In Re: Deepwater Horizon

<> In Re: Deepwater Horizon - 12/10/14. REMED. United States Fourth Circuit, Case No. No. 13-30095. Split decision upholding the district court ruling approving the $9.2 billion settlement and certifying the economic and property damages.

SANDLANDS C&D LLC EXPRESS DISPOSAL SERVICE LLC

SANDLANDS C&D LLC EXPRESS DISPOSAL SERVICE LLC – 12/3/13. SOLID. United States Fourth Circuit, Case No. 13-1134. Re: Horry County's Flow Control Ordinance, which prohibits disposal of waste generated inHorry County at any site other than a designated publicly owned landfill. The district court granted summary judgment in favor of Horry County, and the Appeals Court affirmed

Multiple Decisions January 6, 2014

<> Jones v. National Marine Fisheries Service - 12/20/2013. WATER, United States Ninth Circuit, Case No. 11-35954. The panel affirmed the district court's summary judgment in favor of the United States Army Corps of Engineers in an action under the Clean Water Act and the National Environmental Policy Act challenging the Corps' issuance of a permit as part of a project to mine valuable mineral sands near Coos Bay, Oregon.

<> Arkansas Game & Fish Commission v. US - 12/03/2013. WATER, LAND. United States Federal Circuit, Case No. 2009-5121. On remand from the Supreme Court, now affirming that plaintiff Arkansas Game and Fish Commission can establish that increased flooding of its property during the period 1993-2000 constituted a taking that is compensable under the Fifth Amendment to the Constitution.

<> Munce's Superior Petroleum Products, Inc. v. New Hampshire Department of Environmental Services - 11/20/2013. REMEDIATION, TANKS. United States First Circuit, Case No. 13-1380. The bankruptcy court granted the New Hampshire Department of Environmental Services' (DES) motion to give the fines administrative expense priority, and the district court affirmed. Under Reading Co. v. Brown, 391 U.S. 471 (1968), and First Circuit case law, the Appeals Court affirmed.

<> Natural Resources Defense Council v. EPA - 11/07/2013. TOXICS. United States Ninth Circuit, Case No. 12-70268. The panel granted in part and denied in part a petition for review of a decision of the Environmental Protection Agency granting an application for conditional registration of two pesticides, AGS-20 and AGS-20 U, that applicant HeiQ Materials sought to apply to manufactured textiles such as clothing, blankets, and carpet.

<> Washington Environmental Council v. Bellon - 10/17/13. AIR, CLIMATE. United States Ninth Circuit, Case No. 12-35323. Vacating the district court's judgment, the panel held that plaintiffs lacked standing to pursue a citizen suit seeking to compel the Washington State Department of Ecology and other regional agencies to regulate greenhouse gas emissions from the state's five oil refineries under the Clean Air Act.

<> State of New York v. Next Millenium Realty - 10/15/13. REMEDIATION. United States Second Circuit, Case No. 12-2894. Appeal from the District Court dismissing claims by the State of New York under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, for costs incurred in investigating and addressing groundwater contamination in Hempstead, New York. The district court granted summary judgment in favor of the defendants-appellees on the ground that the action was time-barred. The Appeals Court vacated and remanded the case.

<> Voggenthaler v. Maryland Square, LLC - 10/04/13. REMEDIATION. United States Ninth Circuit, Case No. 10-17520. The petition for panel rehearing by Appellees' Maryland Square Shopping Center, LLC, et al is granted.

WIMS Environmental News Blogs

WIMS Environmental News Blogs - Sep 30: WIMS is relocating our offices and is taking a temporary leave from all of our publications and blogs. We will return on January 6, 2014.

In the meantime it is a great opportunity to check out our Environmental News Blogs. The blogs are continuously, automatically updated with the latest news and information from various RSS feed sources selected by WIMS.

• White House News;
  
• Congressional News;
  
• Federal Agencies News;
  
• Industry News;
  
• Enviro Group News;
  
• Air Quality News;
  
• Hazardous Waste News; and
  
• Transportation News

 

    

Minard Run Oil Company v. U.S. Forest Service

Sep 26: In the U.S. Court of Appeals, Third Circuit, Case No. 12-4160. Appealed from the United States District Court for the Western District of Pennsylvania. In this non-precedential opinions, The Appeals Court explains that the Allegheny Defense Project and Sierra Club (collectively Appellants) appealed from the District Court's order granting summary judgment for the Minard Run Oil Company and Pennsylvania Independent Oil and Gas Association (collectively Appellees), essentially converting a preliminary injunction into a declaratory judgment. "The issue raised on appeal is whether the District Court properly applied the law of the case doctrine to preclude arguments raised by Appellants in their cross-motion for summary judgment. . . we will affirm the District Court's order."

 

    This case arises from a dispute over the split-estate property rights of the Federal surface owner and private mineral rights owners in the Allegheny National Forest (ANF). The United States acquired the surface estates that now constitute the ANF pursuant to the Weeks Act of 1911. While the U.S. Forest Service manages the surface of the ANF, the mineral rights in most of the ANF are privately owned. From 1980 until recently, the Service and private mineral rights owners utilized a cooperative process to manage access to and use of the surface to drill for oil and gas.

 

    Under the "cooperative process," sixty days prior to any planned drilling, mineral rights owners would provide notice to the Service, and the Service would then issue a Notice to Proceed (NTP), acknowledging receipt of the owners' notice and memorializing any agreements relating to the planned drilling. In 2008, a number of environmental groups, including the Sierra Club, filed a lawsuit against the Service, stating that its policy of issuing NTPs constituted a "major federal action[" significantly affecting the quality of the human environment," under the National Environmental Policy Act of 1969 (NEPA), and therefore an NTP could not lawfully be issued before the appropriate environmental analysis under NEPA was conducted. In 2009, the parties to that litigation entered into a Settlement Agreement, requiring that the Service conduct the appropriate NEPA analysis prior to issuing further NTPs. Subsequently, the Service issued a statement to oil and gas companies operating in the forest, stating that no new drilling would be authorized until the forest-wide EIS was completed.

 

    Appellees, filed a complaint in the District Court arguing that the de facto ban on drilling in the ANF exceeded the authority of the Service because a NEPA analysis was not required as a matter of law. The District Court granted their motion for a preliminary injunction, and on appeal, the Third Circuit affirmed in a precedential opinion. Thereafter, the mineral rights owners moved for summary judgment in the case before the District Court, requesting entry of judgment in their favor, conversion of the preliminary injunction order into a final declaratory judgment, and a permanent injunction against the Service. Appellants filed a cross-motion for summary judgment seeking vacation of the preliminary injunction order and judgment in their favor. The District Court granted the mineral rights owners' motion in part (it denied the request for a permanent injunction). The Court vacated the Settlement Agreement, and converted its preliminary injunction order into a final declaratory judgment on the merits. It is this order that is challenged on appeal.

    In its concluding comments the Appeals Court said, "We may revisit a legal question which has already been resolved where any of the following 'extraordinary circumstances' exist: '(1) there has been an intervening change in the law; (2) new evidence has become available; or (3) reconsideration is necessary to prevent clear error or a manifest injustice.' Mukasey, 534 F.3d at 188 (quoting Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999)). Appellants contend that the third exception to the application of the law of the case is implicated here. They state that this Court's ruling that Section 9 of the Weeks Act provides that reserved mineral rights are subject only to regulations in the instrument of conveyance, was clearly erroneous. In Minard Run III, however, Judge Roth provided ample reasoning for the Court's statutory interpretation, which Judge McLaughlin quoted at length in Minard Run IV. See Minard Run IV, 894 F. Supp. 2d at 657-58 (quoting Minard Run III, 670 F.3d at 251-52). To the extent that Appellants simply disagree with the conclusion reached, they could have sought en banc review. This panel will not disturb the well-reasoned legal conclusion reached by the prior panel."

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

Rocky Mountain Farmers Union v. Corey (CARB)

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15131 & 12-15135. Appeal from the United States District Court for the Eastern District of California. In this partially split decision, the panel affirmed in part and reversed in part the district court's summary judgment, and vacated the district court's preliminary injunction and remanded in an action which alleged that California's Low Carbon Fuel Standard, violated the dormant Commerce Clause and was preempted by Section 211(o) of the Clean Air Act, 42 U.S.C. § 7545(o). There were many parties in the case and a number of states including Michigan filed an amicus brief opposing the California standard. The court staff summarized the opinion as follows:

 

    The panel held that the Fuel Standard's ethanol provisions were not facially discriminatory, and reversed that portion of the district court's decision and remanded for entry of partial summary judgment in favor of California Air Resources Board ("CARB"). The panel also reversed the district court's decision that the Fuel Standard was an impermissible

extraterritorial regulation and the panel directed that an order of partial summary judgment be entered in favor of CARB on those grounds. The panel remanded the case for the district court to determine whether the ethanol provisions discriminate in purpose or effect and, if not, to apply the balancing test established in Pike v. Bruce Church, Inc., 397

U.S. 137 (1970).

 

    The panel affirmed the district court's conclusion that the Fuel Standard's crude oil provisions (the 2011 Provisions), were not facially discriminatory, but reversed the district court's holding that the 2011 Provisions were discriminatory in purpose and effect. The panel directed the district court to enter an order of partial summary judgment in favor of CARB on those issues. The panel remanded to the district court to apply the Pike balancing test to the 2011 Provisions.

 

    The panel affirmed the district court's conclusion that Section 211(c)(4)(b) of the Clean Air Act does not insulate California from scrutiny under the dormant Commerce Clause.

 

    The panel remanded to the district court with instructions to vacate the preliminary injunction. The panel expressed no opinion on plaintiffs' claim that the Fuel Standard is preempted by the federal Renewable Fuel Standard (RFS). The panel also expressed no opinion on CARB's claim that the savings clause in the Energy Independence and Security Act of 2007 precludes implied preemption by the RFS.

 

    Concurring in part and dissenting in part, Judge Murguia agreed with the majority's conclusions concerning the crude oil regulations and preemption under the Clean Air Act. She dissented from the majority's conclusion that ethanol regulations do not facially discriminate against interstate commerce.

 

    In part, the Appeals Court stated: "California should be encouraged to continue and to expand its efforts to find a workable solution to lower carbon emissions, or to slow their rise. If no such solution is found, California residents and people worldwide will suffer great harm. We will not at the outset block California from developing this innovative, nondiscriminatory regulation to impede global warming. If the Fuel Standard works, encouraging the development of alternative fuels by those who would like to reach the California market, it will help ease California's climate risks and inform other states as they attempt to confront similar challenges."

    Tim O'Connor, Director of Environmental Defense Fund's (EDF's) California Climate Initiatives commented on the decision saying, "This is a great day for public health and the economy of California. The court clearly upheld a groundbreaking policy that will protect consumers and the environment by diversifying our fuel mix and providing more choices for a clean energy future."

    Natural Resources Defense Council (NRDC) Senior Attorney, David Pettit said, "Today's victory ensures Californians are given better, cleaner choices at the fuel pump, which is something everyone can support. This policy will spur American ingenuity to produce cleaner fuels with fewer impacts to our environment. The standard is working to reduce pollution while decreasing the state's reliance on oil. "We're already on track to achieve these goals, and today's ruling reaffirms California as a national leader for common sense actions to curb climate change."

 

    Access the complete opinion and partial dissent (click here). Access a release from NRDC (click here). Access a release from EDF (click here). [#Energy/Fuel, #Climate, #MIEnergy/Fuel, #MIClimate, #CA9]

NRIC v. NPCC

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-72104. Appealed from the Northwest Power and Conservation Council. The panel affirmed the Sixth Northwest Power Plan, adopted by the Northwest Electric Power and Conservation Council (NPCC), concerning a "due consideration" challenge to the accommodation of fish and wildlife interests with hydropower interests in the Columbia River Basin, and remanded on a limited basis for additional consideration.

 

    The Appeals Court explains that the present case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest Electric Power Planning and Conservation Act (the Power Act), 16 U.S.C. §§ 839–839h. That statute established the Northwest Power and Conservation Council (the Council), an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington that Congress tasked with promulgating both "a regional conservation and electric power plan" and "a program to protect, mitigate, and enhance fish and wildlife." 16 U.S.C. § 839b(d)(1), 839b(h)(1)(A).

 

    The case presents a challenge by an environmental group, the Northwest Resource Information Center (NRIC), to the Sixth Northwest Power Plan (the Plan) that the Council adopted in May 2010. NRIC's key complaint is that the Council failed to give due consideration to the accommodation of fish and wildlife interests when it adopted the Plan. The Appeals Court rules, ". . .we affirm the Plan with respect to NRIC's "due-consideration" challenge, but remand the Plan to the Council for the limited purposes of (1) allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and (2) reconsidering the inclusion in the Plan of a market-price-based estimate of the cost of accommodating fish and wildlife interests."

 

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