WIMS Environmental News Blogs

 

WIMS Environmental News Blogs   NOW THAT WE ARE ON OUR HOLIDAY BREAK IT'S A GREAT TIME TO CHECK OUT OUR ENVIRONMENTAL NEWS BLOGS

<> White House News

<> Congressional News

<> Federal Agencies News

<> Industry News

<> Enviro Group News

<> Air Quality News

<> Hazardous Waste News

<> Transportation News

We'll be back on Monday, January 5, 2015.

Aransas Project v. Bryan Shaw, et al

<> Aransas Project v. Bryan Shaw, et al - 12/16/14. In the U.S. Court of Appeals, Fifth Circuit, Case No. 13-40317. Petition for rehearing en banc the case involving the deaths of 23 endangered whooping cranes. 4 judges voted in favor of rehearing and 11 judges voted against rehearing. The petition was denied and a joint dissent was filed indicating, "If uncorrected by this Court en banc or the Supreme Court, this decision, and others like it, sends a clear message to litigants: if you don't like the factual findings of a district court, the doors of our Court are wide open to endless retrials on appeal. . . The causal connection between TCEQ's failure to maintain freshwater inflows and a "take" of endangered whooping cranes is straightforward.

Conservation Congress v. Finley

<> Conservation Congress v. Finley - 12/16/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-16916. The court again considers the fate of the threatened Northern Spotted Owl, this time in the context of a lumber thinning and fuel reduction project in northern California. Conservation Congress contends violations of various national environmental laws. The district court granted summary judgment in favor of the government, and the Appeals Court affirmed.

Associated Builders and Contractors v. Patricia Shiu

<> Associated Builders and Contractors v. Patricia Shiu – 12/12/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-5076. Associated Builders, representing federal contractors challenge regulations under the Rehabilitation Act of 1973, arguing that they exceed the Department's statutory authority and are arbitrary and capricious. The Appeals Court affirmed the district court rejection on both challenges.

Martin K. Eby Construction v. OneBeacon Insurance

<> Martin K. Eby Construction v. OneBeacon Insurance - 12/9/14. In the U.S. Court of Appeals, Tenth Circuit, Case No. 13-3076. In a dispute over liabilities claims for a leaking pipeline, the Appeals Court upheld a district court decision and said ". . .we can enforce the indemnity promise only if it was expressly stated and conspicuous. This indemnity clause was not conspicuous; thus, it is unenforceable. . . Accordingly, Kellogg is not entitled to indemnity from Eby or insurance coverage from Travelers, and Eby and Travelers were entitled to summary judgment.

 

Check out the WIMS Daily Environmental HotSheet for complete environment, energy and climate change news every day. (click here)

Supreme Court Denies Youth Climate Advocates Public Trust Climate Suit

<> Supreme Court Denies Youth Climate Advocates Public Trust Climate Suit - The U.S. Supreme Court refused to hear a case (No. 14-405) brought by representatives of Our Children's Trust seeking  protection of essential natural resources for the benefit of future generations under the public trust doctrine.

WildEarth Guardians v. McCarthy

<> WildEarth Guardians v. McCarthy - 12/1/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-16797. The panel affirmed the district court's dismissal for lack of subject matter jurisdiction of plaintiff environmental groups' Clear Air Act citizen-suit action seeking to require the Environmental Protection Agency's Administrator to issue revised regulations governing ozone pollution.

Midland Power Cooperative v. FERC

<> Midland Power Cooperative v. FERC - 12/2/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-1184. The Federal Energy Regulatory Commission issued an order directing Midland Power Cooperative, an Iowa electric utility, to "reconnect" to a wind generator within its territory. It denied Midland's petition for rehearing. Midland and joint petitioner National Rural Electric Cooperative Association ("NRECA") sought review. The Appeals Court ruled it did not have jurisdiction.

Supreme Court Will Hear Challenges To EPA MATS Rule

<> Supreme Court Will Hear Challenges To EPA MATS Rule – [See SCOTUS blog discussion] The Court accepted three new petitions, but consolidated them for one hour of argument and for decision.  The cases are Michigan v. EPA, Utility Air Regulatory Group v. EPA, and National Mining Association v. EPA. The Court Says Challenge Is Limited - The petitions for writs of certiorari are granted limited to the following question: "Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities." Statement by Attorney General Schuette on SCOTUS Decision to Review Michigan v. EPA Case EPA's Mercury and Air Toxics Standards (MATS) website

USA v. Duane Montgomery

<> USA v. Duane Montgomery - 11/24/14. In the U.S. Court of Appeals, Sixth Circuit, Case No. 13-2596. Appealed from the Eastern District of Michigan at Detroit. Defendant Duane Montgomery challenges the district court's imposition of an above-Guidelines sentence after a jury convicted him of fraudulently obtaining funds set aside for victims of the Deepwater Horizon oil spill (i.e. a fake $2.58 million claim). The Appeals Court affirmed the district court ruling.

Gary Vander Boegh v. EnergySolutions, Inc.

<> Gary Vander Boegh v. EnergySolutions, Inc. - 11/18/14. In the U.S. Court of Appeals, Sixth Circuit, Case No. 14-5047. Appeal from the United States District Court for the Western District of Kentucky at Paducah. The Appeals Court indicated, "Gary Vander Boegh applied for a job with EnergySolutions. He alleges that the prospective employer did not hire him because he engaged in protected whistleblower activity at a prior job. The district court held that Vander Boegh lacked statutory standing as an applicant―not employee―and granted summary judgment in favor of EnergySolutions. Because we agree that Vander Boegh lacks statutory standing under the Energy Reorganization Act and False Claims Act, and we lack subject-matter jurisdiction over the remaining claims, we affirm.

Alliance for the Wild Rockies v. USDA

<> Alliance for the Wild Rockies v. USDA - 11/20/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-35253. The panel affirmed in part and reversed in part the district court's judgment in favor of federal and Montana state agencies and officials in an action brought by Alliance for the Wild Rockies, challenging the decision to permit recurring, low altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone.

Cuomo v. Crane Co.

<> Cuomo v. Crane Co. - 11/13/14. In the U.S. Court of Appeals, Second Circuit, Case No. 13-4510. Crane argues that the district court erred by requiring evidence that the Navy either affirmatively proscribed or dictated the content of asbestos warnings as the basis of Crane's federal contractor defense. The Panel said, "Because we agree that Crane has asserted a colorable federal contractor defense despite the absence of such evidence, we reverse."

Shell Gulf of Mexico v. Center for Biological Diversity, et al.

<> Shell Gulf of Mexico v. Center for Biological Diversity, et al. - 11/12/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-35835. The panel reversed the district court's order denying environmental groups' motion to dismiss, due to lack of a case or controversy under Article III of the U.S. Constitution, a Declaratory Judgment Act lawsuit filed by Shell Gulf of Mexico, Inc., seeking a declaration that the federal Bureau of Safety and Environmental Enforcement's approval of two oil spill response plans, required by the Oil Pollution Act, for Alaska's Beaufort and Chukchi Seas did not violate the Administrative Procedure Act. Federal Court Tosses Shell Oil Company's Preemptive Suit Against Environmental Groups - The U.S. Court of Appeals for the Ninth Circuit rejected today a Shell Gulf of Mexico Inc. and Shell Offshore Inc. lawsuit that attempted to prevent environmental groups from challenging. . .

Tamosaitis v. URS, Inc.

<> Tamosaitis v. URS, Inc. - 11/7/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35924. The panel affirmed the district court's dismissal of the U.S. Department of Energy from the suit, affirmed the grant of summary judgment in URS Corp.'s favor, and reversed the grant of summary judgment for URS Energy & Construction, Inc. in an action brought by a URS Energy employee alleging violations of the Energy Reorganization Act whistleblower protection provision, concerning cleanup efforts of nuclear waste at the Hanford Nuclear Site in Washington state.

State of Alaska v. Department of Agriculture

<> State of Alaska v. Department of Agriculture - 11/7/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-5147, Consolidated with 13-5150, 13-5151. Regarding the Roadless Rule which  prohibited road construction, road reconstruction, and timber harvesting on millions of acres of national forest lands, including vast swaths of national forest land in Alaska. The Panel ruled: "This case has an unusual procedural background, and our holding is accordingly narrow. We reverse the judgment of the District Court dismissing Alaska's complaint as untimely, and we remand to the District Court for consideration of Alaska's challenges to the Roadless Rule."

In Re: Deepwater Horizon

<> In Re: Deepwater Horizon - 11/5/14. In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-30883. B.P. Exploration & Production, Inc. (BP) and Anadarko Petroleum Corporation (Anadarko) filed petitions for en banc rehearing affirming the lower court's grant of partial summary judgment. The full Panel considered the arguments and said "Appellants' arguments fail to persuade us that we erred or need to alter our decision to affirm the district court's grant of partial summary judgment."

American Whitewater v. Tidwell

<> American Whitewater v. Tidwell - 11/5/14. In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-1960, 13-2016, & 13-2017. The case involves a 57 miles stretch of the Chattooga River, 432 acres of adjacent land designated under the Wild and Scenic Rivers Act (WSRA). American Whitewater, Plaintiff-Appellant, and others argue that the Forest Service should not allow "floating" on some or all portions of the river under the WSRA. The district court rejected the challenges and the Panel agreed with the district court's well-reasoned opinion and affirmed.

NRDC v. USDOT

NRDC v. USDOT - 10/30/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-56467. The Panel affirmed the district court's summary judgment in favor of federal and state defendants in an action brought by environmental groups alleging that the defendants violated the Clean Air Act and the National Environmental Policy Act by failing to properly evaluate and disclose the potential environmental impact of a planned expressway connecting the Ports of Los Angeles and Long Beach to the I-405 freeway.

National Oilseed Processors Assoc. v. OSHA

National Oilseed Processors Assoc. v. OSHA - 10/24/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1228. Petitioners (and intervenor for petitioners), whose members include numerous businesses that handle and process grain and other agricultural products, seek vacatur of the Final Rule as it applies to combustible dust. The Panel denied the petition for review.

Appeals Court Decision On Csapr A Major Victory For Health Of Children, Elderly And Asthma Sufferers

Appeals Court Decision On Csapr A Major Victory For Health Of Children, Elderly And Asthma Sufferers – 10/23/14. The U.S. Court of Appeals for the D.C. Circuit lifted its hold on the Environmental Protection Agency's (EPA) Cross State Air Pollution Rule (CSAPR), which will protect Americans from dangerous air pollution that crosses state lines from coal-fired power plants.

Headwaters Resources v. Illinois Union Insurance Co.

Headwaters Resources v. Illinois Union Insurance Co. - 10/20/14. In the U.S. Court of Appeals, Tenth Circuit, Case No. 13-4035. Under several applicable policies, Headwaters sought reimbursement for its litigation costs arising from a case brought by landowners in Virginia, alleging that fly ash used in the construction of a golf course caused air and water pollution that devalued their homes and created health risks. The Panel ruled that each of the pollution exclusions is unambiguous, and affirmed the district court's grant of summary judgment in favor of the insurance companies.

WildEarth Guardians v. EPA

WildEarth Guardians v. EPA - 10/21/14. In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 12-9596, 13-9502, 13-9506, 13-9507, 13-9508, 13-9509, 13-9510. Environmental groups filed the suit under the Clean Air Act challenging a regional cap and trade program in New Mexico, Utah, and Wyoming regulating sulfur-dioxide emissions over the Colorado Plateau. The Panel  concluded that the EPA's decision was neither arbitrary nor capricious and denied the petitions for review.

• Court Approves Flawed EPA Air Pollution Plan for "Scenic Landscape" States - Groups say the program was supposed to strengthen air quality protections for the Colorado Plateau but instead weakens pollution control standards

Erica Y. Bryant, et al. v. USA

Erica Y. Bryant, et al. v. USA - 10/14/14. In the U.S. Court of Appeals, Eleventh Circuit, Case No. 12-15424. The appeal arises out of a multi-district litigation, in which multiple plaintiffs and their family members allege that they experienced various health problems after being exposed to toxic substances in the drinking water while living at Camp Lejeune, a military base in North Carolina. The United States moved to dismiss the case, arguing that the North Carolina statute of repose, the District Court disagreed, concluding that a provision of CERCLA preempted North Carolina's statute of repose. The Appeals Court ruled "CERCLA does not preempt North Carolina's statute of repose. . . and it does not contain an exception for latent diseases."

Shieldalloy Metallurgical Corp v. NRC

Shieldalloy Metallurgical Corp v. NRC - 10/14/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-1259. Shieldalloy Metallurgical Corporation petitions for review of a Nuclear Regulatory Commission order reinstating the transfer of regulatory authority to the State of New Jersey under the Atomic Energy Act. The Panel denied the company's petition and said, "We conclude that the NRC has rationally addressed these concerns when it provided a textual analysis of 10 C.F.R. § 20.1403 and explained how New Jersey's regulatory regime is adequate and compatible with the NRC's regulatory program."

Aaron McCoy v. Iberdrola Renewables, Inc.

Aaron McCoy v. Iberdrola Renewables, Inc. - 10/7/14. In the U.S. Court of Appeals, Seventh Circuit, Case No. 13-3350. The petition for rehearing argues that the court misinterpreted Illinois law in affirming the district court's rejection of Outland's proposed counterclaim for tortious interference with prospective economic advantage. Outland's petition for rehearing is denied and Gamesa is entitled to recover the sum of Fifty Thousand Dollars ($50,000.00) from Thomas Melone, Outland Renewable Energy, LLC (now known as Renovo Renewable Energy, LLC).

Joseph Adinolfe, et al v. United Technologies Corporation

Joseph Adinolfe, et al v. United Technologies Corporation - 10/6/14. In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 12-16396, 12-16397. The consolidated appeals concern the dismissal with prejudice of a class action lawsuit brought by hundreds of parties against United Technologies Corporation d.b.a. Pratt & Whitney, an aircraft and rocket engine manufacturer, for damages resulting from purported groundwater contamination. The Panel reversed and remanded.

Sturgeon v. Masica

Sturgeon v. Masica - 10/6/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-36165. The panel affirmed the district court's summary judgment in favor of federal appellees, and vacated the judgment against intervenor/appellant State of Alaska, due to its lack of standing, in an action brought by John Sturgeon challenging the National Park Service's enforcement of a regulation banning the operation of hovercrafts on the Nation River.

Ruby Hiser v. XTO Energy, Inc.

Ruby Hiser  v.  XTO Energy, Inc. - 10/3/14. In the U.S. Court of Appeals, Eighth Circuit, Case No. 13-3443. Ruby Hiser won a jury verdict against XTO Energy, Inc. XTO moved for a new trial, alleging that extraneous, prejudicial information [related to fracking]] was brought to the jury's attention. The district court denied the motion and declined to subpoena the jury foreperson. XTO appeals. The Appeals Court affirmed the district court ruling.

 

Environmental Information Specialists -- WIMS Daily Environmental HotSheet -- eNewsUSA blog -- EcoBizPort.com

 

In Re: Urethane Antitrust Litigation

In Re: Urethane Antitrust Litigation - 9/29/14. In the U.S. Court of Appeals, Tenth Circuit, Case No. 13-3215, involving Dow Chemical Company v. Seegott Holdings, Inc. The Panel concludes, "We affirm, rejecting Dow's challenges to the order for class certification, the refusal to decertify the class, the admission of Dr. McClave's testimony, the sufficiency of the evidence, and the award of damages."

Smith Lake Improvement and Stakeholders Association v. FERC, et al.

Smith Lake Improvement and Stakeholders Association v. FERC, et al. - In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-1074. The Panel said, "Petitioner Smith Lake Improvement and Stakeholder Association asserts various claims against Respondents FERC, the Secretary of Interior, and the Secretary of Agriculture relating to the Commission's issuance of a license order. Intervenor Alabama Power moved to dismiss the Association's petition for review on the ground that we lack jurisdiction because the appeal was untimely. We agree and grant the motion."

USA v. NCR Corporation

USA v. NCR Corporation - 9/25/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-2441 & 13-2447. Two decisions related to the cleanup of the Lower Fox River and Green Bay Su-perfund Site in northeastern Wisconsin. The Panel said, "We have deconsolidated the appeals of two PRPs, and we will resolve only the appeals of NCR and Glatfelter in this opinion. . . The district court's summary judgment rulings on the propriety of the remedy and Glatfelter's liability are AFFIRMED. The permanent injunction entered by the district court is VACATED. The declaratory judgment entered by the district court is AFFIRMED as to Glatfelter, but VACATED as to NCR, and Case No. 13-2441 is REMANDED for the district court to reconsider NCR's divisibility defense consistent with this opinion. Circuit Rule 36 shall not apply on remand."

Friends of the Wild Swan v. Weber

Friends of the Wild Swan v. Weber - 9/24/14. In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 13-35817 & 13-35819. The panel affirmed the district court's denial of two preliminary injunctions in plaintiff environmental groups' challenges to the United States Forest Service's approval of two neighboring logging projects in Montana's Flathead National Forest.

The Boeing Company v. Movassaghi

The Boeing Company v. Movassaghi - 9/19/14. In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-55903. The Panel ruled, "We affirm the district court's decision that a California law governing cleanup of a federal nuclear site violates the doctrine of intergovernmental immunity."

Electric Power Supply Asso. v. FERC

Full D.C. Circuit Denies Petitions to Reconsider Divided Panel Decision Overturning Vital Clean Energy Protections - In a setback for efforts to ensure clean energy resources are properly incentivized in the nation's electricity markets, the U.S. Court of Appeals for the D.C. Circuit declined, today, to grant rehearing of its May 23, 2014 divided 2-1 panel decision vacating Order 745 of the Federal Energy Regulatory Commission (FERC).

• Electric Power Supply Asso. v. FERC - 5/23/14. In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 11-1486, Consolidated with 11-1489, 12-1088, 12-1091, 12-1093.

Environmental Information Specialists -- WIMS Daily Environmental HotSheet -- eNewsUSA blog -- EcoBizPort.com

 

New York State Elec. & Gas Corp. v. First Energy Corp.

New York State Elec. & Gas Corp. v. First Energy Corp. - 9/11/14. In the U.S. Court of Appeals, Second Circuit, Case Nos. 11-4143, 11-4146, 11-4149. The district court held the corporate successor to plaintiff's former parent company liable for a portion of the costs on a veil-piercing theory, and it held the current owner of one site liable for a portion of the costs as well. The Appeals Court affirmed and vacated in part, but said, "We find that the district court did not abuse its discretion in allocating the response costs.  The district court reasonably took into account the fact that I.D. Booth would benefit from the increased property value after remediation and that its negotiating tactics led to significant delays in remediating the property."

 

Environmental Information Specialists -- WIMS Daily Environmental HotSheet -- eNewsUSA blog -- EcoBizPort.com