Dec 21: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3903. The case involves a petition for review of a decision of the Nuclear Regulatory Commission denying rulemaking petitions filed by Massachusetts and California. The Appeals Court indicated, "As the Nuclear Regulatory Commission has given due consideration to the relevant studies concerning the rulemaking petitions, we must defer to its expertise in determining the proper risk level associated with the storage of nuclear material in spent fuel pools, and therefore deny the petition to review the Nuclear Regulatory Commission’s decision."
The two States filed rulemaking petitions (Massachusetts in 2006, and California in 2007) asking the NRC to reverse its 1996 Generic Environmental Impact Statement, which found (among other things) that spent fuel pools at nuclear power plants do not create a significant environmental impact within the meaning of the National Environmental Policy Act (NEPA). The States petitioning for review here (New York, Connecticut, and Massachusetts) claim standing on the ground that nuclear power plants are within or near their borders and that an accident at one of these plants could harm their citizens.
The States on appeal contended that the risk of a spent fuel pool fire must be a Category II rather than a Category I risk, because the risk is affected by mitigation that varies from plant to plant. It is true that the NRC relies in part upon mitigation at nuclear power plants -- including various coolant sprays and makeup water systems in case of pool drainage -- to conclude that the risk of an accidental or terrorist-caused fire in the pools is uniformly low. However, the NRC has mandated that these mitigation tactics be implemented at all nuclear power plants. The Appeals Court ruled, "The NRC relies on numerous studies detailing the effectiveness of its required mitigation measures; these studies constitute substantial evidence."
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Tuesday, January 5, 2010
Wednesday, December 16, 2009
Klamath Siskiyou Wildlands Center v. U.S. BLM
Dec 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35463. The Appeals Court explains, "We must decide whether environmental organizations are prevailing parties within the meaning of the Equal Access to Justice Act when, before judgment, the Bureau of Land Management [BLM] withdraws its challenged decision to conduct a timber sale." The "prevailing party" issue is important because Congress has passed many statutes to allow parties who sue the United States to recover attorney’s fees in certain circumstances, but only if they are the “prevailing parties” in the lawsuit. The Appeals Court cites: Buckhannon Bd. v. W.Va. Dep’t of Health and Human Res., 532 U.S. 598, 600 (2001).
Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds (Klamath) sued the Bureau of Land Management of the United States Department of the Interior (BLM), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Protection Act (NEPA) and the Forest Lands Policy and Management Act (FLPMA). Klamath sought “a preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and
attorneys fees.”
In this case, which has many nuisances, the Appeals Court rules, "In summary, we conclude that Klamath is not a prevailing party in this case because neither the stipulated order, the magistrate judge’s F&R, nor the binding ruling in Boody, a separate case, amounts to a 'material alteration of the legal relationship of the parties' that is 'judicially sanctioned,' as required in Buckhannon. For the foregoing reasons, the district court’s grant of attorney’s fees and costs to Klamath is reversed and vacated. The case is remanded for further proceedings consistent with this opinion.
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Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds (Klamath) sued the Bureau of Land Management of the United States Department of the Interior (BLM), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Protection Act (NEPA) and the Forest Lands Policy and Management Act (FLPMA). Klamath sought “a preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and
attorneys fees.”
In this case, which has many nuisances, the Appeals Court rules, "In summary, we conclude that Klamath is not a prevailing party in this case because neither the stipulated order, the magistrate judge’s F&R, nor the binding ruling in Boody, a separate case, amounts to a 'material alteration of the legal relationship of the parties' that is 'judicially sanctioned,' as required in Buckhannon. For the foregoing reasons, the district court’s grant of attorney’s fees and costs to Klamath is reversed and vacated. The case is remanded for further proceedings consistent with this opinion.
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Monday, December 14, 2009
American Road & Transportation Builders v. EPA
Dec 11: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1381. The American Road and Transportation Builders Association (ARTBA) is a trade organization representing the “transportation construction industry” -- companies that build roads, public transit systems, airports and the like. In 2002 ARTBA petitioned the U.S. EPA to amend two regulations implementing § 209(e) of the Clean Air Act. EPA had originally promulgated the rules in 1994, and then readopted them in 1997. After some litigation over the Agency’s failure to act on ARTBA’s petition, EPA formally opened it to public comment in 2007, then rejected it in 2008.
Shortly thereafter, ARTBA sought review in the D.C. Circuit Appeals Court. The Appeals Court dismissed dismiss the suit for lack of jurisdiction, on the grounds that National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), "requires us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought revised, and that judicial review of such a challenge is time-barred under Clean Air Act § 307(b)(1). . ." The Appeals Court dismissed the case saying, "We conclude that we are without jurisdiction to hear this petition."
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Shortly thereafter, ARTBA sought review in the D.C. Circuit Appeals Court. The Appeals Court dismissed dismiss the suit for lack of jurisdiction, on the grounds that National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), "requires us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought revised, and that judicial review of such a challenge is time-barred under Clean Air Act § 307(b)(1). . ." The Appeals Court dismissed the case saying, "We conclude that we are without jurisdiction to hear this petition."
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Friday, December 4, 2009
South Fork Band Council v. U.S. Department of Interior
Dec 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15230. This is an appeal from the denial of a preliminary injunction in an environmental challenge to a major gold mining project on the side of Mt. Tenabo in Nevada. The mountain has religious significance for Indian tribes. The plaintiffs-appellants are the South Fork Band Council of Western Shoshone of Nevada, and other tribes and organizations (the Tribes).
The Tribes originally filed this action against the United States Department of the Interior and its Bureau of Land Management (BLM) after BLM issued its final environmental impact statement approving the project. The project’s developer, Barrick Cortez, Inc., (Cortez) appeared as an intervenor and is also an appellee. The Appeals Court denied the Tribes’ emergency motion for an injunction pending appeal, but expedited the briefing and argument of the appeal.
The district court’s opinion devotes most of its consideration to claims brought under the Religious Freedom Restoration Act (RFRA). Those claims were not pursued on appeal. Instead, the claims allege violations of the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA). In determining whether a preliminary injunction should issue, the Appeals Court said it is bound by the Supreme Court’s recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08].
The Appeals Court said it "must decide whether the Tribes have shown that they are likely to succeed on the merits of their claims; that they are likely to suffer irreparable harm if a preliminary injunction is denied; that the balance of the equities tips in their favor; and that an injunction is in the public interest. . . The Tribes must make each of these showings to be entitled to injunctive relief. . . To succeed on the merits of their action under the Administrative Procedure Act, the Tribes must show that BLM’s action was arbitrary and capricious or contrary to law. . ."
The Appeals Court ruled, "Given the thorough consideration of the project’s impact on the Tribes religion in the Environmental Impact Statement (EIS), which was approved after more than two years of study and consultation with the Tribes and with the public, we conclude that the Tribes have not satisfied their burden of showing a likelihood of success on the merits of their FLPMA claims. We reverse the denial of injunctive relief on the NEPA claims, however, and remand for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions."
Further, the Appeals Court said, "The likelihood of irreparable environmental injury without adequate study of the adverse effects and possible mitigation is high. Indeed the district court did not question the irreparable environmental harm threatened by this massive project, and that will be visited most directly on the plaintiffs. The resulting hardship asserted by Cortez and the government is cast principally in economic terms of employment loss, but that may for the most part be temporary. Given the narrow scope of our holding, which rejects the broader FLPMA contentions, the balance of hardship favors the appellants. As to the public interest, Congress’s determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may go forward. Suspending a project until that consideration has occurred thus comports with the public interest."
Access the complete opinion (click here).
The Tribes originally filed this action against the United States Department of the Interior and its Bureau of Land Management (BLM) after BLM issued its final environmental impact statement approving the project. The project’s developer, Barrick Cortez, Inc., (Cortez) appeared as an intervenor and is also an appellee. The Appeals Court denied the Tribes’ emergency motion for an injunction pending appeal, but expedited the briefing and argument of the appeal.
The district court’s opinion devotes most of its consideration to claims brought under the Religious Freedom Restoration Act (RFRA). Those claims were not pursued on appeal. Instead, the claims allege violations of the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA). In determining whether a preliminary injunction should issue, the Appeals Court said it is bound by the Supreme Court’s recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08].
The Appeals Court said it "must decide whether the Tribes have shown that they are likely to succeed on the merits of their claims; that they are likely to suffer irreparable harm if a preliminary injunction is denied; that the balance of the equities tips in their favor; and that an injunction is in the public interest. . . The Tribes must make each of these showings to be entitled to injunctive relief. . . To succeed on the merits of their action under the Administrative Procedure Act, the Tribes must show that BLM’s action was arbitrary and capricious or contrary to law. . ."
The Appeals Court ruled, "Given the thorough consideration of the project’s impact on the Tribes religion in the Environmental Impact Statement (EIS), which was approved after more than two years of study and consultation with the Tribes and with the public, we conclude that the Tribes have not satisfied their burden of showing a likelihood of success on the merits of their FLPMA claims. We reverse the denial of injunctive relief on the NEPA claims, however, and remand for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions."
Further, the Appeals Court said, "The likelihood of irreparable environmental injury without adequate study of the adverse effects and possible mitigation is high. Indeed the district court did not question the irreparable environmental harm threatened by this massive project, and that will be visited most directly on the plaintiffs. The resulting hardship asserted by Cortez and the government is cast principally in economic terms of employment loss, but that may for the most part be temporary. Given the narrow scope of our holding, which rejects the broader FLPMA contentions, the balance of hardship favors the appellants. As to the public interest, Congress’s determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may go forward. Suspending a project until that consideration has occurred thus comports with the public interest."
Access the complete opinion (click here).
Monday, November 30, 2009
Ackerson v. Bean Dredging LLC
Nov 25: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-30272. In this multi-party case known as the Katrina Canal Breaches Litigation, appellants sued the United States and thirty-two defendants who dredged the Mississippi River Gulf Outlet to recover damages sustained during Hurricane Katrina. The district court dismissed the claims against the dredgers because it determined that the defendants acted pursuant to contracts with the United States government under authority granted by an act of Congress. The appellants argue that the district court improperly: (1) dismissed their claims; (2) refused to allow them to amend their complaint; (3) refused to allow them to conduct discovery; and (4) entered judgment in favor of those defendants whose actions had been stayed after they filed petitions under the Limitation of Liability Act.The Appeals Court affirmed the district court decision.
While admitting that the district court did commit a procedural error, the Appeals Court ruled, "A district court’s failure to comply with formal procedural requirements is a ground for reversing a judgment when “the failure substantially prejudiced one of the parties.” Here, the limitation actions and the merits actions were before the same district court. Because the district court could cure the procedural defect merely by entering a stay in the limitation actions and then entering judgment for the Limitation Defendants in the merits action, the Plaintiffs would be in the same position if the district court followed the proper procedure. The Plaintiffs have not identified any substantial prejudice arising out of the district court’s procedural error. Thus, we affirm the entry of judgment in favor of the Limitation Defendants.
"Because we hold that the Contractor Defendants are entitled to government-contractor immunity under Yearsley and that the Plaintiffs’ other claims are without merit or are harmless error, we affirm the district court’s dismissal and deny the motion to dismiss the appeal as moot."
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While admitting that the district court did commit a procedural error, the Appeals Court ruled, "A district court’s failure to comply with formal procedural requirements is a ground for reversing a judgment when “the failure substantially prejudiced one of the parties.” Here, the limitation actions and the merits actions were before the same district court. Because the district court could cure the procedural defect merely by entering a stay in the limitation actions and then entering judgment for the Limitation Defendants in the merits action, the Plaintiffs would be in the same position if the district court followed the proper procedure. The Plaintiffs have not identified any substantial prejudice arising out of the district court’s procedural error. Thus, we affirm the entry of judgment in favor of the Limitation Defendants.
"Because we hold that the Contractor Defendants are entitled to government-contractor immunity under Yearsley and that the Plaintiffs’ other claims are without merit or are harmless error, we affirm the district court’s dismissal and deny the motion to dismiss the appeal as moot."
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Wednesday, November 25, 2009
State of North Carolina v. EPA
Nov 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1225. The State of North Carolina petitions for review of the final rule of U.S. EPA removing the northern part of the State of Georgia from EPA’s regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period [See 73 FR 21,528, 4/22/08]. In 1998 EPA called upon several states to revise their state implementation plans (SIPs) for attaining the NAAQS for ozone by reducing emissions of oxides of nitrogen (NOx), a precursor of ozone [63 FR 57,356, 10/27/98, NOx SIP Call].
Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.
Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.
The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."
Access the complete opinion (click here).
Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.
Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.
The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."
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Boston & Maine Corp. v. Massachusetts Bay Transportation
Nov 24: In the U.S. Court of Appeals, First Circuit, Case No. 09-1185. The Appeals Court explains that on June 30, 1983, the Boston and Maine Corporation (B&M), a railroad operator, was discharged from bankruptcy by a Consummation Order stating that it was "free and clear of all claims." The Order was pursuant to § 77 of the Bankruptcy Act of 1898, 11 U.S.C. § 205 (repealed 1978). B&M was the operator of what is now known as the MBTA Commuter Rail Maintenance Facility (the Terminal), a thirty-four-acre railroad terminal in the greater Boston area used for refueling diesel trains. In 1983, the Terminal was owned by the Massachusetts Bay Transportation Authority (the MBTA), having been purchased by the MBTA from B&M in 1976; B&M had operated the Terminal under bankruptcy protection from 1970 to June 1983 and had owned the Terminal since the late 1920s. B&M continued to operate the Terminal under an agreement with and for the benefit of the MBTA until December 31, 1986.
The MBTA asserted no claims against B&M regarding environmental matters before B&M's June 1983 discharge from bankruptcy, pursuant to the Consummation Order. The MBTA did, however, assert a claim on May 4, 2004, almost 21 years later, against B&M. The claim was for 95 percent of $15,340,810 for past costs and 95 percent of all future costs, as contribution, under state environmental law, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Chapter 21E), for certain cleanup activities the MBTA had undertaken at the Terminal.
The Appeals Court ruled, "We hold that the MBTA's contribution claims under Chapter 21E for contamination prior to the 1983 discharge from bankruptcy are barred as a matter of law by the Consummation Order. We reverse and direct entry of judgment on these claims for B&M." Further the Appeals Court concluded, "Both sides have been ably represented by counsel; the facts and the law require rejection of the MBTA's arguments. The MBTA's contribution claims arising out of pre-June 30, 1983, conduct by B&M are barred by the Consummation Order, so B&M is entitled to an order enjoining the MBTA from pursuing claims for investigation or remediation costs for contamination at the Terminal occurring before June 30, 1983."
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The MBTA asserted no claims against B&M regarding environmental matters before B&M's June 1983 discharge from bankruptcy, pursuant to the Consummation Order. The MBTA did, however, assert a claim on May 4, 2004, almost 21 years later, against B&M. The claim was for 95 percent of $15,340,810 for past costs and 95 percent of all future costs, as contribution, under state environmental law, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Chapter 21E), for certain cleanup activities the MBTA had undertaken at the Terminal.
The Appeals Court ruled, "We hold that the MBTA's contribution claims under Chapter 21E for contamination prior to the 1983 discharge from bankruptcy are barred as a matter of law by the Consummation Order. We reverse and direct entry of judgment on these claims for B&M." Further the Appeals Court concluded, "Both sides have been ably represented by counsel; the facts and the law require rejection of the MBTA's arguments. The MBTA's contribution claims arising out of pre-June 30, 1983, conduct by B&M are barred by the Consummation Order, so B&M is entitled to an order enjoining the MBTA from pursuing claims for investigation or remediation costs for contamination at the Terminal occurring before June 30, 1983."
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