Supreme Court Denies Montana Sulphur & Chemical CAA Appeal

Oct 1: The U.S. Supreme Court denied to hear an appeal by Petitioner Montana Sulphur and Chemical Company, against U.S. EPA (Docket No. 11-1403), under the Clean Air Act with respect to Montana air quality from 1993 to 2008. The denial upholds the Ninth Circuit ruling that, "Because we conclude that the agency did not act arbitrarily or capriciously with respect to either the SIP or FIP, we deny both petitions for review." The Justices said further, ". . . we conclude the EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP. We therefore deny the petition for review in both 02-71657 and 08-72642." [See WIMS 1/23/12].

 

    Montana Sulphur had challenged EPA's April 2008 final rule promulgating a Federal Implementation Plan (FIP) for the State of Montana's SO2 emissions. The FIP is designed to fill perceived gaps the EPA identified in the State Implementation Plan (SIP). The later appeal focuses on the EPA's authority to promulgate the FIP and the reasonableness of certain specific requirements set forth therein. Additionally, Montana Sulphur had challenged EPA's reliance on various modeling calculations -- into the administrative record for partial disapproval of the SIP.

 

    The Ninth Circuit said, "The EPA's continued use of the ISC model was not arbitrary or capricious. The model was properly employed at both the time of the state SIP and the proposed FIP. The FIP did not replace the entire SIP, but only the limited portions the EPA had disapproved; because use of a different model could have yielded results that did not comport with the remainder of the SIP, it was not arbitrary or capricious for the EPA to continue with the existing model despite some later technological improvements."

 

    Access the Supreme Court docket (click here). Access the Supreme Court denial order (click here, p.14). Access the Ninth Circuit opinion  (click here). [#Air, #CA9 #SupCt]

 

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Supreme Court Denies Hearing On USDA's "Roadless Rule"

Oct 1: U.S. Supreme Court denied a request by the State of Wyoming to review the legality of the so-called "Roadless Rule," environmental groups say protects approximately 46 million acres of pristine National Forest lands. Wyoming lost its challenge to the rule before the Denver-based Tenth Circuit Court of Appeals in October 2011 [See WIMS 10/24/11, WIMS 2/22/12].

 

    Earthjustice attorney Kristen Boyles who has worked to defend the Roadless Rule issued a statement saying, "For a decade, Earthjustice has opposed Wyoming's efforts to derail the popular Roadless Rule, which protects some of America's best National Forest lands. With the Supreme Court's denial of Wyoming's petition for review, there should no longer be any question about the Roadless Rule's legality.

 

    "The ten-plus years of our legal campaign to defend the Roadless Rule have seen many twists and turns in the legal process, but one thing hasn't changed -- the undeveloped forest lands at issue remain some of the most environmentally important public lands in our country. They produce clean water and clean air, offer a last refuge to imperiled wildlife across a warming, changing landscape, and provide world-class recreation opportunities for campers, hunters, hikers, fishermen, and bird watchers. Americans love these lands, and it has been an honor to represent those American values before the courts for the last decade."

 

    Jane Danowitz, of the Pew Environment Group said, "Today's Supreme Court action validates one of America's most important and popular land conservation policies. Without the national standard of protection the rule provides, millions of acres of America's last pristine national forests could be lost to logging and other industrial development." Pew indicated that the rule was issued to protect nearly 60 million acres, or roughly one-third of undeveloped Forest Service lands. It was the result of the largest public lands review in U.S. history, with more than 1.2 million comments and 600 public hearings. Pew also points out that according to a recent U.S. Department of Agriculture report, national forests and grasslands sustain 223,000 jobs in rural areas. National forests are also the source of drinking water for about 124 million Americans in 900 U.S. cities.

 

    The Supreme Court order simply indicates that in two cases -- 11-1378 Wyoming v. USDA, and 11-1384 Colorado Mining Association v. USDA -- "The petitions for writs of certiorari are denied. Justice Alito and Justice Kagan took no part in the consideration or decision of these petitions."   

 

    Access a release from Earthjustice (click here). Access the Supreme Court order (click here, p. 71). Access a release from the Pew Environment Group (click here). Access USDA's Roadless Rule website for more information (click here). Access the complete 10th Circuit opinion (click here). [#MILand, #CA10]

 

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Public Lands For The People, Inc. v. USDA

Sep 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15007. Appealed from the United States District Court for the Eastern District of California. The Appeals Court indicates in an overview of the case, "The Wild West has long conjured up images of prospectors with pack mules and pickaxes foraging for gold. The oft romanticized ways of the Wild West eventually modernized and gave way to prospecting with the aid of motor vehicles and heavy machinery." The United States Forest Service (the Forest Service), an arm of the Department of Agriculture (USDA), recently limited the use of motor vehicles to certain roads in the century-old Eldorado National Forest (ENF). Concerned about the impact of the limitation on their activities, a group of miners and prospectors challenged the Forest Service's decision. The district court dismissed the complaint, and the Appeals Court affirmed that decision.

    The Appeals Court provides some background on the case and indicates that Beginning in 2005, the Forest Service published a Notice of Intent to propose prohibitions on motor vehicle use in the ENF, held public meetings, and circulated for public comment a draft environmental impact statement on proposed travel management in the ENF. The Final Environmental Impact Statement (FEIS), issued in March 2008, recognized that if prohibitions on motor vehicle use were adopted, miners and prospectors would need to obtain permission, through a Notice of Intent or Plan of Operations, to use motor vehicles in areas where no such permission restriction existed before.

 

    The district court held that the Miners failed to establish standing and, alternatively, that they failed to state a claim upon which relief could be granted because the Secretary of Agriculture had the authority to impose the road restrictions and reasonably interpreted a Forest Service regulation pertaining to "public roads."

 

    The Appeals Court concluded, "The Miners had standing to bring this suit. Still, the Forest Service acted within its authority when it prohibited cross country vehicle traffic and limited motor vehicle use to certain designated roads in the ENF. The 'public roads' provision in 36 C.F.R. § 228.4(a)(1) does not create an exception to the 2008 Decision because the roads on which motor vehicles were prohibited ceased to be 'public roads,' as reasonably defined by the Forest Service."

 

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

 

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Native Village Of Kivalina v. ExxonMobil Corp.

Sep 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17490. Appealed from the United States District Court for the Northern District of California. In this high profile case dealing with climate change, the Native Village of Kivalina and the City of Kivalina (collectively Kivalina) appeal the district court's dismissal of their action for damages against multiple oil, energy, and utility companies (collectively Energy Producers).

 

    The 22 Energy Producers include: (1) ExxonMobil Corporation; (2) BP P.L.C.; (3) BP America, Inc.; (4) BP Products North America, Inc.; (5) Chevron Corporation; (6) Chevron U.S.A., Inc.; (7) Conocophillips Company; (8) Royal Dutch Shell PLC; (9) Shell Oil Company; (10) Peabody Energy Corporation; (11) The AES Corporation; (12) American Electric Power Company, Inc.; (13) American Electric Power Services Corporation; (14) Duke Energy Corporation; (15) DTE Energy Company; (16) Edison International; (17) Midamerican Energy Holdings Company; (18) Pinnacle West Capital Corporation; (19) The Southern Company; (20) Dynegy Holdings, Inc.; (21) Xcel Energy, Inc.; (22) Genon Energy, Inc.

    Kivalina alleges that massive greenhouse gas emissions emitted by the Energy Producers have resulted in global warming, which, in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. Kivalina seeks damages under a Federal common law claim of public nuisance. The Appeals Court summarizes its position saying, "The question before us is whether the Clean Air Act, and the Environmental Protection Agency (EPA) action that the Act authorizes, displaces Kivalina's claims. We hold that it does."

    The City of Kivalina sits on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately seventy miles north of the Arctic Circle. The city, which was incorporated as a unified municipality under Alaska state law in 1969, has long been home to members of the Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans. The City of Kivalina has a population of approximately four hundred residents, ninety-seven percent of whom are Alaska Natives. Kivalina's survival has been threatened by erosion resulting from wave action and sea storms for several decades.

 

    Kivalina filed this action against the Energy Producers, both individually and collectively, in District Court for the Northern District of California, alleging that the Energy Producers, as substantial contributors to global warming, are responsible for its injuries. Kivalina argued that the Energy Producers' emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina. Kivalina's complaint also charged the Energy Producers with acting in concert to create, contribute to, and maintain global warming and with conspiring to mislead the public about the science of global warming.

 

    The Energy Producers argued that Kivalina's allegations raise inherently nonjusticiable political questions because to adjudicate

its claims, the court would have to determine the point at which greenhouse gas emissions become excessive without guidance from the political branches. They also asserted that Kivalina lacked Article III standing to raise its claims because Kivalina alleged no facts showing that its injuries are "fairly traceable" to the actions of the Energy Producers.

 

    The district court held that the political question doctrine precluded judicial consideration of Kivalina's federal public nuisance claim. The court found that there was insufficient guidance as to the principles or standards that should be employed to resolve the claims at issue. The court also determined that resolution of Kivalina's nuisance claim would require determining what would have been an acceptable limit on the level of greenhouse gases emitted by the Energy Producers and who should bear the cost of global warming. Both of these issues, the court concluded, were matters more appropriately left for determination by the executive or legislative branch in the first instance.

 

    The district court also held that Kivalina lacked standing under Article III to bring a public nuisance suit. The court also concluded that, given the remoteness of its injury claim, Kivalina could not establish that it was within sufficient geographic proximity to the Energy Producers' alleged "excessive" discharge of greenhouse cases to infer causation. Finally, the court declined to exercise supplemental jurisdiction over the state law claims.

 

    The Appeals Court explains, ". . .the right to assert a federal common law public nuisance claim has limits. Claims can be brought under federal common law for public nuisance only when the courts are 'compelled to consider federal questions which cannot be answered from federal statutes alone.' [citing: City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 314 (1981)] . . . If Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill. . . 'The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute speak[s] directly to [the] question at issue.'  [citing: American Electric Power Co., Inc. v. Connecticut (AEP), 131 S. Ct. (2011)]." [See WIMS 6/20/11].

 

    The Appeals Court indicates, "We need not engage in that complex issue and fact specific analysis in this case, because we have direct Supreme Court guidance. The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law. [again citing: AEP]

 

     The majority Appeals Court concludes, "In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. We need not, and do not, reach any other issue urged by the parties. Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law."

 

    In a lengthy, separate concurring opinion, one justice indicates, "The majority opinion holds that the Clean Air Act (CAA) and the Environmental Protection Agency (EPA) action the Act authorizes displace Kivalina's claims. I write separately to address what I view as tension in Supreme Court authority on whether displacement of a claim for injunctive relief necessarily calls for displacement of a damages claim, and to more fully explain why I concur in the majority opinion's ultimate conclusion. I also write separately to express my view that Kivalina lacks standing."

 

    Access the complete opinion and separate concurring opinion (click here). [#Climate, #Air, #Energy, #CA9]

 

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Native Ecosystems Council v. Weldon (Forest Service)

Sep 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35659. Appealed from the United States District Court for the District of Montana. The Appeals Court explains that this case arises out of Native Ecosystems Council's (Native Ecosystems Council) appeal of the district court's grant of summary judgment in favor of the United States Forest Service (Forest Service) in an action regarding the Ettien Ridge Fuels Reduction Project (the Project) in the Lewis and Clark National Forest, located in Montana. The Project was designed to reduce the spread and intensity of potential future wildfires in the Judith Basin County Wildland-Urban Interface by removing naturally occurring wildfire fuels. Native Ecosystems Council alleges that the Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it issued a Finding of No Significant Impact (FONSI) and Decision Notice approving the Project.

 

    The Appeals Court ruled, "We hold that the Forest Service took the requisite 'hard look' at the environmental impact of the Project on the elk hiding cover, and goshawk populations, in the manner required by NEPA. . . We further hold that the district court did not err in granting summary judgment to the Forest Service on Native Ecosystems Council's NFMA claims, because the Forest Service reasonably considered the 'relevant factors' that could have impacted the elk hiding cover and goshawk populations in its analysis of the Project. Accordingly, we affirm."

 

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

 

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Wolfsen Land & Cattle Co. v. Pacific Coast Federation

Sep 21: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5113. Appealed from the United States Court of Federal Claims. The case involves a takings claim arising from the government's releases of water from a dam in central California. Downstream property owners sued in the Court of Federal Claims, alleging that the releases unlawfully impaired their property rights in the water and inundated their land.

    The Appeals Court indicates, "The government had released the water in accordance with a consent order entered by a district court and expressly approved by Congress. The consent order was the result of environmental litigation pursued over a number of years by certain groups interested in the ecological fate of the river. After the present lawsuit was filed, two of these groups moved to intervene as of right, arguing that this case implicated their interests. The Court of Federal Claims denied their motion, finding that the groups' interests were sufficiently aligned with the government's as to create no foundation for intervention. Wolfsen Land & Cattle Co. v. United States, 98 Fed. Cl. 507 (May 24, 2011) (Fed. Cl. Op.). We affirm."

    The case background started in 1942, when the U.S. Bureau of Reclamation dammed the upper San Joaquin River near Friant, California. Friant Dam, which still operates today, generates electricity and collects water for agriculture. But it also caused portions of the river below to dry up, leading to the extermination of Chinook salmon and other species from areas they had previously occupied, as well as other ecological consequences.

    In 1988, a group of plaintiffs sued the federal government over the dam's operation. The Pacific Coast Federation of Fishermen's Associations and the Natural Resources Defense Council (collectively, PCFFA) were among them. They claimed that the dam's operation contravened various state and Federal environmental protection laws. For the next eighteen years, the parties litigated in the district court for the Eastern District of California. In 2006, they finally reached a settlement and releases have continued since, in accordance with the Litigation Settlement and the Settlement Act.

    In the Wolfsen case, PCFFA moved to intervene and was denied and appealed. The Federal Circuit indicates, "This court has not previously identified the standard to be applied when reviewing a trial court's denial of a motion to intervene as of right. . . Both sides cite authority from the regional circuits, which are split on the question [the various cases are citied]. The majority Appeals Court rules, "We find it unnecessary to reach this question, as we see no error in the Court of Federal Claims' judgment. Cf. Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989) (finding no need to reach this issue in similar circumstances). We would affirm under both proposed standards of review. Because the question of the standard to apply is non-dispositive, we need not address it."

 

    The Court of Federal Claims ruled: First, the court held that PCFFA had failed to show a direct, non-contingent interest in this case. . . Second, the court held that even if PCFFA had alleged a protectable interest, the interest did not relate to this case in such a way that failure to permit intervention would impede PCFFA's ability to protect itself. . . Third, the court held that even if PCFFA had a protectable interest, and even if that interest related to this case in the manner contemplated by the rule, PCFFA's interests were adequately protected by the government's participation in this case. The majority Appeals Court ruled, "As set forth below, we agree, and on that basis affirm."

 

    In a separate, concurring decision, one Justice indicated, "I concur that the district court did not err in denying PCFFA's motion to intervene as a matter of right. I write separately because I do not agree that the United States -- which opposed PCFFA for years in related litigation -- can be presumed to adequately represent PCFFA in this case. . . At best, the majority has confused litigation goals with legal interests; at worst, it has unnecessarily introduced a new presumption into our cases, raising an additional bar against intervention in cases in which the government is a party."

 

    Access the complete opinion and separate concurrence (click here). [#Water, #CAFed]

 

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Earth Island Institute v. U.S. Forest Service

Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16718. Appeal from the United States District Court for the Eastern District of California. The Appeals Court explains that under the National Forest Management Act (NFMA), an Agency's project is required to comply with 1982 viability requirements only to the extent they have been incorporated in the relevant forest plan. Earth Island Inst. v. Carlton, 626 F.3d 462, 470 (9th Cir. 2010). The Appeals Court said, "Here, we conclude that the Lake Tahoe Forest Plan did not require the Forest Service to demonstrate at the project level that the Angora Fire Restoration Project (Angora Project) would maintain viable population levels of management indicator species, including the black-backed woodpecker. Therefore, the Forest Service's analysis of the Angora Project's impact on the black-backed woodpecker's habitat was not arbitrary and capricious under NFMA."

 

    Further, the Appeals Court indicated that the National Environmental Policy Act (NEPA) requires an Environmental Assessment (EA) to comply with certain procedural requirements to ensure that agencies will make informed decisions about the environmental effects of proposed Federal actions and to make this information available to the public. Ecology Center v. Castaneda, 574 F.3d 652, 656-57 (9th Cir. 2009). They said, "Here, because the Forest Service did not fail to (1) ensure the scientific integrity of the final EA, (2) properly respond to dissenting scientific opinion, (3) properly consider proposed alternatives to the Angora Project Environmental Assessment, and (4) take the requisite 'hard look' at the impacts of the Angora Project, we also conclude that the Forest Service's analysis of the Angora Project's environmental effects was not arbitrary and capricious under NEPA. Accordingly, we affirm the district court."

 

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

 

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