Medina County Environmental v. Surface Transportation Board

Apr 6: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-60108. The Appeals Court explains that the petitioner, the Medina County Environmental Action Association (MCEAA), sought review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas, without meeting the prior approval requirements imposed by 49 U.S.C. § 10901.

 

    MCEAA petitioned the court directly for review of the Decision. At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS), complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was "not likely to jeopardize the continued existence of any endangered species" before approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA challenges the respondents' finding that the proposed rail and its "cumulative effects" are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County.

 

    The Appeals Court denied MCEAA's petition for review of the Decision and also denied a separate motion to supplement the administrative record. The Appeals Court ruled, "The information that MCEAA urges from the proffered documents can be reduced to a simple proposition: When the golden-cheeked warbler's habitat is marginalized or destroyed by what MCEAA refers to as the 'edge effects' of development -- for example, land clearing, noise, lighting, and vibration -- the warbler will move, if possible, to an area where the habitat is better. All of the survey evidence available to the STB and FWS, however, showed that there were no listed species in the proposed rail and Phase One area -- rendering any analysis of whether the rail line and quarry activities would drive them out of that area superfluous.

 

    "Furthermore, the EIS documents discussed the quality and extent of potential habitat in the proposed rail and Phase One areas and gave extensive consideration to how construction and operations could proceed while best preserving the small amount of 'low quality' habitat present in the Phase One area. The documents with which MCEAA proposes to supplement the administrative record do not contain information potentially adverse to the Decision and do not set out additional factors that the STB and FWS failed to consider. Accordingly, we deny the motion to supplement the administrative record."

 

    Access the complete opinion (click here).

Ackerson v. Bean Dredging LLC

Nov 25: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-30272. In this multi-party case known as the Katrina Canal Breaches Litigation, appellants sued the United States and thirty-two defendants who dredged the Mississippi River Gulf Outlet to recover damages sustained during Hurricane Katrina. The district court dismissed the claims against the dredgers because it determined that the defendants acted pursuant to contracts with the United States government under authority granted by an act of Congress. The appellants argue that the district court improperly: (1) dismissed their claims; (2) refused to allow them to amend their complaint; (3) refused to allow them to conduct discovery; and (4) entered judgment in favor of those defendants whose actions had been stayed after they filed petitions under the Limitation of Liability Act.The Appeals Court affirmed the district court decision.

While admitting that the district court did commit a procedural error, the Appeals Court ruled, "A district court’s failure to comply with formal procedural requirements is a ground for reversing a judgment when “the failure substantially prejudiced one of the parties.” Here, the limitation actions and the merits actions were before the same district court. Because the district court could cure the procedural defect merely by entering a stay in the limitation actions and then entering judgment for the Limitation Defendants in the merits action, the Plaintiffs would be in the same position if the district court followed the proper procedure. The Plaintiffs have not identified any substantial prejudice arising out of the district court’s procedural error. Thus, we affirm the entry of judgment in favor of the Limitation Defendants.

"Because we hold that the Contractor Defendants are entitled to government-contractor immunity under Yearsley and that the Plaintiffs’ other claims are without merit or are harmless error, we affirm the district court’s dismissal and deny the motion to dismiss the appeal as moot."

Access the complete opinion (click here).

Comer v. Murphy Oil USA

Oct 16: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-60756. This case represents another major decision regarding citizen enforcement, utilizing common-law actions and seeking damages resulting from corporate greenhouse gas emissions. The case follows another recent related decision in State of Connecticut v. American Electric Power Co. Inc. issued on September 21, 2009, by the U.S. Court of Appeals, Second Circuit [See WIMS 9/22/09].

As explained by the Appeals Court, the plaintiffs, residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.

The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs invoked the district court’s subject-matter jurisdiction based on diversity of citizenship. The plaintiffs do not assert any federal or public law actions and do not seek injunctive relief.

Defendants moved to dismiss plaintiffs’ claims on the grounds that the plaintiffs lack standing to assert their claims and that their claims present "nonjusticiable political questions." The district court granted the motion and dismissed the claims. The plaintiffs timely appealed.

The Appeals Court ruled, "For the reasons discussed herein, we conclude that the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims present nonjusticiable political questions; but we conclude that their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons. Accordingly, we reverse the district court’s judgment, dismiss the plaintiffs’ suit in part, and remand the case to the district court for further proceedings."

The Appeals Court explains that the district court began its analysis of the political question doctrine by stating “that the problem [in this case] is one in which this court is simply ill-equipped or unequipped with the power that it has to address these issues.” Describing this suit as a “debate” about global warming. The district court judge said he should not be forced "to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is simply nonjudicial."

In its conclusion the Appeals Court said, "The plaintiffs have pleaded sufficient facts to demonstrate standing for their public and private nuisance, trespass, and negligence claims. We decline to find standing for the unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims and dismiss these claims. We find that the plaintiffs’ remaining claims are justiciable and do not present a political question. We do not hazard, at this early procedural stage, an Erie guess into whether these claims actually state all the elements of a claim under Mississippi tort law, e.g., whether the alleged chain of causation satisfies the proximate cause requirement under Mississippi state common law; we leave this analysis to the district court in the first instance. Thus, for the foregoing reasons, we reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion."

On attorney, Paul Mollica, with the law firm of Meites, Mulder, Mollica & Glink in Chicago commented on the company blog that, "The headline for this case ought to read: 'Fifth Circuit More Activist Than San-Francisco-Based Court." A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.'" Mollica concludes his comments saying, "One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead."

The blog, Global Environmental Law posted a comment on the case saying, "The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina."

Access the complete 36-page opinion (click here). Access the complete blog post by Paul Mollica (click here). Access the complete Global Environmental Law blog post (click here).

Galveston-Houston Association For Smog Prevention v. U.S. EPA

Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 06-61030. Petitioner Galveston-Houston Association for Smog Prevention (GHASP) sought a review of the U.S. EPA's final rulemaking action approving the Mid-Course Review State Implementation Plan (MCR SIP) submitted by the State of Texas for the Houston-Galveston-Brazoria Severe Ozone Nonattainment Area (HGB area). Texas submitted the MCR SIP to satisfy one of the enforceable commitments contained in a previously approved State Implementation Plan (SIP) for the HGB area. GHASP argues that: (1) EPA acted arbitrarily and capriciously in approving the MCR SIP because it did not demonstrate attainment of specified emissions reductions; (2) EPA acted arbitrarily and capriciously when it relied on "weight of evidence" analysis to excuse modeled nonattainment; and (3) by approving the MCR SIP, the EPA violated the non-interference or anti-backsliding provision of the Clean Air Act.

The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.

"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."

Access the complete opinion (click here).

CleanCOALition v. TXU Power

Jul 21: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-50685. According to the Fifth Circuit, the case is one of first impression and involves the scope of citizen-suit jurisdiction under the Clean Air Act (CAA). Plaintiffs-Appellants filed suit to enjoin Defendants-Appellees from constructing a pulverized coalfired power plant in their community, alleging various violations of the CAA preconstruction permit process. The district court dismissed the case on the ground that, "inter alia, neither of the asserted bases for subject matter jurisdiction, §§ 7604(a)(1) and 7604(a)(3), provides for jurisdiction in this case." The Appeals Court affirmed the judgment of the district court.

The Appeals Court concluded, "The district court held that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so. Instead, the district court interpreted that section as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever. We agree with the district court’s interpretation. Appellants interpret the phrase 'without a permit' to mean 'without a permit that complies with the CAA.' However, we decline to rewrite the plain language of the statute. Here, not only has TXU applied for a permit, it has since successfully obtained one, though still subject to state judicial review. Thus, it can hardly be said -- as Appellants must in order for §7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility 'without a permit.' . . . In short, we agree with the district court that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."

Access the complete opinion (click here).