Norman Bernstein v. Patricia Banker

Dec 19: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1501 & 11-1523. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that this is the latest chapter in the story of the Environmental Chemical and Conservation Company (Enviro-Chem), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind.

 

    The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro-Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more.

 

    The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court's final judgment. The Appeals Court said, "Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims."

 

    In conclusion, the Appeals Court rules, ". . .we reverse the district court's dismissal of Counts I, II, III, and VII. In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC [Administrative Order by Consent]. The Trustees' Count II 'companion claim' for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA [Indiana Environmental Legal Actions Statute] claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court's denial of Auto Owners' motion for summary judgment on preclusion grounds. The trustees' suit is reinstated and remanded for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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Olin Corp. v. Am. Home Assurance Co.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case No. 11-4055. Appealed from an order of the United States District Court for the Southern District of New York. The district court granted summary judgment to American Home Assurance Company (American Home) on the ground that the attachment point for its excess insurance policies could not be reached by the alleged environmental damage at Olin Corporation's (Olin) site at Morgan Hill, California. In brief, the Appeals Court ruled, "We hold that the plain language of Olin's policies with American Home requires American Home to indemnify Olin for that damage. Accordingly, the judgment of the district court is vacated and the case is remanded for further proceedings."

 

    In concluding the Appeals Court said, ". . .we conclude that the district court's basis for granting summary judgment was in error. Condition C obligates American Home to indemnify Olin not only for property damage occurring during the policy period, but also for property damage arising from covered occurrences that continues after the policy period. Three decades of perchlorate exposure and the damage it created are treated as a single, multi-year occurrence for the purposes of this policy. And because this single, multi-year occurrence took place in part during each of the two policy periods here, the district court was incorrect to conclude that neither policy would be reached because of the allocation method. On the record before the district court, $72.6 million in damage falls within the coverage of the 1966-69 policy, while $62.7 million falls within the coverage of the 1969-72 policy. These figures exceed the American Home policies' $30.3 million attachment points. On remand, American Home may demonstrate that these attachment points cannot be reached for other reasons. For example, this estimate of the years in which property damage occurred may be inaccurate. Or the evidence may permit the court to assign greater damage to the years before the inception of the two policies. We decide only that issues of material fact remain regarding American Home's liability."

 

    Access the complete opinion (click here). [#Remed, #CA2]

 

 

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Arkansas Game and Fish Commission v. U.S.

In the U.S. Supreme Court, Case No. 11-597. Appealed from the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029 [See WIMS 3/31/11]. Justice Ginsburg delivered the opinion of the Court, in which all other Members joined, except Justice Kagan, who took no part in the consideration or decision of the case.

    In the opinion, the Supreme Court indicates that periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the United States pursuant to the Fifth Amendment's instruction: "[N]or shall private property be taken for public use, without just compensation." The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.

    The Supreme Court said, "Ordinarily, this Court's decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is 'a permanent or inevitably recurring condition, rather than an inherently temporary situation.' 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."

 

    The Supreme Court said further, "We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking."

 

    Access the complete opinion (click here). Access the Supreme Court docket for this case (click here). Access the oral argument transcript (click here). Access merit and amicus briefs in the case (click here). Access the complete opinion of the Federal Circuit (click here). [#Water, #Land, #SupCt #CAFed]

 

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EPA Preempts Forest Roads Supreme Court Case With Final Rule

Nov 30: On November 30, 2012, U.S. EPA Administrator Lisa Jackson signed a Final Rule revising its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. The rule has not yet been published in the Federal Register but will become final 30-days following publication.

    EPA indicated that it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."

    On December 3, the U.S. Supreme Court heard oral argument for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC) [See WIMS 11/26/12], which addresses three questions: (1) Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)? (2) Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits? and, (3) Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final? EPA's final rule now makes most of the arguments moot. 

    Fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.

    In the opening of the oral argument, Chief Justice Roberts said the petitioners, ". . .congratulations to your clients -- getting almost all the relief they're looking for under the new rule issued on Friday." However, the petitioners continued to argue, ". . .there is an additional reason why we don't think that the rule here moots -moots the issue. Let -- let's assume that there is a petition for review. I think that's a fairly safe -safe assumption. That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made. The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits. And . . ."

    But Chief Justice Roberts seemed to disagree and said, "Well, but it's -- it's an unusual situation for us to rule in a case where the issue has ongoing significance and that's taken away. And what we would be doing is, when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was, so that you can unravel what the Ninth Circuit has upheld. . ."

    Access the complete oral argument transcript (click here). Access a prepublication copy of the EPA final rule (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). Access EPA's Stormwater Discharges From Forest Roads website for complete background and information (click here). [#Water, #Land, #SupCt, #CA9]

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Supreme Court Will Wear Oral Arguments In Stormwater Case

Nov 30: On December 4, the U.S. Supreme Court will hear oral arguments in the case of Los Angeles County Flood Control District, Petitioner v. Natural Resources Defense Council, Inc., et al. (SupCt. docket 11-460). The high profile case with 22 amicus briefs, deals with the issue of pollutants stemming from municipal stormwater systems.

 

    The questions presented in the case include: (1.) Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

 

    (2.) When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

     In March 2011, the U.S. Court of Appeals, Ninth Circuit (Case No. 10-56017) ruled partially in favor of NRDC, et al [See WIMS 3/11/11] and overturned a district court's grant of summary judgment in favor of two municipal entities and Los Angeles County. In that case Plaintiffs contended that Defendants County of Los Angeles (County) and Los Angeles County Flood Control District (District) were discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County. Defendants contended that there was no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers.

 

    However, the Appeals Court also ruled, "Plaintiffs, however, failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River and Malibu Creek [the other two water bodies]. Plaintiffs did not provide evidence sufficient for the district court to determine if stormwater discharged from an ms4 controlled by the District caused or contributed to pollution exceedances located in these two rivers. Similarly, Plaintiffs did not delineate how stormwater from ms4s controlled by the County caused or contributed to exceedances in any of the Watershed Rivers. Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants on these claims."

 

    In a blog posting from NRDC, the group says, "In the case we'll argue Tuesday, we are asking Los Angeles County to stop shirking its responsibility and start doing right by the residents of Southern California -- and the region's millions of annual visitors. In resisting our efforts, the flood control district is dramatically overstating the cost of adopting green infrastructure and reducing water pollution in the region. By doing the right thing, Los Angeles County officials, like many of their counterparts around the country, would learn that embracing green infrastructure is not only good for public health and smart environmental policy; it will actually save money, increase water supplies, reduce flood risks and clean up local beaches and rivers."

 

    Access the SupCt docket for the case (click here). Access links to all of the merit and amicus briefs in the case (click here). Access the complete opinion of the Ninth Circuit (click here). Access the blog posting from NRDC with links to related information (click here). [#Water, #SupCt]

 

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Hillsdale Environmental Loss v. U.S. Army Corps

Nov 28: In the U.S. Court of Alppeals, Tenth Circuit, Case No. 11-3210. Appealed from the U.S. District Court for the District of Kansas. The case concerns the construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. Because the preferred site contained streams and wetlands protected under Federal law, several groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act and the National Environmental Policy Act.

 

    The district court denied Hillsdale's motion for an injunction and granted summary judgment for the Corps and BNSF. On appeal, Hillsdale requested the Appeals Court to set aside the Corps's decision to grant the permit saying "the Corps inadequately considered alternatives to the selected site under the Clean Water Act and violated the National Environmental Policy Act by preparing an inadequate environmental assessment and failing to prepare a full environmental impact statement." The Appeals Court concluded "the Corps's decision is supported by the record, and was not an arbitrary and capricious exercise of its approval powers under federal law. . . we affirm the decision of the district court and uphold the Corps's issuance of a § 404 permit."

 

    Further explaining its decision, the Appeals Court said, "Hillsdale is correct that many of the comments they cite are more than mere statements of opposition; they question various aspects of the Corps's analysis, mostly its failure to analyze the cancer risks of DPM emissions but also the intermodal facility's impacts on water quality, regional air quality, and so on. But all comments Hillsdale identifies raise the same issues it raised in this appeal. As we have discussed, the Corps took the requisite 'hard look' at every one of these issues, which is all NEPA requires. . . Hillsdale cannot overcome its failure on the merits simply by pointing to

comments expressing the same concerns. If Hillsdale cannot show there is some merit to opposing opinions, they cannot demonstrate controversy. . . An additional point in the Corps's favor is that none of the federal or state agencies the Corps consulted opposed the project or the Corps's analysis. Although not dispositive, this is additional evidence of a lack of controversy. . . In short, neither the nature nor the number of the comments Hillsdale cites demonstrates the intermodal facility is controversial, let alone that the Corps's decision not to prepare an EIS was arbitrary and capricious in light of this controversy."

 

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

 

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Alaska Survival v. Surface Transportation Board

Nov 28: In the U.S. Court of Apppeals, Ninth Circuit, Case No. 12-70218. On Petition for Review of an Order of the U.S. Surface Transportation Board (STB). The Appeals Court issued an order stating, ". . . the petition for review of the STB's order is denied. An opinion on the merits of denial of the petition for review will follow in due course." Lifting the stay will allow the Alaska Railroad's extension project to Port MacKenzie in the Matanuska-Susitna Borough.

 

    In this case the Appeals Court said in part, "After further review of the record, we have concluded that the STB's 'purpose and need' statement complied with NEPA and that Petitioners no longer raise 'serious questions' on this point. Moreover, the balance of hardships no longer tips sharply in the Petitioners' favor. Further delay of this project will prevent the award of construction contracts, postpone the hiring of construction employees, and significantly increase costs. . . Because this project is funded largely with taxpayer dollars, these increased costs of construction, which the Respondents-Intervenors in moving to lift the stay estimated at $10–12 million, will burden the public upon continued delay. By contrast, the weight to be given Petitioners' assertions of hardship because of environmental harm is weakened by this court's decision to deny the petition for review, which will allow the project to move forward. Because we have concluded that the agency acted in accord with law and that its decision is not arbitrary and capricious, it is for the STB and not for our court to balance the justifications of planned economic progress in improved rail service against the possibilities of environmental harm from building and operating the rail line."

 

    A release from the Matanuska-Susitna Borough indicates that in November 2011, the Federal Surface Transportation Board approved the plan to build a new 32-mile rail line, connecting Port MacKenzie  to the Railroad's main line near Houston. On January 20, the Sierra Club, Cook Inletkeeper, and Alaska Survival filed a legal challenge to the Board's decision. Borough Mayor Larry DeVilbiss said he was delighted to hear the court's ruling. He said the Port MacKenzie Rail project will be a good return on investment for the state. He said, "This will diversify our Alaska economy. One of the things that's always struck me about this project, we're looking at a maximum of $300 million that is invested, but when you look at the payback, per year, on a 50-year study on this, the state will be getting back $300 million a year on the assets that will be moving down this track, so it's a no brainer."

 

    Access the complete order from the Appeals Court (click here). Access the release from the Borough (click here). [#Transport, #CA9]

 

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