Jul 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35851. The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) and National Marine Fisheries Services (collectively, Commerce) appeal the district court’s order granting attorney fees and costs under the Freedom of Information Act (FOIA), in favor of Oregon Natural Desert Association (ONDA). The district court issued the attorney fees order after it entered judgment in ONDA’s action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act (APA).
The Appeals Court affirmed in part, reverse in part, and remand for recalculation of the attorney fee award. The Appeals Court said, "On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604."
The Appeals Court said further, "The Openness Promotes Effectiveness in our National Government Act (the '2007 Amendments' to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation."
Access the complete opinion (click here).
Thursday, July 9, 2009
Wednesday, July 8, 2009
Catawba County NC v. U.S. EPA
Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1064. The case is consolidate with 29 other cases. In these consolidated petitions, several states, counties, and industrial entities challenge the U.S. EPA's promulgation of area designations for the annual national ambient air quality standard (NAAQS) applicable to fine particulate matter (PM2.5), a category of air pollutants consisting of miniscule airborne particles known to present adverse health risks. The parties argue that EPA’s methodology for designating areas as “nonattainment” for the fine particulate matter standard violates section 107(d) of the Clean Air Act, which governs the designations, and that the methodology and the individual designations it produced are arbitrary and capricious.
According to the Appeals Court the petitioners what it "to vacate the nonattainment designations and to send EPA back to the drawing board." The Appeals Court ruled, "With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied -- indeed, quite often surpassed -- its basic obligation of reasoned decisionmaking. . . we deny the petitions for review in all respects save one: the designation of Rockland County [New York] is remanded to EPA."
Access the complete opinion (click here).
According to the Appeals Court the petitioners what it "to vacate the nonattainment designations and to send EPA back to the drawing board." The Appeals Court ruled, "With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied -- indeed, quite often surpassed -- its basic obligation of reasoned decisionmaking. . . we deny the petitions for review in all respects save one: the designation of Rockland County [New York] is remanded to EPA."
Access the complete opinion (click here).
Tuesday, July 7, 2009
Scott Howard v. Hilda Solis
Jul 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5799. In this case Petitioner Scott Howard, a miner, sought a writ of mandamus from the court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argued that the present standards are too high and that the Secretary had, therefore, violated her duty under the Mine Act to promulgate “improved” standards to protect the health of miners.
The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"
Access the complete opinion (click here).
The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"
Access the complete opinion (click here).
Thursday, July 2, 2009
Alaska Wilderness v. Kempthorne, Et. Al.
Jun 30: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 07-71989 and 07-72183. Petitioners in this case challenge the Minerals Management Service’s (MMS) approval of Respondent-Intervenor Shell Offshore Inc.’s (Shell) 2007-2009 Beaufort Sea Plan of Exploration (EP). On May 5, 2009, however, Shell withdrew its EP, and the MMS subsequently rescinded its prior approval of that EP. The MMS characterized the EP as “null and void” and declared that it “will not consider nor approve any exploratory drilling activity under this EP.”
The Appeals Court said, "The MMS’s rescission of its approval of the EP, which was the agency action at issue in this appeal, renders Petitioners’ challenge moot. Accordingly, Shell’s unopposed 'Motion to Dismiss Appeal as Moot' is granted. This appeal is dismissed as moot. The parties shall bear their own costs on appeal. A certified copy of this order shall serve as the mandate of this court."
Access the court order (click here).
The Appeals Court said, "The MMS’s rescission of its approval of the EP, which was the agency action at issue in this appeal, renders Petitioners’ challenge moot. Accordingly, Shell’s unopposed 'Motion to Dismiss Appeal as Moot' is granted. This appeal is dismissed as moot. The parties shall bear their own costs on appeal. A certified copy of this order shall serve as the mandate of this court."
Access the court order (click here).
Geerston Seed Farms v. Monsanto Co.
Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. This ruling affirms a major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto. The original decision was issued on September 2, 2008 [See WIMS 9/4/08]. In the latest action, the Ninth Circuit, has voted to deny the petition for panel rehearing and recommend denial of the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc and no Judge has requested a vote on whether to rehear the matter en banc. The Appeals Court ruled, "The petition for panel rehearing and rehearing en banc is denied. No further petitions for rehearing will be accepted."
The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.
Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”
Access the latest ruling (click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).
The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.
Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”
Access the latest ruling (click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).
Tuesday, June 23, 2009
Supreme Court Okays Regs Allowing "Fill Material" In Lake
Jun 22: In the U.S. Supreme Court case of Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (Case Nos. 07-984 & 07-990), the High Court ruled in a 6-3 opinion that the Corps of Engineers was the proper agency to issue a permit to discharge mining waste slurry into an Alaskan lake and the permit was valid. The public interest law firm, Earthjustice a party in the case, said the ruling will allow the "mining company to pump hundreds of thousands of gallons per day of a toxic wastewater slurry into an Alaskan lake, killing its fish and aquatic life." They said, "The ruling has dire implications for other waterways across the country, but the Obama administration and Congress may act promptly to ensure lakes, rivers, streams, and wetlands are not destroyed by industrial waste dumping."
The majority 6-3 ruling was delivered by Justice Kennedy and Justices Roberts, Breyer and Alito joined; and Justice Scalia joined in part. Justice Breyer also filed a concurring opinion. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justice Ginsburg filed a dissenting opinion and Justices Stevens and Souter joined in the dissent.
The case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act; and begs the question that WIMS asked in a December 2006 article: Can A Lake Be Filled & Fish Killed Under CWA? [See WIMS eNewsUSA Blog posts on this case]. When the lawsuit was first initiated, Earthjustice, expressed concern that if allowed to proceed, the mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.
According to the Supreme Court summary of questions presented in the cases, the Clean Water Act (CWA) provides two separate programs for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of “fill material,” subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Environmental Protection Agency may issue permits for the discharge of all other pollutants, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term “discharge of fill material” to include “tailings or similar mining-related materials.” Pursuant to its authority under Section 404 to grant permits for the discharge of “fill material,” the Corps granted petitioner a permit to deposit certain mine tailings in a lake.
The Ninth Circuit invalidated that permit even though it acknowledged that the proposed discharge “facially meets the current regulatory definition of ‘fill material.’” Upsetting 35 years of established agency practice, the court of appeals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation.
In its majority opinion, the Supreme Court said the case involved two questions under the Clean Water Act (CWA). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to U.S. EPA, to issue a permit for the discharge of mining waste slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into the lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with the law.
The High Court said, "With regard to the first question, §404(a) of the CWA grants the Corps the power to 'issue permits . . . for the discharge of . . . fill material.'. . . But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to 'issue a permit for the discharge of any pollutant' '[e]xcept as provided in' §404. 33 U. S. C. §1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as 'fill material,' 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under §404, rather than from the EPA, under §402."
On the second question -- "whether the Corps permit is lawful -- the High Court said that the environmental groups argue that the issuance of the permit by the Corps was “not in accordance with law” because EPA regulations forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters [citing 40 CFR §440.104(b)(1)] while Coeur Alaska and the State of Alaska, and the federal agencies maintain that the Corps permit "is lawful" nonetheless because the EPA’s performance standard do not apply to discharges of "fill material."
Reversing the judgment of the District Court, the Ninth Circuit Court of Appeals held that the EPA’s performance standard did apply to the discharge and the permit from the Corps was unlawful. The High Court reversed and remanded the Ninth Circuit decision.
In essence, rather than build a tailings pond, which is the typical way in which mining waste is handled, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. The lake is small -- 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres.
Section 404(a) of the CWA empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of . . . slurry, or tailings or similar mining-related materials.”
The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help "recla[im]" the lake by "[c]apping" the tailings with about 4 inches of "native material."
In its ruling the majority said, "Because Congress has not 'directly spoken' to the 'precise question' of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case." In the absence of Congressional intent, the High Court then looked at the agencies regulations, which they said were "ambiguous," so they looked at the agencies’ "subsequent interpretation of those regulations." The High Court said, "In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not 'plainly erroneous or inconsistent with the regulation[s],' and so we accept it as correct."
Responding to the decision, Earthjustice president Trip Van Noppen said, "If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America. The good news is that the problem is reversible. It was caused by a Bush administration rule reversing thirty years of successful regulation under the Clean Water Act. We call on President Obama to act immediately to repeal this rule and restore the original intent of the Clean Water Act."
Access the complete opinion, dissent and concurring opinions (click here). Access a lengthy release from Earthjustice and links to related information (click here). Access the complete 70-page oral argument transcript (click here). Access links to the various party briefs and all amicus briefs in the case (click here). Access the Supreme Court Docket No. 07-984 (click here); and Docket No. 07-990 (click here).
The majority 6-3 ruling was delivered by Justice Kennedy and Justices Roberts, Breyer and Alito joined; and Justice Scalia joined in part. Justice Breyer also filed a concurring opinion. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justice Ginsburg filed a dissenting opinion and Justices Stevens and Souter joined in the dissent.
The case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act; and begs the question that WIMS asked in a December 2006 article: Can A Lake Be Filled & Fish Killed Under CWA? [See WIMS eNewsUSA Blog posts on this case]. When the lawsuit was first initiated, Earthjustice, expressed concern that if allowed to proceed, the mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.
According to the Supreme Court summary of questions presented in the cases, the Clean Water Act (CWA) provides two separate programs for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of “fill material,” subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Environmental Protection Agency may issue permits for the discharge of all other pollutants, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term “discharge of fill material” to include “tailings or similar mining-related materials.” Pursuant to its authority under Section 404 to grant permits for the discharge of “fill material,” the Corps granted petitioner a permit to deposit certain mine tailings in a lake.
The Ninth Circuit invalidated that permit even though it acknowledged that the proposed discharge “facially meets the current regulatory definition of ‘fill material.’” Upsetting 35 years of established agency practice, the court of appeals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation.
In its majority opinion, the Supreme Court said the case involved two questions under the Clean Water Act (CWA). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to U.S. EPA, to issue a permit for the discharge of mining waste slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into the lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with the law.
The High Court said, "With regard to the first question, §404(a) of the CWA grants the Corps the power to 'issue permits . . . for the discharge of . . . fill material.'. . . But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to 'issue a permit for the discharge of any pollutant' '[e]xcept as provided in' §404. 33 U. S. C. §1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as 'fill material,' 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under §404, rather than from the EPA, under §402."
On the second question -- "whether the Corps permit is lawful -- the High Court said that the environmental groups argue that the issuance of the permit by the Corps was “not in accordance with law” because EPA regulations forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters [citing 40 CFR §440.104(b)(1)] while Coeur Alaska and the State of Alaska, and the federal agencies maintain that the Corps permit "is lawful" nonetheless because the EPA’s performance standard do not apply to discharges of "fill material."
Reversing the judgment of the District Court, the Ninth Circuit Court of Appeals held that the EPA’s performance standard did apply to the discharge and the permit from the Corps was unlawful. The High Court reversed and remanded the Ninth Circuit decision.
In essence, rather than build a tailings pond, which is the typical way in which mining waste is handled, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. The lake is small -- 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres.
Section 404(a) of the CWA empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of . . . slurry, or tailings or similar mining-related materials.”
The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help "recla[im]" the lake by "[c]apping" the tailings with about 4 inches of "native material."
In its ruling the majority said, "Because Congress has not 'directly spoken' to the 'precise question' of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case." In the absence of Congressional intent, the High Court then looked at the agencies regulations, which they said were "ambiguous," so they looked at the agencies’ "subsequent interpretation of those regulations." The High Court said, "In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not 'plainly erroneous or inconsistent with the regulation[s],' and so we accept it as correct."
Responding to the decision, Earthjustice president Trip Van Noppen said, "If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America. The good news is that the problem is reversible. It was caused by a Bush administration rule reversing thirty years of successful regulation under the Clean Water Act. We call on President Obama to act immediately to repeal this rule and restore the original intent of the Clean Water Act."
Access the complete opinion, dissent and concurring opinions (click here). Access a lengthy release from Earthjustice and links to related information (click here). Access the complete 70-page oral argument transcript (click here). Access links to the various party briefs and all amicus briefs in the case (click here). Access the Supreme Court Docket No. 07-984 (click here); and Docket No. 07-990 (click here).
US v. Missouri Industrial Energy Consumers
Jun 22: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-3404. The Missouri Industrial Energy Consumers (MIEC), an association of businesses formed to address its members' concerns about utility services, moved to intervene in an enforcement action filed against the Metropolitan St. Louis Sewer District (District) by the United States and the State of Missouri under the Clean Water Act (CWA). The district court denied the motion for lack of standing. The Appeals Court affirmed the district court decision.
In its decision, the Appeals Court said, "Judicial efficiency is not promoted by allowing intervention by a party with no interest upon which it could seek judicial relief in a separate lawsuit. . . Not only would allowing MIEC to intervene produce no gains in judicial efficiency, it would most likely complicate and delay the proceedings with peripheral issues of cost and local government financing. Although MIEC would certainly like to participate in this enforcement action, 'a federal case is a limited affair, and not everyone with an opinion is invited to attend.'" [citing Mausolf, 85 F.3d at 1301]. . . MIEC has a representative on the District's Rate Commission which makes recommendations about rate changes and will have the opportunity to comment on any proposed rate increases during that public process. The type of grievances that MIEC asserts are properly advanced in these fora, not in this federal action."
Access the complete opinion (click here).
In its decision, the Appeals Court said, "Judicial efficiency is not promoted by allowing intervention by a party with no interest upon which it could seek judicial relief in a separate lawsuit. . . Not only would allowing MIEC to intervene produce no gains in judicial efficiency, it would most likely complicate and delay the proceedings with peripheral issues of cost and local government financing. Although MIEC would certainly like to participate in this enforcement action, 'a federal case is a limited affair, and not everyone with an opinion is invited to attend.'" [citing Mausolf, 85 F.3d at 1301]. . . MIEC has a representative on the District's Rate Commission which makes recommendations about rate changes and will have the opportunity to comment on any proposed rate increases during that public process. The type of grievances that MIEC asserts are properly advanced in these fora, not in this federal action."
Access the complete opinion (click here).
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