Dec 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1431. The South Carolina Wildlife Federation and co-plaintiffs (collectively SCWF) brought suit against Federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act (NEPA), arising from the proposed construction of the Briggs-DeLaine-Pearson Connector (the Connector) in South Carolina.
The Appeals Court notes that relevant to the appeal, the Director of the South Carolina Department of Transportation (the Director), who was sued in his official capacity, moved to dismiss the case on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director’s motion, and he filed this interlocutory appeal. The Appeals Court affirmed the district court decision.
In its analysis, the Appeals Court said, "We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members’ ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes." The Appeals Court also said that SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns."
The Appeals Court cited the now famous, historic global warming Supreme Court case Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) [See WIMS 4/2/07] saying, "the redressability of an injury to a procedural right turns on the potential impact of the court’s action on the injury-causing party. Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) (requiring that a litigant seeking to vindicate a procedural right show 'some possibility that the requested relief will prompt the injury-causing party to reconsider' the decision). The Appeals Court concluded, "The district court properly found that SCWF stated a cause of action for prospective relief under NEPA and that the Director was party to the suit. Accordingly, we affirm the order of the district court."
Access the complete opinion (click here).
Monday, December 8, 2008
USA v. Hagerman
Dec 5: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3874, 07-3875. The defendants, Wabash Environmental Technologies, LLC, and its president, Hagerman, were convicted of making false statements in violation of the Clean Water Act, and they appeal. The Appeals Court rules, "We affirm the judgments in an unpublished order issued today, and limit this opinion to a threshold issue that happens to be the single point of novelty in the appeals.
The Appeals Court notes that in previous appeals by these parties in a related civil case, it ruled that a limited liability company (which Wabash is), like a corporation, cannot litigate in a Federal court unless it is represented by a lawyer. United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008) [See WIMS 9/30/08].
The Appeals Court explains that in the present case Wabash was represented by a lawyer both in the district court and in Seventh Circuit. The lawyer filed both an opening brief and a reply brief on behalf of the company. But then Hagerman fired the lawyer, who moved the Court for leave to withdraw from the case, which it granted. The Appeals Court says, "The question is whether, even though Wabash’s appeal has been fully briefed, we should dismiss it because Wabash is no longer represented and, not being a natural person, cannot litigate in federal court unless it is represented. We cannot find a case that has addressed this issue."
In affirming the district court decision, the Appeals Court concludes, "We have thought it best. . . to affirm the judgment of the district court in order to lay to rest any doubt about the company’s guilt. But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation."
Access the complete opinion (click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]
The Appeals Court notes that in previous appeals by these parties in a related civil case, it ruled that a limited liability company (which Wabash is), like a corporation, cannot litigate in a Federal court unless it is represented by a lawyer. United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008) [See WIMS 9/30/08].
The Appeals Court explains that in the present case Wabash was represented by a lawyer both in the district court and in Seventh Circuit. The lawyer filed both an opening brief and a reply brief on behalf of the company. But then Hagerman fired the lawyer, who moved the Court for leave to withdraw from the case, which it granted. The Appeals Court says, "The question is whether, even though Wabash’s appeal has been fully briefed, we should dismiss it because Wabash is no longer represented and, not being a natural person, cannot litigate in federal court unless it is represented. We cannot find a case that has addressed this issue."
In affirming the district court decision, the Appeals Court concludes, "We have thought it best. . . to affirm the judgment of the district court in order to lay to rest any doubt about the company’s guilt. But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation."
Access the complete opinion (click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]
Thursday, December 4, 2008
Black Warrior Riverkeeper v. Cherokee Mining
Nov 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10810. The Appeals Court explained that Black Warrior Riverkeeper (Black Warrior) is a non-profit membership organization that supports enforcement of environmental laws for the preservation, protection, and defense of the Black Warrior River located in Alabama. Cherokee Mining, LLC (Cherokee) is the owner and operator of two surface coal mines located in northern Alabama. Black Warrior sued Cherokee alleging that it had violated the Federal Water Pollution Control Act (the Clean Water Act) and similar provisions of Alabama law.
Cherokee moved to dismiss, arguing that Black Warrior’s suit was barred by a provision of the Clean Water Act, § 1319(g)(6)(A)(ii) [precludes citizen suits when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a polluter], and thus should be dismissed for lack of subject matter jurisdiction. The district court denied the motion, concluding that another provision of the Clean Water Act, § 1319(g)(6)(B)(ii) [i.e. notice of intent to sue was given to Cherokee prior to the State of Alabama’s commencement of its enforcement action], lifted the bar that would otherwise have precluded Black Warrior’s suit.
The Appeals Court said, "We find Cherokee’s interpretation of these provisions to be an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language. . . We thus find that the plain meaning of the phrase 'limitations contained in subparagraph (A). . . shall not apply [to bar citizen suits] means that citizen suits are not barred when either the federal EPA or a state is pursuing an administrative enforcement action and the notice and filing requirements of § 1319(g)(6)(B) have been met."
The Appeals Court clarifies further in affirming the district court decision, "We conclude that, in accordance with the plain and ordinary meaning of §1319(g)(6)(B), all of the limitations against a citizen suit as provided for in §1319(g)(6)(A), which include federal and state administrative enforcement actions, are lifted so long as § 1319(g)(6)(B)’s notice and filing requirements are met."
Access the complete opinion (click here).
Cherokee moved to dismiss, arguing that Black Warrior’s suit was barred by a provision of the Clean Water Act, § 1319(g)(6)(A)(ii) [precludes citizen suits when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a polluter], and thus should be dismissed for lack of subject matter jurisdiction. The district court denied the motion, concluding that another provision of the Clean Water Act, § 1319(g)(6)(B)(ii) [i.e. notice of intent to sue was given to Cherokee prior to the State of Alabama’s commencement of its enforcement action], lifted the bar that would otherwise have precluded Black Warrior’s suit.
The Appeals Court said, "We find Cherokee’s interpretation of these provisions to be an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language. . . We thus find that the plain meaning of the phrase 'limitations contained in subparagraph (A). . . shall not apply [to bar citizen suits] means that citizen suits are not barred when either the federal EPA or a state is pursuing an administrative enforcement action and the notice and filing requirements of § 1319(g)(6)(B) have been met."
The Appeals Court clarifies further in affirming the district court decision, "We conclude that, in accordance with the plain and ordinary meaning of §1319(g)(6)(B), all of the limitations against a citizen suit as provided for in §1319(g)(6)(A), which include federal and state administrative enforcement actions, are lifted so long as § 1319(g)(6)(B)’s notice and filing requirements are met."
Access the complete opinion (click here).
Tuesday, December 2, 2008
Fednav et al., v. Steven E. Chester (MI DEQ)
Nov 21: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-2083. In the case of Fednav et al., v. Steven E. Chester, et al, the Appeals Court unanimously upheld the U.S. District Court, Eastern District, Southern Division decision of Judge John Feikens [Case No. 07-11116, See WIMS 8/16/07] that ruled that Michigan's Ballast Water Statute, Mich. Comp. Laws § 324.3112(6), is constitutional. The case challenging the Michigan law was brought by nine shipping companies and associations. Defendants in the case were Michigan Department of Environmental Quality (MDEQ) Director Steven Chester and Michigan Attorney General Mike Cox. Four environmental and conservation organizations intervened in the case supporting the State's position including: Michigan United Conservation Clubs (MUCC); Alliance for the Great Lakes (Alliance); National Wildlife Federation (NWF); and Natural Resources Defense Council (NRDC).
In summary, the Appeals Court said, "We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm." The Appeals Court summarized the Federal regulations that exist and why Michigan felt compelled to adopt its own, separate law. The Court said, ". . . to summarize, the Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water from outside the EEZ [exclusive economic zone] must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. NOBOB [No Ballast On Board] vessels are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes."
The Appeals Court explains the argument of the Plaintiffs saying, "Each of these Plaintiffs seeks, in this Court at least, to challenge two distinct provisions of the Michigan Ballast Water Statute. First, they challenge the statute’s requirement that all 'oceangoing vessels engaging in port operations in' Michigan obtain a permit (the 'permit requirement'). Mich. Comp. Laws § 324.3112(6). Second, they challenge the requirement -- applicable only to oceangoing vessels that discharge ballast water in Michigan -- that they employ a treatment system approved by the MDEQ as a safe and effective means of preventing the discharge of ANS (the 'treatment requirement')."
Plaintiffs include four shipping companies: Fednav, Limited, Canadian Forest Navigation Company, Limited, Baffin Investments, Limited, and Canfornav, Incorporated (the “Shipping Companies”). They include three shipping associations: the Shipping Federation of Canada, the Seaway Great Lakes Trade Association, and the United States Great Lakes Shipping Association (the “Shipping Associations”). They also include a port terminal, Nicholson Terminal and Dock Company (“Nicholson”), and a port association, The American Great Lakes Ports Association (the “Ports Association”).
The Appeals Court then considers whether each of the Plaintiffs has standing to challenge each of these requirements, i.e. the permit requirement and the treatment requirement. The Appeals Court determines that the Shipping Companies and each of the Shipping Associations has standing to challenge the permit requirement, but Nicholson and the Ports Association do not.
On the treatment requirement, the Court says, "'virtually all' of Plaintiffs’ ships do not discharge ballast water in Michigan. And to the extent that Plaintiffs do not so discharge, they are not even subject to the treatment requirement, much less harmed by it. . . And none of them have remotely alleged that they have taken any action, much less an injurious one, in compliance with the treatment requirement. The complaint is conspicuously silent on that point. Second, and more fundamentally, we simply will not strain to construe the complaint to say by negative implication what it very simply could have said directly. . . We instead hold fast to the 'longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.'”
Thus the Appeals Court determines that, "The only claims over which we have jurisdiction, then, are those of the Shipping Companies and the Shipping Associations (hereinafter, 'Plaintiffs') with respect to the permit requirement." The Appeals Court conducts a rigorous analysis of preemption issues and determines that, ". . . we know that Congress contemplated ANS [aquatic nuisance species] prevention measures 'in the Great Lakes region that are not conducted pursuant to this chapter.' Id. § 4723(a)(1)(D) (emphasis added). That leaves only the question whether the reference to ANS prevention measures 'not conducted pursuant to this chapter' includes measures conducted by the states. For several reasons, we believe that it does. . . The permit requirement does not conflict with NISA [National Invasive Species Act of 1996] or the Coast Guard’s regulations promulgated pursuant to it. The requirement therefore is not preempted by federal law."
The Court also rejects a claim by Plaintiffs that the Michigan law violates the so-called “dormant” Commerce Clause by burdening interstate commerce and a "due process" claim and concludes, "Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes. The August 15, 2007 order of the district court is affirmed."
Alliance vice president for policy, Joel Brammeier, praised the court's ruling saying, “We’re pleased with this confirmation of the states’ authority to protect the Great Lakes from invaders. While the federal government spent 2008 sitting on its hands, this decision reinforces the only real line of defense we have right now -- state action to shield the Great Lakes from these biological threats.”
Access the Appeals Court decision (click here). Access the complete 32-page district court opinion (click here). Access MDEQ's Ballast Water Reporting website for extensive information (click here). Access legislative details for PA 33 of 2005 (click here). Access a release from the Alliance (click here). Access various media reports on the decision (click here).
In summary, the Appeals Court said, "We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm." The Appeals Court summarized the Federal regulations that exist and why Michigan felt compelled to adopt its own, separate law. The Court said, ". . . to summarize, the Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water from outside the EEZ [exclusive economic zone] must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. NOBOB [No Ballast On Board] vessels are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes."
The Appeals Court explains the argument of the Plaintiffs saying, "Each of these Plaintiffs seeks, in this Court at least, to challenge two distinct provisions of the Michigan Ballast Water Statute. First, they challenge the statute’s requirement that all 'oceangoing vessels engaging in port operations in' Michigan obtain a permit (the 'permit requirement'). Mich. Comp. Laws § 324.3112(6). Second, they challenge the requirement -- applicable only to oceangoing vessels that discharge ballast water in Michigan -- that they employ a treatment system approved by the MDEQ as a safe and effective means of preventing the discharge of ANS (the 'treatment requirement')."
Plaintiffs include four shipping companies: Fednav, Limited, Canadian Forest Navigation Company, Limited, Baffin Investments, Limited, and Canfornav, Incorporated (the “Shipping Companies”). They include three shipping associations: the Shipping Federation of Canada, the Seaway Great Lakes Trade Association, and the United States Great Lakes Shipping Association (the “Shipping Associations”). They also include a port terminal, Nicholson Terminal and Dock Company (“Nicholson”), and a port association, The American Great Lakes Ports Association (the “Ports Association”).
The Appeals Court then considers whether each of the Plaintiffs has standing to challenge each of these requirements, i.e. the permit requirement and the treatment requirement. The Appeals Court determines that the Shipping Companies and each of the Shipping Associations has standing to challenge the permit requirement, but Nicholson and the Ports Association do not.
On the treatment requirement, the Court says, "'virtually all' of Plaintiffs’ ships do not discharge ballast water in Michigan. And to the extent that Plaintiffs do not so discharge, they are not even subject to the treatment requirement, much less harmed by it. . . And none of them have remotely alleged that they have taken any action, much less an injurious one, in compliance with the treatment requirement. The complaint is conspicuously silent on that point. Second, and more fundamentally, we simply will not strain to construe the complaint to say by negative implication what it very simply could have said directly. . . We instead hold fast to the 'longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.'”
Thus the Appeals Court determines that, "The only claims over which we have jurisdiction, then, are those of the Shipping Companies and the Shipping Associations (hereinafter, 'Plaintiffs') with respect to the permit requirement." The Appeals Court conducts a rigorous analysis of preemption issues and determines that, ". . . we know that Congress contemplated ANS [aquatic nuisance species] prevention measures 'in the Great Lakes region that are not conducted pursuant to this chapter.' Id. § 4723(a)(1)(D) (emphasis added). That leaves only the question whether the reference to ANS prevention measures 'not conducted pursuant to this chapter' includes measures conducted by the states. For several reasons, we believe that it does. . . The permit requirement does not conflict with NISA [National Invasive Species Act of 1996] or the Coast Guard’s regulations promulgated pursuant to it. The requirement therefore is not preempted by federal law."
The Court also rejects a claim by Plaintiffs that the Michigan law violates the so-called “dormant” Commerce Clause by burdening interstate commerce and a "due process" claim and concludes, "Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes. The August 15, 2007 order of the district court is affirmed."
Alliance vice president for policy, Joel Brammeier, praised the court's ruling saying, “We’re pleased with this confirmation of the states’ authority to protect the Great Lakes from invaders. While the federal government spent 2008 sitting on its hands, this decision reinforces the only real line of defense we have right now -- state action to shield the Great Lakes from these biological threats.”
Access the Appeals Court decision (click here). Access the complete 32-page district court opinion (click here). Access MDEQ's Ballast Water Reporting website for extensive information (click here). Access legislative details for PA 33 of 2005 (click here). Access a release from the Alliance (click here). Access various media reports on the decision (click here).
Thursday, November 20, 2008
Alaska Wilderness v. Kempthorne
Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71457, 07-71989, and 07-72183. The petitioners are six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenge the Minerals Management Service’s (MMS) approval of an exploration plan submitted by Shell Offshore Inc. (Shell). Shell seeks to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea.
Petitioners challenge the agency’s action under the National Environmental Policy Act (NEPA), and the Outer Continental Shelf Lands Act (OCSLA). Petitioners allege that MMS failed to take the requisite “hard look” at the impact of drilling on the people and wildlife of the Beaufort Sea region in violation of the standards set forth by NEPA, OCSLA, and their implementing regulations. Petitioners also argue that MMS erred by failing to prepare an environmental impact statement (EIS) for the proposed exploration activities, because of the potential for significant harmful effects on the environment.
The Appeals Court, in a split 2-1 decision vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."
In part, the majority said, ". . . having specific information about well locations is critical to the agency’s ability to analyze the project’s environmental effects. MMS acted in contravention of the regulations by approving Shell’s three-year plan without
determining the locations of the wells that would be drilled in that period. In order to comply with the regulations, the agency needs to consider the location of the proposed wells before it can approve the project for all three years."
Access the complete opinion and dissent (click here).
Petitioners challenge the agency’s action under the National Environmental Policy Act (NEPA), and the Outer Continental Shelf Lands Act (OCSLA). Petitioners allege that MMS failed to take the requisite “hard look” at the impact of drilling on the people and wildlife of the Beaufort Sea region in violation of the standards set forth by NEPA, OCSLA, and their implementing regulations. Petitioners also argue that MMS erred by failing to prepare an environmental impact statement (EIS) for the proposed exploration activities, because of the potential for significant harmful effects on the environment.
The Appeals Court, in a split 2-1 decision vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."
In part, the majority said, ". . . having specific information about well locations is critical to the agency’s ability to analyze the project’s environmental effects. MMS acted in contravention of the regulations by approving Shell’s three-year plan without
determining the locations of the wells that would be drilled in that period. In order to comply with the regulations, the agency needs to consider the location of the proposed wells before it can approve the project for all three years."
Access the complete opinion and dissent (click here).
McDonald v. Sun Oil Co.
Nov 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35683. Thomas McDonald, Marian McDonald and Alex McDonald appeal from the district court’s grant of summary judgment in favor of Sun Oil Company, Sunoco, Inc. and Cordero Mining Company (collectively, Sun). The McDonalds sued Sun for, among other things, negligence, contribution, breach of contract and fraud. Each of the claims arose out of an alleged oral warranty that certain crushed rock at the Horse Heaven Mine Property (Horse Heaven), a disused mercury mine, was free of mercury.
The district court held that Oregon’s statute of repose barred the McDonalds’ negligence claim, that their claim for contribution failed to comply with an administrative requirement, that their breach of contract claim failed because of the merger doctrine and the parol evidence rule, and that their fraud claim failed to raise a genuine issue of material fact. The Appeals Court affirmed in part, reversed in part, and remanded for trial.
The Appeals Court concluded, "The district court erred in granting summary judgment to Sun on the McDonalds’ negligence claim and that claim is remanded for trial. The district court correctly concluded that summary judgment was proper on the McDonalds’ contribution, breach of contract and fraud claim." In explaining the negligence ruling the Appeals Court said, "
the negligence claim is not based on any alleged promise to provide mercury-free calcine, but rather on alleged failures to warn about the mercury in the calcine and to test the calcine. A jury could find that there was no oral agreement, but that Sun was negligent in failing to warn that, for example, the calcine was not tested. The negligence claim should not have been dismissed."
Access the complete opinion (click here).
The district court held that Oregon’s statute of repose barred the McDonalds’ negligence claim, that their claim for contribution failed to comply with an administrative requirement, that their breach of contract claim failed because of the merger doctrine and the parol evidence rule, and that their fraud claim failed to raise a genuine issue of material fact. The Appeals Court affirmed in part, reversed in part, and remanded for trial.
The Appeals Court concluded, "The district court erred in granting summary judgment to Sun on the McDonalds’ negligence claim and that claim is remanded for trial. The district court correctly concluded that summary judgment was proper on the McDonalds’ contribution, breach of contract and fraud claim." In explaining the negligence ruling the Appeals Court said, "
the negligence claim is not based on any alleged promise to provide mercury-free calcine, but rather on alleged failures to warn about the mercury in the calcine and to test the calcine. A jury could find that there was no oral agreement, but that Sun was negligent in failing to warn that, for example, the calcine was not tested. The negligence claim should not have been dismissed."
Access the complete opinion (click here).
Romoland School District v. Inland Empire Energy
Nov 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-56632. The Romoland School District and several individuals and environmental groups, (collectively, Plaintiffs) appeal the denial of their motion for a preliminary injunction and the dismissal with prejudice of their two claims against Inland Empire Energy Center (IEEC), a wholly-owned subsidiary of General Electric Company. Plaintiffs brought suit against IEEC under the citizen suit provision of the Clean Air Act (CAA), in connection with IEEC’s plans to construct an 810-megawatt power plant approximately 1,100 feet from the Romoland Elementary School in Riverside County, California.
IEEC’s motion to dismiss contended, among other things, that the district court lacked jurisdiction over the suit because IEEC had been granted a permit under Title V of the CAA and such permits may not be challenged in civil or criminal enforcement proceedings in federal district court. Plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District (SCAQMD), the local air pollution control agency that issued the relevant permit and authorized IEEC to
begin construction of the power plant.
The Ninth Circuit said, "We must resolve two threshold issues of jurisdiction before we may consider the merits of Plaintiffs’ claims: (1) whether the district court’s dismissals of the claims in this case present us with a final decision pursuant to 28 U.S.C. § 1291; and (2) whether the Central District of California was an appropriate forum, and 42 U.S.C. § 7604 an appropriate statutory basis, for Plaintiffs’ challenge such that the district court had jurisdiction over it pursuant to 28 U.S.C. § 1331."
The Appeals Court said, "We conclude that the orders appealed from are part of a final judgment and thus that we have jurisdiction over this case, but that the district court did not. Accordingly, we affirm the district court’s dismissal of the claims against IEEC with prejudice, hold that the claims against the air district should also be deemed to be dismissed with prejudice notwithstanding the voluntary dismissal order’s silence on this point, and further hold that all proceedings on Plaintiffs’ motion for a preliminary injunction are void because the district court was without jurisdiction to entertain that motion."
Access the complete opinion (click here).
IEEC’s motion to dismiss contended, among other things, that the district court lacked jurisdiction over the suit because IEEC had been granted a permit under Title V of the CAA and such permits may not be challenged in civil or criminal enforcement proceedings in federal district court. Plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District (SCAQMD), the local air pollution control agency that issued the relevant permit and authorized IEEC to
begin construction of the power plant.
The Ninth Circuit said, "We must resolve two threshold issues of jurisdiction before we may consider the merits of Plaintiffs’ claims: (1) whether the district court’s dismissals of the claims in this case present us with a final decision pursuant to 28 U.S.C. § 1291; and (2) whether the Central District of California was an appropriate forum, and 42 U.S.C. § 7604 an appropriate statutory basis, for Plaintiffs’ challenge such that the district court had jurisdiction over it pursuant to 28 U.S.C. § 1331."
The Appeals Court said, "We conclude that the orders appealed from are part of a final judgment and thus that we have jurisdiction over this case, but that the district court did not. Accordingly, we affirm the district court’s dismissal of the claims against IEEC with prejudice, hold that the claims against the air district should also be deemed to be dismissed with prejudice notwithstanding the voluntary dismissal order’s silence on this point, and further hold that all proceedings on Plaintiffs’ motion for a preliminary injunction are void because the district court was without jurisdiction to entertain that motion."
Access the complete opinion (click here).
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