Jayne v. Sherman

Jan 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35269, 11-35292, 11-35305, and 11-35322. Appeal from the United States District Court for the District of Idaho. In a summary, the court staff indicate that the panel affirmed the district court's judgment in appeal No. 11-35269, and adopted the district court's opinion as their own, Jayne v. Rey, 780 F. Supp. 2d 1099 (D. Idaho 2011). The panel dismissed as moot cross appeals Nos. 11-35292, 11-35305, and 11-35322. Plaintiffs challenged the United States Forest Service's October 16, 2008 Record of Decision adopting the modified Idaho Roadless Rule, which creates different categories of land within Idaho's 9.3 million acres of "inventoried roadless areas."

 

    The district court held that plaintiffs, who used and enjoyed numerous National Forest roadless areas in Idaho, satisfied standing and ripeness requirements to seek injunctive relief. The district court also held that the Fish and Wildlife Service did not violate the Endangered Species Act in preparing the Biological Opinion (finding that the new Idaho Roadless Rule was not likely to jeopardize the continued existence of any listed species). The district court found that the Forest Service did not violate the National Environmental Policy Act in relying on the Biological Opinion or in preparing the final environmental impact statement and Record of Decision approving the Idaho Roadless Rule.

 

    Specifically, the Appeals Court said, "After scouring both the administrative and district court records in this case, we conclude that the district court's grant of summary judgment to the defendants was warranted. The inclusive, thorough, and transparent process resulting in the challenged rule conformed to the demands of the law and is free of legal error. Thus, we affirm the district court's judgment in Appeal No. 11-35269. . ." In conclusion, the Appeals Court said, "The Court finds the FWS did not violate the ESA in preparing the Biological Opinion. The Court also finds that the Forest Service did not violate NEPA in relying on the Biological Opinion or in preparing the FEIS and ROD approving the Idaho Roadless Rule. For these reasons, the Court will grant the defendants' motions for summary judgment and deny plaintiffs' motion for summary judgment. The Court will issue a separate Judgment as required by Rule 58(a)"

 

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

 

GET THE REST OF TODAY'S NEWS

For a short time you can access the complete daily eNewsUSA issue (click here)

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Supreme Court Rules In LA County Flood Control Dist. v. NRDC

Jan 8: The U.S. Supreme Court issued an opinion 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 [See WIMS 11/30/12]. 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. 

 

    Today, the Supreme Court said, "The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat.816, as amended, 33 U. S. C. §1251 et seq., does the flow of water out of a concrete channel within a river rank as a 'discharge of a pollutant'? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is 'no.' They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109–112 (2004), in which we accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants- under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We therefore reverse that court's judgment."

 

    In its unanimous decision, the Supreme Court explained further, "In Miccosukee, polluted water was removed from a canal, transported through a pump station, and then de-posited into a nearby reservoir. 541 U. S., at 100. We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were 'meaningfully distinct water bodies.' Id., at 112. It follows, a fortiori, from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another. We hold, therefore, that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the CWA. Because the decision below cannot be squared with that holding, the Court of Appeals' judgment must be reversed."

 

    Further, the Supreme Court said, "The NRDC and Baykeeper urge that the Court of Appeals reached the right result, albeit for the wrong reason.The monitoring system proposed by the District and written into its permit showed numerous instances in which water-quality standards were exceeded. Under the permit's terms, the NRDC and Baykeeper maintain, the ex- exceedances detected at the instream monitoring stations are by themselves sufficient to establish the District's ability under the CWA for its upstream discharges. See Brief for Respondents 33–62. This argument failed below. See 673 F. 3d, at 898, 901; App. to Pet. for Cert. 100–102. It is not embraced within, or even touched by,the narrow question on which we granted certiorari. We therefore do not address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for the question we took up for review."

 

    NRDC issued a release commenting on the decision saying the groups had sought to hold the county responsible for the "toxic mix of mercury, arsenic, cyanide, lead and fecal bacteria found in billions of gallons of stormwater runoff." NRDC said, Today's Supreme Court ruling resolved a narrow legal issue that the parties all agreed on: that the flow of polluted water within a single river does not constitute a 'discharge of pollutants' under the Clean Water Act. The Court did not excuse the County from liability for ongoing water pollution in the Los Angeles and San Gabriel Rivers."

    Steve Fleischli, senior attorney and director of NRDC's national water program said, "We'll continue to seek to hold the Los Angeles County Flood Control District responsible for cleaning up its water pollution. Unless something changes, stormwater pollution will continue to sicken up to one million people in Southern California every year, while local government turns a blind eye and avoids basic infrastructure solutions that will protect people, preserve water quality and increase water reserves." Liz Crosson, Executive Director of L.A. Waterkeeper said, "The county has managed to game the system in a way that has allowed the pollution of our waterways to go unaddressed for many years. The county is the largest source of stormwater pollution to local waterways, and today it has escaped accountability, but only temporarily."

    The groups indicated that, "This pollution can be prevented, however, through the development of green infrastructure solutions, such as on-site water capture and filtration. These techniques trap stormwater pollution at the source, rather than allow it to flow to sea untreated, and allow rainwater to be reused rather than wasted. Green infrastructure is not only good for public health and smart environmental policy, it will save money, increase water supplies, reduce flood risks and clean up local beaches and rivers. The county has not used these available techniques as effectively as it should."

    Access the complete opinion (click here). Access a release from NRDC (click here). 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).  [#Water, #SupCt]

GET THE REST OF TODAY'S NEWS

For a short time you can access the complete issue (click here)

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Brodsky v. U.S. Nuclear Regulatory Commission

Jan 7: In the U.S. Circuit Court of Appeals, Second Circuit, Case No. 11-2016. Appeal from an award of summary judgment by the U.S. District Court for the Southern District of New York. The district court awarded a summary judgment in favor of the U.S. Nuclear Regulatory Commission (NRC) on plaintiffs' challenge to the NRC's grant of an exemption to the Indian Point nuclear power plant from compliance with certain fire safety regulations. The Appeals Court summary indicates, "A summary order filed today affirms the judgment in part as to those of plaintiffs' challenges that we hold to be without merit. This opinion vacates the judgment in part, insofar as the district court rejected plaintiffs' argument that the exemption was granted in violation of the National Environmental Policy Act's public participation regulations, and remands the matter for further proceedings." The decision is affirmed in part, vacated in part, and remanded.

 

    The Appeals Court explains further, "By summary order filed today, we affirm the challenged judgment in all respects but one, which is the subject of this opinion. Specifically, insofar as plaintiffs contend that the NRC granted the challenged exemption in violation of NEPA's regulations, which allow for public involvement where appropriate and practicable, see 40 C.F.R. §§ 1501.4(b), 1506.6(c), we conclude that the agency record does not permit a reviewing court to determine whether a reasoned basis exists for the NRC's decision not to afford any such public involvement in the exemption decision. We therefore vacate the judgment of the district court, which implicitly rejected this argument, with respect to plaintiffs' NEPA challenge only, and we remand this case to the district court with instructions for it in turn to remand to the NRC so that the agency may (1) supplement the administrative record to explain why allowing public input into the exemption request was inappropriate or impracticable, or (2) take such other action as it may deem appropriate to resolve this issue. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ('[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'). This panel will retain jurisdiction for the purpose of ruling, if necessary, on any appeal from a further district court judgment addressing the agency's action on remand."

 

    Access the complete opinion (click here). [#Energy/Nuclear, #CA2]

 

GET THE REST OF TODAY'S NEWS

For a short time you can access the complete issue (click here)

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Beyond Nuclear v. U.S. Nuclear Regulatory Commission

Jan 4: In the U.S. Court of Appeals, First Circuit, Case No.12-1561. Petition for review from the U.S. Nuclear Regulatory Commission. The Appeals Court explains that NextEra Energy Seabrook, LLC, operates the Seabrook, New Hampshire, Unit 1 nuclear power plant, which provides a significant portion of the baseload electric power used in New England. NextEra applied on May 25, 2010, to renew the Seabrook operating license, which will otherwise expire on March 15, 2030. Renewal is allowed up to twenty years in advance. With its application, NextEra submitted an environmental report, as required. That report discussed the feasibility of alternative sources of electric energy.

 

    As part of that licensing process, the Nuclear Regulatory Commission (NRC), on March 8, 2012, issued a decision denying the

admission of a contention by Beyond Nuclear, the New Hampshire Sierra Club, and the Seacoast Anti-Pollution League (collectively BN), which questioned and sought a hearing on the conclusion in the environmental report by NextEra that offshore wind electric generation was not a reasonable alternative to the extended licensing of Seabrook. In doing so, the NRC reversed the Atomic Safety and Licensing Board's (ASLB) admission of that contention. The NRC's denial of admission of a contention here means that it ruled petitioners were not entitled to have a hearing on the merits about their contention that generation of electricity from offshore wind was a reasonable alternative source of baseload energy to the relicensing of Seabrook.

 

    On petition for review, BN advances two primary challenges to the NRC's decision. First, it argues that in formulating its contention-admissibility standard the NRC misapplied case law interpreting the National Environmental Policy Act (NEPA). Second, it argues that when the NRC applied its contention-admissibility standard to the facts, its conclusion that the contention was inadmissible was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law. The Appeals Court said, "Neither argument is persuasive. . . we deny BN's petition for review."

 

    The case provides an interesting overview of wind energy potentials and limitations. As an example, BN argues that one study indicated that shallow offshore wind power is viable today (because of its use in Europe) and cited a report from the European Wind Energy Association, "Oceans of Opportunity," (Sept. 2009), discussing the growth of offshore wind in Europe. However the Appeals Court notes that as the NRC correctly noted, another of BN's citations, U.S. Department of Energy, "20% Wind Energy by 2030" (July 2008), stated that such European shallow-water technology is too expensive and too difficult to site in U.S. waters. And, both citations are silent on the critical issue of baseload generation. Thus the Appeals Court restates, "The NRC's decision was not arbitrary or capricious and there is no basis in law to set it aside."

 

    The Appeals Court added, "If new information about the technical and economic feasibility of offshore wind as a source of baseload power, which differs materially from that which was available when the contention at issue was filed, becomes available prior to Seabrook's license renewal, NRC regulations would permit the filing of a new contention, if timely submitted. . ."       

 

    Access the complete opinion (click here). [#Energy/Nuclear, #Energy/Wind, #CA1]

 

GET THE REST OF TODAY'S NEWS

For a short time you can access the complete issue (click here)

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Natural Resources Defense Council v. U.S. EPA

Jan 4: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1250, consolidated with 09-1102 and 11-1430. On Petitions for Review of Final Rules of U.S. EPA. The four petitioners (Natural Resources Defense Council, Sierra Club, American Lung Association and Medical Advocates for Healthy Air) seek review of two final rules, promulgated pursuant to the Clean Air Act (CAA, Act), which govern implementation of the national ambient air quality standard (NAAQS) for "fine" particulate matter -- particulate matter (PM) having a diameter equal to or less than 2.5 micrometers (PM2.5). See Final Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586 (Apr. 25, 2007) (PM2.5 Implementation Rule); and Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed. Reg. 28,321 (May 16, 2008) (PM2.5 NSR Implementation Rule) (collectively, Final PM2.5 Implementation Rules).

 

    In particular, the Appeals Court explains and concludes, ". . .the petitioners challenge the decision of the Environmental Protection Agency (EPA) to promulgate the Final PM2.5 Implementation Rules pursuant to the general implementation provisions of Subpart 1 of Part D of Title I of the Act, 42 U.S.C. §§ 7501-7509a (Subpart 1), rather than the particulate-matter-specific provisions of Subpart 4 of Part D of Title I, id. §§ 7513-7513b (Subpart 4). We agree with the petitioners that EPA erred in applying the provisions of Subpart 1 rather than Subpart 4."

 

    The Appeals Court makes several conclusions saying: "First, EPA claims Subpart 4 'contains requirements that are expressly based upon the form of the PM10 NAAQS.' . . . This may be true but Subpart 4 also expressly governs implementation of the 'PM-10' standard. . . Thus, under Chevron step 1, EPA must implement all standards applicable to PM10 -- including its PM2.5 standards -- pursuant to Subpart 4."

 

    "Second, EPA urges that because in the 1987 PM NAAQS Revisions, it 'had considered whether to establish a separate NAAQS for fine particles, using PM2.5 as the indicator,' the Congress should have foreseen that it might do so later. . . It is not at all clear that the Congress should have so foreseen -- EPA cites a single, vague footnote to support its claim the Congress was on notice such a change was likely. . ."

 

    "EPA also argues that the Congress 'could have easily used the general term "particulate matter," rather than the

specific term "PM-10."' That the Congress could have done so does not negate the reality that the 'PM10' standard to which the Congress referred in fact included fine PM2.5 (both under the 1987 Rule and the 1990 statutory definition)."

 

    "In a final Chevron step 1 effort, EPA asserts that the legislative history makes the Congress's intent clear. Assuming legislative history could override the plain, unambiguous directive of Subpart 4, the history cited here is unconvincing. . . EPA additionally argues that its 'reading of the act is, at minimum, a "permissible" interpretation entitled to deference under Chevron step two.' . . . This argument is foreclosed, however, under Chevron step 1 because the statute is plain on its face."

 

    Finally, the Appeals Court concludes, "For the foregoing reasons, we grant the petitions for review of the Final Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586 (Apr. 25, 2007), and the Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed. Reg. 28,321 (May 16, 2008). We remand to EPA to repromulgate these rules pursuant to Subpart 4 consistent with this opinion." In a footnote, the Appeals Court says further, "

In light of our disposition, we need not address the petitioners' challenge to the presumptions in 40 C.F.R. § 51.1002(c)(3)-(4) that 2.5 volatile organic compounds and ammonia are not PM precursors as Subpart 4 expressly governs precursor presumptions. . . Moreover, we decline the petitioners' invitation to set a deadline for EPA upon remand or to retain jurisdiction pending such

action." The Appeals Court also cites previous decisions reminding that "mandamus affords a remedy for undue delay."

 

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

 

Want to know more about WIMS? Check out our LinkedIn company website (click here).

GET THE REST OF TODAY'S NEWS (click here)
33 Years of Environmental Reporting for serious Environmental Professionals

In Re: Endangered Species Act Section 4

Jan 4: In the U.S. Court of Appeals, D.C. Circuit, Case No. MDL No. 2165. Appeal from the United States District Court for the District of Columbia. The Appeals Court summarizes saying the Center for Biological Diversity and the WildEarth Guardians sued to compel the Secretary of the Interior and the U.S. Fish and Wildlife Service (together, the Service) to comply with deadlines set forth in the Endangered Species Act, 16 U.S.C. § 1533(b)(3), for determining whether to list species as endangered or threatened. As the cases neared settlement, the Safari Club International (Safari Club) moved to intervene pursuant to Federal Rule of Civil Procedure 24 in order to oppose the settlements which would include three species that its members hunt. The district court denied intervention and approved the settlement agreements. The Appeals Court indicated, "On appeal, the Safari Club contends it qualified for intervention as of right, as well as permissively." The Appeals Court affirmed the district court denial. 

 

    The Appeals Court rules in part, ". . .the basis for the Safari's Club's motion for permissive intervention is the same as that for intervention as of right. To that extent the questions are 'inextricably intertwined.' It remains, however, an open question in this circuit whether Article III standing is required for permissive intervention. . .

 

    "If standing is required, then the Safari Club could not succeed on this theory, for the reasons discussed in Part II. If it is not, then the Safari Club would need to show that the district court abused its discretion in concluding that allowing the Safari Club to intervene this late in the settlement process would cause undue delay and prejudice by forcing the Service to continue to litigate instead of working to meet the agreed upon schedule in the settlement agreements, thereby consuming scarce resources and jeopardizing the settlements. Section 4 Deadline Litig., 277 F.R.D. at 8–9. This court has long acknowledged the 'wide latitude afforded' to district courts under Rule 24(b). National Children's Center, 146 F.3d at 1046 (internal citations omitted). 'In view of this unresolved standing issue, however, we think it inappropriate to exercise our pendant jurisdiction.' In re Vitamins, 215 F. 3d at 32. . . Accordingly, we affirm the decision of the district court without reaching the Safari Club's objections to the settlement agreements."

 

    Mark Salvo, Wildlife Program Director for WildEarth Guardians said in a release, "This is the right decision, and we are thankful for the Court's opinion. The decision preserves an effective, efficient, progressive settlement agreement that is already working to protect and recover endangered species."

    WildEarth Guardians indicated that the settlement agreement, approved by the District Court in September 2011, requires the Fish and Wildlife Service to address 252 candidate species for listing under the Endangered Species Act before the end of FY 2016. The agreement has already resulted in 54 new species listings and the designation of 94,689 acres and 2,032 stream miles of critical habitat to support their recovery. These include a suite of freshwater mussels in Alabama and Florida, a large number of Hawaiian species, and three plants threatened by energy development in Colorado.

    Access the complete opinion (click here). Access a release from WildEarth Guardians (click here). [#Wildlife, #CADC]

 

Want to know more about WIMS? Check out our LinkedIn company website (click here).

GET THE REST OF TODAY'S NEWS (click here)
33 Years of Environmental Reporting for serious Environmental Professionals

REDOIL v. U.S. EPA

Dec 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-70518. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. The case involves Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. (collectively Shell); the purchased lease blocks in the Chukchi and Beaufort Seas off the North Slope of Alaska; and their plans for oil and gas exploration. Shell plans to conduct this exploration via its drillship, the Discoverer, along with an associated fleet of support vessels, including icebreakers, oil spill response vessels, and a supply ship. Shell applied for two Clean Air Act permits to emit pollutants in connection with its exploration activities. The EPA granted the permits, which were upheld in two administrative appeals to the EAB.

 

    Petitioners, Resisting Environmental Destruction on Indigenous Lands, an environmental organization, the Center for Biological Diversity (CBD), Natural Resources Defense Council (NRDC) and other environmental groups (collectively REDOIL), challenge the permits on the basis that they do not satisfy the Act's air permit requirements. Shell intervened to oppose REDOIL's petitions.

 

    According to a summary, the Appeals Court denied a petition for review, and upheld a decision of EPA granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The panel upheld the EPA's statutory and regulatory interpretations. Specifically, the panel held that the Clean Air Act is ambiguous as to the applicability of the best available control emissions to support vessels not attached to an Outer Continental Shelf source, and concluded that under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), deference that the EPA's construction of the statute was permissible and reasonable. The panel also held that the EPA's grant of a 500 meter ambient air exemption was not plainly erroneous or inconsistent with the EPA's regulations.

 

    The Appeals Court explained that since 1990, EPA has been responsible for regulating air pollution from offshore sources on the Outer Continental Shelf (OCS) under the Clean Air Act. The Appeals Court said, "We consider here whether the EPA's Environmental Appeals Board (EAB) properly upheld two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The petition for review challenges two aspects of the permits: (1) the determination that support vessels, unlike the drillship itself, do not require the best available control technology (BACT) to control emissions; and (2) the exemption of the area within a 500-meter radius of the drillship from ambient air quality standards.

 

    "The application of BACT to support vessels requires us to reconcile conflicting provisions of the Act. In doing so, under Chevron U.S.A., Inc. v. NRDC, Inc., we defer to the EAB's reasonable interpretation of those provisions and related regulations. 467 U.S. 837 (1984). Likewise, we evaluate whether the EAB's decision on the ambient air boundary is a permissible application of the EPA's regulations. In both cases, we uphold the EPA's statutory and regulatory interpretations, and we deny the petition."

 

    Access the complete opinion (click here). [#Energy/OCS, #CA9]

 

Want to know more about WIMS? Check out our LinkedIn company website (click here).

GET THE REST OF TODAY'S NEWS (click here)
33 Years of Environmental Reporting for serious Environmental Professionals