League of Wilderness Defenders v. U.S. Forest Service

Jul 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35451. Appealed from the United States District Court for the District of Oregon. The Appeals Court explains that this case involves an Experimental Forest Thinning, Fuels Reduction, and Research Project (the Project) in the Deschutes National Forest in the eastern Cascades of central Oregon. The Project allows logging and controlled burning on roughly 2,500 acres of the Pringle Falls Experimental Forest. The purpose of the Project is two-fold: to reduce the risk of wildfire and beetle infestation, and to conduct research on ponderosa pine forest management.

 

    The League of Wilderness Defenders–Blue Mountains Biodiversity Project (the League) filed suit against the U.S. Forest Service (the Service) and Service officials, alleging that the Agency's environmental impact statement (EIS) for the Project fails to comply with the National Environmental Policy Act (NEPA"). The district court granted summary judgment to the Service, relying in part on the fact that the Project involves research in an experimental forest. The Appeals court affirmed.

 

    The Service manages its experimental forests under the Forest and Rangeland Renewable Resources Research Act of 1978 (Research Act). The Research Act recognizes that the Federal government "has an important and substantial role in ensuring the continued health, productivity, and sustainability of the forests and rangeland of the United States." It gives the

Secretary of Agriculture broad authority to designate experimental forests and to conduct any research within them that he "deems necessary to obtain, analyze, develop, demonstrate, and disseminate scientific information about protecting, managing, and utilizing forest . . . resources."

 

    In affirming the district court ruling, the Appeals Court concluded, "The Service proposes a forest management research project in an experimental forest specifically set aside for such study. The EIS considers in detail a reasonable range of alternatives that would fulfill both of the Project's goals by reducing the risk of wildfire and beetle infestation, and by addressing six specified research objectives. The EIS is adequately supported by scientific data and takes a hard look at the significant impacts of the Project."

 

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California Communities Against Toxics v. U.S. EPA

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-71127. On Petition for Review of a Final Rulemaking of U.S. EPA. According to the Appeals Court, two environmental groups petition for review of a final rulemaking by the EPA. The groups and EPA agree this case should be remanded, so the only dispute is whether vacatur is appropriate.

 

    Under the jurisdiction of the South Coast Air Quality Management District, the District is responsible for developing a plan that ensures new emission increases are offset by reductions. When reductions exceed increases, the excess reductions take

the form of "credits," which are traded in an open market to entities seeking to meet their offset requirements. The District maintains a stock of these credits in an internal bank for distribution to entities like schools and hospitals.

 

    In 2009, California passed Assembly Bill 1318, which requires the District to transfer credits to a soon-to-be completed power plant named Sentinel. Since the Bill changed the state plan, the District sought the EPA's approval. Petitioners challenge the EPA's final rule approving the District's revision. They allege that the EPA committed procedural errors during the rulemaking process and that the substance of the revised state plan violates the Clean Air Act.

 

    The Appeals Court notes that during the rulemaking process, the EPA didn't disclose certain documents in the electronic docket or list them in the docket index. According to the petitioners, those failures violated the notice-and-comment requirements of the Administrative Procedure Act. However, the Appeals Court says, "EPA's failure to include all documents in the electronic docket was not an error. The E-Government Act requires online disclosure only 'to the extent practicable, as determined by the agency in consultation with the Director' of the Office of Management and Budget. E-Government Act of 2002, Pub L. No. 107-347, § 206(d)(2), 116 Stat. 2899, 2916 (2002) (emphasis added). We defer to the EPA on what is practicable to post on its online docket."

 

    The Appeals Court also said, "EPA did misstate that all documents in the docket were listed in the index. While this might violate an interested party's right to meaningfully comment. . . we need not decide that here. Assuming procedural error, it

was harmless as to the petitioners because they had the documents in their possession from earlier proceedings.

 

    On the subject of the validity of the rule, petitioners argue that the EPA violated the Clean Air Act in approving the District's revision to its plan. The EPA concedes that there are flaws in the reasoning adopted for its final rule. Despite its concession, EPA maintains its rule is not arbitrary and capricious and offers new reasoning to support its final rule. The Appeals Court rules, "We therefore find that the EPA's final rule is invalid. That the EPA's final rule is invalid is not the end of the analysis. In considering whether vacatur is warranted, we must balance these errors against the consequences of such a remedy."

 

    The Appeals Court then explains the "Consequences of vacatur" and says, "The delay and trouble vacatur would cause are severe. Sentinel is scheduled to come on line in November, but vacatur would pave the road to legal challenges to Sentinel's construction that could well delay a much needed power plant. Without Sentinel, the region might not have enough power

next summer, resulting in blackouts. Blackouts necessitate the use of diesel generators that pollute the air, the very danger

the Clean Air Act aims to prevent. . .

 

    "Stopping construction would also be economically disastrous. This is a billion-dollar venture employing 350 workers. In addition, vacatur would likely require the California legislature to pass a new bill to allow the District to transfer credits from its internal bank to Sentinel, which would create needless and duplicative legislative effort. Petitioners claim that failure to vacate the EPA's rule will allow Sentinel to continue construction, and that construction will pollute the air. But the California Energy Commission has already found that Sentinel's construction harms are insignificant with mitigation. And that mitigation doesn't implicate the credits at issue.

 

    "While we have only ordered remand without vacatur in limited circumstances, if saving a snail warrants judicial restraint, see Idaho Farm Bureau, 58 F.3d at 1405-06, so does saving the power supply. Accordingly, we remand without vacatur so that construction of Sentinel may proceed without delay. This does not authorize commencement of Sentinel's operation without a new and valid EPA rule in place."

 

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The Estate Of Wayne Hage v. U.S.

Jul 26: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5001, -5013. Appealed from the United States Court of Federal Claims. The Appeals Court explains that E. Wayne Hage and Jean Hage brought an action against the United States, seeking compensation for a Fifth Amendment taking of private property, breach of contract, and range improvements pursuant to 43 U.S.C. § 1752(g). The Court of Federal Claims (Claims Court) awarded compensation for the taking of water rights plus interest from the date of the taking. The Claims Court also awarded compensation for range improvements, but did not award any corresponding pre-judgment interest. The Appeals Court ruled, "For the reasons set forth below, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for proceedings consistent with this opinion."

   

    The Claims Court held there was a regulatory taking of the Hages' water rights when the Forest Service allowed vegetation to accumulate in streams and prevented the Hages from performing maintenance on the stream channels and ditch rights of way.   

 

    Among other determinations, the Appeals Court indicates, "The Hages have not met their burden because the evidence demonstrates only that they constructed or maintained the improvements on the federal lands, not that they owned title to those improvements. To the contrary, the evidence of record demonstrates that the improvements were the property of the United States government. Without evidence of ownership, the Hages cannot establish a cognizable property interest. To the extent that the Hages argue that they are entitled to a diminution in value for range improvements on their private property stemming from the cancelation of their permits, this argument is without merit. . ."

 

    In its conclusion the Appeals Court said, "The Hages' regulatory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g) are not ripe, and we therefore vacate the Claims Court's award of damages. To the extent the Hages' claim for a physical taking relies on fences constructed in 1981-1982, this claim is untimely. To the extent the physical takings claim relies on fences constructed in 1988-1990, we re-verse because there is no evidence that water was taken that the Hages could have put to beneficial use. Finally, we affirm the Claims Court's holding that the Hages are not entitled to prejudgment interest for any range improvements award because the Hages failed to identify a cognizable property interest. We remand for further proceedings consistent with this opinion. "

 

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Northern Pacific Center, Inc. v. BNSF Railway Company

Jul 24: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. 11-3103 & 11-3139. The Appeals Court explains that the Northern Pacific Center incurred costs to reduce pollution on a property it owns in Brainerd, Minnesota which had formerly been owned by BNSF Railway and used as a railcar construction and maintenance facility. The Center sued BNSF under the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. § 115B.01 et seq., to recover its costs. BNSF moved for summary judgment on the basis of MERLA's statute of limitations, which the district court denied. Both parties later moved for summary judgment on the merits, which the district court granted to BNSF, concluding that "the type of costs the Center had incurred were not recoverable under MERLA." The Center appealed the adverse grant of summary judgment and BNSF cross appealed the district court's denial of summary judgment on statute of limitations grounds. The Appeals Court ruled, "We affirm the grant of summary judgment to BNSF and dismiss BNSF's cross appeal as moot."

 

    The key determination in the case is whether the type of costs incurred was "remedial" or "removal." The Appeals Court concluded, ". . .the agency itself approved BNSF's excavation as the selected 'remedial' action and provided approval for the excavation done by the Center in each of its redevelopment projects. This suggests that the lead cleanup taken by the Center can be considered remedial. We conclude that the costs the Center seeks to recover were not removal costs and thus are not recoverable. Because we affirm the district court's grant of summary judgment to BNSF on the merits, we dismiss as moot BNSF's cross appeal of the district court's denial of summary judgment on statute of limitations grounds."

 

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Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1252, consolidated with 10-1254, 10-1255, 10-1256, 10-1258, 10-1259, 11-1073, 11-1080, 11-1081, 11-1090, 11-1092. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes saying, "Several states and state regulatory agencies, together with corporations and industrial associations, petition for review of the Environmental Protection Agency's rule entitled 'Primary National Ambient Air Quality Standard for Sulfur Dioxide,' and of the subsequent denial of petitions for reconsideration of the standard. Petitioners contend, first, that EPA failed to follow notice-and-comment rulemaking procedures, and second, that the agency arbitrarily set the maximum sulfur dioxide (SO2) concentration at a level lower than statutorily authorized. For the reasons discussed more fully below, we conclude that the challenge to the rulemaking procedure is not within our jurisdiction and must be dismissed. We further conclude that EPA did not act arbitrarily in setting the level of SO2 emissions and therefore deny that portion of the petitions for review.

 

    Sulfur dioxide, a "highly reactive colorless gas," derives mostly from fossil fuel combustion. It smells like rotting eggs and, at elevated concentrations in the air, can cause acid rain. Its presence in the ambient air can cause adverse health effects,

particularly in asthmatics. After receiving comments on its rule proposal, EPA issued a final rule addressing the primary SO2 standard. 75 Fed. Reg. 35520 (June 22, 2010). EPA mandated that States must meet a new 1-hour SO2 standard using a 99th percentile form, set at 75 ppb maximum SO2 concentration. Also, EPA indicated in the rule, "we are revising our general anticipated approach toward implementation of the new 1-hour NAAQS." Instead of assessing attainment of the standard primarily by monitoring the ambient air, as it had stated it would in the proposed rule, EPA suggested it would use a "hybrid analytic approach" that would combine monitoring with computer modeling to determine compliance.

 

    Petitioners allege two errors in the EPA's proceedings. All Petitioners contend that EPA violated the notice-and-comment rulemaking provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 553, by mandating a hybrid modeling-monitoring implementation approach rather than a monitoring-only approach. Only the nonstate petitioners bring the second challenge, contending that the Agency's decision to set the new 1-hour SO2 standard at 75 ppb was arbitrary and capricious.

 

    Regarding the modeling concerns, the Appeals Court indicates, "EPA explained that it expected to make initial attainment designations in 2012 based on existing monitoring capabilities, as well as 'any refined modeling the State chooses to conduct specifically for initial area designations.' 75 Fed. Reg. at 35552. That language does not impose new legal obligations to use modeling. To be sure, because EPA now intends to use this hybrid approach, it has scaled back its proposed plans to develop a more extensive monitoring network. . . Petitioners do not argue, however, that they have suffered an injury by not being required to build a more extensive monitoring network. Petitioners will be free to challenge any final action EPA takes that imposes an obligation Petitioners must meet. The challenged provisions here do not meet that standard."

 

    Regarding the standard, the Appeals Court rules in part, "Nothing in the CAA requires EPA to give the current air quality such a controlling role in setting NAAQS. And as Petitioners themselves note, the CAA gives EPA significant discretion to decide whether to revise NAAQS. Further, in the final rule, EPA cites evidence that current levels of SO2 in the ambient air, even when the air quality meets the current SO2 NAAQS, still cause respiratory effects in some areas. 75 Fed. Reg. at 35530-31. In short, EPA had discretion to revise the NAAQS and Petitioners' argument is unavailing."

 

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National Chicken Council v. U.S. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1107. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes that the National Chicken Council, National Meat Association, and National Turkey Federation petition for review of EPA's interpretation of a provision in the Energy Independence and Security Act of 2007 (EISA) and, "Because the petitioners fail to show that a favorable ruling would redress their claimed injuries, we dismiss their petition on standing grounds."

 

    Under the EISA, ethanol qualifies as a "renewable fuel" under certain circumstances. Ethanol from a production plant that commenced construction after December 19, 2007 (the date of the EISA's enactment) counts as renewable fuel if it "achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions" in comparison to fossil fuels. 42 U.S.C. § 7545(o)(2)(A)(i). Ethanol from a plant that commenced construction on or before December 19, 2007 is not subject to that requirement; it counts as renewable fuel whether it reduces emissions or not. Id. i.e. the older ethanol plants are "grandfathered in."

 

    The statutory provision at issue in this case is an extension of the EISA's grandfather clause. It states that, "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the 20 percent reduction requirement." The Appeals Court explains, " In its Notice of Proposed Rulemaking, EPA claimed the provision was ambiguous because it did 'not specify whether [ethanol plants fired with natural gas and/or biomass] are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely.' . . After considering public comments, EPA adopted the latter interpretation in its Final Rule. It read the provision to mean that ethanol plants fired with natural gas and/or biomass that commenced construction in 2008 or 2009 ('qualifying ethanol plants') are deemed compliant with the 20 percent greenhouse gas reduction requirement 'indefinitely.' . . Functionally, that meant qualifying ethanol plants could generate RINs [Renewable Identification Numbers for each gallon of renewable fuel] indefinitely without having to ensure that their ethanol met the emissions-reduction requirement."

 

    The Appeals Court notes that, "The petitioners argue EPA's interpretation of the provision is inconsistent with the statutory text, and they ask us to set it aside. To establish their Article III standing to seek such relief, they must show that they have suffered (or will soon suffer) a 'concrete' injury in fact; that their injury is or will be 'fairly . . . trace[able]' to EPA's interpretation of the provision; and that there is a 'substantial likelihood' their injury would be redressed if we set EPA's interpretation aside."

 

    The Appeals Court concludes, "If we were to vacate EPA's interpretation, the only consequence for qualifying ethanol plants is that they would no longer be able to generate RINs without complying with the EISA's emissions-reduction requirement. The petitioners fail to show a 'substantial probability' that qualifying ethanol plants would reduce their ethanol production as a result of that change. . . We should not be understood to foreclose any challenge to EPA's interpretation of the provision; a different petition, properly supported, could allow us to address the merits of EPA's reading. But the petitioners here have failed to establish their standing, and their petition for review is accordingly dismissed."

 

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State Of New Jersey v. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case 05-1097 consolidated with 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294. The Appeals Court summarizes saying, "In our earlier decision in this case, New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011) [See WIMS 1/3/12], we held that Movants, a group of Native American tribes and tribal associations who intervened on behalf of petitioners in the underlying Clean Air Act litigation, were entitled to fees and costs under section 307(f) of the Act. When the parties were unable to agree on the amount of fees, Movants filed an updated motion seeking $369,027.25, including compensation for 1,181 hours of work and for costs. For the reasons set forth below, we agree with EPA that the fee request is excessive and thus award substantially less than Movants seek.

 

    The Appeals Court notes that to calculate a reasonable fee, "we use the lodestar method, multiplying a reasonable rate by the reasonable number of hours." EPA does not object to Movants' proposed hourly rates, and in order to simplify things recommends a flat rate of $305.125 which is agreed to. However, at issue is the "reasonable number of hours." After careful analysis, the Appeals Court concludes, "In sum, Movants reasonably expended 355.95 hours on the litigation. Multiplying this by $305.125 per hour, we award Movants $108,609.24 in compensation for attorney time. We also award Movants the $3,186.50 in costs they seek and that EPA does not contest."

 

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American Petroleum Institute v. U.S. EPA

Jul 17: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1079 & 10-1080. On Petitions for Review of Final Action of the U.S. EPA. The Appeals Court explains, that In 2010, U.S. EPA promulgated a final rule adopting a new, one-hour primary national ambient air quality standard (NAAQS) for nitrogen dioxide. The American Petroleum Institute, the Utility Air Regulatory Group, and the Interstate Natural Gas Association of America (collectively the API) petition for review of that rule, claiming EPA, in adopting the NAAQS, was arbitrary and capricious and violated the Clean Air Act. API also challenges a statement in the preamble to the final rule regarding EPA's intended implementation of the NAAQS. The Appeals Court ruled, "We deny the petitions insofar as they challenge the EPA's adoption of the NAAQS, but because the EPA's statement in the preamble was not final, we lack jurisdiction to consider those portions of the petitions."

 

    The Appeals Court recounts that, in 2009 the EPA proposed to set a new hourly NAAQS with allowable maximum concentration levels between 80 and 100 ppb. 74 Fed. Reg. 34,404 (July 15, 2009). The petitioners each submitted comments criticizing the EPA for proposing a revision to the NAAQS based upon an unpublished study. . . and for discounting a published and peer-reviewed study that did not conclude exposures to NO2 at 100 ppb caused a measureable adverse health effect. They also expressed skepticism about the EPA's interpretation of the epidemiological evidence, questioned the assumptions built into the forecasts in the REA, and pointed out the proposed rule provided no guidance as to how a permit applicant for a new or modified source of NO2 pollution should demonstrate compliance with the new NAAQS.

 

    In its Final Rule, the EPA adopted a new one-hour primary NAAQS, requiring in effect that "the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration [be] less than or equal to 100 ppb." The EPA concluded this standard was needed "to provide protection for asthmatics and other at-risk populations against an array of adverse respiratory health effects related to short-term NO2 exposure."

 

    According to the API, the EPA was arbitrary and capricious in how it dealt with the record evidence and the NAAQS it adopted is unlawful because more stringent than "requisite to protect the public health" with "an adequate margin of safety." In addition, the API argued that EPA's implementation of the NAAQS was arbitrary and capricious because, when the EPA stated a permit applicant for a new or modified source of pollution must demonstrate compliance with the new NAAQS, the agency did not consider whether it would be able to resolve applications within the statutorily required time period or what effect such a requirement might have upon economic growth.

 

    The Appeals Court ruled in part, "Considering its duty to err on the side of caution, we conclude the EPA did not act unreasonably by comparing the benefits of the one-hour standard against not only a scenario based upon existing air quality but also upon an alternate scenario in which areas just meet the annual NAAQS set in 1971. For that reason, and because the record adequately supports the EPA's conclusion that material negative health effects result from ambient air concentrations as low as the 100 ppb level, we cannot conclude the agency was arbitrary and capricious or violated the Act in adopting that level as the new one-hour NAAQS for NO2."

 

    Earthjustice, intervened on behalf of Natural Resources Defense Council to oppose the industry challenge. Earthjustice attorney Abigail Dillen issued a brief statement saying, "Nitrogen dioxide pollution triggers asthma attacks and sends people to hospitals and emergency rooms. This decision is great news for children, older adults, and millions of Americans with asthma whose health is endangered by this pollution."

 

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Natural Resources Defense Council v. Salazar

Jul 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17661. Appealed from the United States District Court for the Eastern District of California. In this split decision involving the renewal of forty-one water supply contracts by the United States Department of Interior, Bureau of Reclamation the majority affirms the district court in determining that the contracts do not violate § 7(a)(2) of the Endangered Species Act and illegally threatens the existence of the delta smelt.

 

    The delta smelt is a small fish endemic to the San Joaquin and Sacramento Rivers Delta Estuary which was declared endangered by the United States Fish and Wildlife Service under the Endangered Species Act in 1993. Though previously

abundant, the population of the delta smelt has diminished markedly in the last several decades.

 

    Plaintiffs, Natural Resources Defense Council (NRDC) and several conservation groups, argue that in 2005 the United States Bureau of Reclamation (Bureau) renewed forty-one water service contracts with various water users without conducting an adequate consultation under § 7(a)(2) of the Endangered Species Act and that the contracts jeopardize the existence of the delta smelt. The contracts at issue fall into two groups: (1) users who obtain water from the Delta-Mendota Canal (DMC Contractors); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley Project (CVP) and who previously entered into settlement contracts with the Bureau (Settlement Contractors).

 

    Plaintiffs argue that the district court erred in holding that they did not have standing to challenge the DMC contracts. The majority Appeals Court determined, "Even under a substantive claim analysis for standing, which imposes a higher burden than a procedural analysis, plaintiffs' claim fails because they cannot show causation. . . Thus, the district court properly determined that plaintiffs lack standing to challenge the DMC contracts under both a procedural and a substantive claim analysis."

 

    Additionally, the majority ruled, ". . .the Bureau's discretion is limited with regard to the Settlement Contracts so that § 7(a)(2) of the ESA is not triggered. The Bureau's hands are tied historically by those asserting senior water rights in the CVP. The Bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the Settlement Contracts. We agree with the district court . . ."

 

    The dissenting justice said, "I respectfully dissent. I agree with the majority that this case is not moot. I disagree with the majority's holdings that the plaintiffs lack standing to challenge the Bureau's renewal of the Delta-Mendota Canal (DMC) contracts and that § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), does not apply to the United States Bureau of Reclamation's (Bureau) renewals of the Sacramento River Settlement ("SRS") contracts. Accordingly, I would reverse the district court's grant of summary judgment to the defendants and remand for further proceedings."

 

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Webster v. USDA

Jul 13: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1739. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. The Appeals Court provides background saying that over thirty-five years ago, the Natural Resources Conservation Service (NRCS), working with local sponsors, devised a project to provide watershed protection, flood prevention, and recreation along the Lost River Subwatershed. The proposed project involved a combination of land-treatment measures and five dams and impoundments. In 1974, the NRCS issued an environmental impact statement relating to the project, and since that time, three dams and most of the land-treatment measures have been completed.

 

    After preparing a supplemental environmental impact statement in 2009, the NRCS issued a record of decision that eliminated one of the remaining dams from the project and authorized construction of the final dam for the added purpose of providing water supply. Appellants, seven individuals who allege that their land will be adversely affected by this final dam's construction, filed this action contending that the NRCS has failed to comply with the National Environmental Policy Act (NEPA).

 

    Appellants appeal the district court's order granting Appellees' motion for summary judgment. Because we determine that the The Appeals Court ruled, "NRCS has complied with the procedures mandated by the NEPA and taken a hard look at the project's environmental effects, we affirm."

 

    On one issue raised by Appellants the Appeals Court rules, "Even assuming that the NRCS did not ask the Army Corps to participate as a cooperating agency and that it should have done so, such error was harmless. See United States v. Coal.

for Buzzards Bay, 644 F.3d 26, 37 (1st Cir. 2011) (recognizing that harmless-error review applies to violations of the NEPA). Despite bearing the burden to establish harm, see id., Appellants fail to show, or even suggest, any harm that resulted from the failure to designate the Army Corps as a cooperating agency. Nor do we identify any harm resulting from this failure. In fact, the record reflects that the NRCS provided the Army Corps opportunities to participate in preparing both the 2007 SEIS and the 2009 SEIS, and that the Army Corps took advantage of at least some of these opportunities. . ."

 

    On another issue, "Appellants argue that the NRCS should not have issued the 2009 SEIS prior to receiving the Clean Water Act Section 404 permit from the Army Corps. But we are aware of no requirement that the NRCS obtain necessary permits before issuing an EIS. To the contrary, the CEQ's regulations mandate only that it list all necessary federal permits in a draft EIS. See 40 C.F.R. § 1502.25(b). Thus, the NRCS's issuance of the 2009 SEIS before obtaining the requisite permit from the Army Corps does not violate the NEPA."

 

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Travelers Casualty & Surety Co. v. Providence Washington Ins

Jul 12: In the U.S. Court of Appeals, First Circuit, No. 11-2193. Appealed from the District Court of Rhode Island, Providence. In summarizing the case the Appeals Court indicates that, invoking diversity jurisdiction, appellant Travelers Casualty and Surety Company, Inc. (Travelers) sought a declaratory judgment that appellee Providence Washington Insurance Company, Inc. (PWIC) is obliged to join in the defense of New England Container Company, Inc. (NE Container or NECC), in connection with a contribution action involving clean-up costs for the Rhode Island Centredale Manor Superfund Site. Granting summary judgment to PWIC, the district court ruled that PWIC did not owe NE Container a duty to defend in the underlying action. The Appeals Court ruled, "On Travelers' appeal, we reverse the decision, vacate the judgment, and remand."

 

    The Appeals Court concludes, "In the end, we conclude that under the pleadings test, the Emhart complaint [Emhart Industries, Inc. also a responsible party] triggered PWIC's duty to defend under its policies issued in the mid-1980s. In so holding, we recognize that there is exponentially more to this sprawling litigation than the Emhart complaint and the PWIC policies. Litigation involving environmental damage at the Superfund Site was well on its way prior to the 2006 Emhart action, and the Emhart action had advanced beyond a nascent stage by the time Travelers pursued its 2010 action against PWIC. The duty to defend question before us, however, begins and ends with the Rhode Island pleadings test. Having concluded this task, our review is complete.

 

    "We reverse the district court's decision, vacate the judgment in favor of PWIC, and remand for the district court to enter judgment in favor of Travelers that the Emhart complaint triggered PWIC's defense obligations under its policies. Any remaining requests for relief sought by Travelers will be addressed by the district court in due course."

 

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Kansas Gas & Electric Co. v. U.S.

Jul 12: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5044, 2011-5045. Appealed from the United States Court of Federal Claims. In this partially mixed opinion, Kansas Gas and Electric Company (KG&E), Kansas City Power & Light Company (KCPL), and Kansas Electric Power Cooperative, Inc. (KEPCO) (collectively the Kansas Companies) suffered damages due to the Government's partial breach of the Standard Contract for Disposal of Spent Nuclear Fuel And/Or High-Level Radioactive Waste (Standard Contract). In June 2010, the United States Court of Federal Claims conducted a nine-day trial and awarded the Kansas Companies $10,632,454.83.

 

    The majority indicated, "In determining the amount of damages, the trial court correctly did not award damages for cost of capital and for the costs associated with researching alternative storage options for spent nuclear fuel (SNF) and high level radioactive waste (HLW). The trial court also appropriately reduced the Kansas Companies' damages by the value of the benefit they received as a result of their mitigation activities. However, the trial court erred by not accepting the Kansas Companies' reasonable method for calculating overhead costs. Therefore, this court affirms-in-part and reverses-in-part the trial court's damages award."

 

    The majority court ruled, "The Kansas Companies' method for calculating over-head costs was reasonable and complied with FERC accounting standards. As such, this court reverses the trial court's refusal to accept these calculations. This court affirms the remainder of the trial court's decision. As such, there is no need to address the issues raised in the Government's cross-appeal."

 

    In a partial dissent, one Justice indicated, "The majority concludes that when the Kansas Companies used Federal Energy Regulatory Commission (FERC)-compliant accounting practices to allocate overhead to their mitigation efforts, they were dispositively entitled to recover the full amount of that overhead as damages. I respectfully disagree. When, as here, a trial court is presented with evidence that regulatory accounting practices were used to calculate the amount of overhead attributable to mitigation projects, that amount is presumptively a correct measure of damages for over-head. And our precedent firmly establishes that a trial court is not free to disregard it simply because it questions the precision of the accepted accounting practice."

 

    Access the complete opinion (click here). [#Haz/Nuclear, #CAFed]

 

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Tinicum Township v. US Department Of Transportation

Jul 6: In the U.S. Court of Appeals, Third Circuit, Case No. 11-1472 On Petition for Review of an Order of the United States Department of Transportation, Federal Aviation Administration. The Appeals Court explains this is an appeal of the Federal Aviation Administration's approval of a significant expansion of Philadelphia International Airport. Disputing the FAA's air quality analysis, Petitioners (collectively Tinicum) allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the consistency provision of the Airport and Airway Improvement Act, 49 U.S.C. § 47106(a)(1).

 

    The Appeals Court ruled, "Because we find the Federal Aviation Administration's decision was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' 5 U.S.C. § 706(2)(A), we will deny the petition for review." The Appeals Court said, "We review the FAA's action under the APA's arbitrary and capricious standard. . .  We confine our review to the administrative record upon which the FAA's Record of Decision was based."

 

    Further, the Appeals Court outlined the extent of its review saying, "Citing the EPA's comments, Tinicum alleges five technical errors in the FAA's air quality analysis that purportedly render its environmental review inadequate under NEPA. Each allegation pertains to a category of data excluded from the FAA analysis. While additional data might enable a more detailed environmental analysis, NEPA does not require maximum detail. Rather, it requires agencies to make a series of line-drawing decisions based on the significance and usefulness of additional information. . . With this in mind, we review the FAA's air quality analysis, considering each of the alleged technical defects. . ."

 

    The Appeals Court concluded, "In sum, the FAA gave serious consideration and reasonable responses to each of the EPA's concerns. As the lead agency, the FAA has some latitude to determine the level of analytical detail necessary to support an informed decision and to adequately disclose air quality impacts to the public. The technical errors alleged by Tinicum do not render the FAA's air quality analysis arbitrary or capricious." The Appeals Court also denied a request by the Township for a supplemental EIS, saying, "Where new information merely confirms the agency's original analysis, no supplemental EIS is indicated."

 

    Finally, Tinicum contends the FAA failed to comply with the consistency requirement of the Airport and Airway Improvement Act (AAIA), which provides that the FAA may only approve an airport project if it is "consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the airport." 49 U.S.C. § 47106(a)(1). The Appeals Court ruled, "The FAA reasonably looked to the DVRPC's [Delaware Valley Regional Planning Commission's] plans in making its consistency determination. Accordingly, that determination was neither arbitrary nor capricious."

 

    Access the complete opinion (click here). [#Air, #Transport, #Land, #CA3]

Delaware DNR v. US Army Corps of Engineers

Jul 3: In the U.S. Court of Appeals, Third Circuit, Case Nos. 11-1283 & 11-1421. Appealed from the United States District Court for the District of Delaware. According to the Appeals Court, at issue is whether the U.S. Army Corps of Engineers can deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive and at the same time, comply with statutes that protect the environment. The roots of the project trace back decades.

 

    In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next twenty years. Commencement was delayed for several reasons, but in the fall of 2009, the Corps was ready to proceed. In October 2009, New Jersey and Delaware filed suits in the District Courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel. They alleged violations of the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Coastal Zone Management Act (CZMA). Each District Court granted summary judgment to the Corps, holding no environmental statutes would be breached. The Appeals Court affirmed.

 

    Over the decades an Environmental Impact Statement, a Supplemental Environmental Impact Statement, and an updated  Environmental Assessment recommended the project proceed because its substantial economic benefits outweighed any possible adverse environmental effects. Citing numerous related decisions from other circuits, the Appeals Court said, "In our review of the Corps' conduct, we conclude that its publication of the 2009 EA was neither arbitrary nor capricious."

 

    The Appeals Court said further, "Despite the Corps' comprehensive public engagement, appellants contend it acted arbitrarily and capriciously under NEPA. They argue the Corps provided inadequate public notice; erred in declining to publish a FONSI alongside the EA; erred in not circulating a draft of the EA for public review before publication; and did not meaningfully review the comments submitted. None of these claims has merit."

 

    The Appeals Court concludes, "For over twenty years, the Corps has devoted substantial efforts to evaluating the proposed five foot deepening project for the Delaware River. It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies. Its decision in 2009 to proceed with the project was consistent with NEPA, the CWA, and the CZMA. Accordingly, we will affirm the judgments of the District Courts of New Jersey and Delaware."

 

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

 

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Notice: July 4, 2012

Subscribers & Readers Note:

WIMS will not be publishing today,

July 4, 2012. We'll be back on July  5.

Be safe, stay cool, and

enjoy your July 4th holiday.

U.S. v. CB & I Constructors, Inc.

Jun 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55371. Appealed from the United States District Court for the Central District of California. According to the Appeals Court, defendant CB&I Constructors, Inc., (CB&I) negligently caused a June 2002 wildfire that burned roughly 18,000 acres of the Angeles National Forest in Southern California. The United States brought a civil action against CB&I to recover damages for harm caused by the fire. CB&I does not contest its liability or the jury's award of roughly $7.6 million in fire suppression, emergency mitigation, and resource protection costs. It challenges only the jury's additional award of $28.8 million in "intangible environmental damages."

 

    The district court denied CB&I's motions for judgment as a matter of law and a new trial or remittitur, concluding that under California law the government could recover damages for all of the harm caused by the fire, including intangible harm to the environment. The district court "held that the government provided sufficient evidence for the jury to determine the amount of environmental damages, and that the resulting award was not grossly excessive." The appeals Court affirmed the district court decision.

 

    In calculating the intangible harm, the jury also awarded the government an additional $28.8 million or $1,600 per acre of burned National Forest land. The Appeals Court indicated that CB&I and Amici argue that the government may not recover intangible environmental damages because noneconomic damages are not recoverable in negligence suits regarding harm to real property. However, the Appeals Court said, "CB&I and Amici err by relying on cases that merely limit damages for emotional distress or suffering. . . In sum, we see nothing in California law that prevents the federal government from recovering intangible, noneconomic environmental damages for a negligently set fire."

 

    Regarding the intangible harm, the government did not provide testimony on a specific dollar amount, but did provide testimony concerning the "extensive destruction and harm to animal habitats, soils, and plant life. This testimony included the harm caused by the fire to the endangered California red-legged frog and the destruction of the historic Hazel Dell mining camp." The Appeals Court said it agreed with the district court that the trial provided sufficient evidence for the jurors to quantify the intangible environmental harm.

 

    The Appeals Court said, "Given the scope of the environmental harm caused by the Copper Fire, we agree with the district court that the jury's damage award of $1,600 per acre was not grossly excessive or against the clear weight of the evidence. We conclude that the district court did not abuse its discretion by denying CB&I's motion for a new trial or remittitur."

 

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

 

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