Natural Resources Defense Council v. U.S. EPA

Sep 16: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3771. Natural Resources Defense Council, Inc. (NRDC) sought review of an Environmental Protection Agency (EPA) order overruling NRDC's objections to, inter alia, EPA's risk assessments for the pesticide dichlorvos, and denying NRDC's requests for a public evidentiary hearing. Because EPA conducted certain dichlorvos risk assessments without using a tenfold children's safety factor that Congress provided should presumptively apply, and EPA failed to explain why it did not apply this margin of safety, the Appeals Court granted NRDC's petition for review in part, vacated EPA's order in part, and remanded the case for further proceedings.

 

    The Appeals Court indicates that, "In its petition, NRDC requested that EPA revoke all tolerances and cancel all registrations for dichlorvos. NRDC argued, inter alia, that EPA relied on inadequate data in its 2000 preliminary risk assessment, inadequately performed that risk assessment, and failed to apply required safety factors. Despite the numerous issues raised in its petition, we focus here on only the two issues relevant to NRDC's appeal: (1) EPA's reliance on a 1997 intentional human dosing study by A.J. Gledhill; and (2) EPA's failure to provide a legally adequate rationale for applying a children's safety factor lower than the FQPA's presumptive 10X factor."

 

    Importantly, the Appeals Court said, "EPA did not explain how this conclusion related to 'potential pre- and post-natal toxicity and completeness of the data with respect to infants and children.' See 21 U.S.C. § 346a(b)(2)(C)(ii). FQPA requires such an explanation if a 10X children's safety factor is not used. . . Because EPA failed to explain why it did not use a 10X children's safety factor for dichlorvos risk assessments that relied on the Gledhill study, EPA acted in an arbitrary and capricious manner. Accordingly, we vacate those portions of EPA's July 23, 2008 order assessing the risk of dichlorvos based on the Gledhill study, as it was not 'reliable data' on which EPA could base its decision to choose a lower children's safety factor.. ."

 

    On a separate issue, the Appeals Court explains, "NRDC challenges neither the data on which EPA relies, nor the way in which the data relate to infants and children. Instead, NRDC argues that regardless of other evidence of potential endocrine-related effects, EPA must apply the 10X children's safety factor unless it relies on data from its estrogen disruptor screening program. We reject this argument." Explaining further, "FQPA specifies that EPA may apply a children's safety factor of less than 10X if it

determines, 'on the basis of reliable data,' that a margin lower than 10X "will be safe for infants and children. . . Congress did not bar EPA from concluding that it has 'reliable data' regarding potential endocrine-related effects. . . NRDC does not challenge the non-Gledhill risk assessments on any other basis. Therefore, we deny NRDC's request to find arbitrary and capricious the risk assessments not based on the Gledhill study. . ."

 

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Potrero Hills Landfill, Inc. v. County of Solano

Sep 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15229. Appealed from the United States District Court for the Eastern District of California. Potrero Hills Landfill (Potrero Hills), a privately owned solid waste and recycling business (one of the three largest landfills servicing the San Francisco Bay Area) in Solano County, California (the County), and twenty-two related businesses appeal the dismissal on Younger abstention grounds [See Younger v. Harris, 401 U.S. 37 (1971)] of their 42 U.S.C. § 1983 action for declaratory and injunctive relief challenging the constitutionality of a voter-enacted county ordinance restricting the import of out-of-county solid waste into Solano County -- an ordinance that the County itself believes to be unconstitutional and refuses to enforce.

 

    The Appeals Court rules, "We hold that Younger abstention does not apply here. Although private mandamus actions seeking to compel the County to enforce the challenged ordinance were ongoing in state court at the time this case was filed, those state proceedings were brought by private interest groups and therefore did not implicate the state's unique interest in protecting its vital executive function of law enforcement; nor did they implicate the state's unique interests in protecting its vital judicial or legislative functions. Put differently, a federal court's exercise of jurisdiction over Potrero Hills' claim would not interfere with the state's exercise of a basic state function and would not offend the principles of comity and federalism that Younger abstention was designed to uphold. Accordingly, we vacate and remand. As part of the remand, we ask the district court to consider whether Pullman [See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941)], rather than Younger, abstention might be appropriate."

 

    By way of background, in 1984, voters in Solano County enacted a ballot initiative, titled "Initiative Ordinance to Protect Solano County's Environment from Excessive Importation of Solid Waste" (Measure E), capping the annual amount of solid waste that may be imported into Solano County at 95,000 tons. The measure contained no restrictions on the disposal of solid waste generated within the County. Although the County initially complied with Measure E by including annual waste import limits in its Solid Waste Management Plan, it stopped doing so in 1992, in reliance on a legal opinion issued by the Solano County Counsel concluding that Measure E was likely unconstitutional, in light of two recent Supreme Court decisions striking down similar local waste import restrictions as violative of the dormant Commerce Clause. The Legislative Counsel of California reached the same conclusion in its own legal opinion on the measure.

 

    In a footnote, the Appeals Court references the two historic Supreme Court decisions on this issue, i.e. The Supreme Court struck down as unconstitutional in violation of the dormant Commerce Clause an Alabama statute imposing a waste disposal fee only on hazardous wastes generated outside the State and disposed of at a commercial facility within the State, but not on hazardous wastes generated within the State. Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 336-37 (1992). The Court also struck down on dormant Commerce Clause grounds a Michigan statute prohibiting private landfill operators from accepting solid waste originating outside the county in which their facilities are located. Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Res., 504 U.S. 353, 361 (1992). The Court held that a county's restrictions on interstate commerce violate the dormant Commerce Clause just as much as does a state's. Id. ("[A] State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself.").

 

    The Appeals Court explains the somewhat complicated case saying, "The issue before us is not the constitutionality of Measure E but rather only whether the district court properly dismissed the case based on Younger abstention, a doctrine that forbids federal courts from unduly interfering with pending state court proceedings that implicate 'important state interests.' Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). The district court determined that the ongoing state mandamus proceedings implicate the state's important interests in (1) enforcing a local ordinance enacted by California voters and (2) enforcing a local solid waste ordinance, and that the remaining Younger requirements are also satisfied. Although we agree that a state's interest in having its executive branch enforce such measures is sufficiently important for Younger purposes, we conclude that a private litigant's interest in seeing such measures enforced, which is all we have here, does not implicate the principles of comity and federalism with which Younger and its progeny are concerned."

 

    The Appeals Court concludes, "Mindful that a federal court's obligation to exercise its jurisdiction is 'particularly weighty' when the federal plaintiffs before it seek relief under 42 U.S.C. § 1983 for violation of their civil rights, Miofsky, 703 F.2d at 338 (quoting Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980)), we decline to expand the 'extraordinary and narrow exception' created by Younger and its progeny to the circumstances presented here, id. (quoting Frank Mashuda, 360 U.S. at 188). Because the state mandamus actions brought by private interest groups did not involve any uniquely state interests in protecting the state's vital executive, judicial, or legislative functions, Younger abstention was not available and did not excuse the district court from its duty to adjudicate this federal constitutional claim. We therefore vacate and remand for the district court to consider Intervenors' alternative grounds for dismissal, including Pullman abstention, in the first instance."

 

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Jonathan Hirsch v. CSX Transportation Inc.

Sep 9: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-4548. Appealed from the Northern District of Ohio at Cleveland. The Appeals Court says in brief summary, "Following a train crash that allegedly exposed a small town [Painesville, Ohio] to cancer-causing agents, the Plaintiffs-Appellants sought damages on behalf of a putative class. The district court granted summary judgment for the train company, CSX Transportation (CSX), because the Plaintiffs had not established general or specific causation and, as a matter of law, any increased risk of cancer or other diseases was too insignificant to warrant the court's ordering a lengthy period of medical monitoring. We affirm."

 

    In conclusion the Appeals Court ruled, "The Plaintiffs in this case have failed to produce sufficient evidence such that a reasonable jury could believe that a reasonable physician would order medical monitoring. Our holding today does not foreclose any number of possibilities; for example, perhaps the Plaintiffs might have been able to survive summary judgment had Dr. Kornberg provided some indication of why medical monitoring would be the standard practice for risks this remote. Perhaps, though we do not require blood tests in every toxic tort case, see Redland Soccer Club v. Dep't of the Army, 55 F.3d 827, 847 (3d Cir. 1995), the Plaintiffs might have survived summary judgment had they obtained conclusive medical evidence that they faced a one-in-a-million increased risk of cancer. Those would be harder cases, and we leave them for another day. In this case, the Plaintiffs have failed to show a genuine issue of material fact. We therefore affirm the judgment of the district court."

 

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Adams v. U.S.

Sep 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35458, 10-35611, & 10-35592. Appeal from the United States District Court for the District of Idaho. In 1999 and 2000, the Federal Bureau of Land Management (BLM) applied the herbicide Oust to approximately 70,000 acres of Federal lands in South Central Idaho in an effort to combat a devastating wildfire cycle. Wind carried some of the Oust off the Federal land and onto privately owned farmland nearby. The herbicide caused significant damage to the crops on these farmlands. The Plaintiffs in this case, 134 farmers whose crops suffered as a result of the Oust applications, sued the Federal government and Oust's manufacturer E.I. Du Pont De Nemours and Company (DuPont). The district court adopted a bellwether trial plan and selected four Bellwether Plaintiffs to resolve those issues in the case that do not depend on individual circumstances. The resolution of these issues will bind both the Bellwether and all other Plaintiffs. The district court conducted a 16-week trial involving claims against both DuPont and the government. The jury returned an advisory verdict against the Federal government, and a verdict against DuPont.

 

    As required by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2402, the district court, upon its own fact-finding and independent review of the record, rendered a verdict against the Federal government. Both the jury and the district court allocated 60% of the fault to DuPont and 40% to the Federal government. The government and DuPont appealed. The Appeals Court indicates it is resolving the government's appeal in this opinion and DuPont's appeal, No. 10-35458, in a memorandum disposition

filed simultaneously with this opinion. The total damages for all four Bellwether Plaintiffs were nearly $17 million.

 

    The government argues that jurisdiction is lacking, that the FTCA bars the "debt-based costs" that the district court awarded to Plaintiffs, and that Plaintiffs did not exhaust their administrative remedies for the crop damage they suffered in 2003 and 2004. The Appeals Court said, "Because we agree with the government that jurisdiction is lacking, we address only this threshold issue,

and we accordingly limit our discussion of the complex facts of this case."

 

    As explained by the court Oust is a commercial name for the chemical compound sulfometuron methyl, which belongs to the sulfonylureas chemical family. Sulfonylureas chemicals inhibit amino lactase synthase and are known for their high potency in low doses as compared to other herbicides. Oust kills or injures crops by affecting a plant's root system, preventing it from taking up water and nutrients from the soil and causing drought-like symptoms. Oust is not labeled for any use on agricultural crops. BLM developed fire rehabilitation plans which included the use of Oust on tens of thousands of acres to kill Cheatgrass, an annual non-native plant that grows up early in the spring, dries out very early in the summer, and provides a continuous bed of fuel for wildfires.

 

    The Appeals Court concluded in part, "BLM argues that we lack subject matter jurisdiction over Plaintiffs' FTCA claims for two reasons. First, BLM argues that Plaintiffs filed their lawsuit one day after the FTCA's statute of limitations had run, forever barring their claims. Second, BLM argues that the discretionary function exception, which provides immunity against FTCA claims even where a federal agency abuses its discretion, so long as the abuse occurs in the performance of non-mandatory duties, bars Plaintiffs' claims. Because we conclude that Plaintiffs' claims are barred by the FTCA statute of limitations, we do not address BLM's discretionary function argument."

 

    In the memorandum disposition filed simultaneously with the opinion regarding DuPont's appeal (i.e. No. 10-35458). The Appeals Court explained that DuPont argues that the district court should have granted its Rule 50(b) motion on Plaintiffs' defective product claim because manufacturers cannot be held liable for manufacturing a product that does well what it is intended to do. However, the Appeals Court said, "Plaintiffs presented ample evidence from which a jury could infer that Oust was 'dangerous to an extent beyond that which would be contemplated by' the government, much less an 'ordinary consumer.' Id. For example, Plaintiffs presented evidence that Oust is susceptible to erosion and unusually longlasting -- both of which the jury could have construed as circumstantial evidence that Oust is unreasonably dangerous."

 

    Among other finding, the district court found that Plaintiffs presented evidence that at most showed DuPont's nonfeasance, which cannot, as a matter of law, support an assumed duty of care claim. It therefore granted DuPont's Rule 50(b) motion as to

that claim. The Appeals Court ruled, "DuPont has not, however, identified any case in which a new trial has been granted in circumstances comparable to those here. We find no merit in DuPont's argument, particularly in light of the fact that it made strategic use of its corporate stewardship policy -- which was part of the assumed duty claim -- during the trial. DuPont must bear the risk of its own litigation strategy. Because DuPont has not cited any relevant authority in support of its new trial argument, the district court did not abuse its discretion when it denied DuPont's motion for a new trial on this ground." The Appeals Court subsequently denied a number of other arguments of DuPont and affirmed the district courts ruling in favor of farmers.

 

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R.R. Street & Co., Inc. v. Transport Insurance Co.

Sep 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55361 and 10-55404. Appealed from the United States District Court for the Central District of California. The Appeals Court indicates that the dispute emerges from a web of state and Federal litigation over liability for damages and defense costs in certain environmental tort suits.

 

    The Appeals Court said, "The appeal before us concerns two cases that mirror each other: (1) an action for damages that the Appellants brought in federal court and (2) a declaratory judgment action that the Appellee brought in state court, which Appellants later removed to federal court. The district court declined to entertain these actions, by dismissing the former and remanding the latter, in light of a related third action that had been pending for several years in state court.

 

    "We must examine the propriety of this decision. Considering the particular circumstances of this case, we conclude that the district court had discretion under Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995), and Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), to remand the declaratory judgment action, and that the action for damages fell within the scope of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). We therefore affirm."

   

    The case involves Vulcan Materials Company (Vulcan) which manufactures a drycleaning solvent called perchloroethylene (PerSec). Between the 1960s and the 1990s, R.R. Street & Co. Inc. (Street) distributed PerSec. During this time, Vulcan named Street as an additional insured under its insurance policies, including an excess liability coverage policy that Transport Insurance Company (Transport) issued to Vulcan in 1981 (the 1981 Policy). Since the 1990s, a number of lawsuits have been filed against Vulcan and Street alleging damage caused by the sale, distribution, use or handling of PerSec (collectively the Tort Actions). Street and Vulcan separately defended these actions. Since 2005, the companies and their insurers have engaged in an ongoing dispute over liability for damages and defense costs in the Tort Actions.

 

    The Appeals Court concludes, "We do not take lightly the district court's decision not to entertain an action for damages. In this case, however, the district court did not abuse its discretion by deciding that the parties' claims should be resolved in the more comprehensive Vulcan Action. The district court had discretion under Wilton/Brillhart to remand the Removed Action, and the court's concerns about piecemeal litigation and interfering with the progress made in the Vulcan Action sufficiently supported dismissal under Colorado River."

 

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Barnes v. U.S. Dept. of Transportation

Aug 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-70718. On Petition for Review of an Order of the Federal Aviation Administration. Petitioners Michelle Barnes, Patrick Conry, and Blaine Ackley (collectively, petitioners) challenge an order of the Federal Aviation Administration (FAA) concerning the proposed construction by the Port of Portland (the Port) of a new runway at Hillsboro Airport (HIO). The FAA issued a Finding of No Significant Impact (FONSI), thus relieving the agency of preparing an Environmental Impact Statement (EIS). Petitioners argue that the decision not to prepare an EIS was unreasonable for several reasons, chief among them the FAA's failure to consider the environmental impacts of any increased demand for HIO resulting from the addition of a runway. Petitioners also argue that the FAA did not afford them a public hearing within the meaning of 49 U.S.C. § 47106.

 

    In a split opinion the Appeals Court majority granted the petition and remanded the case to the FAA with instructions to consider the environmental impact of increased demand resulting from the HIO expansion project, if any, pursuant to 40 C.F.R. § 1508.8(b). HIO is located in the city of Hillsboro in Washington County, Oregon, 12 miles west of downtown Portland. The Port of Portland assumed ownership of HIO in 1966. In 2008, HIO become Oregon's busiest airport, surpassing Portland International Airport (PDX) in number of airport operations.

 

    The dissenting justice said, "It is conventional wisdom among aviators that 'when the weight of the paper equals the weight of the airplane, only then you can go flying.' The majority confirms the truth of this quotation: here a federal agency is trying to reduce airport delays and the concomitant negative environmental effects by commencing a project in anticipation of future growth, and

the majority sides with delay and air pollution by imposing pointless paperwork on the agency before the necessary project can go forward. Because the majority's approach is contrary to our case law and the facts, I dissent."

 

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Center for Environmental Law & Policy v. U.S. Bureau of Reclamation

Aug 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35646. Appealed from the United States District Court for the Eastern District of Washington. The Appeals Court explains that Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management. The Appeals Court considered a challenge by environmental groups to a proposed incremental drawdown of water from the lake.

 

    The Appeals Court indicates that the review under the National Environmental Policy Act (NEPA) is limited to determining whether the agency, in this case the United States Bureau of Reclamation (Reclamation), took a "hard look" and genuinely scrutinized the environmental consequences of its proposed action. The Appeals Court said, "Our own close look at the record persuades us that Reclamation was keenly aware of, and appropriately discharged, this duty when it prepared the drawdown project analysis."

 

    According to the Appeals Court, the district court granted summary judgment to the defendants (Reclamation), holding that "the NEPA documents at issue" -- including Ecology's PEIS and SEIS as well as Reclamation's EA -- "thoroughly account for the history of development in the region and the project's cumulative impacts thereto," that the agencies' "analysis of indirect impacts complies with NEPA," that the EA's discussion of alternatives was sufficient in light of the "long collaborative process between [various] stakeholders" that led to the drawdown project, and that because Reclamation "retained the discretion [in the EA] to move forward with the project or not," its NEPA review was timely.

 

    The Appeals Court ruled, "Significantly. . . Reclamation has committed itself to scrutinizing the cumulative effects of the Special Study with the drawdown project before implementing any action resulting from the Special Study. Under our precedents and the circumstances presented here, this procedure does not violate NEPA. Our review reveals no other deficiencies in the substance of the EA, and although Reclamation took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA's timing requirements. We therefore affirm the district court."

 

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