Mingo Logan Coal Company v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5150. The Mingo Logan Coal Company (Mingo Logan) applied to the United States Army Corps of Engineers (Corps) for a permit under section 404 of the Clean Water Act (CWA) to discharge dredged or fill material from a mountain-top coal mine in West Virginia into three streams and their tributaries. The Corps -- acting on behalf of the Secretary of the Army (Secretary) and without objection from the Administrator of U.S. EPA (Administrator, EPA), who has 'veto' authority over discharge site selection under CWA subsection 404(c) issued the permit to Mingo Logan, approving the requested disposal sites for the discharged material. Four years later, EPA invoked its subsection 404(c) authority to "withdraw" the specifications of two of the streams as disposal sites, thereby prohibiting Mingo Logan from discharging into them.

 

    Mingo Logan filed this action challenging EPA's withdrawal of the specified sites on the grounds that: (1) EPA lacks statutory authority to withdraw site specification after a permit has been issued; and (2) EPA's decision to do so was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The district court granted summary judgment to Mingo Logan on the first ground without reaching the second. The Appeals Court reversed the district court, concluding that EPA has "post-permit withdrawal authority," and remanded for further the case for proceedings.

 

    The Appeals Court importantly looks at the statute and Congressional intent and indicates, "Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps's specification but instead expressly empowers him to prohibit, restrict or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. 33 U.S.C. § 1344(c) (emphasis added). Using the expansive conjunction "whenever," the Congress made plain its intent to grant the Administrator authority to prohibit / deny / restrict / withdraw a specification at any time."

 

    The Appeals Court concludes, "For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks statutory authority under CWA section 404(c) to withdraw a disposal site specification post-permit. Because the district court did not address the merits of Mingo Logan's APA challenge to the Final Determination and resolution of the issue is not clear on the present record, we follow our usual practice and remand the issue to the district court to address in the first instance."

 

    At the time of the decision, environmental groups issued a release indicating, ". . .the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency's legal authority to veto a mining permit that the U.S. Army Corps of Engineers had issued. The decision reverses the lower court's contrary ruling, and is a major blow to the coal industry's attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia. The case will now go back to the D.C. District Court for briefing on other claims." Earthjustice, along with Appalachian Mountain Advocates, is representing West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council as amici curiae (or "friends of the court") in support of EPA's veto in this case.

 

    Access the complete opinion (click here). Access a release from environmental groups on the decision (click here).  [#Energy/Coal, #Water, #CADC]  [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.] 

 

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Defenders of Wildlife v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5112. Appeal from the United States District Court for the District of Columbia. As explained by the Appeals Court, Defenders of Wildlife and Sierra Club (collectively, Defenders) sued U.S. EPA based on EPA's alleged failure to promptly promulgate revisions to certain effluent limitations and effluent limitations guidelines under the Clean Water Act (CWA). When Defenders filed its complaint, it simultaneously filed a proposed consent decree -- signed by Defenders and EPA -- establishing a schedule for EPA to initiate notice-and comment rulemaking and make a formal decision whether to promulgate a new rule revising certain effluent limitations and effluent limitations guidelines. Utility Water Act Group (UWAG), an association of energy companies and three national trade associations of energy companies, moved to intervene but the district court denied UWAG's motion and entered the consent decree. UWAG appealed the denial of intervention and also asserts that -- "whatever our decision on the denial of intervention -- we should vacate the district court order entering the consent decree because the district court lacked subject matter jurisdiction. We disagree. We affirm the denial of intervention -- because UWAG lacks Article III standing -- and, as there is no appellant with standing, we dismiss the remainder of the appeal."

 

    Access the complete opinion (click here). [#Water, #CADC] [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.]

 

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Institution Of Cetacean Research v. Sea Shepherd Conservation Society

May 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35266. Appealed from the United States District Court for the Western District of Washington. This case which was decided in a 2-1 opinion on February 25, 2013 [See WIMS 2/27/13] is amended and the majority also denies Paul Watson's petition for rehearing en banc of the majority's April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc.

 

    In the original decision, the majority panel reversed the district court's orders denying a preliminary injunction and dismissing certain claims in an action under the Alien Tort Statute brought against environmental activists by Japanese researchers who hunt whales in the Southern Ocean pursuant to a permit issued under the International Convention for the Regulation of Whaling, art. VIII. The majority panel held that the district court abused its discretion in deferring to the judgment of an Australian court because the United States does not recognize Australia's claims of sovereignty over Antarctic waters. In addition, the unclean hands doctrine did not apply. The panel remanded the case with instructions that it be transferred to another district judge. The, concurring in part and dissenting in part, Justice concurred in both the reasoning and the judgment of the panel opinion, but dissented from the majority's decision to reassign the case to a different district judge.

 

    In their amendment, the majority adds, "Panels have broad discretion to reassign cases on remand when they feel justice or its appearance requires it. See United States v. Quach, 302 F.3d 1096, 1103–04 (9th Cir. 2002). The district judge has expressed strong and erroneous views on the merits of this high profile case. Without ourselves reaching any determination as to his ability to proceed impartially or impugning his integrity, to preserve the appearance of justice, we conclude reassignment is appropriate."

 

    Also, in denying Watson's petition, the majority said, "We are unpersuaded by Watson's belated claim that he and co-defendant-appellee Sea Shepherd developed 'divergent interests.' Watson had months to consider whether his interests diverge from Sea Shepherd's, yet claims to have discovered only recently that they do. He does not explain how or why. His bald assurance that 'serious grounds exist[]' is too little, too late. No further petitions for panel rehearing or rehearing en banc may be filed."

 

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

 

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Abraham v. St. Croix Renaissance Group

May 17: In the U.S. Court of Appeals, Third Circuit, Case No. 13-1725. Appealed from the District Court of the Virgin Islands. The St. Croix Renaissance Group, L.L.L.P. (SCRG) sought leave under the Class Action Fairness Act (CAFA), to appeal an order of the District Court of the Virgin Islands remanding a civil action to the Superior Court of the Virgin Islands. The Appeals Court granted SCRG's request saying it concluded, "that the civil action here is not a removable 'mass action' under CAFA. . ." The Appeals Court affirmed the order of the District Court.  

 

    SCRG purchased a former alumina refinery on the south shore of St. Croix in 2002. The plaintiffs alleged that "[f]or about thirty years, an alumina refinery located near thousands of homes on the south shore of the island of St. Croix was owned and/or operated by a number of entities." According to the complaint, the "facility refined a red ore called bauxite into alumina, creating enormous mounds of the by-product, bauxite residue, red mud, or red dust." In addition to these hazardous materials, friable asbestos was present. All of the substances described were dispersed by wind and disseminated as a result of erosion.

 

    The plaintiffs averred that the improper maintenance of the facility, inadequate storage and containment of the various hazardous substances, as well as failure to remediate the premises, caused them to sustain physical injuries, mental anguish, pain and suffering, medical expenses, damage to their property and possessions, loss of income and the capacity to earn income, and loss of the enjoyment of life. On December 7, 2012, the District Court granted the plaintiffs' motion to remand this action to the Superior Court of the Virgin Islands. The Appeals Court noted that the District Court considered several district court decisions that addressed whether an action qualified as a mass action.

 

    The Appeals Court said, "The issue in this case is one of statutory interpretation. We must determine the meaning of the phrase 'an event or occurrence' as it appears in the mass-action exclusion. The Appeals Court indicates, "In short, treating a continuing set of circumstances collectively as an 'event or occurrence' for purposes of the mass-action exclusion is consistent with the ordinary usage of these words, which do not necessarily have a temporal limitation. Giving the words 'event' or 'occurrence' their ordinary meaning is not at odds with the purpose of the statutory scheme of CAFA. . .

 

    "We conclude that the District Court did not err in its interpretation of the "event or occurrence" exclusion in § 1332(d)(11)(B)(ii)(I). Our broad reading of the words "event" and "occurrence" is consistent with their ordinary usage. Further, such a reading does not thwart Congress's intent, which recognized that some aggregate actions are inherently local in nature and better suited to adjudication by a State court. Accordingly, there is no reason to consider the legislative history of the CAFA to interpret the phrase 'event or occurrence' in the mass-action exclusion. . .

    "In light of our determination that the words "event" or "occurrence" in § 1332(d)(11)(B)(ii)(I) should be given their ordinary meaning, we turn to whether the plaintiffs' complaint falls within this exclusion for mass actions. . . We conclude that the complaint sufficiently alleges that all of the plaintiffs' claims arise from "an event or occurrence" in the Virgin Islands where the action was filed and that allegedly resulted in injuries there. . . We agree with the District Court that the complaint was not a removable mass action because "all of the claims in the action arose from an event or occurrence" that happened in the Virgin Islands and that resulted in injuries in the Virgin Islands. Accordingly, the District Court appropriately remanded the plaintiffs' action to the Superior Court of the Virgin Islands. . ."

    Access the complete opinion(click here). [#Toxics, #CA3]

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Center For Food Safety v. Vilsack (USDA)

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15052. Appealed from the United States District Court for the Northern District of California. The panel affirmed the district court's summary judgment in favor of Federal officials and intervenor-defendants, comprised of corporate seed manufacturers and industry trade groups, in an action brought by environmental groups and farmer organizations challenging the Record of Decision issued by the United States Department of Agriculture's (USDA's) Animal Plant and Health Inspection Service (APHIS) unconditionally deregulating Roundup Ready Alfalfa, a plant genetically engineered or modified by the Monsanto Company.

 

    The Appeals Court explains that the appeal represents another chapter in USDA's regulation of Roundup Ready Alfalfa (RRA). RRA is a plant genetically "engineered" or "modified" by the Monsanto Company and Forage Genetics International to be resistant to the herbicide glyphosate, which Monsanto sells under the trade name Roundup. Farmers do not normally apply an herbicide like Roundup to alfalfa fields because the herbicide kills not only the weeds, but also the alfalfa crop. RRA's tolerance to Roundup thus allows farmers to control weeds through herbicide application without harming the alfalfa plant. Monsanto markets RRA and Roundup together as a single crop system. From the outset, Monsanto and Forage Genetics's attempts to introduce RRA have been met with criticism and lawsuits from environmental groups concerned about the adverse effects that the plant may have on the environment and the organic food industry.

 

    Concerned about these environmental harms, the plaintiffs in this appeal argue that APHIS's unconditional deregulation of RRA was improper for three reasons: First, APHIS violated the Plant Protection Act (PPA) and the Administrative Procedure Act (APA) in concluding that RRA was not a plant pest and failing to consider if RRA was a noxious weed; second, because of these errors in statutory interpretation, APHIS violated the Endangered Species Act (ESA) when it failed to consult with the Fish and Wildlife Service (FWS) about RRA's effects on endangered and threatened species; and third, APHIS also violated the National Environmental Policy Act (NEPA) by unconditionally deregulating RRA without considering the option of partially deregulating the crop, an action that the agency had included in the EIS.

 

    After the plaintiffs filed this action against the government in the district court, Monsanto, Forage Genetics, the corporate seed manufacturers and industry trade groups intervened as defendants. The district court upheld the agency's deregulation decision in a published opinion. Ctr. for Food Safety v. Vilsack, 844 F. Supp. 2d 1006 (N.D. Cal. 2012). It held that RRA is not a "plant pest" within the meaning of the statute, and that the agency's deregulation of the plant therefore did not violate the ESA or NEPA, because the agency's jurisdiction did not extend to organisms that are not plant pests.

 

    The Appeals Court affirmed saying, "because the statute does not regulate the types of harms that the plaintiffs complain of, and therefore APHIS correctly concluded that RRA was not a 'plant pest' under the PPA. Once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. APHIS's lack of jurisdiction over RRA obviated the need for the agency to consult with the FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007). The district court thus properly entered summary judgment in favor of the defendants."

 

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

 

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Illinois Union Insurance Co. v. NRG Energy Inc

May 16: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 12-30651, 12-30877 & 12-30879. Appealed from the United States District Court for the Middle District of Louisiana. The case concerns whether Illinois Union Insurance Company (ILU) has a duty to defend Louisiana Generating LLC (LaGen) in an underlying suit filed against it by U.S. EPA and the Louisiana Department of Environmental Quality (LDEQ) for alleged Clean Air Act (CAA) and state environmental law violations. The district court held that under the insurance policy at issue, there is a duty to defend. The Appeals Court affirmed the district court decision.

    In part, the Appeals Court rules, ". . .the underlying EPA suit includes allegations and prayers for relief that could potentially result in covered remediation costs. Government agencies acting under the authority of environmental laws allege that LaGen violated those laws, resulting in increased emissions of pollutants into the atmosphere, and seek to require LaGen to mitigate and remediate those emissions. The EPA complaint clearly alleges a covered 'pollution condition' at BCII when it asserts that 'significant amounts of NOx and SO2 pollution each year have been, and still are being, released [from BCII] into the atmosphere.' The policy states that ILU 'agrees to pay . . . [c]laims, remediation costs, and associated legal defense expenses' as a result of a pollution condition. 'Claims' and 'remediation costs' are thus two bases for coverage under the policy. In addition, a covered 'claim' includes 'government action(s) . . . alleging responsibility or liability on the part of [LaGen] for. . . remediation costs as a result of' a pollution condition. 'Remediation costs' are thus unquestionably covered, whether they are the relief sought by a claim or whether they are incurred independent of a claim, and ILU agreed to pay 'associated legal defense expenses' with regard to either situation. 'Remediation costs' are defined very broadly to include expenses incurred to redress pollution in compliance with environmental law, including, inter alia, costs associated with investigating, mitigating or abating pollution. . . These requests for mitigation, offsetting and remediation suggest a reasonable possibility of coverage under the policy. . . Because part of the suit is 'potentially within the protection purchased, the insurer is obligated to defend.'"

 

    Access the complete opinion (click here). [#Air, #CA5]

 

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Miccosukee Tribe Of Indians Of Florida v. USA

May 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-14271. Since 1995, the Miccosukee Tribe of Indians of Florida (Tribe or Miccosukee tribe) has had a running battle with the federal government over the government's management of the Central and Southern Florida Project for Flood Control (C&SF Project) in the Everglades. This case is the most recent chapter. The gist of the four-count complaint the Tribe filed in this case is that the project diverts excessive flood waters over tribal lands -- in part to protect other land owners whose properties are located within the project. The District Court dismissed three of the complaint's counts for failure to state a claim for relief and the fourth on summary judgment. The Tribe appeals these decisions. The Appeals Court affirmed the district court dismissals and judgment. 

 

    The operational area of the C&SF Project is massive, comprising 16,000 square miles. The project stretches from the Kissimmee River Basin, just south of Orlando, to the southern tip of Florida, at Everglades National Park. To aid in administering this vast system, the Corps of Engineers has divided the Everglades into three areas: the Everglades Agricultural Area, the Water Conservation Area, and the Everglades National Park. These areas are contiguous and follow one after another, beginning at Lake Okeechobee and proceeding southward. The appeal involves an alleged clash between the Tribe's rights to use and enjoy these lands and the Corps's operational duties.

 

    In this highly complex case with extensive history, the Appeals Court indicates, "We cannot undertake a review of the District Court's ruling without pausing to comment on the quality of the Tribe's complaint. Most of the complaint's allegations are general and are devoted to description of the Tribe's history, the importance of the Everglades to the livelihood of its members, the evolution and implementation of the C&SF Project, and the injury the members suffer when tribal lands are flooded. The remaining allegations of the complaint are a tangled morass of vague and conclusory statements; thus, the theory of liability that each count asserts is, but for the count's title, difficult to discern. . . We find that the District Court, itself, had difficulty discerning the predicates for the theories of liability asserted. . .

 

    "The Corps should have moved the District Court to order the Tribe to provide it with a "more definite statement" under Federal Rule of Civil Procedure 12(e), but it did not do so. . . because we believe that we can discern enough from the complaint's allegations to dispose of this appeal with confidence." The final decision includes rulings on several individual counts too complicated to adequately explain here.

    Access the complete opinion (click here). [#Water, #CA11]

 

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