Mar 11: In the U.S. Court of Appeals, Third Circuit, Case No. 07-4609. In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (FWS) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency.
On June 13, 2006, before the FWS made a final determination, appellants filed a complaint in the U.S. District Court for the District of New Jersey claiming (1) that the denial of emergency rulemaking was arbitrary and capricious, in violation of the Endangered Species Act (ESA), and (2) that the FWS violated the ESA by failing to issue timely findings on the petition.
The FWS issued its final determination -- that the listing of the red knot was warranted but precluded by higher-priority listing activity -- in its periodic Candidate Notice of Review (CNOR) published on September 12, 2006. In response, appellants dismissed their timeliness claim, but persisted with their challenge to the denial of emergency rulemaking. In an opinion and order dated October 11, 2007, the District Court dismissed the complaint for lack of subject matter jurisdiction, finding that the FWS’s denial of the emergency listing request was not reviewable under either the ESA or the Administrative Procedure Act (APA). Given this finding, the District Court did not find it necessary to reach the FWS’s claim that the publication of the warranted but precluded listing determination in the CNOR rendered moot appellants’ challenge to the denial of emergency rulemaking. The appeal followed.
The Appeals Court dismissed the appeal as moot; however, it said, "We note, as we conclude, that appellants have received quite substantial relief. Now that the CNOR has issued, the red knot is on the agency’s watchlist. This means that the emergency monitoring system set forth at 16 U.S.C. § 1533(b)(3)(C)(iii) has become available in the event of exigent circumstances that warrant immediate protection of the red knot."
Access the complete opinion (click here).
Thursday, March 12, 2009
Tuesday, March 10, 2009
Alaska Wilderness v. Kempthorne
Mar 6: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 07-71457, 07-71989, & 07-72183. In a brief order, the Appeals Court said, "The opinion and dissent filed on November 20, 2008, and published at 548 F.3d 815 (9th Cir. 2008), are hereby vacated and withdrawn [See WIMS 11/20/08]. Respondents’ petition for rehearing and suggestion for rehearing en banc is denied as moot. All pending motions to file amicus briefs in support of rehearing are likewise denied as moot. The opinion vacated and withdrawn will be replaced by a new opinion. Our denial of the petition for rehearing with suggestion for rehearing en banc is made without prejudice to any party who may wish to file a petition for rehearing or petition for rehearing en banc with regard to the new opinion."
The case involved six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenged 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. In the November 20, split 2-1 decision the Appeals Court, 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."
Access the Order (click here).
The case involved six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenged 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. In the November 20, split 2-1 decision the Appeals Court, 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."
Access the Order (click here).
Monday, March 9, 2009
Wilderness Watch v. Abigail Kimbell
Mar 6: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. 07-3689, consolidated with 07-3696 and 08-1167. In this case involving the Boundary Waters Canoe Area Wilderness Act, Wilderness Watch, Sierra Club North Star Chapter, and Northeastern Minnesotans for Wilderness (collectively Wilderness Watch) brought suit against Abigail Kimbell, Chief of the United States Forest Service, and Ed Schafer, Secretary of the United States Department of Agriculture (collectively Forest Service), alleging that the Forest Service's decision to construct a certain snowmobile trail between McFarland Lake and South Fowl Lake in northeastern Minnesota violated the Boundary Waters Canoe Area Wilderness (BWCAW) Act.
Wilderness Watch based its challenge on Congress's inclusion of South Fowl Lake (and of North Fowl Lake, to which it is connected) in the "wilderness" under the BWCAW Act. According to Wilderness Watch, the BWCAW Act prohibits snowmobiling on the Fowl Lakes (Count I) and requires the Forest Service to implement motorboat quotas on them (Count II).
The district court granted summary judgment to the Forest Service on Counts I and II, finding that the North and South Fowl Lakes are not "wilderness" under the BWCAW Act and therefore are not subject to snowmobiling and motorboat restrictions. But the district court also found that the environmental assessment (EA) prepared by the Forest Service for the plan to construct the snowmobile trail connecting the Fowl Lakes adjacent to the BWCAW failed to properly analyze the noise impact resulting from snowmobile use on the trail, as required by the National Environmental Policy Act (NEPA).
As a result, the district court remanded to the Forest Service, instructing it to prepare an environmental impact statement (EIS) assessing the sound impact of the proposed trail routes on the adjoining wilderness area, and also enjoined the Forest Service from conducting any further activity on the proposed trail pending its completion of the EIS. Wilderness Watch appeals from the district court's grant of summary judgment to the Forest Service on Counts I and II, and Cook County, a political subdivision of the State of Minnesota, Conservationists with Common Sense, and Arrowhead Coalition for Multiple Use (collectively Intervenors) appeal from the district court's NEPA ruling.
The Appeals Court affirmed the district court decision and concluded, "Accordingly, we hold that Wilderness Watch's claims that the Forest Service (1) violated the BWCAW Act by permitting snowmobiles on South Fowl Lake and (2) failed to implement motorboat quotas on North and South Fowl Lakes in violation of § 4(f) of the BWCAW Act are time-barred by the six-year statute of limitations. As to the district court's NEPA ruling, we lack jurisdiction to review the district court's order remanding the matter to the Forest Service for an EIS and decline to vacate the injunction."
Access the complete opinion (click here).
Wilderness Watch based its challenge on Congress's inclusion of South Fowl Lake (and of North Fowl Lake, to which it is connected) in the "wilderness" under the BWCAW Act. According to Wilderness Watch, the BWCAW Act prohibits snowmobiling on the Fowl Lakes (Count I) and requires the Forest Service to implement motorboat quotas on them (Count II).
The district court granted summary judgment to the Forest Service on Counts I and II, finding that the North and South Fowl Lakes are not "wilderness" under the BWCAW Act and therefore are not subject to snowmobiling and motorboat restrictions. But the district court also found that the environmental assessment (EA) prepared by the Forest Service for the plan to construct the snowmobile trail connecting the Fowl Lakes adjacent to the BWCAW failed to properly analyze the noise impact resulting from snowmobile use on the trail, as required by the National Environmental Policy Act (NEPA).
As a result, the district court remanded to the Forest Service, instructing it to prepare an environmental impact statement (EIS) assessing the sound impact of the proposed trail routes on the adjoining wilderness area, and also enjoined the Forest Service from conducting any further activity on the proposed trail pending its completion of the EIS. Wilderness Watch appeals from the district court's grant of summary judgment to the Forest Service on Counts I and II, and Cook County, a political subdivision of the State of Minnesota, Conservationists with Common Sense, and Arrowhead Coalition for Multiple Use (collectively Intervenors) appeal from the district court's NEPA ruling.
The Appeals Court affirmed the district court decision and concluded, "Accordingly, we hold that Wilderness Watch's claims that the Forest Service (1) violated the BWCAW Act by permitting snowmobiles on South Fowl Lake and (2) failed to implement motorboat quotas on North and South Fowl Lakes in violation of § 4(f) of the BWCAW Act are time-barred by the six-year statute of limitations. As to the district court's NEPA ruling, we lack jurisdiction to review the district court's order remanding the matter to the Forest Service for an EIS and decline to vacate the injunction."
Access the complete opinion (click here).
Friday, March 6, 2009
Latino Issues Forum v. EPA
Mar 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-71907. The Latino Issues Forum and Sierra Club challenged U.S. EPA's approval of a revision to the state implementation plan (SIP) for San Joaquin Valley, California. The revision, known as Rule 4550, is part of the Conservation Management Practices (CMP) Program, an air-pollutant reduction program, established by the San Joaquin Valley Unified Air Pollution Control District (District). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of particulate matter known as PM-10. The Appeals Court ruled, "We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§ 7509 and 7513a(b)(1)(B) and, therefore, deny the petition."
The Petitioners challenged two aspects of EPA’s approval of Rule 4550 as being arbitrary, capricious, or not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate “all feasible measures,” as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550’s menu of options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. § 7513a(b)(1)(B).
On the first question, the Appeals Court said, "Because § 7509(d)(2) is ambiguous and the EPA’s statutory interpretation is reasonable, we hold that the EPA acted lawfully by not requiring implementation of 'all feasible measures' into Rule 4550." On the second issue, the Appeals Court said, "EPA demonstrated that the controls included in the rule’s menu meet the stringency requirements of BACM. Although the context is different, our inquiry into whether the EPA properly followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no evidence here that the process which led to the creation and adoption of Rule 4550 was improper. . . Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because the EPA followed its regulatory process, and because that process was consistent with one we approved in Vigil, we hold that the EPA’s approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B)."
Access the complete opinion (click here).
The Petitioners challenged two aspects of EPA’s approval of Rule 4550 as being arbitrary, capricious, or not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate “all feasible measures,” as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550’s menu of options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. § 7513a(b)(1)(B).
On the first question, the Appeals Court said, "Because § 7509(d)(2) is ambiguous and the EPA’s statutory interpretation is reasonable, we hold that the EPA acted lawfully by not requiring implementation of 'all feasible measures' into Rule 4550." On the second issue, the Appeals Court said, "EPA demonstrated that the controls included in the rule’s menu meet the stringency requirements of BACM. Although the context is different, our inquiry into whether the EPA properly followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no evidence here that the process which led to the creation and adoption of Rule 4550 was improper. . . Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because the EPA followed its regulatory process, and because that process was consistent with one we approved in Vigil, we hold that the EPA’s approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B)."
Access the complete opinion (click here).
Martex Farms, S.E. v. Environmental Appeals Board
Mar 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1311. Martex Farms, S.E., one of the largest commercial farms in Puerto Rico, appealed a final decision and order of U.S. EPA's Environmental Appeals Board (the Board), which held Martex liable for numerous violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. The Appeals Court affirmed the Board's decision in full, as to both liability and penalty.
Because Martex uses pesticides as part of its agricultural methods, it is subject to the Worker Protection Standard (WPS), 40 C.F.R. pt. 170, which is enforced by EPA. The WPS is intended to reduce the risk of illness and injury to workers and handlers who are exposed to pesticides during the course of employment. In January 28, 2005, EPA filed an administrative complaint against Martex alleging 336 violations of FIFRA by Martex. The EPA accused Martex of failing to meet several rather common sense and straightforward WPS requirements, including: (1) displaying information for workers and handlers regarding pesticide application; (2) providing decontamination supplies for workers and handlers in easily accessible locations; and (3) providing handlers with personal protective equipment. Martex subsequently appealed the decisions of an administrative law Judge and the Board.
The Appeals Court said, "Our review of the Board's conclusions is highly deferential. By statute, we will sustain the Board's order 'if it is supported by substantial evidence when considered on the record as a whole.' 7 U.S.C. § 136n(b). In addition, we will sustain the EPA's interpretation of its own regulations unless that interpretation is 'arbitrary, capricious, or otherwise plainly impermissible.'"
On one of the primary arguments, i.e. Substantial Evidence Claim, the Appeals Court said, "Martex also contests the substantive findings of liability made below. The crux of Martex's argument in this regard is that its farms contain abundant sources of water, such as lakes, streams, and fruit washing facilities, which are sufficient to comply with the WPS standards. However, neither in its brief nor at oral argument did Martex allege that these water sources were grouped together with the required soap and paper towels, or that they were available within 1/4 mile of the work sites, as required by regulations. Indeed, substantial evidence in the record points to the opposite conclusion. We therefore see no basis for reversal as to the substantive violations."
On the penalty issue, the Appeals Court said, "The maximum statutory fine for each violation of FIFRA committed by Martex is $1,100. The Board conducted a deliberate and rigorous evaluation of the proper penalty as to each violation, never assessed an amount greater than $1,100 for any violation, and in several cases assessed a much lower penalty. One of the factors it considered was Martex's ability to pay the proposed penalty. We therefore find no error."
Access the complete opinion (click here).
Because Martex uses pesticides as part of its agricultural methods, it is subject to the Worker Protection Standard (WPS), 40 C.F.R. pt. 170, which is enforced by EPA. The WPS is intended to reduce the risk of illness and injury to workers and handlers who are exposed to pesticides during the course of employment. In January 28, 2005, EPA filed an administrative complaint against Martex alleging 336 violations of FIFRA by Martex. The EPA accused Martex of failing to meet several rather common sense and straightforward WPS requirements, including: (1) displaying information for workers and handlers regarding pesticide application; (2) providing decontamination supplies for workers and handlers in easily accessible locations; and (3) providing handlers with personal protective equipment. Martex subsequently appealed the decisions of an administrative law Judge and the Board.
The Appeals Court said, "Our review of the Board's conclusions is highly deferential. By statute, we will sustain the Board's order 'if it is supported by substantial evidence when considered on the record as a whole.' 7 U.S.C. § 136n(b). In addition, we will sustain the EPA's interpretation of its own regulations unless that interpretation is 'arbitrary, capricious, or otherwise plainly impermissible.'"
On one of the primary arguments, i.e. Substantial Evidence Claim, the Appeals Court said, "Martex also contests the substantive findings of liability made below. The crux of Martex's argument in this regard is that its farms contain abundant sources of water, such as lakes, streams, and fruit washing facilities, which are sufficient to comply with the WPS standards. However, neither in its brief nor at oral argument did Martex allege that these water sources were grouped together with the required soap and paper towels, or that they were available within 1/4 mile of the work sites, as required by regulations. Indeed, substantial evidence in the record points to the opposite conclusion. We therefore see no basis for reversal as to the substantive violations."
On the penalty issue, the Appeals Court said, "The maximum statutory fine for each violation of FIFRA committed by Martex is $1,100. The Board conducted a deliberate and rigorous evaluation of the proper penalty as to each violation, never assessed an amount greater than $1,100 for any violation, and in several cases assessed a much lower penalty. One of the factors it considered was Martex's ability to pay the proposed penalty. We therefore find no error."
Access the complete opinion (click here).
Wednesday, March 4, 2009
Supreme Court Decision In Summers v. Earth Island Institute
Note: Previously, we have not posted Supreme Court decision here. Effective immediately, we will begin posting Supreme Court decision that we cover.
Mar 3: In the U.S. Supreme Court, Case No. 07-463 [See WIMS 10/8/08]. On appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 6/11/07]. The questions presented are indicated by the Court as: 1. Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. 2. Whether respondents established standing to bring this suit. 3. Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties. 4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court. In the 5-4 split decision, Justice Scalia delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Alito joined. Justice Kennedy also filed a separate concurring opinion. Justices Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, joined.
The majority said, "Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as Earth Island.) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations." The case involves the "Burnt Ridge Project" for which the Service issued a decision memo approving the Project, a salvage sale of timber on 238 acres damaged by that fire in September 2003.
The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient ‘case or controversy’" before the court to sustain a facial challenge. It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The majority said, "Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described. . . It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members’ recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972).
The majority determined that the one proof of valid standing in the case was, in fact settled and remedied, in the district court decision, and said, "Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members." The majority further said, "Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- [in isolation and without reference to anything else] is insufficient to create Article III standing."
The majority concluded, "Since we have resolved this case on the ground of stand-ing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act.We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part."
The majority also summarized and responded the dissenting argument as follows: "The dissent proposes a hitherto unheard of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "‘700,000 members nationwide, including thousands of members in California’" who "‘use and enjoy the Sequoia National Forest,’" post, . . . it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.
Access the complete majority opinion and concurring and dissenting opinions (click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here).
Mar 3: In the U.S. Supreme Court, Case No. 07-463 [See WIMS 10/8/08]. On appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 6/11/07]. The questions presented are indicated by the Court as: 1. Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. 2. Whether respondents established standing to bring this suit. 3. Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties. 4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court. In the 5-4 split decision, Justice Scalia delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Alito joined. Justice Kennedy also filed a separate concurring opinion. Justices Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, joined.
The majority said, "Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as Earth Island.) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations." The case involves the "Burnt Ridge Project" for which the Service issued a decision memo approving the Project, a salvage sale of timber on 238 acres damaged by that fire in September 2003.
The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient ‘case or controversy’" before the court to sustain a facial challenge. It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The majority said, "Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described. . . It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members’ recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972).
The majority determined that the one proof of valid standing in the case was, in fact settled and remedied, in the district court decision, and said, "Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members." The majority further said, "Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- [in isolation and without reference to anything else] is insufficient to create Article III standing."
The majority concluded, "Since we have resolved this case on the ground of stand-ing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act.We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part."
The majority also summarized and responded the dissenting argument as follows: "The dissent proposes a hitherto unheard of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "‘700,000 members nationwide, including thousands of members in California’" who "‘use and enjoy the Sequoia National Forest,’" post, . . . it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.
Access the complete majority opinion and concurring and dissenting opinions (click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here).
Friday, February 27, 2009
Sierra Club v. EPA
Feb 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-4485. According to the summary provided by the Sixth Circuit in its opinion, the Clean Air Act requires the U.S. EPA to object to an air-pollution permit if any person “demonstrates” to the EPA “that the permit is not in compliance” with the Act’s requirements. 42 U.S.C. § 7661d(b)(2). In August 2006, the Sierra Club petitioned the EPA Administrator to object to a permit issued by the Kentucky Division of Air Quality to the East Kentucky Power Cooperative, claiming it had “demonstrate[d]” non-compliance because the EPA previously had issued a notice of violation to the same company (about the same plant) in January 2003 and had filed a federal-court complaint against the same company (about the same plant) in January 2004.
The Appeals Court said, "The EPA declined to object. Because it reasonably interpreted § 7661d(b)(2) to mean that the agency may alter its position about a power plant’s compliance with the Act based on intervening events and because the Sierra Club does not challenge the impact of these intervening events on the power plant’s compliance with the Act, we deny the petition for review."
This case arises from the power company’s request for a renewal of its Title V permit for one of the coal-powered steam generators, known (not so descriptively) as Unit 2, at the Spurlock Station power plant in Maysville, Kentucky. The Kentucky agency granted the permit in 1999. In 2003, apparently after discovering these changes to the plant, the EPA issued a notice of violation, informing the company that its Unit 2 permit failed to address the PSD requirements stemming from these modifications.
In August 2006, the Sierra Club petitioned the EPA to object to the permit, arguing (as it did in its comments to the state agency) that the proposed permit was deficient because it failed to address the PSD requirements. In support, the Sierra Club relied solely on the fact that the EPA previously had issued a notice of violation and had filed a civil-enforcement action based on the same allegations.
In August 2007, while the parties waited for the district court to approve the consent decree, the EPA reached a decision on the Sierra Club’s petition. Although it granted the petition in part (on an unrelated issue), it declined to object to the power company’s failure to address the PSD requirements. Acknowledging its prior notice of violation and enforcement action, the EPA explained that they were “initial steps” in the enforcement process and did not reflect the agency’s final position as to whether the Title V permit for Unit 2 needed to include a PSD compliance schedule.
The Appeals Court said, "The question is this: Does the Act require the EPA to object to a permit request when the agency previously has filed a notice of violation and enforcement action regarding the same allegations about the same plant? The answer turns on the meaning of a statute that the EPA administers and thus turns on an application of the familiar Chevron framework. Unless the statute’s terms “directly address[] the precise question at issue,” Chevron says that we must defer to the EPA’s “reasonable” interpretation of the provision. Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). . .
"Under these circumstances, the EPA acted within its authority in addressing the Sierra Club’s objection. Consistent with Chevron, the EPA reasonably construed § 7661d(b)(2) to mean that a prior notice of violation and enforcement action did not by themselves require it to object to a permit request. And consistent with the APA, the EPA did not arbitrarily or capriciously deny the Sierra Club’s request, after accounting not only for the agency’s prior actions but also for developments in that litigation."
Access the complete opinion (click here).
The Appeals Court said, "The EPA declined to object. Because it reasonably interpreted § 7661d(b)(2) to mean that the agency may alter its position about a power plant’s compliance with the Act based on intervening events and because the Sierra Club does not challenge the impact of these intervening events on the power plant’s compliance with the Act, we deny the petition for review."
This case arises from the power company’s request for a renewal of its Title V permit for one of the coal-powered steam generators, known (not so descriptively) as Unit 2, at the Spurlock Station power plant in Maysville, Kentucky. The Kentucky agency granted the permit in 1999. In 2003, apparently after discovering these changes to the plant, the EPA issued a notice of violation, informing the company that its Unit 2 permit failed to address the PSD requirements stemming from these modifications.
In August 2006, the Sierra Club petitioned the EPA to object to the permit, arguing (as it did in its comments to the state agency) that the proposed permit was deficient because it failed to address the PSD requirements. In support, the Sierra Club relied solely on the fact that the EPA previously had issued a notice of violation and had filed a civil-enforcement action based on the same allegations.
In August 2007, while the parties waited for the district court to approve the consent decree, the EPA reached a decision on the Sierra Club’s petition. Although it granted the petition in part (on an unrelated issue), it declined to object to the power company’s failure to address the PSD requirements. Acknowledging its prior notice of violation and enforcement action, the EPA explained that they were “initial steps” in the enforcement process and did not reflect the agency’s final position as to whether the Title V permit for Unit 2 needed to include a PSD compliance schedule.
The Appeals Court said, "The question is this: Does the Act require the EPA to object to a permit request when the agency previously has filed a notice of violation and enforcement action regarding the same allegations about the same plant? The answer turns on the meaning of a statute that the EPA administers and thus turns on an application of the familiar Chevron framework. Unless the statute’s terms “directly address[] the precise question at issue,” Chevron says that we must defer to the EPA’s “reasonable” interpretation of the provision. Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). . .
"Under these circumstances, the EPA acted within its authority in addressing the Sierra Club’s objection. Consistent with Chevron, the EPA reasonably construed § 7661d(b)(2) to mean that a prior notice of violation and enforcement action did not by themselves require it to object to a permit request. And consistent with the APA, the EPA did not arbitrarily or capriciously deny the Sierra Club’s request, after accounting not only for the agency’s prior actions but also for developments in that litigation."
Access the complete opinion (click here).
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