The Estate Of Wayne Hage v. U.S.

Jul 26: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5001, -5013. Appealed from the United States Court of Federal Claims. The Appeals Court explains that E. Wayne Hage and Jean Hage brought an action against the United States, seeking compensation for a Fifth Amendment taking of private property, breach of contract, and range improvements pursuant to 43 U.S.C. § 1752(g). The Court of Federal Claims (Claims Court) awarded compensation for the taking of water rights plus interest from the date of the taking. The Claims Court also awarded compensation for range improvements, but did not award any corresponding pre-judgment interest. The Appeals Court ruled, "For the reasons set forth below, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for proceedings consistent with this opinion."

   

    The Claims Court held there was a regulatory taking of the Hages' water rights when the Forest Service allowed vegetation to accumulate in streams and prevented the Hages from performing maintenance on the stream channels and ditch rights of way.   

 

    Among other determinations, the Appeals Court indicates, "The Hages have not met their burden because the evidence demonstrates only that they constructed or maintained the improvements on the federal lands, not that they owned title to those improvements. To the contrary, the evidence of record demonstrates that the improvements were the property of the United States government. Without evidence of ownership, the Hages cannot establish a cognizable property interest. To the extent that the Hages argue that they are entitled to a diminution in value for range improvements on their private property stemming from the cancelation of their permits, this argument is without merit. . ."

 

    In its conclusion the Appeals Court said, "The Hages' regulatory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g) are not ripe, and we therefore vacate the Claims Court's award of damages. To the extent the Hages' claim for a physical taking relies on fences constructed in 1981-1982, this claim is untimely. To the extent the physical takings claim relies on fences constructed in 1988-1990, we re-verse because there is no evidence that water was taken that the Hages could have put to beneficial use. Finally, we affirm the Claims Court's holding that the Hages are not entitled to prejudgment interest for any range improvements award because the Hages failed to identify a cognizable property interest. We remand for further proceedings consistent with this opinion. "

 

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

 

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Northern Pacific Center, Inc. v. BNSF Railway Company

Jul 24: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. 11-3103 & 11-3139. The Appeals Court explains that the Northern Pacific Center incurred costs to reduce pollution on a property it owns in Brainerd, Minnesota which had formerly been owned by BNSF Railway and used as a railcar construction and maintenance facility. The Center sued BNSF under the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. § 115B.01 et seq., to recover its costs. BNSF moved for summary judgment on the basis of MERLA's statute of limitations, which the district court denied. Both parties later moved for summary judgment on the merits, which the district court granted to BNSF, concluding that "the type of costs the Center had incurred were not recoverable under MERLA." The Center appealed the adverse grant of summary judgment and BNSF cross appealed the district court's denial of summary judgment on statute of limitations grounds. The Appeals Court ruled, "We affirm the grant of summary judgment to BNSF and dismiss BNSF's cross appeal as moot."

 

    The key determination in the case is whether the type of costs incurred was "remedial" or "removal." The Appeals Court concluded, ". . .the agency itself approved BNSF's excavation as the selected 'remedial' action and provided approval for the excavation done by the Center in each of its redevelopment projects. This suggests that the lead cleanup taken by the Center can be considered remedial. We conclude that the costs the Center seeks to recover were not removal costs and thus are not recoverable. Because we affirm the district court's grant of summary judgment to BNSF on the merits, we dismiss as moot BNSF's cross appeal of the district court's denial of summary judgment on statute of limitations grounds."

 

    Access the complete opinion (click here). [#Remed, #CA8]

 

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Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1252, consolidated with 10-1254, 10-1255, 10-1256, 10-1258, 10-1259, 11-1073, 11-1080, 11-1081, 11-1090, 11-1092. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes saying, "Several states and state regulatory agencies, together with corporations and industrial associations, petition for review of the Environmental Protection Agency's rule entitled 'Primary National Ambient Air Quality Standard for Sulfur Dioxide,' and of the subsequent denial of petitions for reconsideration of the standard. Petitioners contend, first, that EPA failed to follow notice-and-comment rulemaking procedures, and second, that the agency arbitrarily set the maximum sulfur dioxide (SO2) concentration at a level lower than statutorily authorized. For the reasons discussed more fully below, we conclude that the challenge to the rulemaking procedure is not within our jurisdiction and must be dismissed. We further conclude that EPA did not act arbitrarily in setting the level of SO2 emissions and therefore deny that portion of the petitions for review.

 

    Sulfur dioxide, a "highly reactive colorless gas," derives mostly from fossil fuel combustion. It smells like rotting eggs and, at elevated concentrations in the air, can cause acid rain. Its presence in the ambient air can cause adverse health effects,

particularly in asthmatics. After receiving comments on its rule proposal, EPA issued a final rule addressing the primary SO2 standard. 75 Fed. Reg. 35520 (June 22, 2010). EPA mandated that States must meet a new 1-hour SO2 standard using a 99th percentile form, set at 75 ppb maximum SO2 concentration. Also, EPA indicated in the rule, "we are revising our general anticipated approach toward implementation of the new 1-hour NAAQS." Instead of assessing attainment of the standard primarily by monitoring the ambient air, as it had stated it would in the proposed rule, EPA suggested it would use a "hybrid analytic approach" that would combine monitoring with computer modeling to determine compliance.

 

    Petitioners allege two errors in the EPA's proceedings. All Petitioners contend that EPA violated the notice-and-comment rulemaking provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 553, by mandating a hybrid modeling-monitoring implementation approach rather than a monitoring-only approach. Only the nonstate petitioners bring the second challenge, contending that the Agency's decision to set the new 1-hour SO2 standard at 75 ppb was arbitrary and capricious.

 

    Regarding the modeling concerns, the Appeals Court indicates, "EPA explained that it expected to make initial attainment designations in 2012 based on existing monitoring capabilities, as well as 'any refined modeling the State chooses to conduct specifically for initial area designations.' 75 Fed. Reg. at 35552. That language does not impose new legal obligations to use modeling. To be sure, because EPA now intends to use this hybrid approach, it has scaled back its proposed plans to develop a more extensive monitoring network. . . Petitioners do not argue, however, that they have suffered an injury by not being required to build a more extensive monitoring network. Petitioners will be free to challenge any final action EPA takes that imposes an obligation Petitioners must meet. The challenged provisions here do not meet that standard."

 

    Regarding the standard, the Appeals Court rules in part, "Nothing in the CAA requires EPA to give the current air quality such a controlling role in setting NAAQS. And as Petitioners themselves note, the CAA gives EPA significant discretion to decide whether to revise NAAQS. Further, in the final rule, EPA cites evidence that current levels of SO2 in the ambient air, even when the air quality meets the current SO2 NAAQS, still cause respiratory effects in some areas. 75 Fed. Reg. at 35530-31. In short, EPA had discretion to revise the NAAQS and Petitioners' argument is unavailing."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

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National Chicken Council v. U.S. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1107. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes that the National Chicken Council, National Meat Association, and National Turkey Federation petition for review of EPA's interpretation of a provision in the Energy Independence and Security Act of 2007 (EISA) and, "Because the petitioners fail to show that a favorable ruling would redress their claimed injuries, we dismiss their petition on standing grounds."

 

    Under the EISA, ethanol qualifies as a "renewable fuel" under certain circumstances. Ethanol from a production plant that commenced construction after December 19, 2007 (the date of the EISA's enactment) counts as renewable fuel if it "achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions" in comparison to fossil fuels. 42 U.S.C. § 7545(o)(2)(A)(i). Ethanol from a plant that commenced construction on or before December 19, 2007 is not subject to that requirement; it counts as renewable fuel whether it reduces emissions or not. Id. i.e. the older ethanol plants are "grandfathered in."

 

    The statutory provision at issue in this case is an extension of the EISA's grandfather clause. It states that, "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the 20 percent reduction requirement." The Appeals Court explains, " In its Notice of Proposed Rulemaking, EPA claimed the provision was ambiguous because it did 'not specify whether [ethanol plants fired with natural gas and/or biomass] are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely.' . . After considering public comments, EPA adopted the latter interpretation in its Final Rule. It read the provision to mean that ethanol plants fired with natural gas and/or biomass that commenced construction in 2008 or 2009 ('qualifying ethanol plants') are deemed compliant with the 20 percent greenhouse gas reduction requirement 'indefinitely.' . . Functionally, that meant qualifying ethanol plants could generate RINs [Renewable Identification Numbers for each gallon of renewable fuel] indefinitely without having to ensure that their ethanol met the emissions-reduction requirement."

 

    The Appeals Court notes that, "The petitioners argue EPA's interpretation of the provision is inconsistent with the statutory text, and they ask us to set it aside. To establish their Article III standing to seek such relief, they must show that they have suffered (or will soon suffer) a 'concrete' injury in fact; that their injury is or will be 'fairly . . . trace[able]' to EPA's interpretation of the provision; and that there is a 'substantial likelihood' their injury would be redressed if we set EPA's interpretation aside."

 

    The Appeals Court concludes, "If we were to vacate EPA's interpretation, the only consequence for qualifying ethanol plants is that they would no longer be able to generate RINs without complying with the EISA's emissions-reduction requirement. The petitioners fail to show a 'substantial probability' that qualifying ethanol plants would reduce their ethanol production as a result of that change. . . We should not be understood to foreclose any challenge to EPA's interpretation of the provision; a different petition, properly supported, could allow us to address the merits of EPA's reading. But the petitioners here have failed to establish their standing, and their petition for review is accordingly dismissed."

 

    Access the complete opinion (click here). [#Energy/Ethanol, #CADC]

 

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State Of New Jersey v. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case 05-1097 consolidated with 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294. The Appeals Court summarizes saying, "In our earlier decision in this case, New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011) [See WIMS 1/3/12], we held that Movants, a group of Native American tribes and tribal associations who intervened on behalf of petitioners in the underlying Clean Air Act litigation, were entitled to fees and costs under section 307(f) of the Act. When the parties were unable to agree on the amount of fees, Movants filed an updated motion seeking $369,027.25, including compensation for 1,181 hours of work and for costs. For the reasons set forth below, we agree with EPA that the fee request is excessive and thus award substantially less than Movants seek.

 

    The Appeals Court notes that to calculate a reasonable fee, "we use the lodestar method, multiplying a reasonable rate by the reasonable number of hours." EPA does not object to Movants' proposed hourly rates, and in order to simplify things recommends a flat rate of $305.125 which is agreed to. However, at issue is the "reasonable number of hours." After careful analysis, the Appeals Court concludes, "In sum, Movants reasonably expended 355.95 hours on the litigation. Multiplying this by $305.125 per hour, we award Movants $108,609.24 in compensation for attorney time. We also award Movants the $3,186.50 in costs they seek and that EPA does not contest."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

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American Petroleum Institute v. U.S. EPA

Jul 17: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1079 & 10-1080. On Petitions for Review of Final Action of the U.S. EPA. The Appeals Court explains, that In 2010, U.S. EPA promulgated a final rule adopting a new, one-hour primary national ambient air quality standard (NAAQS) for nitrogen dioxide. The American Petroleum Institute, the Utility Air Regulatory Group, and the Interstate Natural Gas Association of America (collectively the API) petition for review of that rule, claiming EPA, in adopting the NAAQS, was arbitrary and capricious and violated the Clean Air Act. API also challenges a statement in the preamble to the final rule regarding EPA's intended implementation of the NAAQS. The Appeals Court ruled, "We deny the petitions insofar as they challenge the EPA's adoption of the NAAQS, but because the EPA's statement in the preamble was not final, we lack jurisdiction to consider those portions of the petitions."

 

    The Appeals Court recounts that, in 2009 the EPA proposed to set a new hourly NAAQS with allowable maximum concentration levels between 80 and 100 ppb. 74 Fed. Reg. 34,404 (July 15, 2009). The petitioners each submitted comments criticizing the EPA for proposing a revision to the NAAQS based upon an unpublished study. . . and for discounting a published and peer-reviewed study that did not conclude exposures to NO2 at 100 ppb caused a measureable adverse health effect. They also expressed skepticism about the EPA's interpretation of the epidemiological evidence, questioned the assumptions built into the forecasts in the REA, and pointed out the proposed rule provided no guidance as to how a permit applicant for a new or modified source of NO2 pollution should demonstrate compliance with the new NAAQS.

 

    In its Final Rule, the EPA adopted a new one-hour primary NAAQS, requiring in effect that "the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration [be] less than or equal to 100 ppb." The EPA concluded this standard was needed "to provide protection for asthmatics and other at-risk populations against an array of adverse respiratory health effects related to short-term NO2 exposure."

 

    According to the API, the EPA was arbitrary and capricious in how it dealt with the record evidence and the NAAQS it adopted is unlawful because more stringent than "requisite to protect the public health" with "an adequate margin of safety." In addition, the API argued that EPA's implementation of the NAAQS was arbitrary and capricious because, when the EPA stated a permit applicant for a new or modified source of pollution must demonstrate compliance with the new NAAQS, the agency did not consider whether it would be able to resolve applications within the statutorily required time period or what effect such a requirement might have upon economic growth.

 

    The Appeals Court ruled in part, "Considering its duty to err on the side of caution, we conclude the EPA did not act unreasonably by comparing the benefits of the one-hour standard against not only a scenario based upon existing air quality but also upon an alternate scenario in which areas just meet the annual NAAQS set in 1971. For that reason, and because the record adequately supports the EPA's conclusion that material negative health effects result from ambient air concentrations as low as the 100 ppb level, we cannot conclude the agency was arbitrary and capricious or violated the Act in adopting that level as the new one-hour NAAQS for NO2."

 

    Earthjustice, intervened on behalf of Natural Resources Defense Council to oppose the industry challenge. Earthjustice attorney Abigail Dillen issued a brief statement saying, "Nitrogen dioxide pollution triggers asthma attacks and sends people to hospitals and emergency rooms. This decision is great news for children, older adults, and millions of Americans with asthma whose health is endangered by this pollution."

 

    Access the complete opinion (click here). Access a release and statement from Earthjustice (click here). [#Air, #CADC]

 

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Natural Resources Defense Council v. Salazar

Jul 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17661. Appealed from the United States District Court for the Eastern District of California. In this split decision involving the renewal of forty-one water supply contracts by the United States Department of Interior, Bureau of Reclamation the majority affirms the district court in determining that the contracts do not violate § 7(a)(2) of the Endangered Species Act and illegally threatens the existence of the delta smelt.

 

    The delta smelt is a small fish endemic to the San Joaquin and Sacramento Rivers Delta Estuary which was declared endangered by the United States Fish and Wildlife Service under the Endangered Species Act in 1993. Though previously

abundant, the population of the delta smelt has diminished markedly in the last several decades.

 

    Plaintiffs, Natural Resources Defense Council (NRDC) and several conservation groups, argue that in 2005 the United States Bureau of Reclamation (Bureau) renewed forty-one water service contracts with various water users without conducting an adequate consultation under § 7(a)(2) of the Endangered Species Act and that the contracts jeopardize the existence of the delta smelt. The contracts at issue fall into two groups: (1) users who obtain water from the Delta-Mendota Canal (DMC Contractors); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley Project (CVP) and who previously entered into settlement contracts with the Bureau (Settlement Contractors).

 

    Plaintiffs argue that the district court erred in holding that they did not have standing to challenge the DMC contracts. The majority Appeals Court determined, "Even under a substantive claim analysis for standing, which imposes a higher burden than a procedural analysis, plaintiffs' claim fails because they cannot show causation. . . Thus, the district court properly determined that plaintiffs lack standing to challenge the DMC contracts under both a procedural and a substantive claim analysis."

 

    Additionally, the majority ruled, ". . .the Bureau's discretion is limited with regard to the Settlement Contracts so that § 7(a)(2) of the ESA is not triggered. The Bureau's hands are tied historically by those asserting senior water rights in the CVP. The Bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the Settlement Contracts. We agree with the district court . . ."

 

    The dissenting justice said, "I respectfully dissent. I agree with the majority that this case is not moot. I disagree with the majority's holdings that the plaintiffs lack standing to challenge the Bureau's renewal of the Delta-Mendota Canal (DMC) contracts and that § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), does not apply to the United States Bureau of Reclamation's (Bureau) renewals of the Sacramento River Settlement ("SRS") contracts. Accordingly, I would reverse the district court's grant of summary judgment to the defendants and remand for further proceedings."

 

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

 

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