U.S. v. Tankersley

Aug 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-30334. In this environmental terrorism case, Kendall Tankersley appealed a 41-month sentence imposed following her guilty plea to conspiracy to commit arson and destruction of an energy facility in violation of 18 U.S.C. § 371, aiding and abetting attempted arson in violation of 18 U.S.C. §§ 2 and 844(i), and aiding and abetting arson in violation of 18 U.S.C. The district court imposed a sentencing enhancement for the commission of a “federal crime of terrorism,” pursuant to United States Sentencing Guidelines (U.S.S.G. or Sentencing Guidelines) § 3A1.4 (2000), against several of Tankersley’s co-defendants who targeted government property. The district court did not impose this enhancement on Tankersley because she targeted only private property. It did, however, impose a twelve-level upward departure pursuant to U.S.S.G. § 5K2.0, which had the effect of making her base offense level the same as if she had been subject to the terrorism enhancement. The Appeals Court affirmed the ruling of the district court.

From 1996 through 2001, activist groups known publicly as the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF) committed arson and other crimes against government and private entities in several Western states. The groups’ membership changed over the lifetime of the conspiracy but included as many as sixteen conspirators. Tankersley actively participated in both an attempted and a subsequently completed arson that destroyed the headquarters building of U.S. Forest Industries, Inc., a private timber company located in Medford, Oregon.

In its ruling the Appeals Court said, "The district court sentenced ten individuals involved in this conspiracy. . . The district court fully considered Tankersley’s subsequent behavior, and the court’s expectations that Tankersley, once having completed her sentence, will hopefully lead a productive, crimefree life. Nevertheless, the district court could not ignore the grave nature and aggravated circumstances of Tankersley’s offense, the enormous destruction it caused, and the intent to harm and intimidate entire communities. The district court’s sentence was well-reasoned and properly based on the § 3553(a) factors. We therefore conclude Tankersley’s 41-month sentence is reasonable."

Access the complete opinion (click here).

TSG Inc. v. U.S. EPA

Aug 8: In the U.S. Court of Appeals, Third Circuit, Case No. 07-1116 . TSG, Inc. (TSG) filed a petition to challenge the validity of U.S. EPA's Applicability Determination, which found that TSG was a fabric “finishing operation” under Subpart OOOO of the National Emission Standards for Hazardous Air Pollutants (NESHAP). TSG argues that its fabric treating process should not be required to abide by the finishing operation standards and should instead qualify as a coating operation under the regulations. The Appeals Court concluded that the EPA did not "clearly err" in its determination that TSG was a finishing operation and denied the petition.

In TSG’s process, stain-repellant chemicals are diluted in a solvent, trichloroethene (TCE), which is then sprayed onto the fabric as it passes through the spraying machinery. This method allows TSG to process many different fabric weights, widths, colors, and constructions, as the solvent is generally gentler on a wider variety of fabrics than is a water-based system. As TSG characterizes it, the solvent acts as a “carrier” for the stain-repellant chemicals as they are sprayed onto the fabric and then evaporates when the fabric passes through the heating and drying machinery. A solvent recovery system then captures the evaporated solvent for reuse.

As a key part of its ruling, the Third Circuit said, "We agree with the EPA’s determination that '[t]he solvent that TSG uses to dilute stain repellent finishes is a transfer agent that is added to the finish as an auxiliary to improve the finishing process, and therefore, is a finishing material.' As the regulation states, the definition of finishing materials 'includ[es] auxiliaries,' so long as they are 'added to the finish to improve the finishing process.' 40 C.F.R. § 63.4371."

Access the complete opinion (click here).

Navajo Nation v. U.S. Forest Service

Aug 8: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-15371, 06-15436, 06-15455. In these consolidated cases, involving claims of violations of the Religious Freedom Restoration Act (RFRA), with numerous parties, the en banc Appeals Court issued a split decision with three Justices issuing a lengthy dissent. As summarized in the dissenting opinion, "The en banc majority today holds that using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (RFRA). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Protection Act (NEPA) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent."

The majority defines the case saying, American Indians ask us to prohibit the Federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities.

The majority says, "We are called upon to decide whether this government approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (RFRA) . . ., the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds."

Access the complete opinion and dissent (click here).

Center for Biological Diversity v. Marina Point Development

Aug 6: In the Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243, & 07-56574. Marina Point Development Associates, et al appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appeals the district court’s order awarding attorney fees to the Center and the district court’s contempt order. The Appeals Court vacated the district court’s judgment on the merits and instruct it to dismiss for lack of jurisdiction and reversed the order awarding attorney fees and the contempt order.

By way of background, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. The permit authorized Marina Point to dredge the adjacent shoreline and the interior of the existing marina, and to use the dredged material as fill for building pads on the land. Marina Point was forbidden, however, from placing rip-rap at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands. In order to protect bald eagles’ seasonal behavioral habits, it was also barred from working during the winter months. Besides the permit from the Corps, Marina Point secured a number of other State and local permits.

On the CWA issues, the Appeals Court said, ". . . in light of the fact that the Corps and Marina Point did act to cease the activities that the Center claimed were wrongful and even acted to effect ongoing repairs for any problems caused by past activities, the district court did not have jurisdiction to hear the CWA action. It should have dismissed the action at the outset. Thus, in this respect the district court’s judgment must fall for lack of jurisdiction, and must be vacated."

On issues relating to the ESA and bald eagles, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."

In its ruling the Appeals Court said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the award of attorney fees and the contempt order."

Access the complete opinion (click here).

Southwest Marine, Inc. v. U.S.

Aug 6: In the Court of Appeals, Ninth Circuit, Case No. 07-55229. In this dispute over attorney fees in an environmental case, appellant Southwest Marine, Inc., appealed from a judgment of the United States District Court for the Southern District of California granting summary judgment in favor of the United States and the Secretary of the Navy. The case involves the Appeals Court determining whether fees incurred by Southwest Marine during its unsuccessful defense of a private party Clean Water Act lawsuit are allowable costs under Subpart 31.2 of the Federal Acquisition Regulation (FAR). The Appeals Court ruled that Southwest Marine’s costs are not allowable and affirmed the judgment of the District Court.

Access the complete opinion (click here).

Citizens Against Ruining The Environment v. U.S. EPA

Jul 28: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3197, 07-3198 & 07-3199. In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of U.S. EPA to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA.

The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.

The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.

The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.

The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).

Access the complete opinion (click here).

Mather v. Willet Dairy

Jul 30: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-3454 & 07-3462. The case is appealed from a judgment of the U.S. District Court for the Northern District of New York granting summary judgment for Defendants-Appellees on all of Plaintiffs-Appellants’ claims in a suit alleging that Defendants-Appellees’ large dairy operation emitted hazardous pollutants in violation of the Clean Water Act (CWA).

The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."

Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.

On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.

On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.

On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.

On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”

However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."

Access the complete opinion (click here).