State of Michigan v. United States

Aug 24: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-3891. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. In this important 57-page decision regarding Great Lakes States' continuing attempt to stop the spread of Asian Carp to the Great Lakes, the Appeals Court upheld the district court's ruling denying preliminary relief. However, importantly, unlike the lower court which said the "plaintiffs had shown only a minimal chance of succeeding on their claims"; the Appeals Court said "plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm." The Appeals Court also agreed with plaintiffs that, "If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable." The case involves the State of Michigan, et al and the Grand Traverse Band of Ottawa and Chippewa Indians versus the U.S. Army Corps of Engineers and the City of Chicago, et al.

 

    As explained by the Appeals Court, "Ambitious engineering projects that began at the time that the City of Chicago was founded have established a waterway in northeastern Illinois that connects Lake Michigan to the Mississippi watershed. (Additional links between the Mississippi and the Great Lakes exist elsewhere, from northern Minnesota to New York.) The system of canals, channels, locks, and dams, with which we are concerned, known today as the Chicago Area Waterway System (or CAWS, as the parties call it in their briefs), winds from the mouth of the Chicago River and four other points on Lake Michigan to tributaries of the Mississippi River in Illinois. The navigable link has been a boon to industry and commerce, and it supports transportation and recreation. Public health crises that once were common because the Chicago River emptied the City's sewage into the lake -- the City's freshwater supply – vanished thanks to the Chicago Sanitary and Ship Canal, which reversed the flow of the Chicago River so that it now pulls water from the lake, into the CAWS, and down toward the Mississippi. During heavy rains and seasonal high waters in the region, the CAWS is used to control flooding.

 

    "This effort to connect the Great Lakes and Mississippi watersheds has not been without controversy. At the turn of the 20th century, Missouri sued in the Supreme Court to stop Illinois from opening the Sanitary and Ship Canal. An opinion by Justice Holmes rejected Missouri's challenge; the Court concluded that the state had not presented enough evidence to establish that the flow of sewage toward the Mississippi would create a public nuisance. Missouri v. Illinois, 200 U.S. 496 (1906); see also Missouri v. Illinois, 180 U.S. 208 (1901). Several years later a broader fight erupted among the states bordering the Great Lakes, and the Court began to issue decrees setting the maximum rate at which Illinois may divert water away from Lake Michigan and into the CAWS. E.g., Wisconsin v. Illinois, 449 U.S. 48 (1980); Wisconsin v. Illinois, 388 U.S. 426 (1967); Wisconsin v. Illinois, 311 U.S. 107 (1940); Wisconsin v. Illinois, 278 U.S. 367 (1929). Nor has opening a pathway between these bodies of fresh water come without costs. This appeal requires us to consider one of those costs: the environmental and economic harm posed by two invasive species of carp, commonly known as Asian carp, which have migrated up the Mississippi River and now are poised at the brink of this man-made path to the Great Lakes. The carp are voracious eaters that consume small organisms on which the entire food chain relies; they crowd out native species as they enter new environments; they reproduce at a high rate; they travel quickly and adapt readily; and they have a dangerous habit of jumping out of the water and harming people and property.

 

    "In an attempt to stop the fish, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin, all states bordering the Great Lakes, filed this lawsuit against the U.S. Army Corps of Engineers (the Corps) and the Metropolitan Water Reclamation District of Greater Chicago (the District), which together own and operate the facilities that make up the CAWS. The plaintiff states allege that the Corps and the District are managing the CAWS in a manner that will allow invasive carp to move for the first time into the Great Lakes. The states fear that if the fish establish a sustainable population there, ecological disaster and the collapse of billion-dollar industries that depend on the existing ecosystem will follow. They say that the defendants' failure to close down parts of the CAWS to avert the crisis creates a grave risk of harm, in violation of the federal common law of public nuisance, see American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), and they advance a related claim against the Corps based on the Administrative Procedure Act (APA), 5 U.S.C. § 702. The states asked the district court for declaratory and injunctive relief and moved for a preliminary injunction that would require the defendants to put in place additional physical barriers throughout the CAWS, implement new procedures to stop invasive carp, and expedite a study of how best to separate the Mississippi and Great Lakes watersheds permanently. Other parties intervened to protect their interests -- the Grand Traverse Band of Ottawa and Chippewa Indians on the side of the plaintiffs, and the City of Chicago, Wendella Sightseeing Company, and the Coalition to Save Our Waterways as defendants. The district court denied the motion for a preliminary injunction, and the states appealed immediately. See 28 U.S.C. § 1292(a)(1).

 

    "We conclude that the court's decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts' common-law powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited."

 

    The Appeals Court indicated in its concluding remarks, "We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief – either preliminary or permanent -- to help abate a public nuisance in the face of agency action is factual in nature. It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the

carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate. The district court's judgment is affirmed."

    Access the complete opinion (click here). [*GLakes, *Wildlife, #CA7]

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Daily Environmental News

National Electrical Manufacturers v. US Department of Energy

Aug 16: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1533. On Petition for Review of an Order of the Department of Energy. In a split decision the majority Appeals Court

denied the petition for review. The National Electrical Manufacturers Association (NEMA) petitions for review of a final rule promulgated by the United States Department of Energy (DOE) setting forth energy conservation standards for electric induction motors ranging in power output from .25 to 3 horsepower. See Energy Conservation Standards for Small Electric Motors: Final Rule, 75 Fed. Reg. 10874 (Mar. 9, 2010) (codified at 10 C.F.R. pt. 431) (Final Rule). In promulgating the Final Rule, the DOE invoked its authority to establish energy conservation standards for "small electric motor[s]," a term defined by the Energy Policy and Conservation Act (EPCA). See 42 U.S.C. § 6311(13)(G).

 

    NEMA contends that the relevant statutory definition unambiguously excludes all such motors exceeding 1 horsepower, as well as certain motors rated at and less than 1 horsepower, from being regulated as small electric motors. The majority Appeals Court said, "because the Final Rule embodies a permissible interpretation of the statutory definition, we deny the petition for review." The majority explained that, the resolution of the challenge turns on the meaning of the term "small electric motor," which, as provided by the EPCA, "means a NEMA general purpose alternating current singlespeed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG1-1987." 42 U.S.C. § 6311(13)(G). MG1-1987 is an industry publication that sets forth specifications for electric motors and generators, which collectively are called "machines." The publication classifies machines in various ways, such as by size, application, electrical type, and variability of speed.

 

    In the Determination, the DOE identified one "key issue" as "the definition of a 'small electric motor' and precisely which motors are covered by this rulemaking." The DOE consulted MG1-1987 to address this question, observing that "the two-digit frame series" specified in the statutory definition "encompasses NEMA frame sizes 42, 48, and 56, and motors with horsepower ratings ranging from [.25] to 3 horsepower."

 

    NEMA's objections track the delineations between small and medium motors set forth in Parts 10 and 12 of MG1-1987. Thus, NEMA maintains that six-pole motors are not within the definition if they exceed .5 horsepower; that four-pole motors are not if they exceed .75 horsepower; and that two-pole motors are not if they exceed 1 horsepower. NEMA further asserts that, because these more-powerful motors fall outside the definition, the Appeals Court must vacate the Final Rule in its entirety, as those motors were included in the calculations supporting DOE's determination that the Final Rule was warranted.

 

    The majority states, "For NEMA to prevail, the statutory definition must unambiguously incorporate the horsepower limitation that NEMA contends is found in MG1-1987. In light of the language and structure of the definition, as well as ordinary principles of grammar, we conclude that the definition does not unambiguously incorporate such a limitation. . . We do not reach or decide the broader question of whether the term 'NEMA general purpose . . . motor' unambiguously incorporates the 1987 version of MG1."

 

    The dissenting justice indicates, "When viewed in context, the statute we are reviewing is clearly unambiguous, and the Department of Energy's (DOE) final rule is contrary to the statute and Congress's clear direction. Therefore, I would grant the petition, vacate the final rule, and remand the matter to DOE for action consistent with the law. . . Congress certainly intended no such result. By referring to MG1-1987 in the statute, Congress incorporated the publication in its entirety, including the ratings and standards which defined small motors. Thus, Congress intended to grant DOE authority only to regulate small electric motors, which in 1992 Congress and NEMA understood to be motors of one horsepower or less. . ."

 

    Access the complete opinion and dissent (click here). [#Energy/Efficiency, #CA4]

 

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Secretary of Labor v. ConocoPhillips Bayway Refinery

Aug 16: In the U.S. Court of Appeals, Third Circuit, Case no. 10-2893. On Appeal from the Occupational Safety and Health Review Commission. In this appeal, although ConocoPhillips Bayway Refinery is the real party in interest, the Appeals Court is asked to decide between different interpretations of agency regulations -- the one announced by the Secretary of Labor (Secretary), the other by the Occupational Safety and Health Review Commission (OSHRC). Both entities are part and parcel of the Department of Labor. In the appeal, because two factions within the same government agency disagree with each other over the application of a standard, the Appeals Court is thrust into resolving what is essentially an internal dispute. The Appeals Court held that "the Secretary's interpretation comports with the standard we established in Secretary of Labor v. Trinity Industries, 504 F.3d 397 (3d Cir. 2007)."

 

    The Secretary petitioned the Court to challenge the determination of the OSHRC that nine asbestos violations by ConocoPhillips Bayway Refinery were "not serious" rather than "serious" under 29 U.S.C. § 666. The Secretary originally cited Conoco for nine "serious" violations of the asbestos in construction standard, 29 C.F.R. § 1926.1100, under the Occupational Safety and Health Act (Act), 29 U.S.C. §§ 651-678.

 

    The Appeals Court states further, "We conclude that under Trinity, the violations in this case were "serious," and that the Secretary is not required to proffer case-specific evidence to meet Trinity's standard. We therefore vacate the Order of the Commission, and remand to the Commission with the direction that it affirm the citations as "serious" and reconsider the penalty for the violations in light of this opinion.

 

    Access the complete opinion (click here). [#Toxics, #CA3]

 

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In Defense of Animals v. US Department of the Interior

Aug 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16715. Appeal from the United States District Court for the Eastern District of California. In this split decision, the majority Appeals Court explains that this interlocutory appeal arises from an action instituted in the district court to stop the government from rounding up, destroying, and auctioning off wild horses and burros in the Twin Peaks Herd Management Area on the California-Nevada border. Plaintiffs allege that the government's actions will violate the Wild Free-Roaming Horses and Burros Act (Wild Horses Act), 16 U.S.C. § 1331 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

 

    Plaintiffs are two non-profit organizations dedicated to protecting wild horses and burros, In Defense of Animals and Dreamcatcher Wild Horse and Burro Sanctuary, as well as members of the organizations (collectively Plaintiffs). Plaintiffs filed

a Motion for a Temporary Restraining Order and/or Preliminary Injunction on August 5, 2010 to stop the roundup of horses that was scheduled to begin August 9, 2010 and to last 45-60 days. The district court denied the injunction, a motions panel at Ninth Circuit denied an emergency motion for injunctive relief pending appeal on August 10, 2010, and the roundup has now taken place.

 

    The horses are currently offsite and the remainder of the plan is apparently going forward. The Appeals Court said the plaintiffs' motion "raises serious legal questions concerning whether the large-scale removal of horses conflicts with the Wild Horses Act and whether an Environmental Impact Statement is required before any action can be implemented." The motion for preliminary injunction sought to enjoin only the effects of implementing the initial phase. The motion for preliminary injunction sought to "preserve the status quo," i.e. enjoin the Twin Peaks Roundup of over 2,000 wild horses and 200 burros. Significantly, plaintiffs' motion alleges that the "irreparable harm" to plaintiffs will flow from the proposed "illegal roundup." The majority Appeals Court responds with an itemized, 3-point summary, indicating:

 

    "[1] The initial stage of the plan has, however, now concluded and the roundup has taken place. This appeal, therefore, is moot. We reached the same conclusion in a similar case. Am. Horse Prot. Ass'n, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982) (noting that the court 'cannot order [the completed roundup's] effects undone'). We express no opinion here as to whether the entire action is moot. It remains pending before the district court.

 

    "[2] The dissent appears to construe our holding to be that plaintiffs' case is moot. This is incorrect. We hold only that this interlocutory appeal from the denial of a preliminary injunction is moot because the roundup sought to be enjoined has taken place. In the event that plaintiffs prevail on the merits of their claims, the district court should consider what relief is appropriate.

 

    "[3] The posture of this case is similar to that in Animal Legal Defense Fund v. Shalala, 53 F.3d 363 (D.C. Cir. 1995), where the action that the plaintiff sought to preliminarily enjoin had already occurred. Id. at 366. In dismissing the appeal, the court said that the 'parties no longer have a legally cognizable interest in the determination of whether the preliminary injunction was properly denied.' Id. It then went on to say that 'the underlying dispute . . . remains alive.' Id. The same is true, insofar as the record before us reflects in this case."

 

    The Majority concluded, "This appeal must be dismissed. Any further appeals in the underlying action shall be expedited and calendared before this panel."

 

    The dissenting justice indicated, "I do not agree with the majority's view that the injunctive relief sought pursuant to the National Environmental Policy Act (NEPA) has been mooted. A claim for relief is not moot so long as we can provide effective relief, in this case return of the horses to their native habitat. Cf. Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) (holding case moot where 'courts cannot undo what has already been done'). . . This would be a different case if the horses who were rounded up had all been dispersed. But that is not what happened. The horses that were rounded up are currently being kept in various holding areas throughout the southwestern United States. As easily as the horses were transported out of their natural habitat, they can be returned. In this circumstance, relief is available and the request for injunctive relief is not moot. See Nw. Envt'l Dfs. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988)."

 

    Access the complete opinion and dissent (click here). [#Wildlife, #Land, #CA9]

Stephen Gabarick v. Laurin Maritime (America) Inc

Aug 10: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-30549 and other consolidated cases. Appealed from the United States District Court for the Eastern District of Louisiana. The Appeals Court explains that the M/V TINTOMARA, an ocean-going tanker, collided with the barge DM-932, in the tow of the M/V MEL OLIVER, splitting the barge in half and spilling its cargo of oil into the Mississippi River. Following the filing of numerous lawsuits, including personal injury claims by the crew members and class actions by fishermen, the primary insurer filed an interpleader action,

depositing its policy limits with the court.

 

    The Appeals Court said, "We are asked to review allocations of interpleader funds as well as the district court's finding that the maritime insurance policy's liability limit included defense costs. We affirm the district court's decision that defense costs erode policy limits but are persuaded that its orders allocating court-held funds among claimants were tentative and produced no appealable order."

 

    The Appeals Court summarized, "In sum, the barge owner's assertions of ambiguity demand reliance upon the collision clause, which is not only severable but also inapplicable because all of the damages incurred are excluded from that coverage. Returning to the pure P&I coverage, the policy is clear that defense costs were intended to be included within the policy limits. This P&I policy is unambiguously written against the backdrop of traditional principles of maritime law that defense costs erode P&I limits of liability. It is evident that viewed objectively the parties expectations were as we have today held. For want of jurisdiction, we decide nothing more regarding allocation of the court-held funds. Affirmed in part; Dismissed in part."

 

    Access the complete opinion (click here). [#Water, #Remed, #CA5]

 

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Sherer v. United States Forest Service

Aug 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1418. Appealed from the United States District Court for the District of Colorado. In this opinion involving fees charged by the U.S. Forest Services, the Appeals Court says, "Everyone enjoys a trip to the mountains in the summertime. One popular spot is Mount Evans -- a fourteen thousand foot peak just a short drive from Denver and with a paved road that goes right to the summit. When the snow

melts and the road thaws, the national forest around Mount Evans teems with hikers and sightseers eager to take in the breathtaking views. But first they have to stop and pay. That's because the Forest Service maintains an entrance station along the road where it charges many visitors what it calls an "amenity fee."

 

    "Wanting everyone to be able to hike Mount Evans and take in its scenery without charge, the plaintiffs in this case ask us to strike down the Service's fee policy as facially inconsistent with Congress's directions, to hold it null and void in all applications. This, however, we agree with the district court we cannot do. For better or worse, the Legislature has said that the Service may — sometimes -- charge visitors to Mount Evans. So some lawful applications of the policy do exist. But saying this much shouldn't be misconstrued as saying more. In rejecting the plaintiffs' facial challenge we hardly mean to suggest that the Service's policy can't be attacked at all. It might well be susceptible to a winning challenge as applied to certain particular visitors, perhaps even the plaintiffs themselves. But that's a path the plaintiffs haven't asked us to explore and so one we leave for another day."

 

    The Appeals Court provides additional clarification and says, "As a general rule Congress has decreed that anyone may enter this country's great national forests free of charge. See 16 U.S.C. § 6802(e)(2). But in 2004 Congress included an important exception in what it called the Recreation Enhancement Act (REA). The REA allows the Forest Service to impose 'amenity fees' in areas that 'provide[] significant opportunities for outdoor recreation,' where there are 'substantial Federal investments' and certain 'amenities' -- amenities defined to include, among other things, interpretive exhibits, a permanent toilet, and security services. See 16 U.S.C. § 6802(f). Soon after the REA's adoption, the Forest Service invoked this very provision and adopted a 'Mount Evans Clear Creek Ranger District Federal Lands Recreation Enhancement Act Implementation Plan' imposing an amenity fee at Mount Evans."

 

    Access the complete opinion (click here). [#Land, #CA10]