Friday, March 29, 2013

USA v. DTE Energy

Mar 28: In the U.S. Court of Appeals, Sixth Circuit, Case No. 11-2328. Appealed from the United States District Court for the Eastern District of Michigan at Detroit. In this split decision the majority indicates that U.S. Environmental Protection Agency (EPA) regulations implementing the Clean Air Act require owners and operators of any major pollutant emitting source who plan construction projects at the source to make a preconstruction projection of whether and to what extent emissions from the source will increase following construction. That projection determines whether the project constitutes a "major modification" and thus requires a permit.
 
    The majority Appeals Court said, "This appeal raises a single question: can EPA challenge that projection before there is post-construction data to prove or disprove it?" The district court held that it cannot and granted summary judgment to defendants DTE Energy and Detroit Edison. However, the majority concluded, "While the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging even blatant violations of its regulations until long after modifications are made. The district court's sweeping reading of the regulations to that effect is at odds with the Clean Air Act. It is therefore necessary to reverse and remand."
 
    After recounting the changes in the regulations over time, and the three steps involved in determining whether a planned project requires a permit, the majority indicates, "Whether a permit is ultimately required is a high stakes determination. If the operator needs to obtain a permit, the source loses grandfathered status under the Clean Air Act. This means the operator must install modern pollution controls such as flue gas desulfurization for sulfur dioxide and selective catalytic reduction for nitrogen oxides. These pollution controls lead to enormous emissions reductions. For example, EPA's expert estimated that installation of these modern pollution controls at DTE's Monroe Unit #2, the source at issue in this case, would reduce the plant's sulfur dioxide emissions by at least 95% and its nitrogen oxide emissions by at least 90%. However, installing these complex technologies is very expensive for operators. According to DTE, it is spending $1.7 billion to install these technologies at Monroe [Monroe Power Plant in Monroe, MI]."
 
    The Appeals Court indicates that, DTE performed the required emissions calculations and projected a post-project emissions increase of 3,701 tons per year of sulfur dioxide and 4,096 tons per year of nitrogen oxides. According to the regulations, an increase of 40 tons per year of either sulfur dioxide or nitrogen oxides is significant. 40 C.F.R. § 52.21(b)(23)(i). However, DTE determined that the entire emissions increase fell under the demand growth exclusion. DTE submitted these calculations to its reviewing authority, the Michigan Department of Environmental Quality, noting that DTE "continues to believe there is no reasonable possibility that the proposed project will result in a significant emissions increase and thus [notification, recordkeeping, and reporting] requirements do not apply." MDEQ did not take any action in response to DTE's submission.
 
    EPA learned of the construction project in May of 2010, two months after the project began. On June 4, 2010, EPA issued a notice of violation. The notice stated that the project "resulted in a significant net emissions increase" and therefore "constitutes a 'major modification.'" After attempts to resolve its disagreement with DTE without litigation failed, the United States filed a complaint against DTE and moved for a preliminary injunction.
 
    The majority somewhat summarizes the dispute in a paragraph when it says, "Over several decades of regulation and litigation, EPA has created a system intended to protect air quality, conserve environmental agencies' scarce resources, and minimize costs for regulated industries. The system depends on operators' making accurate projections before embarking on construction projects. If operators had to defend every projection to the agency's satisfaction, companies would hesitate to make any changes, including those that may improve air quality. On the other hand, if EPA were barred from challenging preconstruction projections that fail to follow regulations, New Source Review would cease to be a preconstruction review program. The 1992 and 2002 changes to New Source Review regulations take a middle road by trusting operators to make projections but giving them specific instructions to follow."
 
    The majority notes and concludes, "EPA warns, however, that after the five-year monitoring period is over, DTE could surreptitiously increase its emissions, having permanently avoided permitting for that change. . . While EPA does presume that emissions increases after five years are unrelated to the project, id. at 80,197, that presumption can be overcome, for example, by demonstrating that the preconstruction facility could not handle such an increase. Neither the statute nor the regulations create a time barrier. EPA can bring an enforcement action whenever emissions increase, so long as the increase is traceable to the construction. See 40 C.F.R. § 52.21(a)(2)(iv)(b). In light of this, EPA's warnings ring hollow.
 
    "Our reversal does not constitute endorsement of EPA's suggestions. A preconstruction projection is subject to an enforcement action by EPA to ensure that the projection is made pursuant to the requirements of the regulations. The district court having ruled to the contrary, we must reverse and remand. But we make no determination as to whether defendants have complied with those projection regulations. The district court's order is reversed, and this matter is remanded for further proceedings consistent with this opinion."
 
    In the dissenting opinion, the Justice says, "The majority holds that the USEPA may challenge the operator's preconstruction emissions projection, regardless of the actual emissions, and remands for USEPA to pursue such proceedings. While I agree with much of the majority opinion, I must ultimately dissent . . ." The dissent indicates, "This project caused no emissions increase and, in fact, resulted in an emissions decrease. All of which begs the question: what exactly does the majority anticipate the district court
will do with this on remand? Allow the USEPA to challenge preconstruction projections that actual events have already proven correct? I would hold that these subsequent actual results render the present dispute moot. . . I would be inclined to dismiss this appeal as moot. Barring that, I would affirm the judgment of the district court."
 
    Access the complete opinion and dissent (click here). [#Air, #MIAir, #CA6]
 
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Posted by JPMcJ at 10:03 AM 0 comments

Wednesday, March 27, 2013

Universal Cooperatives, Inc. v. AAC Flying Service, Inc.

Mar 26: In the U.S. Court of Appeals, Eighth Circuit, Case No. 12-1970. Appealed from the U.S. District Court for the Eastern District of Arkansas - Little Rock. The Appeals Court summarized the case saying, Universal Crop Protection Alliance, LLC, a formulator and distributor of a herbicide known as 2,4-D (or 2,4-D Amine), and its parent company, Universal Cooperatives (collectively, Universal), successfully defended a lawsuit brought by a group of cotton farmers in Arkansas state court for damages arising from off-target aerial application of the herbicide. Universal now sues several aerial herbicide applicators (collectively, Crop Dusters) who were not parties to the cotton farmers' litigation, seeking to recover its attorney's fees incurred during the cotton farmers' litigation. The Appeals Court says, "The district court dismissed the complaint for failure to state a claim, predicting that, under the circumstances presented, the Arkansas Supreme Court would not recognize a cause of action against a third party for attorney's fees incurred in separate litigation. Universal appeals, and we affirm."
 
    Finally, the Appeals Court rules, "Because the Arkansas Supreme Court most recently has rejected any cause of action against a third party for attorney's fees incurred in earlier litigation against another party, and in this case there is no duty running from the third party to the plaintiff that would support such a cause of action in any event, we affirm the dismissal of Universal's claims based on the third-party-litigation exception to the American Rule and Restatement (Second) of Torts section 914(2)."
 
    Access the complete opinion (click here). [#Toxics, #CA8]
 
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Tuesday, March 26, 2013

Iowa League Of Cities v. U.S. EPA

Mar 25: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3412. Petition for Review of an Order of U.S. EPA. The case involves a determination by the Appeals Court that two letters sent by the EPA to Senator Charles Grassley with respect to bacteria mixing zones and blending in wastewater treatment facilities constituted binding promulgations and effluent limitations under the Clean Water Act in violation of the Administrative Procedures Act.
 
    The Appeals Court explains that the Iowa League of Cities (League) seeks direct appellate review of two letters sent by U.S. EPA to Senator Charles Grassley. The League argues that these letters effectively set forth new regulatory requirements with respect to water treatment processes at municipally owned sewer systems. According to the League, the EPA not only lacks the statutory authority to impose the regulations, but it violated the Administrative Procedures Act (APA), by implementing them without first proceeding through the notice and comment procedures for Agency rulemaking. The Appeals Court agreed and vacated the requirements of the letter under APA section 706(2)(C), (D).
 
    According to EPA, the "guidance letters" sent to Senator Grassley were merely discussing existing regulatory requirements. The League disagreed, viewing the letters as contradicting both the Clean Water Act (CWA) and the EPA's lawfully promulgated regulations. The two areas of regulation addressed in the challenged EPA letters are "mixing zones" and "blending."
 
    Much of the argument involves a treatment system known as ACTIFLO, a physical/chemical process that uses ballasted flocculation. The League argues that by prohibiting the use of ACTIFLO internally, as one element of a facility's secondary treatment procedures, EPA is effectively dictating treatment design, despite the Agency's acknowledgment that the bypass rule and secondary treatment regulations do not allow for such determinations at the Federal level. The League also claims that the EPA is effectively applying secondary treatment effluent limitations within a treatment facility; that is, it is applying effluent limitations to the individual streams exiting peak flow treatment units, instead of at the end of the pipe. The EPA responds that using ACTIFLO to process peak wet weather flows diverts water from biological secondary treatment units, and therefore subjecting its use to a no-feasible-alternatives analysis comports with the plain language of the bypass rule.
 
    The Appeals Court determines that, ". . .the letters can be considered 'promulgations' for the purposes of establishing our jurisdiction under section 509(b)(1)(E) because they have a binding effect on regulated entities. 'If an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency's document is for all practical purposes "binding."'" [citing] Appalachian Power Co., 208 F.3d at 1021].
 
    The Appeals Court concludes, ". . .we deny the EPA's motion to dismiss and grant the League's petition for review. We vacate both the mixing zone rule in the June 2011 letter and the blending rule in the September 2011 letter as procedurally invalid. Further, we vacate the blending rule as in excess of statutory authority insofar as it  would impose the effluent limitations of the secondary treatment regulations internally, rather than at the point of discharge into navigable waters. We remand to the EPA for further consideration."
 
    Access the complete opinion (click here). [#Water/CSO, #CA8]
 
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Friday, March 22, 2013

NRDC v. U.S. Food & Drug Administration

Mar 21: In the U.S. Court of Appeals, Second Circuit, Case No. 11-422. Appealed from the U.S. District Court for the Southern District of New York. The Appeals Court explains that at issue is whether NRDC has standing under Article III of the U.S. Constitution to bring this action to compel FDA to finalize its regulation of triclosan and triclocarban, two chemicals used in over-the-counter antiseptic antimicrobial soap.
 
    The Appeals Court holds that "NRDC has presented evidence of standing sufficient to withstand summary judgment as to the regulation of triclosan, but not as to the regulation of triclocarban. As to triclosan, standing may be based on exposure to a potentially dangerous product, and NRDC's evidence establishes that triclosan is potentially dangerous and that at least one of its members is frequently exposed to triclosan-containing soap. As to triclocarban, NRDC presented no evidence of members' direct exposure but relied on evidence that the proliferation of triclocarban may contribute to the development of antibiotic-resistant bacteria. This evidence is insufficiently particular to support standing. . . Accordingly, we vacate the district court's grant of summary judgment and remand for further proceedings."
 
    The Appeals Court indicates that, "The district court granted summary judgment in favor of FDA and dismissed the suit for lack of standing. Assuming without deciding that exposure to triclosan was cognizable as an injury for standing purposes, the district court concluded that NRDC lacked standing because its members could avoid their workplace exposure to triclosan by purchasing antimicrobial-free soap for use at work."
 
    The Appeals Court said, "At issue is whether the potential avoidability of triclosan exposure at the workplace -- either by purchasing triclosan-free soap or by advocating with employers to supply triclosan-free soap -- renders the exposure "self-inflicted" so as to vitiate the causal link between FDA's alleged regulatory delay and NRDC members' triclosan exposure. We hold that neither the availability of triclosan-free soap for purchase nor the possibility that NRDC members' employers might be willing to supply triclosan-free soap prevents NRDC from establishing that the triclosan exposure is fairly traceable to FDA's alleged unreasonable delay in regulating triclosan.
 
    "The inquiry as to triclocarban requires us to determine whether the existence of a chemical that may contribute to the development of antimicrobial- or antibiotic-resistant bacteria satisfies the injury-in-fact requirement. We hold that it does not. . . NRDC provided no evidence that its members were directly exposed to triclocarban. Its theory of standing as to triclocarban thus cannot be that, under Baur, its members are exposed to a potentially dangerous substance. Instead, NRDC argues that its members suffer injury in fact due to FDA's alleged delay in finalizing its regulation of triclocarban because the proliferation of triclocarban, together with other antimicrobial antiseptic chemicals, may lead to the development of antibiotic-resistant bacteria."
 
    Access the complete opinion (click here). [#Toxics, #CA2]
 
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Thursday, March 21, 2013

Decker v. Northwest Environmental Defense Center

Mar 20: In the U.S. Supreme Court, Case Nos. 11–338 and 11–347. The decision also decides the case of Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center (NEDC) (No. 11-347). Appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 5/19/11]. Justice Kennedy delivered the opinion in which Roberts, Thomas, Ginsburg, Alito, Sotomayor, and Kagan joined and Justice Scalia, joined in parts I & II. Justice Roberts filed a concurring opinion, in which Alito joined. Justice Scalia filed an opinion concurring in part and dissenting in part. Justice Breyer took no part in the consideration or decision of the cases [See WIMS 11/26/12].
 
    The three questions at hand are:
  • Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
  • Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
  • Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final?
    According to the majority opinion, these cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be "associated with industrial activity." The Environmental Protection Agency (EPA), with the responsibility to enforce the Act,has issued a regulation defining the term "associated with industrial activity" to cover only discharges "from any conveyance that is used for collecting and conveying stormwater and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 CFR 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. The majority concludes, ". . .the EPA's determination is a reasonable interpretation of its own regulation; and, inconsequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997)."
 
    It should also be noted that on November 30, 2012, U.S. EPA Administrator Lisa Jackson signed a Final Rule revising its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges [See WIMS 12/4/12]. When the rule was signed, EPA said it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."
 
    Among other arguments, NEDC said elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See §122.26(b)(14)(iii) (mining); §122.26(b)(14)(v) (landfills receiving industrial waste); §122.26(b)(14)(x) (large construction sites). The Supreme Court majority indicated that, "The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation's reach may be limited by the requirement that the discharges be 'directly related to manufacturing, processing or raw materials storage areas at an industrial plant.' §122.26(b)(14)."
 
    Finally, the majority ruled, "The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the agency, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. As a result, there is no need to reach petitioners' alternative argument that the conveyances in question are not 'pipe[s], ditch[es], channel[s], tunnel[s], conduit[s],' or any other type of point source within the Act's definition of the term. §1362(14).For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion.
 
    In an interesting concurring opinion, Justice Roberts pointed out, "The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case." He said both Respondent and Petitioners mentioned the issue in footnotes with no arguments. Also, he said, "Out of 22 amicus briefs, only two -- filed by dueling groups of law professors -- addressed the issue on the merits."
 
    Justice Roberts concluded, "The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent."
 
    Justice Scalia expanded on the issue in a lengthy dissent saying, "I join Parts I and II of the Court's opinion; I agree that these cases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA's regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough."
 
    He continued, "For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of 'defer[ring] to an agency's interpretation of its own regulations.' Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (SCALIA, J., concurring) (slip op., at 1). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945); Auer v. Robbins, 519 U. S. 452 (1997)." He concludes his dissent saying, "It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there."
 
    Access the Supreme Court opinion, and concurring and dissenting opinions (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). [#Water, #Land, #SupCt, #CA9]
 
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Posted by JPMcJ at 3:43 PM 0 comments

Monday, March 18, 2013

Chubb Custom Insurance Co. v. Space Systems/Loral Inc.

Mar 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16272. Appeal from the United States District Court for the Northern District of California. In this split decision, the majority indicates that Plaintiff-Appellant Chubb Custom Insurance Company (Chubb) filed a subrogation suit against Defendants-Appellees for recovery of insurance payments made to its insured, Taube-Koret Campus for Jewish Life (Taube-Koret), for environmental response costs Taube-Koret incurred in cleaning up pollutants released on its property. In the operative Third Amended Complaint (TAC), Chubb asserted subrogated claims under sections 107(a) and 112(c) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
 
    Chubb also brought subrogated claims under state law. The district court dismissed Chubb's TAC with prejudice under Federal Rule of Civil Procedure 12(b)(6). Chubb appealed the dismissal. The majority concluded that "Chubb has no standing to bring suit under CERCLA section 107(a) because it did not incur any 'costs of response' related to the removal or remediation of a polluted site, and because the common law principle of subrogation does not apply to section 107(a); Chubb cannot bring a subrogation claim under section 112(c) because it did not allege that Taube-Koret was a 'claimant'; and Chubb's state law claims are time-barred. Accordingly, we affirm the district court."
 
    In its conclusion, the majority said, "CERCLA was not enacted to benefit insurance companies; rather, it was enacted to promote the timely cleanup of contaminated waste sites, impose liability on those responsible for polluting the environment, and to encourage settlement through a complex statutory scheme. An expansive application of subrogation to sections 107(a) and 112(c) is inconsonant with those overall goals. If Congress wishes to change CERCLA's statutory scheme, it may certainly do so. But it is not the province of the courts to rewrite the statute. CERCLA sets limits and provides express guidance by which a party must abide. The statute of limitations under state law also required Chubb to file suit in a timely manner if it desired relief under state law. Chubb failed to do so here."
 
    The dissenting justice said, "The majority provides a reasoned explication of why statutory subrogation under section 112(c), 42 U.S.C. § 9612(c), does not apply. But the majority's analysis of section 107(a), 42 U.S.C. § 9607(a), does not honor Chubb's right to equitable subrogation, which allows Chubb to stand in the shoes of Taube-Koret."
 
     Explaining further, the dissent said, "Taube-Koret paid cleanup expenses that should have been borne in part by Ford, Chevron, Sun Microsystems, Inc., and others who polluted and contaminated the property. The majority reasons that because Chubb reimbursed Taube-Koret's cleanup expenses and did not directly incur those costs, it does not meet the definition of "any person" under section 107(a). 42 U.S.C. § 9607(a). But the regime of law mandated by the majority is contrary to CERCLA's intent to make polluters pay. . . Here, Chubb is left with the bill while the polluters pay nothing."
 
    Access the complete opinion and dissent (click here). [#Remed, #CA9]
 
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Posted by JPMcJ at 1:46 PM 0 comments

Thursday, March 14, 2013

Paolino v. JF Realty, LLC

Mar 13: In the U.S. Court of Appeals, First Circuit, Case No. 12-2031. Appealed from the United States District Court of Rhode Island, Providence. The appeal presents an issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given at least sixty days before a citizen enforcement action may be brought under the federal Clean Water Act (CWA).
 
    Failure to comply with the CWA's sixty-day notice requirement bars such an action and calls for dismissal of the suit. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 32-33 (1989). The required contents of pre-suit notice are prescribed in 40 C.F.R. § 135.3, and assessing whether these requirements have been met is a functional, fact-dependent, and case-specific inquiry.
 
    The Appeals Court rules that, "Where the information contained in pre-suit notice identifies the potential plaintiffs, provides basic contact information, and allows the putative defendants to identify and remedy the alleged violations, we hold that these requirements have been satisfied and that the enforcement action may proceed. This does not mean that the defendants are precluded from asserting defenses under Fed. R. Civ. P. 12(b)(6); only that the suit is not barred in the district court. This holding requires us to find error in the district court's dismissal of this case. We reverse, in part, and remand for further proceedings consistent with this opinion."
 
    Defendants in the case filed their motion to dismiss the complaint on February 14, 2012, arguing that plaintiffs had failed to allege or establish several mandatory prerequisites to a citizen suit under the CWA. Specifically, defendants asserted that: (1) plaintiffs' pre-suit Notice did not describe the alleged CWA violations with the specificity required under 40 C.F.R. § 135.3(a); (2) plaintiffs' service of the Notice on defendant Robert Yabroudy was defective under 40 C.F.R. § 135.2; and (3) plaintiffs did not mail an as-filed and date-stamped copy of the complaint to the EPA Administrator, EPA Regional Administrator, and U.S. Attorney General, as required by 40 C.F.R. § 135.4. Defendants also requested that the district court dismiss the complaint with prejudice based upon plaintiffs' previous failures to comply with the CWA's notice requirements.
 
    The district court issued an order on July 26, 2012, dismissing the complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. "It found that plaintiffs' pre-suit Notice suffered from each of the deficiencies alleged in the motion to dismiss, and agreed that a dismissal with prejudice was in order as to all defendants on the first ground."
 
    In reversing the district court, in part the Appeals Court found, "The information contained in the list permitted the defendants to identify these standards themselves and to remedy the alleged violations if accurate. . . Plaintiffs' Notice letter also contains sufficient information for the defendants to identify and remedy the alleged violations arising from the Property's purportedly invalid RIPDES permit." The Appeals Court also disagreed with defendants claim that the Notice "did not make any effort to identify the person or persons responsible for each alleged violation" and said, "the Notice identifies the specific defendant whom the DEM treated as responsible for the issues addressed in the relevant notice letter."
 
    The Appeals Court ruled in part, ". . .we reverse the district court's dismissal for lack of subject matter jurisdiction with respect to plaintiffs' claims arising from the list of discharge violations and the invalid RIPDES permit. If on remand the plaintiffs press
other claims, not discussed here, which fail to meet this test, defendants may move to dismiss those claims. . . Nothing in this opinion precludes the defendants from raising other defenses under Fed. R. Civ. P. 12(b)(6). . ."
 
    Access the complete opinion (click here). [Water/CWA, #CA1]
 
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Shell Offshore, Inc. v. Greenpeace, Inc.

Mar 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35332. Appeal from the United States District Court for the District of Alaska. Shell Offshore, Inc. and Shell Gulf of Mexico, Inc. (together, Shell) hold multi-year oil and gas leases in the Outer Continental Shelf (OCS), located in the Arctic Ocean off the coast of Alaska. Greenpeace, Inc. (Greenpeace USA) has publicly undertaken a campaign to "stop Shell" from drilling in the Arctic. The district court granted Shell's motion for a preliminary injunction, which prohibited Greenpeace USA from coming within a specified distance of vessels involved in Shell's Arctic OCS exploration and from committing various unlawful and tortious acts against those vessels. Greenpeace USA argues that the action is not justiciable, that the district court lacked subject matter jurisdiction to issue its order, and that the court erred in its application of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), to the merits of Shell's motion.
    In a partially split decision, where one Justice concurred in part and dissented in part, the majority Appeals Court ruled, "We conclude that the action presents a justiciable case or controversy, that the district court had jurisdiction to issue its order, and that it did not abuse its discretion in doing so. Accordingly, we affirm."
 
    The majority explains that, "The district court considered the public interest in having Greenpeace USA monitor Shell's Arctic drilling activities. In fact, the court agreed with Greenpeace USA's OCSLA [Outer Continental Shelf Lands Act] argument, stating that 'OCSLA recognizes the important role that environmental organizations such as Greenpeace USA may play in legal proceedings regarding the development of the Outer Continental Shelf.' Shell Offshore, 864 F. Supp. 2d at 852. The court also acknowledged that the injunction could impact 'Greenpeace USA's otherwise legal activities.' Id. It responded by crafting a narrow injunctive order that prohibited only illegal and tortious conduct . . . We cannot say that this treatment of public interest factors constituted an abuse of discretion. The district court did not abuse its discretion in granting Shell's motion for a preliminary injunction, which is amply supported by the record. Consequently, the preliminary injunction order is affirmed."
 
    The dissenting Justice agreed with the justiciability and jurisdiction conclusions; but said, "I part ways with the majority, however, where it holds that Shell may impute the actions of other independent Greenpeace entities to Greenpeace USA in order to meet Shell's burden of proof. Because I cannot support the imposition of legal sanctions on Greenpeace USA based, in significant part, on the conduct of others that Greenpeace USA does not control, I respectfully dissent."
 
    Access the complete opinion and dissent (click here). [#Energy/OCS, #CA9]
 
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