Sierra Club v. Abigail Kimbell (U.S. Forest Service)

Oct 18: In the U.S. Court of Appeals, Eighth Circuit, Case No: 09-1639, appealed from U.S. District Court for the District of Minnesota - Minneapolis. 

 

    In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest (the forest plan). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, Sierra Club) sought judicial review of the forest plan in the district court. As relevant to the appeal, Sierra Club argued that the Forest Service's assessment of the forest plan's environmental impacts violated the National Environmental Policy Act (NEPA). In particular, Sierra Club claimed that the Forest Service had failed to consider the plan's effects on the Boundary Waters Canoe Area Wilderness (BWCAW). The district court determined that the Forest Service had considered adequately the impacts on the nearby BWCAW wilderness area in accordance with NEPA, and therefore granted the Agency's motion for summary judgment. The Appeals Court affirmed the district court decision.

 

    In final summary, the Appeals Court said, ". . .the agency's clear intention to act with neutrality towards the BWCAW, the evaluation of specific impacts to the wilderness area (including certain 'edge effects'), and the inclusion of the BWCAW within broader environmental analyses persuade us that the Forest Service took the 'hard look' required of it under NEPA. We thus conclude that the Forest Service did not act arbitrarily or capriciously in its development of the FEIS [final environmental impact statement]."

 

    Access the complete opinion (click here).

U.S. v. State of New York & Cinergy Corp

Oct 12: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3344. More than a decade ago the Environmental Protection Agency brought this suit against affiliated owners (i.e. Cinergy et al) of a number of coal-fired electric power plants in the Midwest. The suit claims that Cinergy violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by modifying a number of the plants without first obtaining from the agency a permit that the agency contends was required by a regulation, 40 C.F.R. § 52.21(a)(2)(iii), because the modifications were "major" and would produce increases in emissions of nitrogen oxide and sulfur dioxide.

 

    Cinergy argued; the regulation does not require a permit for modifications unless they will increase the hourly rate at which a plant can emit pollutants, even if they will increase the plant's annual emissions by enabling the plant to be operated for more hours during the year. The district judge rejected Cinergy's interpretation. Without the required permit, Cinergy was liable for increased pollution caused by the modifications, and faced the prospect of an injunction that would require it to shut down the plants, plus civil penalties of $25,000 for each day that it had violated the permit requirement.

 

    Cinergy took an interlocutory appeal under from the judge's ruling on the hourly capacity versus actual-emissions interpretation of the regulation. The Appeals Court affirmed that district court decision, agreeing that the regulation required application of the actual emissions standard. United States v. Cinergy Corp., 458 F.3d 705 (7th Cir. 2006). However, the Appeals Court says that one point in that opinion is worth repeating because it bears on an issue in the present appeals.

 

    The Appeals Court indicates, "Cinergy's hourly-capacity interpretation would if adopted give a company that had a choice between making a physical modification that would increase the hourly emissions rate and one that would enable an increase in the number of hours of operation an incentive to make the latter modification even if that would produce a higher annual level of emissions. For that modification would elude the permit requirement and thus shelter the company from liability for the increased emissions. It would also distort the choice between rebuilding an old plant and replacing it with a new one. The Clean Air Act treats old plants more leniently than new ones because it is expensive to retrofit a plant with pollution-control equipment. Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 909 (7th Cir. 1990).

 

    "But there is an expectation that old plants will wear out and be replaced by new ones that will thus be subject to the more stringent pollution controls that the Act imposes on new plants. A spur to replacing an old plant is that aging produces more frequent breakdowns and so reduces a plant's hours of operation and hence its output unless the owner invests in continuous, and cumulatively costly, replacement of worn-out parts to keep the plant going. Cinergy's interpretation would if adopted have given the company an artificial incentive instead to renovate its old plants, and by so doing increase their hours of operation, rather than to replace the plants even if replacing them would cost less. For by renovating the plants rather than replacing them, the company could increase their output without having to invest in measures for preventing the enhanced output from generating increased pollution."

 

    The current case follows a jury trial where the verdict was mixed requiring fourteen modification projects at three plants which were at issue; the jury found liability with respect to four of the projects, all at Cinergy's plant in Wabash, Indiana, and all undertaken between 1989 and 1992. These modifications, the jury found, had been likely to increase the plant's annual emissions of sulfur dioxide and nitrogen oxide and therefore Cinergy should have sought a permit.

 

    However, on appeal, the Appeals Court ruled, "Without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution; for the government doesn't contest Cinergy's claim that if the testimony of the government's experts should have been excluded, Cinergy is entitled to judgment. Earlier we said that the government cannot prevail with respect to the plant's emissions of sulfur dioxide. Therefore the judgment must be reversed with instructions to enter judgment for Cinergy. The parties have made other arguments, but they are either too feeble to merit discussion. . . The cross-appeal is therefore dismissed, while the judgment in the government's favor is, as we said, reversed."

 

    Access the complete opinion (click here).

Western Watersheds v. Interior Board Of Land

Oct 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35708. In brief summary, the appeal involves the interplay between the issuance or renewal of Bureau of Land Management (BLM) grazing permits and the fee-shifting provisions of the Equal Access to Justice Act (EAJA). Western Watersheds Project (Western Watersheds) appeals a summary judgment determination that EAJA fees were not available to Western Watersheds because its environmental claims were brought in a grazing permit renewal proceeding. The Appeals Court agreed with the district court's reasoning and affirmed its decision. The Appeals Court concluded, "Because Western Watersheds' commendable efforts to insure environmental compliance occurred within a proceeding Congress excepted from EAJA recovery, we affirm the district court's determination in that regard."

   

    Access the complete opinion (click here).

The Wilderness Society v. USFS

Sep 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. The Appeals Court issued an order indicating, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc."

 

    According to a supplemental brief filed by the appellant "Recreation Groups," the panel has asked the parties to file supplemental briefs "on the following question: Whether this case should be heard en banc to decide if this court should abandon the 'federal defendant rule,' which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." The Recreation Groups stated that the "question framed by the panel should be heard en banc. The Court should abandon the Federal Defendant Rule.

 

    The Recreation Groups explain that the panel's question necessitates two distinct inquiries. First is the question of whether en banc review is warranted. This question typically arises in the context of a petition for rehearing filed by one on the losing end of the panel's decision. The less common context here, through a panel call prior to issuing a decision, implies the importance of the question presented and the need for en banc determination.

 

    The Groups indicated that, "It is apparent that the circuit courts are split on the applicability of the Federal Defendant Rule." They cite decisions by the 10th, 5th and 1st circuits. The Groups conclude in their brief, "The Court should convene en banc to consider the ongoing validity of its unique Federal Defendant Rule. Should the Court consider the question en banc the Recreation Groups will gladly submit additional briefing or argument, which, in addition to the information already submitted, will demonstrate that the Federal Defendant Rule disserves all nonfederal interests, federal defendants and the judiciary in resolving important federal lands management questions."

 

    The Western Environmental Law Center disagreed and said, "If this Court wishes to review the federal defendant rule, it should do so in a case that presents the inconsistencies and problems with the rule, rather than in a case such as this one, which is riddled with other procedural issues. Moreover, the district court's denial of intervention in this case should be affirmed regardless of the federal defendant rule, thus making review of the rule almost peripheral to the outcome of this case. In sum, this Court should deny en banc review of the federal defendant rule in this case."

 

    Access the Order (click here). Access the supplemental briefs (click here).

Kurt Meister v. U.S. Department of Agriculture

Sep 29: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-1712. The Appeals Court says that an agency is not entitled to deference simply because it is an agency. It is true that agencies are more specialized than courts are. But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it. And that means, among many other things, that the agency must apply -- rather than disregard -- the relevant statutory and regulatory criteria.

 

    Kurt Meister, a Michigan attorney appearing pro se [representing himself], argues that the United States Forest Service disregarded the relevant criteria here. Specifically, he claims that the Service failed to comply with several of its own regulations and one federal statute in developing its 2006 management plan for the Huron-Manistee National Forests in Northern Michigan. For the most part, we agree with him; and to that extent we reverse the district court's entry of judgment in the Service's favor and remand the case so that the Service may comply with those requirements forthwith.

 

    The case concerns the Service's management of recreational activities in the Huron-Manistee National Forests. The Forests occupy about 970,000 acres on each side of the northern one-third of Michigan's Lower Peninsula. In the east, the Huron National Forest ranges between 12 and 30 miles long from north to south, and stretches 60 miles wide from west to east, reaching the shores of Lake Huron. In the west, the Manistee National Forest is about 75 miles long and 40 miles wide, reaching Lake Michigan near Manistee.

    The Service issued a management plan for the Forests in 1986. In 2003, the Service published a notice of intent to revise the plan. The Service thereafter held public meetings and solicited public comments as to how to revise the plan. Meister commented on the Plan throughout its development. Those comments reveal fluency with the language of the relevant statutes and regulations; and they explained in considerable detail why Meister thought the Service was not meeting its obligations under the law. His principal comment was that, in developing the Plan, the Service had disregarded certain processes prescribed in its own regulations, so as to favor gun hunters and snowmobile users over other persons—for example, hikers and birdwatchers -- who use the Forests for quiet, solitary activities. He also commented that the Service should close more areas of the Forests to motorized activity than the Service seemed likely to close in the Plan. The Appeals Court said, "It appears that the Service disagreed with all of Meister's comments." Following an administrative appeals, Meister filed suit in district court and the district court granted the Service's motion, holding in general terms that the Service had complied with the applicable regulations. The district court denied Meister's motion.

 

    The Appeals Court summarize its holdings saying, "First, the Service's estimates of snowmobile and cross-country visitors to the Forests are arbitrary. . . Second, the Service has not complied with the requirement that it coordinate its recreational planning with that of the State of Michigan with the aim (to the extent feasible) of "reducing duplication in meeting recreation demands" with respect to gun hunting and snowmobiling. . . Third, the Service's reasons for keeping pre-designation and club trails open to snowmobile use are arbitrary. . . Fourth, the Service violated the National Environmental Policy Act when it failed to consider whether to close Primitive and Semiprimitive Nonmotorized areas to gun hunting and snowmobile use, as Meister has proposed."

 

    The Appeals Court ruled, "Each of these failures was material to the Plan's development. To that extent, the Plan's approval was arbitrary or without observance of procedures required by law. Given that holding, we have authority to 'set aside' the Plan. . . We choose not to exercise that authority today, but instead grant the Service a reasonable time to adopt a plan that complies with the law. Ninety days from the date of our mandate seems to us ample time for that compliance. The district court may extend that period upon some showing that the court finds compelling; but in any event the Service shall comply forthwith. The district court's judgment is reversed with respect to the claims summarized . . . Meister is entitled to judgment on those claims to the extent described . . . and the claims are remanded to the district court for further proceedings consistent with this opinion. The district court's judgment is otherwise affirmed."

 

    Access the complete opinion (click here).

Oklahoma v. Tyson Foods, Inc.

Sep 21: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-5134. The Cherokee Nation (the Nation) appeals the district court's denial of its motion to intervene in a dispute between the State of Oklahoma (the State) and Defendants-Appellees (collectively, Tyson). The State had sued Tyson because of Tyson's disposal of poultry waste in the Illinois River Watershed (IRW). The IRW, in which both the State and the Nation claim interests, covers approximately one million acres straddling the Oklahoma-Arkansas border. Within it are hundreds of large-scale poultry farms. Tyson operates some of these farms and contracts with other farmers to raise poultry until maturity, using methods established by Tyson; Tyson collects the poultry at maturity for processing and marketing. These poultry-growing operations generate hundreds of thousands of tons of poultry waste each year.

 

    Raising a number of legal theories, the State sought monetary relief for past and future damages and an injunction against alleged pollution. More than three years into the litigation, Tyson moved to dismiss the monetary claims on the ground that the Nation was a required party that had not been joined. The State argued that the Nation was not a required party but also negotiated an agreement in which the Nation purportedly assigned the State its interests in the litigation. The district court ruled that the agreement was invalid and granted Tyson's motion, restricting the previously scheduled trial to the State's claims for injunctive and other equitable relief.

 

    Nineteen days before trial the Nation moved to intervene so that it could proceed on three claims against Tyson for injunctive and monetary relief. The district court denied the motion as untimely. Although the Nation argued that it had moved promptly after learning that the State could not adequately represent the Nation's interests in the litigation, the district court ruled that the Nation had delayed too long, that Tyson would be severely prejudiced by the lengthy trial delay that would be necessary if the Nation were permitted to intervene, and that the Nation would not be prejudiced by a denial of intervention.

 

    In a split decision, the majority affirmed the district court denial and said it "did not abuse its discretion in denying the motion to intervene. In particular, the district court could properly find that the Nation had unduly delayed seeking to intervene because from the outset of the litigation it had no reason to believe that the State would represent its interests in monetary relief."

 

    Access the complete opinion (click here).

Celanese Corp. v. Eby Construction Co.

Sep 20: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-20487. At issue is whether Eby is liable as an "arranger" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Texas Solid Waste Disposal Act (SWDA). The Appeals Court ruled that Eby is not an arranger, and affirmed the district court's final judgment, denying recovery to Celanese. Additionally the Appeals Court affirmed the district court's denial of Celanese's motion to alter that judgment pursuant to Federal Rule of Civil Procedure 59(e).

 

    In explaining its decision, the Appeals Court says, "The district court found, and Celanese does not dispute, that Eby did not intentionally damage the pipeline. In fact, Eby did not even know that it had struck a pipeline; it only knew that it had struck something with a backhoe. Still, Celanese insists that Eby intentionally took steps to dispose of methanol by disregarding its obligations to investigate the incident and backfilling the excavated area where the incident had occurred. In other words, Celanese argues that Eby's conscious disregard of its duty to investigate is tantamount to intentionally taking steps to dispose of methanol. Burlington [Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1874 (2009)], however, precludes liability under these circumstances.

 

    "In Burlington, the Court declined to impose arranger liability for a defendant with more culpable mens rea. The defendant had actually arranged to ship hazardous chemicals under conditions that it knew would result in the spilling of a portion of the hazardous substance by the purchaser or common carrier. See Burlington, 129 S. Ct. at 1880. Given that there was no arranger liability under those circumstances, we fail to see how we can impose such liability here when Eby did not even know that it had struck the Celanese pipeline. Therefore, we hold that Eby is not liable as an arranger under CERCLA."

 

    Access the complete opinion (click here).