition of our challenge to these costly EPA regulations, we welcome the fact that two judges wrote careful and well-reasoned dissenting opinions that supported our arguments. These rare dissents send a clear signal that significant legal issues remain to be addressed. These costly and burdensome regulations will eventually force new permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources, such as universities, schools, hospitals and even American homes -- impacting every aspect of our economy. We will continue to fight against these regulations and are carefully considering seeking Supreme Court review. The debate over how to address climate change should take place in the halls of Congress and should foster economic growth and job creation, not impose additional costs on businesses."  

 

    Access the complete order, opinion and dissents (click here). Access the release with additional details from EDF (click here). Access the statement from NAM including a listing of coalition members (click here). [#Air, #Climate, #CADC]

 

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Norman Bernstein v. Patricia Banker

Dec 19: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1501 & 11-1523. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that this is the latest chapter in the story of the Environmental Chemical and Conservation Company (Enviro-Chem), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind.

 

    The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro-Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more.

 

    The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court's final judgment. The Appeals Court said, "Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims."

 

    In conclusion, the Appeals Court rules, ". . .we reverse the district court's dismissal of Counts I, II, III, and VII. In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC [Administrative Order by Consent]. The Trustees' Count II 'companion claim' for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA [Indiana Environmental Legal Actions Statute] claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court's denial of Auto Owners' motion for summary judgment on preclusion grounds. The trustees' suit is reinstated and remanded for further proceedings consistent with this opinion."

 

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

 

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Olin Corp. v. Am. Home Assurance Co.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case No. 11-4055. Appealed from an order of the United States District Court for the Southern District of New York. The district court granted summary judgment to American Home Assurance Company (American Home) on the ground that the attachment point for its excess insurance policies could not be reached by the alleged environmental damage at Olin Corporation's (Olin) site at Morgan Hill, California. In brief, the Appeals Court ruled, "We hold that the plain language of Olin's policies with American Home requires American Home to indemnify Olin for that damage. Accordingly, the judgment of the district court is vacated and the case is remanded for further proceedings."

 

    In concluding the Appeals Court said, ". . .we conclude that the district court's basis for granting summary judgment was in error. Condition C obligates American Home to indemnify Olin not only for property damage occurring during the policy period, but also for property damage arising from covered occurrences that continues after the policy period. Three decades of perchlorate exposure and the damage it created are treated as a single, multi-year occurrence for the purposes of this policy. And because this single, multi-year occurrence took place in part during each of the two policy periods here, the district court was incorrect to conclude that neither policy would be reached because of the allocation method. On the record before the district court, $72.6 million in damage falls within the coverage of the 1966-69 policy, while $62.7 million falls within the coverage of the 1969-72 policy. These figures exceed the American Home policies' $30.3 million attachment points. On remand, American Home may demonstrate that these attachment points cannot be reached for other reasons. For example, this estimate of the years in which property damage occurred may be inaccurate. Or the evidence may permit the court to assign greater damage to the years before the inception of the two policies. We decide only that issues of material fact remain regarding American Home's liability."

 

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

 

 

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Arkansas Game and Fish Commission v. U.S.

In the U.S. Supreme Court, Case No. 11-597. Appealed from the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029 [See WIMS 3/31/11]. Justice Ginsburg delivered the opinion of the Court, in which all other Members joined, except Justice Kagan, who took no part in the consideration or decision of the case.

    In the opinion, the Supreme Court indicates that periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the United States pursuant to the Fifth Amendment's instruction: "[N]or shall private property be taken for public use, without just compensation." The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.

    The Supreme Court said, "Ordinarily, this Court's decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is 'a permanent or inevitably recurring condition, rather than an inherently temporary situation.' 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."

 

    The Supreme Court said further, "We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking."

 

    Access the complete opinion (click here). Access the Supreme Court docket for this case (click here). Access the oral argument transcript (click here). Access merit and amicus briefs in the case (click here). Access the complete opinion of the Federal Circuit (click here). [#Water, #Land, #SupCt #CAFed]

 

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EPA Preempts Forest Roads Supreme Court Case With Final Rule

Nov 30: On November 30, 2012, U.S. EPA Administrator Lisa Jackson signed a Final Rule revising its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. The rule has not yet been published in the Federal Register but will become final 30-days following publication.

    EPA indicated that it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."

    On December 3, the U.S. Supreme Court heard oral argument for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC) [See WIMS 11/26/12], which addresses three questions: (1) Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)? (2) Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits? and, (3) Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final? EPA's final rule now makes most of the arguments moot. 

    Fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.

    In the opening of the oral argument, Chief Justice Roberts said the petitioners, ". . .congratulations to your clients -- getting almost all the relief they're looking for under the new rule issued on Friday." However, the petitioners continued to argue, ". . .there is an additional reason why we don't think that the rule here moots -moots the issue. Let -- let's assume that there is a petition for review. I think that's a fairly safe -safe assumption. That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made. The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits. And . . ."

    But Chief Justice Roberts seemed to disagree and said, "Well, but it's -- it's an unusual situation for us to rule in a case where the issue has ongoing significance and that's taken away. And what we would be doing is, when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was, so that you can unravel what the Ninth Circuit has upheld. . ."

    Access the complete oral argument transcript (click here). Access a prepublication copy of the EPA final rule (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). Access EPA's Stormwater Discharges From Forest Roads website for complete background and information (click here). [#Water, #Land, #SupCt, #CA9]

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Supreme Court Will Wear Oral Arguments In Stormwater Case

Nov 30: On December 4, the U.S. Supreme Court will hear oral arguments in the case of Los Angeles County Flood Control District, Petitioner v. Natural Resources Defense Council, Inc., et al. (SupCt. docket 11-460). The high profile case with 22 amicus briefs, deals with the issue of pollutants stemming from municipal stormwater systems.

 

    The questions presented in the case include: (1.) Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

 

    (2.) When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

     In March 2011, the U.S. Court of Appeals, Ninth Circuit (Case No. 10-56017) ruled partially in favor of NRDC, et al [See WIMS 3/11/11] and overturned a district court's grant of summary judgment in favor of two municipal entities and Los Angeles County. In that case Plaintiffs contended that Defendants County of Los Angeles (County) and Los Angeles County Flood Control District (District) were discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County. Defendants contended that there was no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers.

 

    However, the Appeals Court also ruled, "Plaintiffs, however, failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River and Malibu Creek [the other two water bodies]. Plaintiffs did not provide evidence sufficient for the district court to determine if stormwater discharged from an ms4 controlled by the District caused or contributed to pollution exceedances located in these two rivers. Similarly, Plaintiffs did not delineate how stormwater from ms4s controlled by the County caused or contributed to exceedances in any of the Watershed Rivers. Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants on these claims."

 

    In a blog posting from NRDC, the group says, "In the case we'll argue Tuesday, we are asking Los Angeles County to stop shirking its responsibility and start doing right by the residents of Southern California -- and the region's millions of annual visitors. In resisting our efforts, the flood control district is dramatically overstating the cost of adopting green infrastructure and reducing water pollution in the region. By doing the right thing, Los Angeles County officials, like many of their counterparts around the country, would learn that embracing green infrastructure is not only good for public health and smart environmental policy; it will actually save money, increase water supplies, reduce flood risks and clean up local beaches and rivers."

 

    Access the SupCt docket for the case (click here). Access links to all of the merit and amicus briefs in the case (click here). Access the complete opinion of the Ninth Circuit (click here). Access the blog posting from NRDC with links to related information (click here). [#Water, #SupCt]

 

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Hillsdale Environmental Loss v. U.S. Army Corps

Nov 28: In the U.S. Court of Alppeals, Tenth Circuit, Case No. 11-3210. Appealed from the U.S. District Court for the District of Kansas. The case concerns the construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. Because the preferred site contained streams and wetlands protected under Federal law, several groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act and the National Environmental Policy Act.

 

    The district court denied Hillsdale's motion for an injunction and granted summary judgment for the Corps and BNSF. On appeal, Hillsdale requested the Appeals Court to set aside the Corps's decision to grant the permit saying "the Corps inadequately considered alternatives to the selected site under the Clean Water Act and violated the National Environmental Policy Act by preparing an inadequate environmental assessment and failing to prepare a full environmental impact statement." The Appeals Court concluded "the Corps's decision is supported by the record, and was not an arbitrary and capricious exercise of its approval powers under federal law. . . we affirm the decision of the district court and uphold the Corps's issuance of a § 404 permit."

 

    Further explaining its decision, the Appeals Court said, "Hillsdale is correct that many of the comments they cite are more than mere statements of opposition; they question various aspects of the Corps's analysis, mostly its failure to analyze the cancer risks of DPM emissions but also the intermodal facility's impacts on water quality, regional air quality, and so on. But all comments Hillsdale identifies raise the same issues it raised in this appeal. As we have discussed, the Corps took the requisite 'hard look' at every one of these issues, which is all NEPA requires. . . Hillsdale cannot overcome its failure on the merits simply by pointing to

comments expressing the same concerns. If Hillsdale cannot show there is some merit to opposing opinions, they cannot demonstrate controversy. . . An additional point in the Corps's favor is that none of the federal or state agencies the Corps consulted opposed the project or the Corps's analysis. Although not dispositive, this is additional evidence of a lack of controversy. . . In short, neither the nature nor the number of the comments Hillsdale cites demonstrates the intermodal facility is controversial, let alone that the Corps's decision not to prepare an EIS was arbitrary and capricious in light of this controversy."

 

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

 

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Alaska Survival v. Surface Transportation Board

Nov 28: In the U.S. Court of Apppeals, Ninth Circuit, Case No. 12-70218. On Petition for Review of an Order of the U.S. Surface Transportation Board (STB). The Appeals Court issued an order stating, ". . . the petition for review of the STB's order is denied. An opinion on the merits of denial of the petition for review will follow in due course." Lifting the stay will allow the Alaska Railroad's extension project to Port MacKenzie in the Matanuska-Susitna Borough.

 

    In this case the Appeals Court said in part, "After further review of the record, we have concluded that the STB's 'purpose and need' statement complied with NEPA and that Petitioners no longer raise 'serious questions' on this point. Moreover, the balance of hardships no longer tips sharply in the Petitioners' favor. Further delay of this project will prevent the award of construction contracts, postpone the hiring of construction employees, and significantly increase costs. . . Because this project is funded largely with taxpayer dollars, these increased costs of construction, which the Respondents-Intervenors in moving to lift the stay estimated at $10–12 million, will burden the public upon continued delay. By contrast, the weight to be given Petitioners' assertions of hardship because of environmental harm is weakened by this court's decision to deny the petition for review, which will allow the project to move forward. Because we have concluded that the agency acted in accord with law and that its decision is not arbitrary and capricious, it is for the STB and not for our court to balance the justifications of planned economic progress in improved rail service against the possibilities of environmental harm from building and operating the rail line."

 

    A release from the Matanuska-Susitna Borough indicates that in November 2011, the Federal Surface Transportation Board approved the plan to build a new 32-mile rail line, connecting Port MacKenzie  to the Railroad's main line near Houston. On January 20, the Sierra Club, Cook Inletkeeper, and Alaska Survival filed a legal challenge to the Board's decision. Borough Mayor Larry DeVilbiss said he was delighted to hear the court's ruling. He said the Port MacKenzie Rail project will be a good return on investment for the state. He said, "This will diversify our Alaska economy. One of the things that's always struck me about this project, we're looking at a maximum of $300 million that is invested, but when you look at the payback, per year, on a 50-year study on this, the state will be getting back $300 million a year on the assets that will be moving down this track, so it's a no brainer."

 

    Access the complete order from the Appeals Court (click here). Access the release from the Borough (click here). [#Transport, #CA9]

 

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Lovgren v. Locke

Nov 28: In the U.S. Court of Appeals, First Circuit, Case No. 11-1952. Appealed from the District of Massachusetts, Boston. This case involves legal challenges to recent Federal management actions taken in New England's sensitive Multispecies Groundfish Fishery. In brief summary the Appeals Court says, "We reject the many  challenges and affirm entry of summary judgment for the federal defendants."

 

    The Appeals Court explains further that under the Magnuson-Stevens Fishery Conservation and Management Act the New England Fishery Management Council (N.E. Council) regulates fishery resources within the Federal waters off New England's coast. It does so primarily through Fishery Management Plans (FMPs), which it reevaluates biennially in light of the latest scientific information and congressionally imposed mandates and deadlines to prevent overfishing. Those mandates and deadlines were recently altered by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which introduced a suite of stringent protections for depleted fisheries.

 

    The litigation centers on the N.E. Council's adjustments to the FMP governing the Northeast Multispecies Groundfish Fishery (Fishery). The N.E. Council was required by law to implement changes to the Fishery's 2004 FMP by the 2010 fishing year, taking into account both the Reauthorization Act's new protections and the results of a study conducted in 2008 on the health of the Fishery's stocks of fish. The study results showed that the situation was worse than previously believed. A number of groundfish stocks were overfished and subject to overfishing; only two stocks had improved since the 2004 FMP's implementation. This trend has continued to the present.

 

    The N.E. Council adopted a new proposed groundfish FMP, Amendment 16, after 3 years' work, which included several publications in the Federal Register, eight public hearings, and receipt of numerous comments. The Federal environmental impact

statement prepared for Amendment 16 acknowledged the severe economic hardships facing New England's fishing communities.

 

    On January 21, 2010, Amendment 16 was upheld on administrative review by the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce. The NMFS promulgated Amendment 16 through three related sets of regulations that, inter alia, altered and expanded the Fishery's preexisting "sector allocation program" and established new restrictions on fishing activities to end and prevent overfishing. The regulations took effect on May 1, 2010.

 

    Plaintiffs then filed suit in Federal court alleging that Amendment 16 conflicts with the Reauthorization Act's provisions governing "limited access privilege programs," with the ten "national standards" applicable to all FMPs and with the requirements of the National Environmental Policy Act. They unsuccessfully sought to enjoin implementation of Amendment 16. The district court granted summary judgment for defendants as to all claims. The Appeals Court affirmed.

 

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

 

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Hornbeck Offshore Services, et al v. Kenneth Salazar (Interior Dept.)

Nov 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30936. The case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. The explosion killed 11 workers, caused the drilling platform to sink, and resulted in a major uncontrolled release of oil. At Presidential direction, those

events prompted the Department of the Interior to prohibit all new and existing oil and gas drilling operations on the Outer Continental Shelf for six months.

 

    The district court preliminarily enjoined enforcement of the moratorium. The single issue on appeal is whether Interior's subsequent actions violated a specific provision of the court's injunction, justifying a finding of civil contempt. The district court was certainly correct that Interior immediately took steps to avoid the effect of the injunction, but in a split decision, the majority Appeals Court concluded that "none of those actions violated the court's order" and reversed the decision. The majority further ruled:

"Interior was carrying out a policy decision made by the President. On display throughout was the 'decision, activity . . . and dispatch' that the Framers envisioned for the Executive Department of government. THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Litigation was not able to keep pace with these developments. See id. (discussing the Executive's unique role 'in the most critical emergencies of the state'). The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding. The controversial policy decisions that the May and July Directives reflected were made at the highest level of government. In implementing those decisions, we do not discern a violation of a clear provision of the district court's order by the words expressed or actions taken by the Secretary.

 

"The district court dealt expeditiously and forcefully with extremely significant litigation. The potential APA violations that led to the initial injunction are not at issue today, but such violations, if significant, would justify a district court's consideration of an injunction. Our decision is a narrow one. We conclude that there is no clear and convincing evidence that Interior's actions after the injunction violated the clear terms of the injunction as drafted. Therefore, there was no civil contempt."

    The dissenting Justice said in a lengthy dissent, "Because I would hold that the district court did not abuse its discretion in holding Interior in contempt, I respectfully dissent. While the majority views Interior's acts in isolation, the totality of the circumstances supports the able district court's decision."

 

    And, concluded, "As the majority opinion states, the 'controversial policy decisions' at issue here were 'made at the highest levels of government.' But that does not insulate those decisions from judicial review. The district court determined that the Interior's actions amounted to a 'determined disregard' of its preliminary injunction order. The court's power to enforce its orders must remain intact, even in the midst of the most critical emergencies of the state. Simply put, the Judiciary may be the least dangerous branch, but it is not entirely toothless."

 

    Access the complete opinion and dissent (click here). [#Energy/OCS, #Energy/OilSpill, #CA5]

 

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Decker v. NEDC Set For Oral Arguments

Nov 26: The National Alliance of Forest Owners (NAFO) reports that all briefs are filed at the U.S. Supreme Court for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC). Oral arguments are scheduled for December 3, 2012 and a decision is expected next spring. The three questions at hand are:

• Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
• Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
• Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final?

    NAFO indicates that fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.

    One group of law professors supported the petitioners on a specific legal point regarding deference to EPA's administrative and statutory interpretations. Two groups of law professors supported NEDC -- one arguing that deference is not appropriate in this case and the other arguing the case was properly filed under the CWA. The brief on deference argues that other courts have questioned the validity of the Silvicultural Rule and that while legislation to add the Rule to the CWA has been introduced in the past, Congress did not do so. This brief conveniently ignores that several courts have upheld the Silvicultural Rule and that congressional support for the legislation forced EPA to withdraw its proposed repeal of the Rule thus making the CWA amendment unnecessary.

    Thirty-eight forestry professors, two forestry schools, the leading U.S. professional forestry associations, and retired U.S. Forest Service employees supported the petitioners. Fifteen former EPA and state regulators supported NEDC. A number of forestry associations supported the petitioners (including NAFO), plus several agricultural and business groups and a wildlife conservation group. Several local northwest environmental and fishery groups plus a few national groups supported NEDC.

    NAFO said that competent legal arguments were raised on both sides. Some of the briefs, however, raised technical arguments. For example, the former EPA employees argue that forestry-related sediment is a leading source of water quality impairment to rivers and streams nationwide. However, NAFO said the impaired waters data on EPA's website show otherwise. Forestry ranks far down the list of impairment causes, with only a small percentage of the overall stream segments lists under CWA section 303(d) by the states as impaired.

    Some briefs argue that NPDES permitting for logging roads is feasible, flexible, and not unduly burdensome as it will focus on an easily identified subset of forest roads and will employ a general permit, referencing the Multi-Sector Stormwater General Permit as an example. These briefs do not attempt to define what constitutes a forest road, let alone explain how EPA would define a subset deserving of regulation. As for the Multi-Sector Stormwater General Permit, this provides a variety of approaches to a number of industrial sectors focused on relatively identifiable facility sites, with complex paperwork and monitoring requirements, some of which must be conducted immediately after a rain event. Hardly flexible and easily costly.

    Finally, some briefs detailed the water quality and aquatic ecosystem problems caused by sediment from forest road runoff. Sediment is precisely why state-administered Best Management Practices (BMPs) exist. NAFO indicates that what is in dispute is whether NPDES permits are the best way to control runoff and thus improve water quality. Not one brief cited any study or report showing that permits are a better control system than BMPs. One brief detailed several federal court decisions finding procedural flaws with the use of BMPs in various water programs in Oregon. The brief filed by professional and academic foresters, however, cited study after study showing the effectiveness of BMPs and the high compliance rates even in states where BMPs are not mandatory.

    Access a release from NAFO (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). [#Water, #Land, #SupCt, #CA9]

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Friends Of The Everglades v. U.S. EPA

Oct 26: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 08-13652, 08-13653, 08-13657, 08-14921, & 08-16283. Petitions for Review of a Decision of U.S. EPA. The case involves determining whether the Appeals Court has original subject matter jurisdiction over several petitions for review of an administrative rule that exempts transfers of waters of the United States from the requirements for a permit under the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether the Appeals Court may avoid deciding that question and instead exercise hypothetical jurisdiction to decide the merits of the petitions. Friends of the Everglades, several other environmental organizations, nine states (NY, CT, DE, IL, ME, MI, MN, MO, WA), the province of Manitoba, Canada, and the Miccosukee Tribe argue that original jurisdiction belongs in a district court, but they filed protective petitions for review of the water-transfer rule in this and another circuit [Second Circuit] after the Administrator of the Environmental Protection Agency stated her position that the initial judicial review of the rule could be had only in the circuit courts of appeals.

 

    The Judicial Panel on Multidistrict Litigation consolidated the petitions in this Court. The South Florida Water Management District and the United States Sugar Corporation intervened to defend the rule along side the Administrator. United States Sugar urges the Appeals Court to exercise hypothetical jurisdiction and deny the petitions. But the Appeals Court held that, "under the plain language of the governing statute, id. §1369(b)(1), we lack original subject matter jurisdiction to review the petitions and we may not exercise hypothetical jurisdiction over them. We dismiss the petitions."

 

    Explaining further, the Appeals Court said, "The Administrator argues that we should read section 1369(b)(1)(F) to apply to any 'regulations relating to permitting itself,' but this interpretation is contrary to the statutory text and was persuasively rejected in Northwest Environmental Advocates. The Ninth Circuit held that it did not have jurisdiction under section 1369(b)(1)(F) to review a regulation creating new exemptions from the permit program. Nw. Envtl. Advocates. 537 F.3d at 1018. The Ninth Circuit explained that a new exemption will never produce a permit decision to be reviewed under section 1369(b)(1)(F) before the court of appeals is able to review the underlying regulation, so there is no reason to read the section as providing original subject matter jurisdiction to review the exemption. Id Although the Sixth Circuit later adopted the interpretation advanced by the Administrator, Nat'l Cotton Council of Am. v. EPA. 553 F.3d 927, 933 (6th Cir. 2009), it did so in an opinion that provided no analysis of the provision and that cited two decisions of the Ninth Circuit that the Ninth Circuit had distinguished in Northwest Environmental Advocates, see id. We lack original jurisdiction to review a permanent exemption from the permit program."

 

    Regarding the hypothetical jurisdiction issue, the Appeals Court said, "We cannot exercise hypothetical jurisdiction any more than we can issue a hypothetical judgment. 'Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.' Kokkonen v. Guardian Life Ins. Co. of Am.. 511 U.S. 375,377,114 S. Ct. 1673, 1675 (1994) (internal citations omitted). Because we conclude that section 1369(b)(1) does not grant original subject matter jurisdiction over these petitions, we may not address the merits of this controversy."

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

 

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Center For Biological Diversity v. U.S. BLM

Oct 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-72356, 10-72552, 10-72762, 10-72768, & 10-72775. On Petition for Review of Orders of the Bureau of Land Management and the Fish and Wildlife Service.

 

    The Appeals Court explains that the case concerns a decision by the Bureau of Land Management (BLM) to authorize the Ruby Pipeline Project (Project). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of Federal lands and crosses 209 rivers and streams that support Federally endangered and threatened fish species. According to a Biological Opinion (the Biological Opinion or the Opinion) formulated by the Fish and Wildlife Service (FWS), the project 'would adversely affect' nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project 'would not jeopardize these species or adversely modify their critical habitat.' The propriety of the FWS's 'no jeopardy' conclusion, and the BLM's reliance on that conclusion in issuing its Record of Decision, are at the heart of this case."

 

    The opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. Specifically, the Appeals Court resolves petitioners' claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion's "no jeopardy" and "no adverse modification" determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a "dry-ditch construction method" for water crossings; and (4) the Incidental Take Statement placed no limit on the number of "eggs and fry" of threatened Lahontan cutthroat trout to be taken during construction.

 

    The Appeals Court concludes, "We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion." Further, the Appeals Court rules, ". . .we vacate the FWS's Biological Opinion and remand for the agency to formulate a revised Biological Opinion that: (1) addresses the impacts, if any, of Ruby's groundwater withdrawals on listed fish species and critical habitat; and (2) categorizes and treats the Conservation Action Plan measures as 'interrelated actions' or excludes any reliance on their beneficial effects in making a revised jeopardy and adverse modification. We otherwise deny the petition as to the issues discussed in this opinion. We also vacate and remand the BLM's Record of Decision."

 

    Amy Atwood, senior attorney at the Center for Biological Diversity (CBD) said, "We wish the Ruby pipeline had never been built, but since it was, it's crucial that everything possible is done to minimize harm to the endangered fish that live along its route. With this victory, these rare fish will be better protected, and the public won't have to bear the whole cost of the pipeline's destructive impacts."

 

    Access the complete opinion (click here). Access a release from CBD (click here). [#Energy/Pipeline, #Wildlife, #CA9]

 

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Luminant Generation Company, et al v. U.S. EPA

Oct 12: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60934. Petitions for Review of Orders of the Environmental Protection Agency. In this high-profile case that was decided by the Fifth Circuit on July 30, 2012 [See WIMS 8/1/12], the Appeals Court has ordered that the opinion previously filed in this case is withdrawn and a new opinion is substituted.

 

    The Appeals Court explains, "Two sets of petitioners, hereinafter referred to as 'Industry Petitioners' and 'Environmental Petitioners,' seek review of the United States Environmental Protection Agency's (EPA) final rule partially approving and

partially disapproving the most recent revision to Texas's State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) pursuant to the Clean Air Act (CAA or the Act), 42 U.S.C. § 7401 et seq. Because we find that the EPA did not act arbitrarily or capriciously, or contrary to law, or in excess of its statutory authority, in its partial approval and

partial disapproval of Texas's SIP revision, we deny both petitions for review."

 

    The substituted opinion appears to reach the same conclusion, "we conclude that the EPA did not act arbitrarily or capriciously, contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas's SIP revision. We therefore deny the petitions for review submitted by both Environmental Petitioners and Industry Petitioners."

 

    Access the complete substituted opinion (click here). Access the complete original opinion (click here). [#Air, #CA5]

 

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Alcoa, Inc. v. Bonneville Power Administration

Oct 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-70211, 10-70707, 10-70743, 10-70782, 10-70813, & 10-70843. On Petition for Review of an Order of the Bonneville Power Administration. The consolidated petitions for review challenge a contract between the Bonneville Power Administration (BPA) and one of its long-time customers, Alcoa Inc. BPA's preference customers, as well as other entities and organizations in the Pacific Northwest, filed the petition for review, requesting that the Appeals Court hold that the contract is unlawful because it is inconsistent with the agency's statutory mandate to act in accordance with sound business principles.

 

    The Petitioners claim that instead of entering into a contract to sell power to Alcoa at the statutorily required Industrial Firm power (IP) rate (a costbased rate prescribed by 16 U.S.C. § 839e(c)(1) for sales of power to customers such as Alcoa), BPA should sell to other buyers at the market rate. BPA's decision not to do so, petitioners allege, forgoes revenue that could otherwise be used to lower the rates charged to its preference customers. They further argue that BPA relied on flawed data in determining it would make a modest profit by selling surplus power to Alcoa.

 

    Alcoa also petitions for review, asking the court to hold that the Equivalent Benefits standard is contrary to BPA's governing statutes, Alcoa makes the request because such a judicial determination is a condition precedent for the commencement of a five-year period (the Second Period of the Alcoa Contract) during which time BPA would continue to sell power to Alcoa at the contracted rate. In May 2012, the Alcoa Contract was amended to remove all references to the Second Period.

 

    In a partially split decision, the majority Appeals Court said, "We dismiss the petitioners' and Alcoa's challenge in part as moot, and otherwise reject their claims." Additionally, one Justice wrote a separate and concurring opinion. In conclusion, the majority said, "The petitioners' challenges to the Alcoa Contract ask us to second-guess BPA's policy judgment regarding the costs and benefits of its sale of electric power. But the belief that another approach might have been wiser is not a valid basis for jettisoning an agency action as arbitrary and capricious. We therefore deny the petitions for review insofar as they pertain to the Initial Period. Because the potential for BPA and Alcoa to enter into the Second Period of the contract is no longer before us, we dismiss those portions of the petitions. Finally, we hold that because BPA relied on a categorical exclusion to NEPA's requirements, declining to complete an EIS was not arbitrary and capricious. Accordingly, we deny petitioners' NEPA claim. Dismissed in part and denied in part."

 

    Access the complete opinion, dissent and concurring opinions (click here). [#Energy, #CA9]

 

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League To Save Lake Tahoe v. Tahoe Regional Planning Agency

Oct 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17318. Appealed from the United States District Court for the District of Nevada. In this unpublished opinion, the League to Save Lake Tahoe (the League) appealed from the district court's summary judgment upholding the regulatory approvals issued by the Tahoe Regional Planning Agency (TRPA or the agency) for the Sierra Colina Village housing project. The Appeals Court determined that it had jurisdiction and vacated the district court judgment.

 

    The Appeals Court said, "Contrary to TRPA's assertion, the League has standing to sue on its members' behalf." The Appeals Court ruled, "Because substantial evidence does not support two mandatory TRPA findings, we must vacate the district court judgment. We, however, recognize that the League's challenges as described on appeal are much more detailed than the

objections made before TRPA in the first instance, and that TRPA must be afforded the opportunity to reexamine the objections and enter new findings. We remand to the district court with instructions to vacate TRPA's approval of the land coverage transfer for LPF 3 [linear public facility, i.e. shared public access roadway] and remand the matter back to the agency for further proceedings consistent with this disposition. We need not, and do not, reach any other issue urged by the parties."

 

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

 

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