Orange County Water District v. Unocal Corp

Oct 1: In the U.S. Court of Appeals, Second Circuit, Case No. 07-5724. In this case involving the chemical gasoline additive methyl tertiary butyl ether (MTBE) and including major international oil and chemical companies as Defendants, Orange County Water District petitions for a writ of mandamus are denied by the Appeals Court. The County's petitions challenged a November 7, 2007 order of the United States District Court for the Southern District of New York which denied a motion to remand to state court. The Appeals Court said in its denial, "We hold that our prior opinion in this multi-district litigation did not preclude the District Court’s conclusion that petitioners failed to file a timely motion for remand ... because the purportedly erroneous removal under. . . did not implicate the District Court’s subject matter jurisdiction. Furthermore, we conclude that any challenge to the District Court’s subject matter jurisdiction is best addressed on direct appeal, rather than by a writ of mandamus."

The Appeals Court said the question presented is whether a district court may retain jurisdiction when a case was improperly removed to Federal court. Specifically, the Appeals Court ruled as to whether improper removal under the bankruptcy removal statute requires subsequent remand to state court.

By way of background and summary the Appeals Court explains, "The Orange County Water District (OCWD) petitions for a writ of mandamus challenging a November 7, 2007 order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge), denying OCWD’s motion to remand the case from the Southern District of New York to California state court. OCWD argues that this Court’s decision in In re MTBE Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007) (MTBE) -- which involved other parties in this multi-district litigation -- required the District Court to remand OCWD’s action. Specifically, OCWD contends as follows: (1) this Court’s opinion in MTBE requires that the District Court find that OCWD asserted a timely objection under 28 U.S.C. § 1447(c) to the improper application of the bankruptcy removal statute, 28 U.S.C. § 1452(a); and, alternatively, (2) the District Court was required to abstain pursuant to 28 U.S.C. § 1334(c)(2) because it lacked 'core' bankruptcy jurisdiction. We deny OCWD’s petition for a writ of mandamus because we conclude that: (1) our opinion in MTBE did not require the District Court to remand OCWD’s action, and (2) OCWD’s alternative jurisdictional arguments can be reviewed in the regular course of appeal."

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Provincial Government of Marinduque v. Placer Dome, Inc.

Sep 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16306. In the case, which does involve environmental issues, but is more related to international law and legal jurisdiction issues, the Ninth Circuit says, under the act of state doctrine, “the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990). Founded on international law, the doctrine also serves as a basis for federal-question jurisdiction when the plaintiff’s complaint challenges the validity of a foreign state’s conduct.

The Appeals Court said, "We consider here whether the district court had subject-matter jurisdiction over this suit, based upon the act of state doctrine, such that removal from state to federal court was proper. Because none of the referenced conduct by the foreign sovereign -- in this case, the Philippine government -- is essential to any of the plaintiff’s causes of action, we reverse the district court’s exercise of subject-matter jurisdiction under the act of state doctrine."

The Provincial Government of Marinduque (the Province) sued Placer Dome Corporation in 2005 in Nevada state court for alleged human health, ecological, and economic damages caused by the company’s mining operations on Marinduque, an island province of the Republic of the Philippines. According to the complaint, Placer Dome severely polluted the lands and waters of Marinduque for some thirty years, caused two cataclysmic environmental disasters, poisoned the islanders by contaminating their food and water sources, and then left the province without cleaning up the mess -- all in violation of Philippine law.

Immediately after the Province filed suit, Placer Dome removed the case to federal district court for the District of Nevada on the basis of federal-question jurisdiction. Specifically, Placer Dome contended that the case “tender[ed] questions of international law and foreign relations.” The Province moved for an order requiring Placer Dome to show cause why the action should not be remanded to the state court due to a lack of subject-matter jurisdiction. The district court denied the Province’s motion, holding that federal-question jurisdiction existed under the act of state doctrine of the federal common law. Placer Dome moved to dismiss the suit for lack of personal jurisdiction and forum non conveniens. The district court granted limited discovery on personal jurisdiction. Before discovery was concluded, in March 2007, the United States Supreme Court issued Sinochem International Co. v. Malaysia International Shipping Corp., announcing that district courts have latitude to rule on the threshold issue of forum non conveniens before definitively ascertaining subject matter and personal jurisdiction. 549 U.S. 422, 432 (2007). The district court stayed jurisdictional discovery, and ordered briefing on the issue of forum non conveniens. Invoking Sinochem, the district court dismissed the matter on forum non conveniens grounds in favor of a Canadian forum.

In its final conclusion the Appeals Court said, "The Province’s complaint does not present a federal question based upon the act of state doctrine. The district court therefore lacked subject-matter jurisdiction over this suit and removal from state court was improper. We reverse, vacate the forum non conveniens dismissal, and remand with instructions to remand to the state court."

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U.S. v. Starnes

Sep 24: In the U.S. Court of Appeals, Third Circuit, Case Nos. 07-3341 & 08-1691. Cleve-Allan George and Dylan C. Starnes appeal from judgments of conviction and sentence entered against them following a jury trial in the United States District Court for the District of the Virgin Islands. Although these appeals have not been formally consolidated, the Appeals Court resolved them together because they arise from a common set of facts. The Appeals Court affirmed the judgments.

Virgin Islands Housing Authority (VIHA) received a Federal grant for asbestos cleanup to be “performed in strict accordance with all federal, state and local regulations and ordinances” and eventually awarded a demolition contract to Alvin Williams Trucking & Equipment Rental, Inc. That company, with the consent of VIHA, subcontracted the asbestos abatement portion of the project to the Virgin Islands Asbestos Removal Company (VIARCO), a company owned by George. VIARCO had “joined forces” with Environmental Contracting Company (ECC), a company run by Starnes.

Among other violations, a “pressure washer” was used to dislodge asbestos-containing materials from the site’s structures. The Appeals Court said, this removal method, although time-efficient, generated a substantial amount of debris-filled wastewater, which the crew pumped into toilets and bathtubs. But those fixtures rapidly clogged, causing wastewater to pour out and accumulate on the buildings’ balconies. In response, George constructed a drainage system out of PVC pipes, which permitted the wastewater to flow off the balconies and down to the ground. When the wastewater evaporated, it left a dusty white residue clinging to the facades of the buildings and the surrounding sidewalks and grass.

The District Court sentenced Starnes to thirty-three months of imprisonment, three years of supervised release, and a special assessment of $1,600. While noting the government’s position that George’s acts were more egregious than those of Starnes, the District Court nonetheless imposed on George the same sentence that it had imposed on Starnes.

The Appeals Court said, "Both defendants also argue, albeit somewhat perfunctorily, that the District Court committed significant procedural error by failing to give meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). We disagree. While a sentencing court must consider all of the § 3553(a) factors, it does not have to discuss and make findings as to each factor so long as the record otherwise makes clear that it took the factors into account."

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Stanley v. United States Steel Corporation

Sep 22: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 08-2311 & 082312. The Appeals Court explained that Malcolm Moulton challenges the district court’s approval of a settlement agreement arising from a class action filed by the neighbors of a steel mill owned by United States Steel Corporation. A group of other class members, led by Ron Anderson, join Moulton’s objections, and separately challenge the district court’s management of the opt-out process and its handling of attorney Donnelly Hadden’s attempts to represent them. We affirm, except with respect to the district court’s approval of the attorney’s fee award, which we vacate and remand for further explanation.

In 2003, U.S. Steel purchased a steel mill bordering Ecorse and River Rouge, Michigan. At the time, the mill’s pollution-control equipment was in disrepair. After purchasing the mill, the company spent $65 million to upgrade the old pollution-control equipment and to buy new equipment. About a year after the purchase, several residents of Ecorse and River Rouge filed a class-action lawsuit against the company. The plaintiffs raised several tort and statutory claims, all to the effect that the mill wrongfully discharged harmful “metal-like dust and flakes” that settled on their real and personal property.

The case basically involves class action procedures and the conduct of attorney Hadden. In part, the Appeals Court rules, "At no point has Hadden offered evidence on the record that the 34 “missing” opt-out forms were mailed to Class Counsel. Lacking any evidence that these class members opted out, Hadden cannot demonstrate that an error occurred, much less that the district court abused its discretion by not correcting it. . . We also reject Hadden’s claim that the district court abused its discretion by not accepting opt-out forms that Hadden signed, purportedly at his clients’ request. We have serious doubts at the outset whether these clients requested that Hadden sign their form, or if they merely failed to respond to Hadden’s letter -- triggering Hadden’s 'automatic' opt out on his terms. Even setting this skepticism aside, we find none of his arguments persuasive. . .

"The Michigan Constitution’s guarantee of 'the right to prosecute . . . [a] suit . . . by an attorney,' Mich. Const. Art. I, § 13, does not save his argument. The Hadden clients who opted out of the suit had an attorney: Hadden. And those who remained in the class were adequately represented by court-approved Class Counsel."

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State of Connecticut v. American Electric Power Co. Inc.

Sep 21: In the U.S. Court of Appeals, Second Circuit, Case Nos. 05-5104 & 05-5119. In this major 139-page decision regarding citizen and government enforcement of greenhouse gas emissions the Appeals Court summarized saying, the case is appealed from a judgment of the United States District Court for the Southern District of New York that dismissed Plaintiffs-Appellants’ Federal common law of nuisance claims as non-justiciable under the "political question doctrine."

The Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings.

The case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

By way of background, in 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively Plaintiffs), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively Defendants), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

Plaintiffs brought these actions under the Federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to "cap and then reduce their carbon dioxide emissions." Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of Federal common law. In addition, Defendant Tennessee Valley Authority (TVA) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

The Appeals Court ruled, "We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."

In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."

The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." NRDC said that the Second Circuit "held that Federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress."

Included in the NRDC release was a statement from Matt Pawa, lead attorney for the land trusts Open Space Institute and the Audubon Society of New Hampshire saying, “The court’s decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today’s decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law.”

Also, David Doniger, senior attorney and policy director for NRDC’s Climate Center said, “The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”

Access the complete opinion (click here). Access a release from NRDC (click here).

Rosemere Neighborhood Association v. U.S. EPA

Sep 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35045. The Rosemere Neighborhood Association (Rosemere) appealed the district court’s dismissal of its action against the U.S. EPA on "mootness grounds." The Appeals Court said, "We conclude that the district court erred in dismissing the case, because the voluntary cessation exception to mootness applies. We therefore reverse."

The dispute arises out of a complaint that Rosemere filed against the City of Vancouver, WA with the EPA's Office of Civil Rights (OCR) alleging that the City failed properly to utilize EPA funds to address lingering environmental problems in low-income and minority communities in the City. The City then opened an inquiry into Rosemere that eventually culminated in the revocation of Rosemere’s status as a formal neighborhood association. Rosemere then filed a second complaint with the OCR in December 2003, alleging retaliation by the City.

Some eighteen months lapsed with no action by the OCR, until Rosemere filed suit in federal district court in June 2005 against the EPA, seeking to compel the OCR to accept or reject the retaliation complaint. About six weeks later, the OCR notified Rosemere that it had accepted the complaint for investigation. EPA then moved to dismiss Rosemere’s action as moot. The district court granted the motion, concluding that the delay was nothing “more than an isolated instance of untimeliness and oversight,” and there was no evidence that the EPA’s failure to act was a “practice” the EPA might resume in the future.

The Appeals Court concluded, "We thus conclude that the district court erred in dismissing Rosemere’s action. As the Seventh Circuit held, 'when the relief sought is an order to the delaying agency to hurry up,' but the agency acts 'to moot [the] case by acting before [the] claim for relief can be decided,' such a sequence 'begs for an exception to the ordinary rules of mootness.' Lucien v. Johnson, 61 F.3d 573, 574-75 (7th Cir. 1995). Rosemere’s complaint is not moot. The judgment of the district court is reversed and the case remanded for further proceedings consistent with this opinion."

Access the complete opinion (click here).

Center For Biological Diversity v. US Department of Interior

Sep 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16423. The Center for Biological Diversity (CBD), the Western Land Exchange Project, and the Sierra Club (collectively, Appellants) sued Asarco LLC (Asarco), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, BLM). Appellants contend that the BLM’s approval of a land exchange violated the National Environmental Policy Act (NEPA) and the Mining Law of 1872. If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872. If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872.

Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations (MPO) to the BLM. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed.

As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement (FEIS) pursuant to NEPA. In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision (ROD) approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences -- and the implications for the public interest -- would differ depending on whether the proposed land exchange occurs.

In a split decision, the Appeals Court ruled, "Because the BLM has conducted no comparative analysis, we hold that it has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was “arbitrary and capricious” in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving the actions of the BLM."

In a lengthy and harshly critical dissenting opinion, Justice Tallman said, "It has been said that the life of a canary in a coal mine can be described in three words: short but meaningful. So too apparently was the life of our decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). . . Having carefully reviewed and evaluated the record, I staunchly disagree with the majority’s conclusion . . .

"This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. . . In sum, the majority’s creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. . .

"Today’s opinion embodies the type of judicial meddling in agency action that we intended to put to rest in Lands Council. Its implications are far-reaching and severe. In order to achieve a particular result, my colleagues set the stage for a catastrophic collapse of the mine shaft timbers of deferential administrative law. For these reasons, I dissent. Has anyone seen the canary?"

Taylor McKinnon, public lands campaigns director with CBD said, “At stake in today’s decision were habitats for desert bighorn sheep, endangered desert tortoise habitat, and other threatened and endangered species. This is a victory for them -- a victory that will save lives.” CBD said the proposed exchange would have given Asarco 10,976 acres of public lands in exchange for 7,300 acres of the company’s private holdings, and would have facilitated the expansion of Asarco’s Ray Mine, an open-pit copper mine located 65 miles east of Phoenix and 50 miles north of Tucson. By gaining private ownership of the land, Asarco would no longer be subject to Federal planning, reclamation, and bonding requirements designed to minimize and mitigate the environmental impacts of hard-rock mining operations.

Access the complete opinion and dissent (click here). Access a release from CBD (click here).