Center For Biological Diversity v. Salazar

Aug 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35123. Appealed from the United States District Court for the District of Alaska. The case involves U.S. Department of Interior (DOI, Secretary Ken Salazar), Fish and Wildlife Service (Service) regulations under Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) that authorize incidental take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea and on the adjacent coast of Alaska. The Center for Biological Diversity and Pacific Environment (collectively Plaintiffs) brought suit challenging the regulations and accompanying environmental review documents under the MMPA, Endangered Species Act (ESA), and National Environmental Policy Act (NEPA). The district court granted summary and the Appeals Court affirmed that decision.

 

    In background information, the Appeals Court explains that The Chukchi Sea off the North Slope of Alaska is a promising location for oil and gas exploration and development. It also is home to polar bears and Pacific walruses, both of which are marine mammals protected under the MMPA. There are two polar bear stocks in Alaska, with a total estimated population of about 3,500 animals. Surveys taken between 1975 and 1990 estimated the total population of Pacific walruses in the area to be between 200,000 and 250,000 animals. Both polar bears and Pacific walruses migrate seasonally with the advance and retreat of the sea ice habitat on which they rely for survival. In May 2008, the Service listed the polar bear as a threatened species under the ESA because of projected reductions in sea ice caused by climate change. 73 Fed. Reg. 28,212 (May 15, 2008). The Pacific walrus is not presently listed as threatened or endangered under the ESA.

 

    Plaintiffs filed suit against the Service, alleging that the five-year incidental take regulations, the accompanying BiOp (Biological Opinion), and the EA fail to comply with the MMPA, ESA, and NEPA. The Alaska Oil and Gas Association intervened as co-defendants. Following a lengthy analysis, the Appeals Court concludes, "Section 101(a)(5)(A) of the MMPA requires the Service to determine separately that a specified activity will take only 'small numbers' of marine mammals, and that the take will have only a 'negligible impact' on the species or stock. We hold that the Service permissibly determined that only 'relatively small numbers' of polar bears and Pacific walruses would be taken in relation to the size of their larger populations, because the agency separately determined that the anticipated take would have only a 'negligible impact' on the mammals' annual rates of recruitment or survival. The 'small numbers' determination was consistent with the statute and was not arbitrary and capricious. We also hold that the Service's accompanying BiOp and EA comply with the ESA and NEPA."

 

    Access the complete opinion (click here). [#Wildlife, #Energy/OCS, #CA9]

 

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U.S. v. Place

Aug 21: In the U.S. Court of Appeals, First Circuit, Case No. 11-1246. Appealed from the U.S. District Court Massachusetts, Boston. David L. Place appeals his convictions for illegally trafficking in sperm whale teeth and narwhal tusks. Specifically, a jury found that Place's whale-tooth dealings violated CITES, the international compact implemented in the United States via the Endangered Species Act (ESA) and regulations authorized by the ESA. But Place says the district judge should have instructed the jury on certain lesser-included offenses because he did not actually know his transactions were illegal, even if he should have known. He also says his smuggling convictions are legally wrong because his conduct violated only regulations, not statutes. The Appeals Court said it disagreed "with both lines of argument" and affirmed the convictions.

 

    The Appeals Court concluded, "Place was charged, fairly tried, and properly convicted for knowingly flouting these laws and the regulations implementing them. Rejecting his arguments on appeal for the reasons set forth above, we now affirm these convictions in full."

 

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

 

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EME Homer City Generation, L.P v. U.S. EPA

Aug 21: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1302, consolidate with 44 additional cases. In this high-profile, split decision, dealing with U.S. EPA's controversial Cross State Air Pollution Rule (CSAPR) the Appeals Court indicates that some emissions of air pollutants affect air quality in the States where the pollutants are emitted. Some emissions of air pollutants travel across State boundaries and affect air quality in downwind States. In its conclusion, the majority Appeals Court rules, "We vacate the Transport Rule and the Transport Rule FIPs and remand this proceeding to EPA. EPA must continue administering CAIR [Clean Air Interstate Rule, the Transport Rule] pending the promulgation of a valid replacement." This lengthy, highly complex and split decision is sure to turn the air pollution world on its head. WIMS will include reactions from various parties in tomorrow's report.

 

    The Appeals Court explains that to deal with that complex regulatory challenge, Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to

meet those standards and regulating sources within their borders.

 

    In addition, and of primary relevance here, upwind States must prevent sources within their borders from emitting federally determined "amounts" of pollution that travel across State lines and "contribute significantly" to a downwind State's "nonattainment" of federal air quality standards. That requirement is sometimes called the "good neighbor" provision.

 

    In August 2011, to implement the statutory good neighbor requirement, EPA promulgated the rule at issue in this case, the Transport Rule, also known as the Cross-State Air Pollution Rule. The Transport Rule defines emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems. The Rule limits emissions from upwind States' coal- and natural gas-fired power plants, among other sources. Those power plants generate the majority of electricity used in the United States, but they also emit pollutants that affect air quality. The Transport Rule targets two of those

pollutants, sulfur dioxide (SO2) and nitrogen oxides (NOx).

 

    Various States, local governments, industry groups, and labor organizations have petitioned for review of the Transport Rule. Although the facts here are complicated, the legal principles that govern this case are straightforward: Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority.

 

    The Appeals Court majority rules, "Here, EPA's Transport Rule exceeds the agency's statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State's nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State's nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA's Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States' good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States' good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act. For each of those two independent reasons, EPA's Transport Rule violates federal law. Therefore, the Rule must be vacated."

 

    In light of its ruling the majority notes that ". . .this Court has affirmed numerous EPA clean air decisions in recent years when those agency decisions met relevant statutory requirements and complied with statutory constraints. . . In this case, however, we conclude that EPA has transgressed statutory boundaries. Congress could well decide to alter the statute to permit or require EPA's preferred approach to the good neighbor issue. Unless and until Congress does so, we must apply and enforce the statute as it's now written. Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA's Transport Rule. It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here."

 

    The majority also comments on the disssenting opinion and says, "The dissent argues that petitioners' challenge to EPA's approach to the significant contribution issue is not properly before us because that issue was not sufficiently raised before the agency in the rulemaking proceeding. We fundamentally disagree with the dissent's reading of the record on that point. The dissent also claims that petitioners' challenge to EPA's issuance of the FIPs is not properly before us because the affected States should have raised such a challenge earlier in the process. We again disagree. The dissent's analysis on the FIPs issue conflates (i) EPA's rejection of certain States' SIPs and (ii) EPA's decision in the Transport Rule to set States' "good neighbor" obligations and emissions budgets and simultaneously issue FIPs."

 

    In the lengthy dissenting opinion, the Justice indicates, "To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act (CAA), and this court's settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did. The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress's vision of

cooperative federalism between the States and the federal government in implementing the CAA based on the court's own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court's precedent on which the Environmental Protection Agency (EPA) was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court. . ."

 

    Access the complete 104-page opinion and dissent (click here, dissent begins on pp. 61). [#Air, #MIAir]

 

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Friends of Blackwater v. Kenneth Salazar (DOI)

Aug 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-5128. Appealed from the United States District Court for the District of Columbia. The Secretary of the Interior appeals the district court's grant of summary judgment to the Friends of Blackwater et al. The district court held the Fish and Wildlife Service, an agency in the Department of the Interior (DOI), violated the Endangered Species Act by removing the West Virginia Northern Flying Squirrel from the list of endangered species when several criteria in the agency's Recovery Plan for the species had not been satisfied. However, in a split decision, the majority Appeals Court ruled, "We hold the district court erred by interpreting the Recovery Plan as binding the Secretary in his delisting decision. Because we also reject the Friends' alternative arguments that the Service's action was arbitrary, capricious, and contrary to law, we reverse the judgment of the district court."

 

    The majority Appeals Court explained that in, "Whereas only ten squirrels had been sighted at the time of the original listing in 1985, by 2006 scientists had captured 1,063 individual squirrels at 107 sites. . . which suggested to the Secretary the population was robust. . . Later in 2006 the Service proposed to remove the squirrel from the list of endangered species. . . (Dec. 19, 2006). The agency explained the squirrel no longer faced any of the threats listed in § 4(a)(1) of the Act so as to warrant its continued designation as either endangered or threatened. . . With regard to the 1990 Recovery Plan, it said that because the 'recovery criteria do not specifically address the five threat factors used for ... delisting a species,' the plan 'does not provide an explicit reference point for determining the appropriate legal status of' the squirrel. . . In any event, such plans 'are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved.'"

 

    The majority concluded, "We hold the Secretary reasonably interpreted the Endangered Species Act as not requiring that the criteria in a recovery plan be satisfied before a species may be delisted pursuant to the factors in the Act itself. Because the Secretary's determination the West Virginia Northern Flying Squirrel was no longer endangered was neither arbitrary and capricious nor in violation of the Act, the judgment of the district court is reversed." The majority also included separately, some lengthy comment on the dissenting opinion.

 

    In a strongly worded and lengthy dissenting opinion, the one Justice summarizes, "Because Congress 'has directly spoken to the precise question at issue,' Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), the court's job is done. Instead, the court defers to the Secretary's interpretation, contrary to the plain text of the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, that the West Virginia Northern Flying Squirrel (Squirrel), an endangered species, loses all protections even though the recovery criteria in its recovery plan have not been met and those criteria are revised, while the Squirrel was listed as endangered, without required notice and prior consideration of public comments. But even assuming, as the court concludes, the ESA is ambiguous, the Secretary was arbitrary and capricious in delisting the Squirrel based in material part on an analysis revising the recovery plan criteria that was not publically noticed until the final delisting rule, and then only on the basis of available scientific and commercial evidence showing the Squirrel persists (i.e., is not yet extinct) as distinct from recovered so as no longer to require ESA's protections. Accordingly, I respectfully dissent."

 

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

Grocery Manufacturers Assoc. v. U.S. EPA (i.e. E15 Petitions)

Aug 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1380, consolidated with 10-1414, 11-1002, 11-1046, 11-1072, 11-1086. On Petitions for Review of Final Actions of U.S. EPA. In this high profile case, petitioners, trade associations whose members are part of the petroleum and food industries, filed petitions for review of two EPA decisions approving the introduction of E15 -- a blend of gasoline and 15 percent ethanol -- for use in select motor vehicles and engines. In summary, in this controversial split decision, the majority Appeals Court rules, "Because we hold that no petitioner has standing to bring this action, we dismiss all petitions for lack of jurisdiction."

 

    In sum, U.S. EPA has granted "partial" waivers approving the introduction of E15 for use in model-year 2001 and newer lightduty motor vehicles and engines. These waivers are conditional. E15 manufacturers are required to (1) introduce only E15 that

meets certain fuel quality parameters and (2) submit for approval by EPA a plan for the implementation of "misfueling mitigation conditions" set forth in the EPA decision. The term "misfueling," as used in the EPA decisions, refers to the use of E15 in pre-2001 vehicles and other non-approved vehicles, engines, and equipment. The misfueling mitigation conditions and strategies which EPA set forth as necessary for such a plan included pump-labeling requirements, participation in a pump-labeling and fuel-sample compliance survey, and proper documentation of ethanol content on transfer documents.

 

    Three sets of industry groups (collectively, Petitioners) representing members who either: (1) manufacture engines and related products (engine manufacturers); (2) sell food (including livestock) that requires corn as an input (food producers); or (3)

produce or handle petroleum and renewable fuels (petroleum suppliers) petitioned the court for review of EPA's E15 waivers. Growth Energy, the waiver applicant, intervened in support of EPA's defense of its waiver decisions.

 

    Regarding the engine manufacturers, the majority says, "As they admit. . . their engines are not warranted for E15, nor is it clear why manufacturers would be liable for damages from consumer induced misfueling. As for their recall theory, they have failed

to establish any probability that the government would recall engines because third parties had misfueled. . . The engine-products group has not established standing to bring these petitions."

 

    Regarding the petroleum suppliers, the majority says, "We cannot fairly trace the petroleum group's asserted injuries in fact—the new costs and liabilities of introducing and dealing with E15 -- to the administrative action under review in this case. That action, EPA's approval of the introduction of E15 for use in certain vehicles and engines, does not force, require, or even encourage fuel manufacturers or any related entity to introduce the new fuel. . . In short, the only real effect of EPA's partial waivers is to provide fuel manufacturers the option to introduce a new fuel, E15. . . If anything is "forcing" these entities to incur the costs of introducing a new fuel, it is the obligations set by the RFS, competitive pressures, or some combination thereof. . .

There is not a cause of those costs providing the petroleum group with standing.

   

    Regarding the food producers, the majority says these petitioners "point out only that their interests are protected by EISA [Energy Independence and Security Act of 2007 (Pub.L. 110-140)], the legislation that set forth the RFS, because EISA requires EPA to review, among other things, "the impact of the use of renewable fuels on ... the price and supply of agricultural commodities ... and food prices" when EPA sets renewable fuel volume requirements in the future. . . However, the statute Petitioners challenge here is the CAA's fuel-waiver provision, Section 211(f)(4 -- not EISA. . . more is required to establish an 'integral relationship' between the statute a petitioner claims is protecting its interests and the statute actually in question. . ."

 

    The majority rules, "For the above reasons, we hold that no petitioner has standing to bring these claims. We therefore dismiss all petitions for lack of jurisdiction." The dissenting Justice indicates, "Despite the fact that two enormous American industries

will be palpably and negatively affected by EPA's allegedly illegal E15 waiver, the majority opinion tosses the case for lack of standing. . . This suit may proceed if either the food group or the petroleum group has standing. In my view, both have standing. . ."

 

    The Environmental Working Group (EWG) Vice-President for Government Affairs Scott Faber issued a statement saying, "If gasoline was blended to include 15% ethanol during the current drought, two-thirds or more of the corn crop could be diverted from food and feed to U. S. fuel supplies. That's bad for American consumers, bad for most farmers, and bad for the environment. Today's decision will pave the way for runaway food inflation at a time when Americans are already struggling with rising food prices. Increasing the corn ethanol blend will drive up the cost of feeding animals and cause more engines to fail. And, it will increase emissions of toxic air pollutants and increase pressure to plow up even more grasslands and wetlands. Today's decision should accelerate efforts by policymakers to re-open and reform the corn ethanol mandate."

 

    Bob Greco, American Petroleum Institute (API) downstream group director said, "Today's court decision is a big loss for consumers, for safety and for our environment. EPA approved E15 before vehicle testing was complete, and we now know that the fuel may cause significant mechanical problems in millions of cars on the road today." API indicated, "E15 may cause significant mechanical problems in millions of cars on the road today, according to a three-year study conducted by the auto and oil industries. Automobile manufacturers have told Congress that vehicle warranties will not cover damage due to E15."

    Greco said, "Moreover, EPA approved E15 even though government research showed potential infrastructure concerns to our nation's gas stations that could lead to serious safety and environmental problems. EPA's decision was premature and irresponsible, and consumers could bear the burden." Half of all retail station equipment in the country is incompatible with E15, according to a thorough analysis of government and independent research, conducted for API. He said, "It is astounding that the Court does not accept that refiners, who must comply with the ethanol mandate, have standing to bring this case."

 

    Access the complete opinion and dissents (click here). Access the statement from EWG (click here). Access the statement from API and link to more information (click here). [#Energy/Ethanol]

 

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State Of Texas, Et Al v. U.S. EPA

Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60614. Petitions for Review of an Order of U.S. EPA. In this split decision, the majority Appeals Court explains that, "Sixteen years tardy, the Environmental Protection Agency (EPA) disapproved a revision to Texas's plan for implementing the requirements of the Clean Air Act. The untimely disapproval unraveled approximately 140 permits issued by Texas under the revision's terms, and now requires regulated entities to qualify for pre-revision permits or risk federal sanctions." Petitioners -- the State of Texas; the Chamber of Commerce of the United States; and representatives of nationwide manufacturing, chemical and petroleum industries -- petition for review of the EPA's action under the Administrative Procedure Act.

 

    In its summary of the opinion, the majority rules, "We hold that the EPA's disapproval of Texas's plan fails Administrative Procedure Act review. Although the EPA acknowledges the distinct role of the states, which is congressionally called for in the design and enforcement of State Implementation Plans, the EPA based its disapproval on demands for language and program features of the EPA's choosing, without basis in the Clean Air Act or its implementing regulations. . . we grant the petition for review, vacate the EPA's disapproval of Texas's plan, and remand."

 

    The Appeals Court analyzed the specific reasons that EPA gave for disapproving Texas's Flexible Permit Program: (1) the Program might allow major sources to evade Major NSR; (2) the provisions for monitoring, recordkeeping and reporting are inadequate; (3) and the methodology for calculating flexible permit emissions caps lacks clarity and is not replicable.

 

    The majority said in part, "Although the EPA's concern over the potential for Major NSR evasion involves the Agency's interpretation of a law, it does not involve the interpretation of a federal law. Before approval by the EPA, a SIP revision is state law for which the EPA's interpretation is not authoritative. . . The EPA has failed not only to put forth evidence demonstrating interference, but also to put forth a cogent theory on how Texas's manner of drafting would result in interference. The standard for disapproving a SIP revision -- that the revision would interfere with the CAA -- surely requires more than the EPA's bare conclusion."

 

    The majority also states, "Because the administrative record reflects that the EPA's rejection is based, in essence, on the Agency's preference for a different drafting style, instead of the standards Congress provided in the CAA, the EPA's decision disturbs the cooperative federalism that the CAA envisions. . . We therefore hold that the EPA's first proffered reason for rejecting the Texas Program is arbitrary and capricious, and in excess of its statutory authority."

 

    On EPA second objection, the majority rules, "We find that the EPA's action amounts to an insistence on a particular control measure and is inconsistent with the principles of cooperative federalism that are an essential part of the CAA." And, on the third objection the majority says, "We thus find that the EPA's objections to the emissions caps of the Flexible Permit Program rely on standards not found in the CAA or its implementing regulations."

 

    The dissenting Justice summarized saying, "This case centers on two questions. First, whether the EPA may require that Texas's Flexible Permit Program be limited to Minor NSR by language sufficiently clear to close paths around Major NSR requirements. And whether the EPA's conclusion that the Flexible Permit Program lacked that clarity was arbitrary or capricious. The majority does not dispute that the EPA could legitimately deny approval to Texas's Flexible Permit Program if the program were not clearly drafted to limit its applicability to Minor NSR but disagrees with the EPA's conclusion that the Flexible Permit Program lacks that clarity. Heeding the principle that the APA standard of 'arbitrary and capricious' does not permit a court to vacate an agency decision based on its mere disagreement, I am persuaded that the EPA's conclusion that the submitted Program is not clearly limited to Minor NSR, allowing for circumvention of Major NSR requirements, was neither arbitrary nor capricious. Rather, I see my brothers in error in assigning marks for 'federal' writing, low by their own unstated measure, and not faithfully applying the deferential arbitrary and capricious standard."

 

    House Energy and Commerce Committee members Joe Barton (R-TX), Michael C. Burgess, M.D. (R-TX), and Pete Olson (R-TX) issued a statement in response to the ruling saying, "We are pleased with the court's decision to stand up to EPA's overreach. EPA's disapproval of Texas' permitting program has unraveled approximately 140 permits, created great regulatory uncertainty, and stalled the creation of thousands of new jobs. The court recognized the important role that states play in designing air quality programs and ruled that EPA had acted in excess of its statutory authority—a common theme we have seen throughout this administration. This attempt to extend EPA's power has done nothing to advance environmental protection, but only created more red tape, served as an impediment to growth, and wasted valuable time and resources."

 

    Access the complete majority opinion and dissent (click here). Access the complete statement from several House GOP Texas members (click here). [#Air, #CA5]

 

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Western Watershed Project v. Ken Salazar (Interior Dept.)

Aug 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-56363. Appealed from the United States District Court for the Central District of California. In a brief 5-page order, the Appeals Court affirmed the district court order and denied a challenge by environmental interest to stop a $2.2 billion solar energy project in California because of concerns it would harm desert tortoises and other wildlife.

 

    The Appeals Court said, "In balancing the equities, the district court properly weighed the environmental harm posed by the Ivanpah Solar Electric Generating System (ISEGS) project against the possible damage to project funding, jobs, and the state and national renewable energy goals that would result from an injunction halting project construction, and concluded that the balance favored Appellees. . . The District Court also properly exercised its discretion in weighing Appellant's delay in seeking a preliminary injunction until after construction began, was temporarily halted, and begun anew, and some $712 million had been expended among the equitable factors. . ."

 

    Finally, the Appeals Court said, "The district court also did not abuse its discretion in analyzing the public interests at stake. It properly concluded that Appellant's contention that rooftop solar panels were a preferable source of renewable energy amounted to a policy dispute and could not support a finding that an injunction was in the public interest. The district court properly took into account the federal government's stated goal of increasing the supply of renewable energy and addressing the threat posed by climate change, as well as California's argument that the ISEGS project is critical to the state's goal of reducing fossil fuel use, thereby reducing pollution and improving health and energy security in the state. Appellant has pointed to no clear factual error or mistake of law in the district court's analysis of the public interest factors. Accordingly, we affirm the denial of Appellant's preliminary injunction motion."

 

    On August 5, NRG Energy, Google, BrightSource Energy and construction partner Bechtel announced that Ivanpah SEGS had reached the halfway mark of construction on the world's largest solar thermal project. Ivanpah has also reached its peak construction workforce, with more than 2,100 construction workers and project support staff on-site. The $2.2 billion project is on-track to be complete in 2013. Located on 3,600 acres of U.S. BLM managed land in southeastern California, ISEGS is a 392 megawatt (gross) solar thermal power facility developed by BrightSource Energy. The project began construction in October 2010, and will deliver power to serve BrightSource's signed contracts with PG&E and Southern California Edison.

 

    Access the complete order (click here). Access the Ivanpah SEGS website for complete project information (click here). Access the Western Watersheds California website for more information on their lawsuit (click here). [#Energy/Solar, #CA9]

 

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Grand Canyon Trust v. U.S. Bureau of Reclamation

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16326. Appealed from the United States District Court for the District of Arizona. The Appeals Court explains that Grand Canyon Trust appeals the district court's grant of summary judgment in favor of the United States Bureau of Reclamation (Reclamation) and the United States Fish and Wildlife Service (FWS) rejecting the Trust's claims alleging that Reclamation and FWS violated the Endangered Species Act (ESA), the National Environmental Policy Act and the Administrative Procedure Act in the operation of the Glen Canyon Dam. The Appeals Court dismissed the appeals as "moot in part and affirm in part."

 

    Grand Canyon Trust (the Trust) is an organization devoted to the protection and restoration of the canyon country of the Colorado Plateau. Reclamation and FWS are agencies within the Department of the Interior. Reclamation is responsible for the operation of the Glen Canyon Dam (the Dam) situated on the Colorado River, and FWS is responsible for the protection of the humpback chub, a fish that exists primarily in the relatively inaccessible canyons of the Colorado River and that is listed as endangered under the Endangered Species Act (ESA). Intervenor-Appellees in the case are the seven Colorado River Basin States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming; the Colorado River Commission of Nevada; the Southern Nevada Water Authority; the Colorado River Energy Distributors Association; the Central Arizona Water Conservation District; the Imperial Irrigation District; and the Metropolitan Water District of Southern California (collectively, Intervenors).

 

    The case has an extremely complicated history (too lengthy to adequately explain here), but leads to the Trust filing this appeal raising issues: (1) whether the 2009 BiOp [biological opinion] is unlawful under the ESA; (2) whether the court has jurisdiction to review the 2009 Recovery Goals; (3) whether Reclamation violates the ESA by relying on the 2009 BiOp; (4) whether FWS's 2010 ITS [incidental take statement] is unlawful; (5) whether Reclamation violates the ESA by relying on the 2010 ITS; and (6) whether Reclamation must comply with the ESA and with NEPA procedures before issuing an AOP [annual operating plans]. The Appeals Court concludes on a number of issues:

• "Defendants-Appellees argue, and the Trust concedes, that the Trust's claims related to the 2009 BiOp and the 2010 BiOp are now moot. We agree. The Trust's claims that the 2009 BiOp is unlawful under the ESA; that Reclamation violates the ESA by relying on the 2009 BiOp; that the 2010 ITS is unlawful; and that Reclamation violates the ESA by relying on the 2010 ITS are moot."
• "we conclude that the issue of whether the district court similarly lacks jurisdiction under the APA to review the draft 2009 Recovery Goals is moot."
• "we hold that the issue of whether the APA supports review of the draft 2009 Recovery Goals as used in the 2009 BiOp is also moot."
• "Because Reclamation used the draft 2009 Recovery Goals as best available science, a discretionary use, the district court concluded that it lacked jurisdiction to consider the draft 2009 Recovery Goals under the ESA citizen suit provision. We agree."
• "We conclude that the ESA citizen suit provision does not support jurisdiction here because FWS did not fail to perform a non-discretionary act before using the science incorporated in the draft 2009 Recovery Goals to support its 2009 BiOp."
• "Finally, we vacate the judgment of the district court with respect to the 2009 BiOp and the 2010 ITS. . ."

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

 

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Native Village Of Kivalina IRA Council v. U.S. EPA

Aug 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-70776. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. Petitioners Native Village of Kivalina IRA Council, Native Village of Point Hope IRA Council, Alaska Community Action on Toxics, and Northern Alaska Environmental Center (collectively, Kivalina) appeal the EPA Environmental Appeals Board's (the EAB) order denying review of their challenges to a permit authorizing Intervenor Teck Alaska, Inc. (Teck) to discharge wastewater caused by the operation of the Red Dog Mine.

 

    The EAB concluded that Kivalina had not satisfied the procedural requirements to obtain review under 40 C.F.R. § 124.19(a) because it did not demonstrate why the EPA responses to comments were clearly erroneous or otherwise warranted review. The Appeals court ruled, "We agree that Kivalina did not meet the requirements of § 124.19, and we deny Kivalina's petition for review."

   

    The Red Dog Mine is an open pit zinc and lead mine in northwestern Alaska, operated by Teck in partnership with Intervenor NANA Regional Corporation. The mine's operations produce wastewater contaminated with metals through contact with mined materials and surfaces. After being treated, the wastewater eventually enters the Wulik River, which flows into the Chukchi Sea near the Native Village of Kivalina. On November 18, 2010, after some of Kivalina's challenges were rendered moot, EAB handed down an order denying review of the remaining portion of Kivalina's petition.

 

    In its order, the EAB observed that section II.C.3 of Kivalina's petition consisted of only slightly more than two pages, and that Kivalina had not set forth sufficient detail about why the EPA's responses to public comments were "irrelevant, erroneous, insufficient, or an abuse of discretion," as required by § 124.19(a). On December 8, 2010, the EPA issued a final permit decision. Kivalina filed a timely petition for review on March 18, 2011.

 

    Specifically, Kivalina claims its petition sufficiently challenged three monitoring conditions in the 2010 Permit: (1) the reduction in monitoring requirements, (2) the removal of biomonitoring provisions, and (3) the EPA's failure to require third-party monitoring. The Appeals Court addresses each challenge under the requirements of § 124.19(a) and determines each to be insufficient and

rules that EAB did not err in denying their review.

 

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

 

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U.S. Magnesium LLC v. U.S. EPA

Aug 6: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-9533. On petition for review of a final action by U.S. EPA. The Appeals Court explains that US Magnesium seeks review of a recent final rule from the U.S. EPA. In its rule, the EPA has called for Utah to revise its State Implementation Plan (SIP) for the federal Clean Air Act (CAA). Under the CAA, the EPA may call for a state to revise its SIP (a SIP Call) if the EPA finds the state's current SIP substantially inadequate. Here, the EPA determined that Utah's SIP was substantially inadequate because it contains an Unavoidable Breakdown Rule (UBR), which permits operators of CAA-regulated facilities to avoid enforcement actions when they suffer an unexpected and unavoidable equipment malfunction. In this SIP Call, published as a final rule in April 2011, EPA requested that Utah promulgate a new UBR -- one that conforms with the EPA's interpretation of the CAA. US Magnesium maintains that the SIP Call is arbitrary and capricious and asks the court to vacate it. However, the Appeals Court denied the petition for review.

 

    After several years of negotiations between EPA and Utah's Division of Air Quality (UDAQ) failed to produce an acceptable UBR, in 2010, EPA published a notice of proposed rulemaking proposing to find the Utah SIP substantially inadequate due to its continued inclusion of the UBR. Although UDAQ opposed the proposed rule, EPA nevertheless published the SIP Call as a final rule in April 2011, and Utah has since agreed to revise the UBR.

 

    When it promulgated the final rule, the EPA provided three primary justifications for its finding that the Utah SIP was substantially inadequate. First, the EPA found that the UBR "[d]oes not treat all exceedances of SIP and permit limits as violations," which could preclude injunctive relief; Second, the EPA determined that the UBR "could be interpreted to grant the Utah executive secretary exclusive authority to decide whether excess emissions constitute a violation"; and Third, the EPA found that the UBR "improperly applies to Federal technology-based standards such as [NSPS and NESHAPS]."

 

    On of the primary concerns was, "EPA lacks the regulatory authority to make a SIP Call based on policy or guidance that has not become applicable law. The [Herman Memorandum] EPA cites as justification for the SIP Call has never been subjected to the legal requirements of notice and public rulemaking under the Administrative Procedures Act. . ."

 

        EPA argued that US Magnesium did not have standing to bring the action, however, after a lengthy analysis the Appeals Court ruled, "Because the SIP Call significantly affects Utah's decisionmaking process, and because we find that a decision overturning the SIP Call would significantly increase the chances of action by Utah that is favorable to US Magnesium, we hold that US Magnesium has standing in this case." One Justice issued a separate concurring opinion state agreement that "US Magnesium must be denied relief, but my reasons differ from those of the majority. In my view, US Magnesium lacks standing because it has failed to make the necessary showing that its alleged injury would be redressed by a favorable decision."

 

    However, contrary to US Magnesium claims, the Appeals Court determined that the Administrative Record adequately supports the EPA's conclusion that the UBR rendered the Utah SIP substantially inadequate; and EPA's SIP Call was not inconsistent with its own policy statements and regulations.

 

    On the subject of the Herman Memo not being a rule, EPA responded that it agree that the Memo "was a nonbinding policy statement, not a legislative rule," and said that it treated the memorandum as a "policy statement and did not rely on it in the

rulemaking other than as a statement of the EPA's interpretation of the CAA." The Appeals court said, ". . .the EPA referenced the policy statements to explain its interpretation of the CAA, but did not attempt to rely on the statements as a rule of law in their own right." The Appeals Court said, "This is in keeping with our precedent. AMREP Corp. v. FTC, 768 F.2d 1171, 1179 (10th Cir. 1985). . ."

 

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

 

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Summit Petroleum Corporation v. U.S. EPA

Aug 7: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 09-4348 & 10-4572. On Petition for Review of Final Action of the U.S. EPA. The Appeals Court explains that the case arises from a final action of EPA determining that a natural gas sweetening plant and various sour gas production wells, commonly owned by Petitioner Summit Petroleum Corporation (Summit) and separately located within an area of approximately forty-three square miles, constitute a single stationary source under the EPA's Clean Air Act Title V permitting program.

 

    Specifically at issue is the EPA's conclusion that Summit's facilities satisfy the regulatory requirement of being "located on . . . adjacent properties" because, although physically independent, they are "truly interrelated." Summit, together with Amici American Petroleum Institute and American Exploration and Production Counsel, argues that the EPA's determination that the physical requirement of adjacency can be established through mere functional relatedness is unreasonable and contrary to the plain meaning of the term "adjacent."

 

    The majority Appeals Court agreed and ruled, ". . .we vacate the EPA's final determination and remand this case to the EPA to determine whether Summit's sweetening plant and sour gas wells are sufficiently physically proximate to be considered 'adjacent' within the ordinary, i.e., physical and geographical, meaning of that requirement."

 

    The case involves Summit, a producer of natural gas that owns and operates a natural gas sweetening plant in Rosebush, Michigan. Summit's plant "sweetens" the "sour" gas from approximately one hundred sour gas production wells by removing hydrogen sulfide so that the gas can be used. Summit owns all of the production wells and the subsurface pipelines that connect each of the wells to the sweetening plant. The wells themselves are located over an area of approximately forty-three square miles at varying distances from the plant -- from five hundred feet to eight miles away -- and Summit does not own the property between the individual well sites or the property between the wells and the plant. None of the well sites share a common boundary with each other, nor do any of the well sites share a common boundary with Summit's production plant. Flares work as part of the plant operations by burning off natural gas waste to relieve pressure on the gas collection equipment. The closest flare is located approximately one half-mile from the plant, while the remaining flares are each over one mile away.

 

    The Appeals Court said, "Together with the ordinary and dictionary definitions of the term 'adjacent,' the Rapanos decision, and similar case law, points clearly toward the conclusion that the regulatory requirement that aggregated activities be 'located on contiguous or adjacent properties' is unambiguous in the context in which it is here considered. . ."

 

    EPA claims that because it has an established a history of supplementing the traditional definition of adjacency with the concept of "activities' functional relatedness, we must review its interpretation with heightened deference." The Appeals Court disagrees and saying, "Though the EPA has previously considered the functional relationship between activities in assessing whether they lie on 'contiguous or adjacent properties,' its request of increased deference to this interpretation rests on the premise that some measure of deference is in fact owed to the EPA's interpretation in the first instance -- a premise we reject in light of the unambiguousness of the regulation at issue."

 

    In a dissenting opinion, one Justice indicates, "Congress passed the Clean Air Act (CAA) 'to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.' 42 U.S.C. § 7401(b)(1). Because the majority hamstrings the Environmental Protection Agency's (EPA) ability to pursue this mission by refusing to defer to the agency's reasonable interpretation of its own regulation, I respectfully dissent."

 

    The dissenting Justice said, "The majority's adoption of Summit's position raises its own policy concerns. Primarily, today's ruling frees the oil and gas industry to gerrymander its way out of Title V regulation. So long as sufficient distance exists between each well (so that they are not 'adjacent' as the majority defines that term), or someone other than the drilling company owns parcels of land in between each well (so that they are not 'contiguous'), the drilling operation cannot be classified as a major source through aggregation. Unlike the CAA provisions governing hazardous air pollutant emissions, see 42 U.S.C. § 7412(n)(4), Title V does not grant the oil and gas industry immunity from aggregation; this court should not effectively create such a provision when Congress has not done so."

 

    Access the complete opinion and dissent (click here). [#Air, #Energy/OilGas, #CA6, #MIAir]

 

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