American Commercial Lines LLC v. Water Quality Ins. Syndicate

Mar 14: In the U.S. Court of Appeals, Second Circuit, Case No. 10-1650. In this summary order, which does not have precedential effect, the Appeals Court dismissed the appeal for lack of jurisdiction. The case involved a dispute over coverage for a $130 million oil spill. Defendant Water Quality Insurance Syndicate (WQIS) appeals from the district court's March 29, 2010 grant of partial judgment on the pleadings in favor of plaintiff American Commercial Lines LLC (ACL), determining the scope of WQIS's obligation under maritime pollution insurance policy number 40-27083 (the Policy) to reimburse ACL for costs incurred investigating and defending against claims arising from a July 23, 2008 oil spill. WQIS submits that this court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1292(a)(3), because the district court's interlocutory order determined the rights and liabilities of the parties in an admiralty case in which appeals from final decrees are allowed. The Appeals Court said "We conclude that because the district court's order did not conclusively determine the rights and liabilities of the parties, jurisdiction under § 1292(a)(3) is lacking, and the appeal must be dismissed."

 

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Southern Nuclear Operating Co. AL, & GA v. U.S.

Mar 11: In the U.S. Court of Appeals, Federal Circuit, Case No. 2008-5020. Appealed from the United States Court of Federal Claims. Plaintiffs Southern Nuclear Operating Company, Alabama Power Company, and Georgia Power Company (collectively, plaintiffs) filed suit in the Court of Federal Claims (Claims Court) against the United States, alleging that the United States Department of Energy (Energy) had partially breached contracts by failing to accept spent nuclear fuel (SNF) for storage beginning on January 31, 1998. The Claims Court granted summary judgment for plaintiffs on liability. It then held a trial to determine damages for storage costs incurred that would not have been necessary if Energy had fulfilled its obligation to begin accepting SNF in 1998. S. Nuclear Operat-ing Co. v. United States, 77 Fed. Cl. 396, 460 (2007). The Claims Court also determined that the United States waived its defense that the "unavoidable delays" clause of its contracts precluded expectancy damages. Id. at 452–59. The Appeals Court vacated-in-part the damage award and remanded to the Claims Court for further consideration with respect to two of three power plants (Plant Hatch and Plant Vogtle, owned by GA). However, the Appeals Court affirmed the damage award for one plant (Plant Farley, owned by AL) and affirmed the Claims Court's conclusion that the United States waived its "unavoidable delays" defense.

 

    The United States argued that these storage costs at all three plants would also have been incurred in the non-breach world (i.e., if Energy had performed) and that, therefore, the government's breach did not cause the plaintiffs to make these expenditures. The Claims Court concluded that the plaintiffs' mitigation measures were incurred as a result of Energy's breach, and it awarded $2,716,000 for the rerack at Plant Vogtle; $17,278,000 for dry storage costs at Plant Farley; and $57,203,080 for dry storage costs at Plant Hatch. On appeal, both parties agree that the $3,186,000 award for Plant Hatch was made in error.

 

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NRDC v. County Of Los Angeles

Mar 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56017. Appealed from the United States District Court for the Central District of California. Plaintiffs-Appellants Natural Resources Defense Council (NRDC) and Santa Monica Baykeeper appealed the district court's grant of summary judgment in favor of two municipal entities that Plaintiffs allege are discharging polluted stormwater in violation of the Federal Water Pollution Control Act (the Clean Water Act, Act, or CWA). Plaintiffs contend that Defendants-Appellees County of Los Angeles (County) and Los Angeles County Flood Control District (District) are discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County.

 

    Although all parties agree that numerous water-quality standards have been exceeded in the Watershed Rivers, Defendants contend that there is no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers. The district court agreed with Defendants and entered a partial final judgment. The Appeals Court, however, said, "We conclude that the district court erred with respect to the evidence of discharges by the District into two of the Watershed Rivers -- the Los Angeles River and San Gabriel River. Specifically, Plaintiffs provided evidence that the monitoring stations for the Los Angeles and San Gabriel Rivers are located in a section of ms4 owned and operated by the District and, after stormwater known to contain standards-exceeding pollutants passes through these monitoring stations, this polluted stormwater is discharged into the two rivers. Accordingly, Plaintiffs were entitled to summary judgment on the District's liability for discharges into the Los Angeles River and San Gabriel River, and therefore we reverse the district court's grant of summary judgment in favor of the District on these claims."

 

    The Appeals Court said further, "Plaintiffs, however, failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River and Malibu Creek [the other two water bodies]. Plaintiffs did not provide evidence sufficient for the district court to determine if stormwater discharged from an ms4 controlled by the District caused or contributed to pollution exceedances located in these two rivers. Similarly, Plaintiffs did not delineate how stormwater from ms4s controlled by the County caused or contributed to exceedances in any of the Watershed Rivers. Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants on these claims."

 

    NRDC issued a release and commented on the decision saying, "This ruling holds LA County responsible for their massive water pollution problem. For years, the County claimed that it could never be held accountable for its toxic discharges, even if the water were so polluted that it literally caught on fire. All of that changes with this ruling. The result will be fewer illnesses, fewer beach closings, a healthier environment, and a healthier regional economy."

 

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

Dow Agrosciences L.L.C. v. National Marine Fisheries Service

Mar 2: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1968. Appealed from the United States District Court for the District of Maryland. As explained by the Appeals Court the question presented is whether a "biological opinion" issued by the National Marine Fisheries Service (NMFS) to the Environmental Protection Agency (EPA) pursuant to the Fisheries Service's consulting role under the Endangered Species Act is subject to judicial review in the district court under the Administrative Procedure Act (APA).

    The Fisheries Service, which provided the biological opinion to the EPA as part of the EPA's process of re-registering for sale and use the insecticides chlorpyrifos, diazinon, and malathion, concluded that the insecticides will destroy or harm Pacific salmonids and their habitat. Pesticide manufacturers who hold the registrations for those insecticides commenced the action to challenge the biological opinion. The district court dismissed the action, concluding that the biological opinion is not reviewable under the APA because the EPA has not yet acted on the biological opinion and when it does issue a final order on whether to reregister the insecticides, the order, including the biological opinion, will be subject to judicial review in a court of appeals, as authorized in the Federal Insecticide, Fungicide, and Pesticide Act (FIFRA).

 

    In the appeal from the district court's dismissal order, the Appeals Court said, "we conclude that, under Bennett v. Spear, 520 U.S. 154 (1997), the Fisheries Service's biological opinion is a final agency action and that deferring judicial review of the biological opinion until the EPA acts on re-registration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, we conclude that the Fisheries Service's biological opinion is judicially reviewable under § 704 of the APA. We reverse and remand for further proceedings in the district court."

 

    Access the complete opinion (click here). Access a related unpublished opinion denying a Petition for Writ of Mandamus (click here).

Center For Food Safety v. Monsanto

Feb 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17719 & 10-17722. The Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) and Intervenors Monsanto et al. appeal the district court's decision granting a preliminary injunction that mandates the destruction of juvenile Roundup Ready sugar beets planted pursuant to permits issued by the agency. The Appeals Court said, "Because the plaintiffs have failed to demonstrate irreparable harm, we reverse and vacate the preliminary injunction and direct that the permits be given full force and effect." The Appeals Court said further in its final conclusion, ". . .without expressing any views on the merits of the ultimate issues in

this case or other pending related litigation, we vacate the preliminary injunction, reverse, and remand for further proceedings consistent with this opinion."

 

    Additionally, the Appeals Court explained, "At the time Plaintiffs sought the preliminary injunction, none of the irreparable harms they sought to prevent were likely. Their alleged irreparable harms hinged on future APHIS decisions, and nothing prevented Plaintiffs from filing a new legal challenge if and when those decisions were made. The alleged irreparable harms are little more than an expression that 'life finds a way.' Michael Crichton, Jurassic Park 159 (Ballantine 1990). However, an invocation to chaos theory is not sufficient to justify a preliminary injunction. Monsanto warned against premature review of APHIS's regulatory actions under the Plant Protection Act. See 130 S. Ct. at 2759–61. Plaintiffs are unlikely to face irreparable substantive harm from the stecklings, and if a subsequent APHIS decision aggrieves them, they may challenge it and seek appropriate preliminary relief. Id. at 2761. Under these circumstances, we conclude that injunctive relief 'is not now needed to guard against any present or imminent risk of likely irreparable harm.' Id. at 2760. Because Plaintiffs have failed to show that they are 'likely to suffer irreparable harm in the absence of preliminary relief,' Winter, 129 S. Ct. at 374, we need not address the district court's analysis of the remaining elements of the preliminary injunction standard."

 

    Access the complete opinion (click here).

Klamath Irrigation District v. U.S.

Feb 17: In the U.S. Court of Appeals, Federal Circuit, Case No. 2007-5115. Appealed from the United States Court of Federal Claims. Plaintiffs-Appellants (plaintiffs) are fourteen water, drainage, and irrigation districts and thirteen agricultural landowners in Oregon and California. Plaintiffs appeal the final judgment of the United States Court of Federal Claims that, based on two separate summary judgment decisions, dismissed their Fifth Amendment takings claims, their claims under the Klamath River Basin Compact, Pub. L. No. 85-222, 71 Stat. 497 (1957) (the Klamath Basin Compact or the Compact), and their breach of contract claims. See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (2005) (Takings Decision); Klamath Irrigation Dist. v. United States, 75 Fed. Cl. 677 (2007) (Contract Decision).

 

    On July 16, 2008, the Appeals Court certified three questions relating to the takings and Compact claims to the Oregon Supreme Court. See Klamath Irrigation Dist. v. United States, 532 F.3d 1376 (Fed. Cir. 2008) (Certification Order). The certification was pursuant to a procedure whereby unsettled questions of state law may be certified to the Oregon Supreme Court. See Or. Rev. Stat. §§ 28.200-28.255 (2010). Pending action by the Oregon court, the Appeals Court withheld decision on all of plaintiffs' claims. The Oregon Supreme Court accepted the case for certification, Klamath Irrigation Dist. v. United States, 202 P.3d 159 (Or. 2009), and on March 11, 2010, the court rendered its decision, answering the certified questions of the Appeals Court. See Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145 (Or. 2010) (en banc) (Certification Decision).

    Now, the Appeals Court has vacated the judgment of the Court of Federal Claims and remand the case to the court for further proceedings. The Appeals Court said, "On remand, the court is to (1) consider the takings and Compact claims in light of the Certification Decision; (2) determine whether, as far as the breach of contract claims are concerned, the government can establish that, for purposes of its defense based on the sovereign acts doctrine, contract performance was impossible; and (3) decide the breach of contract claims as appropriate." The Appeals Court said further in its conclusion, "If the court determines that the government is liable for takings or for breach of contract, or both, it will be necessary for it to address the question of damages. Needless to say, we express no views on whatever issues may arise in the setting of a damages determination."

    Access the complete opinion (click here).

Goodspeed Airport LLC v. Department of Environmental Protection

Feb 10: In the U.S. Court of Appeals, Second Circuit, Case No. 10-516. Appealed from the United States District Court for the District of Connecticut. After a bench trial, in favor of Defendants-Appellees, determining that the Connecticut Inland Wetlands and Watercourses Act and the Connecticut Environmental Protection Act, as well as municipal regulations pursuant thereto (specifically the imposition of a permit requirement on cutting trees on protected wetlands), are neither expressly nor impliedly preempted by the Federal Aviation Act, the Airline Deregulation Act, or Federal Aviation Agency regulations promulgated thereunder. The Appeals Court affirmed the decision of the district court.

 

    In conclusion, the Appeals Court said, "Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally applicable state laws and regulations imposing permit requirements on land use challenged here do not, on the facts before us, invade that preempted field. Further, the impact on air carriers of the laws and regulations at issue here, if any, is too remote to be expressly preempted under the terms of the Airline Deregulation Act. Accordingly, the district

court's judgment of January 13, 2010 is hereby affirmed."

 

    Access the complete opinion (click here).