Solutia Inc. v. McWane, Inc.

Mar 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-15639. Appealed from the United States District Court for the Northern District of Alabama. Plaintiffs-Appellants Solutia, Inc. and Pharmacia Corporation (Solutia & Pharmacia) appeal the District Court's grant of summary judgment against their claims under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Solutia & Pharmacia also appeal the District Court's denial of their Federal Rule of Civil Procedure 59(e) motion to clarify or amend the summary judgment order.

 

    The appeal requires the Appeals Court to decide, as a matter of first impression, whether parties subject to a consent decree

may file claims for cost recovery under § 107(a) of CERCLA, or whether their remedies are limited to filing claims for contribution under § 113(f) of CERCLA. The Appeals Court notes that, as the Magistrate Judge noted in his thorough ruling granting summary judgment, "[t]his case is complex, in terms of its underlying facts, its litigation history, and the legal issues it presents."

 

    The Appeals Court ruled, ". . .Solutia & Pharmacia limited their arguments to the content of the Partial Consent Decree, and the definition of the Anniston Lead Site contained therein. They never actually argued prior to the grant of summary judgment, as they do now, that they 'voluntarily incurred costs unrelated to the Consent Decree.' Nor did Solutia & Pharmacia cite the properties by name that they now urge should be exempt from summary judgment.

 

    As the Magistrate Judge correctly noted, '[t]here is no burden upon the district court to distill every potential argument that could be made based on the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.' Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995). With this principle in mind, the Magistrate Judge did not abuse his discretion by denying Solutia & Pharmacia's Rule 59(e) motion to alter or amend the summary judgment order. . . we affirm the grant of summary judgment."

 

    Access the complete opinion (click here). [#Remed, #CA11]

 

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Bd of MS Levee Commissioners v. U.S. EPA

In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-60302. Appealed from the United States District Court for the Northern District of Mississippi. The Board of Mississippi Levee Commissioners (the Board) appealed the district court's decision granting summary judgment to U.S. EPA and a number of environmental organizations on the Board's claim that the EPA improperly exercised its power to veto a plan to reduce flooding in Mississippi, called the Yazoo Backwater Area Pumps Project. Specifically, the Board claimed that the EPA was barred from vetoing the Project under section 404(r) of the Clean Water Act. The Board contends that because all of the requirements of section 404(r) were met, the EPA could not have lawfully vetoed the Project.

 

    In response -- and for the first time on appeal -- the EPA claims that the Board does not have prudential standing to contest the EPA's decision. Additionally, the Board moved to supplement the record on appeal or, in the alternative, for the Appeals Court to take judicial notice of a Fish and Wildlife Mitigation Report that was not before the district court.

 

    The Appeals Court ruled, "As an initial matter, we deny the Board's motion to supplement the record on appeal or, in the alternative, for judicial notice. In addition, we conclude that the EPA waived its argument that the Board does not have prudential standing under the Administrative Procedure Act (APA). We affirm the district court's decision upholding the EPA's veto, as the record does not contain sufficient evidence to overturn the EPA's findings."

 

    Among other things, the Appeals Court notes that, "The record contains a document from the Corps' Vicksburg District detailing its Standard Operating Procedures. See U.S. Army Corps of Engineers, Water Resource Policies and Authorities: Application of Federal Regulations Implementing Section 404 to Civil Works Projects (Sept. 18, 1979). This document sets out three options for the Corps to meet its obligations under section 404: (1) seek an exemption pursuant to section 404(r) as part of the authorization process; (2) obtain a state water quality certification pursuant to section 401; or (3) seek an exemption under section 404(r) after authorization by submitting an EIS to Congress. The record demonstrates that the Corps pursued the second option, as it sought a state water quality certification under section 401. Additionally, after the Corps revised the Project in 2007, it again sought a state water quality certification. The Corps' interpretation of section 404 shows that it would either have to seek an exemption under 404(r) or comply with section 401. The fact that it instead sought a state water quality certification indicates that the Corps did not believe that section 404(r) applied. Additionally, this document demonstrates that the Corps was aware of the process for seeking a section 404(r) exemption and that, had it intended to do so, it would have followed the Standard

Operating Procedures."

 

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

 

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In Re: Katrina Canal Breaches Litigation

Mar 2: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 10-30249, 10-31054 & 11-30808. Appeals from the United States District Court for the Eastern District of Louisiana. As explained by the Appeals Court, decades ago, the Army Corps of Engineers (the Corps) dredged the Mississippi River Gulf Outlet (MRGO), a shipping channel between New Orleans and the Gulf of Mexico, as well as levees alongside the channel and around the city. The Corps's negligence in maintaining the channel, grounded on a failure to appreciate certain hydrological risks, caused levees to fail and aggravated the effects of 2005's Hurricane Katrina on the city and its environs.

 

    Claimants filed hundreds of lawsuits, many of which were consolidated before the district judge a quo. That court worked with plaintiffs' litigation committees to identify several categories of plaintiffs and individual "bellwether" plaintiffs. The opinion concerns three groups of bellwether plaintiffs, all suing the United States for flood damages. One group went to trial; three of its plaintiffs prevailed on all claims, and four did not. Another group was dismissed before trial when the government was found immune. The third has survived motions to dismiss and is proceeding to trial. All losing parties have appealed; the government has also petitioned for a writ of mandamus to stay the third group's trial pending issuance of this opinion. The Appeals Court ruled, "We affirm each of the judgments and deny the petition."

 

    The Appeals Court concluded, "The district court's careful attention to the law and even more cautious scrutiny of complex facts allow us to uphold its expansive ruling in full, excepting our minor restatement of FCA [Flood Control Act of 1928] immunity. Accordingly, we affirm the judgments in Robinson and Anderson, leaving each party as he was before this appeal. Similarly, we deny the government's petition for a writ of mandamus to stay the Armstrong trial."

 

    A report on the case in the New York Times (NYT) indicates that the Appeals Court, "upheld a ruling that the Army Corps of Engineers is liable for property owners' claims, saying shoddy work on a shipping channel caused billions of dollars in damage during Hurricane Katrina. The court ruled that the federal government is not immune from lawsuits blaming flood damage on the corps' operation and maintenance of the New Orleans navigation channel." Another report on the Jurist website indicates, "In upholding the district court's ruling, the Fifth Circuit allowed five plaintiffs to recover approximately $720,000."

 

    Access the complete opinion (click here). Access the NYT article (click here). Access the Jurist article (click here). [#Water, #CA5]

 

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San Luis & Delta-Mendota Water v. Department of Interior

Mar 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17594. Appealed from the United States District Court for the Eastern District of California. As explained by the Appeals Court, the appeal arises from a long-running conflict which has devolved to the present remaining dispute as to the classification of approximately 9,000 acre feet (AF) of water released between June 17 through 24 of 2004 from the Nimbus and New Melones reservoirs within California's Central Valley Project (the CVP or Project) by Defendant-Appellee United States Department of the Interior (Interior), acting through the United States Bureau of Reclamation (the Bureau).

 

    Plaintiff-Appellants San Luis & Delta-Mendota Water Authority and Westlands Water District contend that Interior abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield especially designated for fish, wildlife, and habitat restoration under section 3406(b)(2) of the Central Valley Project Improvement Act (CVPIA).

 

    The Appeals Court ruled that, "Because we find that the Water Agencies have standing and the accounting which Interior conducted for the latter June 2004 releases did not constitute an abuse of discretion, we affirm the district court's orders granting summary judgment in favor of the Federal Appellees and against Appellants.

 

    Access the complete opinion (click here). [#Water, #CA9]

State of Wyoming v. NPCA

Feb 29: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-8088, 10-8089, & 10-8090. Appealed from the U.S. District Court for the District of Wyoming. As explained by the Appeals Court, in 1974, the National Park Service (NPS) adopted a default rule prohibiting the use of snowmobiles in all national parks except on designated routes. 36 C.F.R. § 2.18(c). Pursuant to the default rule, NPS must promulgate a special regulation designating specific routes open to snowmobile use in a particular national park. Absent such a rule, no snowmobiles are allowed. See id. (Snowmobiles are prohibited except where designated).

 

    NPS originally regulated designated routes, choosing not to set a limit on the number of snowmobiles permitted in the parks. 36 C.F.R. § 7.13(l)(2) (2000). In 1997, environmental and recreational groups began seeking to limit the daily number of snowmobiles permitted in Yellowstone National Park, Grand Teton National Park, and the John D. Rockefeller Jr. Memorial Parkway (collectively, the parks). And over the past fifteen years, groups have continued to litigate the fate of snowmobiles in the parks.

 

    In the present cases, Petitioners the State of Wyoming and Park County, Wyoming filed petitions for review of agency action, challenging the 2009 rules governing snowmobile use in the parks. The district court dismissed the petitions for review, holding Petitioners lacked standing to pursue their claims. On appeal, Petitioners ask us again to weigh in on this ongoing saga. The Appeals Court affirmed in part, vacated in part, and remanded the case to the district court for further review.

 

    Explaining further, the Appeals Court said, "Because we hold Petitioners' procedural challenge to the 2009 temporary rule as to Yellowstone is moot, that portion of the district court's order must be vacated and remanded to the district court to dismiss that portion of the case for lack of jurisdiction. Wyoming, 587 F.3d at 1254. As to Petitioners' remaining claims, we conclude that Petitioners lack Article III standing to bring their substantive challenge to the 2009 temporary rule as to Yellowstone and their entire challenge as to the 2009 permanent rule as to Grand Teton because Petitioners' alleged injuries are merely speculative. Accordingly, we need not address prudential standing."

 

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

 

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U.S. v. General Electric Company

Feb 29: In the U.S. Court of Appeals, First Circuit, Case No. 11-1034. Appealed from the U.S. District Court of New Hampshire, Concord. The Appeals Court explains that Defendant-Appellant General Electric Company (GE) appeals from a district court judgment holding it liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA for response costs incurred by U.S. EPA in the unfinished cleanup of the Fletcher's Paint Works and Storage Facility Superfund Site in Milford, New Hampshire (Fletcher Site). GE also appeals the district court's judgment awarding the United States certain costs incurred in connection with the Fletcher Site's cleanup. The Appeals Court affirmed the judgment of the district court on both issues.

 

    The Appeals Court explained further, "We hold that the instant suit is a subsequent action under CERCLA and that the 1991 Action was an initial action as per § 9613(g)(2). GE does not claim -- nor do we believe it reasonably could -- that the 1991 Action was not an 'action for recovery of the costs referred to in section 9607 . . . .' 42 U.S.C. § 9613(g)(2). Although the United States asserted a claim for declaratory judgment regarding GE's liability in the 1991 Action, the parties concluded that resolving the matter via consent decree was to their mutual benefit. The United States and GE both walked away from the 1991 Action knowing they would likely meet again; GE did not concede liability and the United States reserved its right to pursue additional recovery costs at a later date. This agreement was reached according to routine CERCLA practice and was consistent with the United States' obligation to avoid drawn-out litigation. See 42 U.S.C. § 9622(a) ('[W]henever practicable and in the public interest . . . the President shall act to facilitate agreements . . . to expedite effective remedial actions and minimize litigation.' (emphasis added by Appeals Court)). GE's claims to the contrary are unavailing."

 

    Access the complete opinion (click here). [#Remed, #CA1]

 

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Sierra Club v. Tahoe Regional Planning Agency

Feb 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17891. Appealed from the United States District Court for the Eastern District of California. In a brief unpublished Memorandum the Appeals Court indicates that defendant-appellant Tahoe Regional Planning Agency (TRPA) appealed the district court's grant of summary judgment in favor of plaintiffs-appellees League to Save Lake Tahoe and Sierra Club, vacating TRPA's adoption of amendments to its regulation of the shorezone region of Lake Tahoe (the Shorezone Amendments). The Appeals Court affirmed in part, vacated in part, and remanded the case for further review.

 

    The Appeals Court states, "As TRPA concedes, the environmental impact statement (EIS) for the Shorezone Amendments failed to explain and evaluate the impact of replacing unauthorized boat buoys currently on Lake Tahoe with permitted buoys on a one for-one basis. This is due, at least in part, to the fact that TRPA compared the impact of the proposed project to an environmental baseline that included those existing, unauthorized buoys. We agree with the district court that 'in light of [these] concerns and TRPA's failure to identify any discussion in the EIS of why this baseline was chosen, the baseline is arbitrary and capricious in light of TRPA's failure to consider an important aspect of the problem and to articulate a rational connection between the facts found and conclusions reached.'

 

    "However, we vacate the district court's alternative holding that TRPA's 'use of the number of existing buoys, rather than the number of existing buoys authorized by TRPA, as the baseline, was contrary to the [Tahoe Regional Planning] Compact and therefore arbitrary and capricious.' Based on the record before us, we cannot say that the only way for TRPA to satisfy its obligations under the Compact would be to exclude unauthorized, existing buoys from the baseline. TRPA shall retain discretion on remand to determine the best way to explain and evaluate the impact of the proposed project and its choice of an appropriate baseline. Costs on appeal are awarded to TRPA."

 

    Access the complete Memorandum (click here). [#Water, #Land, #CA9]

 

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