American Road & Transportation v. U.S. EPA

Jan 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1256. On Petition for Review of Final Agency Action of the Environmental Protection Agency. In its introductory summary, the Appeals Court explains, "The American Road & Transportation Builders Association has repeatedly sought judicial review of Environmental Protection Agency regulations relating to nonroad engines and vehicles. But ARTBA began bringing those challenges several years after the regulations were promulgated. As we have explained before, ARTBA's challenge to EPA's regulations is time-barred under the Clean Air Act's 60-day filing period. See American Road & Transportation Builders Association v. EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009). In this case, ARTBA is also challenging EPA's approval of California's State Implementation Plan, but that challenge must be brought in the Ninth Circuit. We therefore dismiss the petition for review."

 

    The case involves Section 209(e) of the Clean Air Act which preempts certain state regulation of nonroad engines. See 42 U.S.C. § 7543(e). The term "nonroad engine" covers a wide variety of internal combustion engines, including those found in tractors, construction equipment, lawnmowers, locomotives, and marine craft. In 2002, ARTBA petitioned EPA to amend its Section 209(e) regulations to broaden their preemptive effect. In 2008, EPA rejected that petition. Shortly thereafter, ARTBA brought suit in this Court to challenge the denial of its petition. The D.C. Circuit dismissed that suit for lack of jurisdiction, holding that ARTBA's claims were time-barred under the Clean Air Act.

 

    The latest appeal by ARTBA challenges two EPA actions: (i) EPA's approval of revisions to the California SIP; and (ii) EPA's denial of ARTBA's petition to amend the Section 209(e) preemption regulations. On the first action the Appeals Court ruled, "In this case, then, a challenge to the California SIP revision must be -- and, notably, already has been -- filed in the Ninth Circuit. See Petition for Review, American Road & Transportation Builders Association v. EPA, No. 11-71897 (9th Cir. July 8, 2011). Because venue is proper in the Ninth Circuit and not in this Court, we dismiss ARTBA's challenge to EPA's approval of the California SIP revision."

 

    On the second action, the Appeals Court reiterated its decision in ARTBA I and said further, ". . .if the mere application of a regulation in a SIP approval were sufficient to constitute an after-arising ground and trigger a new 60-day statute of limitations period, ARTBA I's concerns about preserving "the consequences" of failing to bring a challenge within 60 days of a regulation's promulgation would be meaningless. See ARTBA I, 588 F.3d at 1113; see also National Mining, 70 F.3d at 1351 ('Such an interpretation would make a mockery of Congress' careful effort to force potential litigants to bring challenges to a rule issued under this statute at the outset . . . .'). There would be no pressure to challenge regulations within the 60-day period after their promulgation if any petitioner could simply wait to test the substance of those regulations once EPA applies them, for example, in an approval of a state SIP revision – as ARTBA has attempted to do here. Therefore, as we did in ARTBA I, we hold that ARTBA's challenge to EPA's Section 209(e) regulations is time-barred."

 

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

 

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

U.S. v. El Dorado County

Jan 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17134. Appeal from the United States District Court for the Eastern District of California. A staff summary of the case indicates that the panel dismissed for lack of jurisdiction, due to lack of a final appealable order, an appeal from the district court's order suspending a consent decree between the Federal government and El Dorado County, pending further hearings. The panel held that if a district court order deals with a consent decree that has injunctive effects, an appeal from it should be analyzed under the requirements set out in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). The panel held that the Federal government failed to satisfy the Carson factors, and concluded that the court lacked jurisdiction at this time to review the district court's order.

 

    The Appeals Court said, "The United States of America (government) entered into a consent decree with El Dorado County (County) concerning the clean up of an abandoned landfill located near Lake Tahoe in California. The County shortly thereafter moved to modify the decree, and the district court suspended the decree pending further hearings. The government appealed. The County later moved to dismiss for lack of jurisdiction, arguing that the order was not appealable because it is nonfinal. We have jurisdiction to determine our own jurisdiction, Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004), and we dismiss the appeal."

 

    Further, the Appeals Court ruled, "The government has not shown that it will suffer serious, perhaps irreparable harm if we do not review the district court's order now. The government argues that if the order freeing the County from its obligations is allowed to stand even temporarily, further damage to the landfill site is a serious possibility. However, at worst, the government must pay for the clean up activities itself and then be reimbursed. This kind of harm does not qualify. . .

 

    "Nor has the government shown that the order can only be challenged by immediate appeal. Once the district court has held its evidentiary hearing and enters the final judgment, the government can appeal the same legal issues. The government argues that the order can only be appealed now because the project will fail if the County is not required to continue clean up. This is merely a repetition of the government's harm arguments, and fails for the same reason. As stated before, at worst, the government must pay for the clean up itself and then be reimbursed. That situation has no impact on the reviewability of the underlying legal issue. Because the government has failed to satisfy the Carson factors, we do not have jurisdiction at this time. The motion to dismiss is therefore granted."

 

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

Indian Harbor Insurance Co. v. U.S.

Jan 11: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-5030. Appealed from the United States Court of Federal Claims. The Appeals Court explains that Indian Harbor Insurance Company (Indian Harbor) appeals the final judgment of the Court of Federal Claims dismissing Indian Harbor's Second Amended Complaint. In that complaint, Indian Harbor sought reimbursement under Section 330 of the National Defense Authorization Act of 1993, Pub. L. No. 102-484, (Nov. 30, 1993) (Section 330) for environmental cleanup costs associated with the development of property formerly used as a military base. The Court of Federal Claims determined that Indian Harbor failed to identify a "claim for personal injury or property" that triggered the government's duty to indemnify under Section 330, Indian Harbor Insurance Co. v. United States, 100 Fed. Cl. 239, 240 (Fed. Cl. 2011) and, thus, dismissed the complaint under Rule 12(b)(6) of its rules.

 

    The Appeals Court summarizes saying, "Because we disagree with the trial court's interpretation of the requirements of Section 330, we reverse the decision of the Court of Federal Claims and remand for proceedings in accordance with this decision." In further background the Appeals Court indicates that, "Indian Harbor subsequently filed suit in the Court of Federal Claims seeking $5,331,872.09, plus interest and any additional amounts proven at trial, pursuant to Section 330. The United States moved to dismiss. Following briefing by the parties, oral argument was held on June 20, 2011. On June 28, 2011, the Court of Federal Claims granted Indian Harbor's unopposed motion to file its First Amended Complaint, which clarified Count II of the Complaint. On July 5, 2011, the Court of Federal Claims granted the Defendant's motion in part, dismissing Count I of Indian Harbor's Complaint on grounds that Indian Harbor failed to allege facts plausibly suggesting the existence of a 'claim for personal injury or property damage' as required under Section 330."

    The Appeals Court said, "Although the plain language of Section 330 is clear that there must be a "suit, claim, demand or  action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage," we find no support for the proposition that the claim for personal injury or property damage must be adversarial. . . Thus, we see no reading of the plain language resulting in the conclusion that the RWQCB's [Regional Water Quality Control Board's] communications with TLCP [Tustin Legacy Community Partners, LLC] do not constitute a "claim" under Section 330."

 

    Finally, the Appeals Court concludes, "There is nothing to suggest that addition of the phrase 'claim for personal injury or property damage' was intended to limit the scope of governmental indemnification in a way that ignores the original purpose of the Act. The Court of Federal Claims reads far too much into that clause; we decline to do so."

 

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

 

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

Lost Tree Village Corporation v. U.S.

Jan 10: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-5008. Appealed from the United States Court of Federal Claims. The Appeals Court explains that the U.S. Court of Federal Claims determined

that the Army Corps of Engineers did not effect a regulatory taking compensable under the Fifth Amendment when it denied Lost Tree Village Corporation's application for a permit to fill wetlands on its 4.99 acre plat (Plat 57). In reaching this conclusion, the Court of Federal Claims found Lost Tree's parcel as a whole includes Plat 57, a neighboring upland plat (Plat 55), and scattered wetlands in the vicinity owned by Lost Tree at the time the permit was denied. The Appeals Court ruled, "Because the Court of

Federal Claims erred in its determination of the relevant parcel, this court reverses and remands for further proceedings."

 

    In this complicated Florida land development case, the Appeals Court concludes further, "After a careful review of the entire record, this court determines that the relevant parcel is Plat 57 alone. The trial court's factual findings support the conclusion that Lost Tree had distinct economic expectations for each of Plat 57, Plat 55, and its scattered wetland holdings in the vicinity. Because the Court of Federal Claims erred in its determination of the relevant parcel, this court reverses the judgment and remands for further proceedings. On remand, the court first should determine the loss in economic value to Plat 57 suffered by Lost Tree as a result of the Corps' denial of the § 404 permit, and then apply the appropriate framework to determine whether a compensable taking occurred. In determining the loss in value to Plat 57, the court may revisit the property values it adopted in the course of determining the impact of the Plat 57 permit denial on Lost Tree under its definition of the relevant parcel."

 

    Access the complete opinion which includes a map of the development and parcels in question (click here). [#Land, #Water, #CAFed]

 

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

WildEarth Guardians v. National Park Service

Jan 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-1192. Appealed from the U.S. District Court for the District of Colorado. The Appeals Court explains that the appeal concerns WildEarth Guardians' challenge to the National Park Service's elk and vegetation management plan for Rocky Mountain National Park. WildEarth filed suit in Federal district court challenging the plan and the final environmental impact statement the National Park Service (NPS) prepared in conjunction with the plan. WildEarth contends the NPS violated the National Environmental Policy Act (NEPA) by failing to include the reintroduction of a naturally reproducing wolf population as one of the alternatives considered in the environmental impact statement. WildEarth also challenges the agency's proposal to allow volunteers to assist the agency in reducing the elk population.

 

    The district court affirmed the agency action, and WildEarth appealed. The Appeals Court ruled, "We find the record supports the agency's decision to exclude consideration of a natural wolf alternative from its environmental impact statement. We also find the agency's interpretation of the National Parks Organic Act and Rocky Mountain National Park Enabling Act persuasive, and that its elk management plan does not violate those statutes. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm."

 

    The Appeals Court explains an underlying fact in the case that Rocky Mountain National Park (RMNP), located in northern Colorado, was established in 1915. The Rocky Mountain National Park Enabling Act (RMNP Act) bans hunting or killing wildlife within the park, with very limited exceptions. The park has always had a substantial elk population. But most elk predators, especially wolves and grizzly bears, were exterminated in the park area prior to its establishment, and Congress's decision to ban hunting in RMNP allowed the park's elk population to grow without constraint.

 

    WildEarth argues the natural wolf alternative fit the purpose and need of the proposed action, and thus required the NPS to consider it in an EIS. It argues the natural wolf alternative was practical. In particular, WildEarth points to studies, emails, and other documents in the record discussing the benefits of this alternative. The Appeals Court said, "While the record supports some benefits to a natural wolf option, that is not what guides us. What guides us is a rule of reason, where the agency explains its decision to take certain proposed options off the table because of a lack of practicality."

 

    The Appeals Court indicates that the NPS found the natural wolf alternative would be impractical despite some marginal upside, and the record supports that decision. For example, wolf reintroduction may have been successful in Yellowstone and Banff, but the record reflects that those parks are not a good comparator for RMNP. The NPS determined RMNP has relatively little suitable wolf habitat due to its small size and abundance of steep, high-altitude terrain, which wolves dislike. And as a consequence of the lack of habitat and wolves' natural tendency to disperse, NPS experts predicted that any wolves in RMNP would be very likely to leave the park boundaries, prompting conflicts with neighboring communities. Such conflicts would likely include predation on livestock and pets.

 

    The Appeals Court concluded, "The record reflects that the NPS's elk management plan is meant to control the number of elk in RMNP. Elk will not be killed when they are within the target range. Culls will be closely supervised by NPS employees. Some cullers may enjoy the experience, but this is irrelevant so long as they kill elk for management purposes pursuant to the procedures and supervision of the NPS. The primary purpose of hunting is not for controlling a population of detrimental animals but for food and sport. Because the purpose of the NPS's plan is to control the population of the park's elk and their effect on vegetation, it is distinguishable from hunting, regardless of whether members of the public volunteer to participate in culls."

 

    However, the Appeals Court noted in a footnote, "In reaching this holding, we do not mean to suggest that the NPS may authorize hunting in RMNP simply by covering it with the fig leaf of population control. As discussed, § 198c unambiguously bars anyone from hunting in RMNP. The culls contemplated by the NPS in its management plan will be tightly controlled and are sufficiently distinct from hunting that they do not run afoul of § 198c's restriction. But § 198c would clearly prevent the NPS from

creating a scheme similar to a state-regulated hunt by, for example, selling tags to licensed hunters and allowing them to freely roam the park every autumn to shoot elk, even if the agency's reason for doing so was to reduce RMNP's elk population."

 

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

 

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

Center For Biological Diversity v. BP

Jan 9: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-30136. Appealed from the United States District Court for the Eastern District of Louisiana. The Appeals Court explains that the appeal arises from the multi-district litigation spawned from the disaster on the Deepwater Horizon drilling rig and the resulting massive oil spill that occurred at the Macondo well site in the Gulf of Mexico. Plaintiff Center for Biological Diversity (CBD) appeals from the district court's dismissal of its action brought under the citizen-suit provisions of the Clean Water Act (CWA), the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), and the Emergency Planning and Community Right-to-Know Act (EPCRA).

 

    The district court dismissed the suit for lack of standing, mootness, and failure to state a claim for relief. The Appeals Court said, "We agree that most of the plaintiff's claims for relief have become moot because the Macondo well has been capped and

sealed. We conclude that, at least on the current record, the EPCRA claim remains viable. We therefore affirm in part, reverse in part the district court's judgment." The case is remanded for further proceedings.

 

    On the specific EPCRA claim, the Appeals Court said, "The defendants' insistence that the claim is moot because information

about the spill is already publicly available is unavailing, at least on the current record. First, the claim that information about the disaster may be found by hunting on the Internet ignores the fact that EPCRA places an affirmative statutory duty on the owner or operator of the facility to report the information.

 

    "Second, it ignores the EPCRA requirement that reports provided by owners or operators be maintained by state emergency planning authorities and be made available to the public at a designated location. See 42 U.S.C. §§ 11001(a), 11044(a). The obvious advantage of this requirement is to have vital health information available in one easily accessible place. Finally, although the defendants claim that the information is otherwise readily available, their citation to several government web sites is unconvincing. Our review of those web sites reveals a voluminous amount of information about the spill and the Government's response, but the specific information required by EPCRA is not immediately apparent. To be sure, the district court held that 'data regarding the spill and its cleanup are easily accessible,' but it cited no sources of information and made no findings as to where the information specifically required by EPCRA may be found.

 

    "If the information required by EPCRA's reporting provisions may indeed be easily located from alternate sources, it may be that a further order from the district court would provide no meaningful relief to the Center and its members. Such a conclusion, although not affecting the Center's standing, might render the claim moot. See Harris, 151 F.3d at 189. But we are simply unable to decide that question on this record, and the case therefore must be remanded to the district court for further proceedings."

 

   Miyoko Sakashita, oceans director for CBD said, "The public deserves to know exactly what toxins were spilled into our ocean during the Gulf spill, so we're very pleased to be a step closer with this ruling. It's a very important victory that BP could be finally forced to publicly disclose all the toxic components it spilled into the waters, but we're disappointed by the dismissal of our Clean Water Act claims. Throughout it all, we've insisted that those responsible for one of the worst environmental disasters in America's history should be held fully accountable for the profound damage they caused. The Gulf needs to be fully restored, both for the sake of its wildlife and for the people who depend on it for survival. We're certainly not there yet."

 

    Access the complete opinion (click here). Access a release from CBD (click here). [#Energy/OilSpill]

 

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

S. Utah Wilderness Alliance vs. Palma (BLM)

Jan 8:  In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-4094. Appeal from the United States District Court for the District of Utah. The Appeals Court explains that several environmental groups, including the national groups of Natural Resources Defense Council, The Wilderness Society, National Parks Conservation Association (collectively referred to as (SUWA) challenge decisions made by the Bureau of Land Management (BLM) and the Interior Board of Land Appeals (IBLA). At issue is the legality of thirty-nine oil and gas leases in Southern Utah, owned by Kirkwood Oil and Gas, LLC and William C. Kirkwood (collectively Kirkwood). In the 1980s, Kirkwood applied to have its oil and gas leases converted to combined hydrocarbon leases, which would allow Kirkwood to extract oil from tar sands. The Appeals Court indicates that, "Tar sands are loosely defined as any sedimentary rock impregnated with heavy, viscous crude oil that cannot be recovered by conventional techniques but rather requires an external energy source (e.g., heat) to mobilize the oil."

 

    To date, BLM has never accepted or rejected Kirkwood's applications. Between 2006 and 2008, BLM and IBLA issued several decisions declaring that the underlying oil and gas leases were "suspended" pending review of the conversion applications. SUWA alleges BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming these thirty-nine leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.

 

    The Appeals Court said in its initial summary, "We have jurisdiction under 28 U.S.C. § 1291. Although the district court misapplied the law in important respects with regard to standing, as we explain below, we ultimately hold that this action is not ripe for review. Accordingly, we affirm the district court's dismissal of the action for lack of subject matter jurisdiction."

 

    The Appeals Court concludes, "Although the issues here are predominantly legal questions, the validity of SUWA's claims will be best adjudicated once the facts have been further developed and it becomes clear what type of oil and gas development Kirkwood will ultimately be allowed to engage in, if any. We should not resolve the issues raised by SUWA 'unless and until it is determined what rights' Kirkwood has to engage in mineral extraction on the leaseholds. Tarrant Reg'l Water Dist., 656 F.3d at 1250; see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1237 (10th Cir. 2004) ('Fitness for judicial resolution may depend upon . . . whether consideration of the issue would benefit from a more concrete setting . . . .' (internal quotation marks omitted)). There is simply too much uncertainty as to when and what type of drilling, if any, will occur on the thirty-nine contested leases. SUWA 'will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain,' Ohio Forestry Ass'n, 523 U.S. at 734, and it will suffer no hardship from this delayed review. Accordingly, we conclude this suit is premature."

 

    Access the complete opinion (click here). [#Energy/TarSands, #CA10]

 

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