May 13: In the U.S. Court of Appeals, Third Circuit, Case No. 06-4993. The Appeals Court explains that this is the third appeal in this long-running contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). After the second appeal was decided, defendant Mead moved for judgment for failure to state a claim or for lack of subject-matter jurisdiction. The District Court denied the motions, but certified a controlling question of law under 28 U.S.C. § 1292(b) raising the issue of whether the effect of Cooper Indus. v. Aviall Servs., Inc., 543 U.S. 157 (2004), is to deny subject-matter jurisdiction over plaintiff Beazer’s contribution claims under § 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1). Also implicated is the denial of Mead’s motion to dismiss for failure to state a claim under § 113(f)(1).
The Appeals Court ruled, "We conclude that the District Court has subject-matter jurisdiction. We will also affirm the denial of the motion for judgment on the pleadings and will remand for further proceedings."
In this on-going case, Mead filed this interlocutory appeal. After it was docketed and the briefs were filed, but before oral argument, the Supreme Court decided United States v. Atlantic Research Corp., 127 S. Ct. 2331 (June 11, 2007), holding that a “potentially responsible party” (PRP) may recover against another PRP for cleanup costs under § 107(a) [See WIMS 6/12/07]. Mead contends that because the § 107 claim was dismissed in 1996 by the District Court, Beazer’s only remaining means of recovery is under § 113(f)(1), a claim that is fatally flawed in light of Cooper. Mead argues that because Beazer has not “been sued under § 106 or § 107(a) . . . [it may not] obtain contribution under § 113(f)(1) from other liable parties.”
In its conclusion, the Appeals Court said, "We do not lightly invoke waiver, but as the Supreme Court has cautioned, '[t]here must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.' Ackermann v. United States, 340 U.S. 193, 198 (1950). This case has been ongoing since 1991. Mead’s liability under § 113(f)(1) was established by the time of the District Court’s orders in 2002 – well before this Court’s June 23, 2005, opinion in Beazer II. Allowing Mead to renew its argument at this late point in the litigation would seriously impair the finality of the rulings of this Court and the District Court. Mead must live by its long-standing and considered decision not to pursue its § 113(f) objection.
"We agree with the District Court that Mead waived its challenge to the applicability of § 113(f)(1) and the Court has subject-matter jurisdiction. Accordingly, we again remand this case to the District Court to hold an equitable allocation proceeding in accordance with Beazer II."
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Wednesday, May 14, 2008
Monday, May 12, 2008
Sierra Club v. Flowers (Army Corps)
May 9: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13297. Sierra Club brought the action against the Army Corps of Engineers (Corps) after the Corps granted Rinker Materials and other mining concerns (Miners) Clean Water Act (CWA) permits. The Miners sought to extract high-quality limestone from the “Lake Belt” area -- a stretch of 60,000 acres of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps. The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). The Miners intervened as defendants, and all parties moved for summary judgment. The district court granted the Appellees’ motion
and found that, for numerous reasons, the Miners’ permits were due to be vacated.
The Appeals Court said, "After reviewing the voluminous record, reading the parties’ briefs, and having the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps’s environmental analysis." A two Justice majority ruled further, "The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. . . In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing. . . The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts. Again, we offer no opinion as to whether the Corps complied with NEPA or the CWA during the permitting process. We instead remand to the district court to answer those questions in the first instance, applying the proper standard of review. The APA-CWA judgment, the APA-NEPA judgment, and the Remedies Order are vacated, and the case is remanded for further proceedings consistent with this opinion."
A concurring in part and dissenting in part opinion, the minority Justice said, "Although I agree with much of the majority’s opinion, I must respectfully dissent from its judgment. Specifically, I agree that we have jurisdiction, that the Endangered Species Act claim was mooted, and that the district court’s NEPA analysis was erroneous. But I would affirm the district court’s disposition of the Clean Water Act claim, as well as its remedial decisions. . . I believe the district court correctly determined that the Corps violated the Clean Water Act in the permitting process, I would affirm on that basis the district court’s judgment vacating the permits. . . Although the district court made some misstatements of law in its CWA analysis, I believe they are harmless error and that the record contains a sufficient basis to affirm the judgment. . ."
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and found that, for numerous reasons, the Miners’ permits were due to be vacated.
The Appeals Court said, "After reviewing the voluminous record, reading the parties’ briefs, and having the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps’s environmental analysis." A two Justice majority ruled further, "The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. . . In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing. . . The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts. Again, we offer no opinion as to whether the Corps complied with NEPA or the CWA during the permitting process. We instead remand to the district court to answer those questions in the first instance, applying the proper standard of review. The APA-CWA judgment, the APA-NEPA judgment, and the Remedies Order are vacated, and the case is remanded for further proceedings consistent with this opinion."
A concurring in part and dissenting in part opinion, the minority Justice said, "Although I agree with much of the majority’s opinion, I must respectfully dissent from its judgment. Specifically, I agree that we have jurisdiction, that the Endangered Species Act claim was mooted, and that the district court’s NEPA analysis was erroneous. But I would affirm the district court’s disposition of the Clean Water Act claim, as well as its remedial decisions. . . I believe the district court correctly determined that the Corps violated the Clean Water Act in the permitting process, I would affirm on that basis the district court’s judgment vacating the permits. . . Although the district court made some misstatements of law in its CWA analysis, I believe they are harmless error and that the record contains a sufficient basis to affirm the judgment. . ."
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Tuesday, May 6, 2008
OSI, Inc. v. U.S.
May 5: In the U.S. Court of Appeals, Eleventh Circuit, case No. 07-10941. As explained by the Appeals Court, OSI, Inc. (OSI) appealed, for the second time, the grant of summary judgment in favor of the Government on OSI’s claims relating to the Air Force’s use of certain land -- including, in part, land now owned by OSI -- as a landfill during the 1960s, 1970s, and 1980s. OSI brought tort claims under the Federal Tort Claims Act (FTCA), claims of cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and a citizen suit under the Resource Conservation Recovery Act (RCRA). The district court granted summary judgment in favor of the Government on all claims and the Appeals Court agreed and affirmed that decision.
The Appeals Court said, According to the Government, because there is an ongoing CERCLA remedial action taking place, CERCLA bars challenges (including a RCRA citizen suit) to the ongoing cleanup. Because we agree with the Government, we do not reach the merits of the summary judgment question. The Eleventh Circuit concluded, "The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim while the federal facility remedial action was ongoing. Because the remaining aspects of OSI’s appeal are without merit, the district court’s grant of summary judgment is affirmed."
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The Appeals Court said, According to the Government, because there is an ongoing CERCLA remedial action taking place, CERCLA bars challenges (including a RCRA citizen suit) to the ongoing cleanup. Because we agree with the Government, we do not reach the merits of the summary judgment question. The Eleventh Circuit concluded, "The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim while the federal facility remedial action was ongoing. Because the remaining aspects of OSI’s appeal are without merit, the district court’s grant of summary judgment is affirmed."
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Monday, May 5, 2008
Weavers Cove Energy v. RI Department of Environmental Management
May 2: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1235, consolidated with 07-1238. The cases involve key dredging permits in Massachusetts and Rhode Island According to the Appeals Court, Weaver’s Cove Energy, LLC (WCE) applied to the Rhode Island Department of Environmental Management (RIDEM) and the Massachusetts Department of Environmental Protection (MassDEP) for “certifications” that its proposed dredge-and-fill operations would comply with the Federal Clean Water Act (CWA). When a year had passed without the State agencies having issued final determinations one way or the other, WCE petitioned this court for review of their inaction, seeking a declaration that the States had “waived” their right to deny the requested certifications. The D.C Circuit said, "Instead, we must dismiss the petitions for want of a case or controversy under Article III of the Constitution of the United States."
The Appeals Court states that, under § 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), an applicant for any federal permit that “may result in any discharge into the navigable waters” of the United States -- such as a dredge-and-fill permit from the Army Corps -- “shall provide the ... permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions” of the Act. For the State to participate in the regulatory process, it must act expeditiously: “[I]f the State ... fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements ... shall be waived with respect to such Federal
application.”
Despite numerous claims and charges in defense of the State, the Appeals Court ruled, "We reach none of the States’ arguments, for we conclude sua sponte that WCE does not have standing to sue the States; the court therefore lacks jurisdiction over WCE’s petitions." The Appeals Court claims that WCE, in its standing defense, "does not claim to have been injured by it. On the contrary, WCE’s theory of the case is that it benefited from the agencies’ inaction; that is, the agencies, by failing to issue timely rulings on WCE’s applications, waived their rights to deny the certifications WCE seeks." The D.C. Circuit concludes, "In sum, WCE has not shown an injury caused by the state agencies that likely would be redressed by the declaration it seeks. We are therefore without jurisdiction over its petitions for review, which are, accordingly, dismissed."
Access the complete opinion (click here).
The Appeals Court states that, under § 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), an applicant for any federal permit that “may result in any discharge into the navigable waters” of the United States -- such as a dredge-and-fill permit from the Army Corps -- “shall provide the ... permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions” of the Act. For the State to participate in the regulatory process, it must act expeditiously: “[I]f the State ... fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements ... shall be waived with respect to such Federal
application.”
Despite numerous claims and charges in defense of the State, the Appeals Court ruled, "We reach none of the States’ arguments, for we conclude sua sponte that WCE does not have standing to sue the States; the court therefore lacks jurisdiction over WCE’s petitions." The Appeals Court claims that WCE, in its standing defense, "does not claim to have been injured by it. On the contrary, WCE’s theory of the case is that it benefited from the agencies’ inaction; that is, the agencies, by failing to issue timely rulings on WCE’s applications, waived their rights to deny the certifications WCE seeks." The D.C. Circuit concludes, "In sum, WCE has not shown an injury caused by the state agencies that likely would be redressed by the declaration it seeks. We are therefore without jurisdiction over its petitions for review, which are, accordingly, dismissed."
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Islander East Pipeline Co. v. McCarthy
May 2: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5764. The Appeals Court denied a petition for review by Islander East Pipeline Company, LLC, who needed a water quality certification from the State of Connecticut Department of Environmental Protection (CTDEP) in order to secure Federal approval to build a natural gas pipeline across Long Island Sound. Islander East contended that the State's second denial of the certification was arbitrary and capricious.
The Appeals Court notes, citing previous decisions, that while the Natural Gas Act (NGA) generally preempts local permit and licensing requirements, the Clean Water and Coastal Zone Management Acts are notable in effecting a Federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the Federal government become the federal standard for that state. Under the Clean Water Act, state water quality standards approved by U.S. EPA becomes ‘the water quality standard for the applicable waters of that State. Consistent with that scheme, the two Acts require applicants for Federal permits to provide Federal licensing agencies such as the FERC [Federal Energy Regulatory Commission] with certifications from affected states confirming compliance with local standards.
In a 2-1 decision, the Appeals Court concluded, "To summarize, Islander East’s proposed installation of a natural gas pipeline from Connecticut to New York across Long Island Sound must comport with various statutes, including the Clean Water Act. The Clean Water Act requires Islander East to procure from the CTDEP a certification that the proposed pipeline will comply with state water quality standards. Record evidence supports the CTDEP’s finding that various techniques to be employed by Islander East in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. On such a record, we cannot conclude that the CTDEP’s decision to deny Islander East a certificate of compliance was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' Islander East’s petition for review is denied."
Access the complete opinion (click here).
The Appeals Court notes, citing previous decisions, that while the Natural Gas Act (NGA) generally preempts local permit and licensing requirements, the Clean Water and Coastal Zone Management Acts are notable in effecting a Federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the Federal government become the federal standard for that state. Under the Clean Water Act, state water quality standards approved by U.S. EPA becomes ‘the water quality standard for the applicable waters of that State. Consistent with that scheme, the two Acts require applicants for Federal permits to provide Federal licensing agencies such as the FERC [Federal Energy Regulatory Commission] with certifications from affected states confirming compliance with local standards.
In a 2-1 decision, the Appeals Court concluded, "To summarize, Islander East’s proposed installation of a natural gas pipeline from Connecticut to New York across Long Island Sound must comport with various statutes, including the Clean Water Act. The Clean Water Act requires Islander East to procure from the CTDEP a certification that the proposed pipeline will comply with state water quality standards. Record evidence supports the CTDEP’s finding that various techniques to be employed by Islander East in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. On such a record, we cannot conclude that the CTDEP’s decision to deny Islander East a certificate of compliance was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' Islander East’s petition for review is denied."
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Wednesday, April 30, 2008
Michigan Gambling Opposition v. Kempthorne
Apr 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5092. As explained by the Appeals Court, in 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Allegan County, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Tribe), to construct and operate a Class III casino. The decision followed Federal recognition of the Tribe in 1998.
A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.
As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.
MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.
The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."
Access the complete opinion (click here).
A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.
As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.
MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.
The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."
Access the complete opinion (click here).
Monday, April 28, 2008
National Wildlife Federation. v. National Marine Fisheries Service
Apr 24: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35011 & 06-35019. According to the Appeals Court the consolidated appeals involve another round in the complex and longrunning battle in the Pacific Northwest over salmon and steelhead listed under the Endangered Species Act (ESA).
The action brought by the National Wildlife Federation and other plaintiffs (collectively NWF), deals with a November 2004 Biological Opinion (2004 BiOp) addressing the effects of proposed operations of Federal Columbia River Power System (FCRPS or Columbia River System) dams and related facilities on listed fish in the lower Columbia and Snake Rivers.
The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NMFS, now NOAA Fisheries), found that proposed FCRPS operations for 2004 through 2014 would not jeopardize the thirteen area salmonid species that are listed as threatened or endangered, nor adversely modify their critical habitat. NMFS and the State of Idaho (collectively NMFS) appeal from the district court’s determination that the 2004 BiOp was structurally flawed and from certain portions of its remand order. The Ninth Circuit affirmed the district court determination and said, "Its rejection of the 2004 BiOp was entirely appropriate, and it did not abuse its discretion in entering the remand order."
Access the complete opinion (click here).
The action brought by the National Wildlife Federation and other plaintiffs (collectively NWF), deals with a November 2004 Biological Opinion (2004 BiOp) addressing the effects of proposed operations of Federal Columbia River Power System (FCRPS or Columbia River System) dams and related facilities on listed fish in the lower Columbia and Snake Rivers.
The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NMFS, now NOAA Fisheries), found that proposed FCRPS operations for 2004 through 2014 would not jeopardize the thirteen area salmonid species that are listed as threatened or endangered, nor adversely modify their critical habitat. NMFS and the State of Idaho (collectively NMFS) appeal from the district court’s determination that the 2004 BiOp was structurally flawed and from certain portions of its remand order. The Ninth Circuit affirmed the district court determination and said, "Its rejection of the 2004 BiOp was entirely appropriate, and it did not abuse its discretion in entering the remand order."
Access the complete opinion (click here).
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