Aug 6: In the Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243, & 07-56574. Marina Point Development Associates, et al appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appeals the district court’s order awarding attorney fees to the Center and the district court’s contempt order. The Appeals Court vacated the district court’s judgment on the merits and instruct it to dismiss for lack of jurisdiction and reversed the order awarding attorney fees and the contempt order.
By way of background, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. The permit authorized Marina Point to dredge the adjacent shoreline and the interior of the existing marina, and to use the dredged material as fill for building pads on the land. Marina Point was forbidden, however, from placing rip-rap at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands. In order to protect bald eagles’ seasonal behavioral habits, it was also barred from working during the winter months. Besides the permit from the Corps, Marina Point secured a number of other State and local permits.
On the CWA issues, the Appeals Court said, ". . . in light of the fact that the Corps and Marina Point did act to cease the activities that the Center claimed were wrongful and even acted to effect ongoing repairs for any problems caused by past activities, the district court did not have jurisdiction to hear the CWA action. It should have dismissed the action at the outset. Thus, in this respect the district court’s judgment must fall for lack of jurisdiction, and must be vacated."
On issues relating to the ESA and bald eagles, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."
In its ruling the Appeals Court said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the award of attorney fees and the contempt order."
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Thursday, August 7, 2008
Southwest Marine, Inc. v. U.S.
Aug 6: In the Court of Appeals, Ninth Circuit, Case No. 07-55229. In this dispute over attorney fees in an environmental case, appellant Southwest Marine, Inc., appealed from a judgment of the United States District Court for the Southern District of California granting summary judgment in favor of the United States and the Secretary of the Navy. The case involves the Appeals Court determining whether fees incurred by Southwest Marine during its unsuccessful defense of a private party Clean Water Act lawsuit are allowable costs under Subpart 31.2 of the Federal Acquisition Regulation (FAR). The Appeals Court ruled that Southwest Marine’s costs are not allowable and affirmed the judgment of the District Court.
Access the complete opinion (click here).
Access the complete opinion (click here).
Friday, August 1, 2008
Citizens Against Ruining The Environment v. U.S. EPA
Jul 28: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3197, 07-3198 & 07-3199. In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of U.S. EPA to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA.
The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.
The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.
The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.
The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).
Access the complete opinion (click here).
The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.
The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.
The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.
The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).
Access the complete opinion (click here).
Thursday, July 31, 2008
Mather v. Willet Dairy
Jul 30: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-3454 & 07-3462. The case is appealed from a judgment of the U.S. District Court for the Northern District of New York granting summary judgment for Defendants-Appellees on all of Plaintiffs-Appellants’ claims in a suit alleging that Defendants-Appellees’ large dairy operation emitted hazardous pollutants in violation of the Clean Water Act (CWA).
The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."
Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.
On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.
On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.
On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.
On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”
However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."
Access the complete opinion (click here).
The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."
Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.
On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.
On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.
On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.
On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”
However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."
Access the complete opinion (click here).
Thursday, July 24, 2008
Northwest Environmental Advocates v. U.S. EPA
Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 03-74795, 06-17187, 06-17188. Plaintiffs in this case are Northwest Environmental Advocates, San Francisco Baykeeper, and The Ocean Conservancy. Plaintiffs-intervenors are the States of Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin. Plaintiffs and plaintiffs-intervenors challenge a regulation originally promulgated by U.S. EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA). The Shipping Industry Ballast Water Coalition was an intervenor on behalf of EPA.
That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.
The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .
"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.
The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”
The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.
Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).
That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.
The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .
"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.
The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”
The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.
Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).
CleanCOALition v. TXU Power
Jul 21: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-50685. According to the Fifth Circuit, the case is one of first impression and involves the scope of citizen-suit jurisdiction under the Clean Air Act (CAA). Plaintiffs-Appellants filed suit to enjoin Defendants-Appellees from constructing a pulverized coalfired power plant in their community, alleging various violations of the CAA preconstruction permit process. The district court dismissed the case on the ground that, "inter alia, neither of the asserted bases for subject matter jurisdiction, §§ 7604(a)(1) and 7604(a)(3), provides for jurisdiction in this case." The Appeals Court affirmed the judgment of the district court.
The Appeals Court concluded, "The district court held that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so. Instead, the district court interpreted that section as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever. We agree with the district court’s interpretation. Appellants interpret the phrase 'without a permit' to mean 'without a permit that complies with the CAA.' However, we decline to rewrite the plain language of the statute. Here, not only has TXU applied for a permit, it has since successfully obtained one, though still subject to state judicial review. Thus, it can hardly be said -- as Appellants must in order for §7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility 'without a permit.' . . . In short, we agree with the district court that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."
Access the complete opinion (click here).
The Appeals Court concluded, "The district court held that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so. Instead, the district court interpreted that section as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever. We agree with the district court’s interpretation. Appellants interpret the phrase 'without a permit' to mean 'without a permit that complies with the CAA.' However, we decline to rewrite the plain language of the statute. Here, not only has TXU applied for a permit, it has since successfully obtained one, though still subject to state judicial review. Thus, it can hardly be said -- as Appellants must in order for §7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility 'without a permit.' . . . In short, we agree with the district court that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."
Access the complete opinion (click here).
Monday, July 21, 2008
Defenders of Wildlife v. Gutierrez (Commerce Dept.)
Jul 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5278. This case concerns the North Atlantic right whale (Eubalaena glacialis) (right whale) and the role of National Marine Fisheries Service (NMFS) and the Coast Guard in the Federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. The Appeals Court affirmed the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reversed its summary judgment order relating to the Coast Guard’s actions. The case is remanded to the district court for further proceedings.
Appellants challenge the Coast Guard’s actions regarding a "traffic separation scheme process" as violations of ESA sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538. The district court dismissed this challenge, concluding that the International Maritime Organization, a multinational body, adopted the traffic separation schemes at issue, not the Coast Guard. The parties dispute whether “agency action” or “final agency action” is required in order to bring suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g), based on a violation of ESA section 7(a)(2)’s consultation requirement. Appellants extract a simple “agency action” requirement from the text of ESA section 7(a)(2), which speaks only to “agency action.” Appellees argue that the “final agency action” requirement in the second clause of the Administrative Procedure Act should be read into ESA section 7(a)(2). See 5 U.S.C. § 704. The Appeals Court said, "We find it unnecessary to resolve this issue because we hold that appellants are challenging final agency action by the Coast Guard.
The Appeals Court says that the record shows "quite a different role for the Coast Guard in this process. Most significantly, the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes. . . traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g), or the Administrative Procedure Act. But if the Coast Guard delegates its responsibility for traffic separation schemes to the International Maritime Organization, and if we accept this delegation as relieving the Coast Guard of any responsibility for them, no such recourse is available."
The Appeals Court rules, ". . . appellants have presented evidence of final agency action in this case. . . Accordingly, appellants have demonstrated final agency action, and the district court erred in granting summary judgment to appellees based on its conclusion that it lacked subject matter jurisdiction."
Groups involved in the lawsuit said it was a major decision in the ongoing battle to save the world's last remaining North Atlantic right whales. The groups included Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy and other whale advocates. They said the Court ordered the Coast Guard to review the impact of shipping traffic lanes on endangered whales which they say is a crucial step towards altering shipping lanes to stop ship strikes in critically endangered right whale habitat.
Robert Dreher, vice president of conservation law for Defenders of Wildlife said, “We applaud the court’s decision. Ship collisions are the greatest threat to the survival of the right whale, so ensuring that the Coast Guard protects the whale in setting shipping lanes is a great conservation victory.” They said ship strikes are the leading cause of injuries and mortalities to the critically endangered North Atlantic right whale. Vessel strikes are known to kill or injure a minimum of three whales each year on the East Coast, and a number of ship strikes are believed to go unreported. Only about 350 North Atlantic right whales remain in existence.
Access the Appeals Court ruling (click here). Access a release from Defenders with links to additional information (click here).
Appellants challenge the Coast Guard’s actions regarding a "traffic separation scheme process" as violations of ESA sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538. The district court dismissed this challenge, concluding that the International Maritime Organization, a multinational body, adopted the traffic separation schemes at issue, not the Coast Guard. The parties dispute whether “agency action” or “final agency action” is required in order to bring suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g), based on a violation of ESA section 7(a)(2)’s consultation requirement. Appellants extract a simple “agency action” requirement from the text of ESA section 7(a)(2), which speaks only to “agency action.” Appellees argue that the “final agency action” requirement in the second clause of the Administrative Procedure Act should be read into ESA section 7(a)(2). See 5 U.S.C. § 704. The Appeals Court said, "We find it unnecessary to resolve this issue because we hold that appellants are challenging final agency action by the Coast Guard.
The Appeals Court says that the record shows "quite a different role for the Coast Guard in this process. Most significantly, the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes. . . traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g), or the Administrative Procedure Act. But if the Coast Guard delegates its responsibility for traffic separation schemes to the International Maritime Organization, and if we accept this delegation as relieving the Coast Guard of any responsibility for them, no such recourse is available."
The Appeals Court rules, ". . . appellants have presented evidence of final agency action in this case. . . Accordingly, appellants have demonstrated final agency action, and the district court erred in granting summary judgment to appellees based on its conclusion that it lacked subject matter jurisdiction."
Groups involved in the lawsuit said it was a major decision in the ongoing battle to save the world's last remaining North Atlantic right whales. The groups included Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy and other whale advocates. They said the Court ordered the Coast Guard to review the impact of shipping traffic lanes on endangered whales which they say is a crucial step towards altering shipping lanes to stop ship strikes in critically endangered right whale habitat.
Robert Dreher, vice president of conservation law for Defenders of Wildlife said, “We applaud the court’s decision. Ship collisions are the greatest threat to the survival of the right whale, so ensuring that the Coast Guard protects the whale in setting shipping lanes is a great conservation victory.” They said ship strikes are the leading cause of injuries and mortalities to the critically endangered North Atlantic right whale. Vessel strikes are known to kill or injure a minimum of three whales each year on the East Coast, and a number of ship strikes are believed to go unreported. Only about 350 North Atlantic right whales remain in existence.
Access the Appeals Court ruling (click here). Access a release from Defenders with links to additional information (click here).
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