Sep 25: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5153. Casitas Municipal Water District (Casitas) appealed the judgment of the United States Court of Federal Claims granting summary judgment in favor of the government holding that there was no governmental breach of contract and no compensable taking under the Fifth Amendment. The Appeals Court affirmed-in-part, reversed-in-part, and remand the case.
In its opinion summary the Appeals Court said, "In sum, governmental deprivation of some water use rights absent the government’s active or appropriative hand in diverting water for its own or a third party’s consumptive or proprietary use does not amount to a physical taking. The only case holding to the contrary is Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), which its author expressly disclaimed in the present case in light of the intervening Tahoe-Sierra case. Casitas Mun. Water Dist. v. U.S., 76 Fed. Cl. 100, 106 (2007) ('Tahoe-Sierra . . . compels us to respect the distinction between a government takeover of property (either by physical invasion or by directing the property’s use to its own needs) and government restraints on an owner’s use of that property.'). Casitas has been restrained from making full use of its California water license under certain circumstances related to the endangerment of the steelhead trout. When the government requires a usufructuary holder of water rights to allow a specified amount of dam-diverted water to circle back to its natural flow by way of a fish ladder for the purpose of endangered species preservation, a classic regulatory restriction on private property rights to prevent a public harm has occurred. It is logically incongruent to analyze ESA-based land use restrictions as regulatory takings, and ESA-based water use restrictions as physical takings. The government is not appropriating or taking possession of Casitas’ property, but rather is prohibiting Casitas from making private use of a certain amount of the river’s natural flow under a public program to promote the common good. Labeling such an action a physical taking blurs the line Tahoe-Sierra carefully draws between physical and regulatory takings.
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Friday, September 26, 2008
Thursday, September 25, 2008
Abagninin v. AMVAC Chemical Corp
Sep 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-56326. Akebo Abagninin and others who live and work in the Ivory Coast (Abagninin) [Côte d'Ivoire, Africa] appeal the district court’s dismissal with prejudice of their claims against manufacturers, distributors, and users of the pesticide DBCP for genocide and crimes against humanity under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. Abagninin alleges that DBCP caused male sterility and low sperm counts, which AMVAC knew. The district court granted with prejudice AMVAC’s motion for judgment on the pleadings as to the genocide claim for failure to allege that AMVAC acted with specific intent. Abagninin’s claim for crimes against humanity was subsequently dismissed for failure to allege that AMVAC’s conduct occurred within the context of a State or organizational policy. The Appeals Court affirmed the district court decision.
In part, the Appeals Court ruled on the "intent" issue, "The Second Circuit has recognized that dismissal of a genocide claim is appropriate when the complaint fails to allege facts sufficient to show specific intent [Cite: In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115 (E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008)]. . . Abagninin’s attempts to distinguish Agent Orange because the harmful effects of those chemicals were not known at the time assume, but incorrectly, that knowledge is the standard for intent. The key similarity between this case and Agent Orange is Abagninin’s failure to allege that AMVAC intended to harm him through the use of chemicals."
Access the complete opinion (click here).
In part, the Appeals Court ruled on the "intent" issue, "The Second Circuit has recognized that dismissal of a genocide claim is appropriate when the complaint fails to allege facts sufficient to show specific intent [Cite: In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115 (E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008)]. . . Abagninin’s attempts to distinguish Agent Orange because the harmful effects of those chemicals were not known at the time assume, but incorrectly, that knowledge is the standard for intent. The key similarity between this case and Agent Orange is Abagninin’s failure to allege that AMVAC intended to harm him through the use of chemicals."
Access the complete opinion (click here).
Wednesday, September 24, 2008
State of Alaska v. Federal Subsistence Board
Sep 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35723. As explained by the Appeals Court, Defendant-Appellee Federal Subsistence Board (FSB or Board) administers the Federal subsistence program at the heart of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA). In 2005, the FSB granted residents of Chistochina, a rural community in Southeast Alaska, a Customary and Traditional use determination (C & T determination) for moose throughout Game Management Unit (GMU) 12. The C & T determination permits Chistochina residents to harvest moose in GMU 12 under Federal subsistence hunting regulations, which are more permissive than State hunting regulations.
Plaintiff-Appellant the State of Alaska (Alaska) challenged the C & T determination in district court, contending that the FSB granted the determination in violation of the Administrative Procedure Act (APA). The district court granted summary judgment in favor of Defendants-Appellees FSB, et al. The Appeals Court said, "After a careful review of the record, we find no reason to set aside the FSB’s C & T determination" and affirmed the decision of the district court.
Access the complete opinion (click here). [*Wildlife, *Land]
Plaintiff-Appellant the State of Alaska (Alaska) challenged the C & T determination in district court, contending that the FSB granted the determination in violation of the Administrative Procedure Act (APA). The district court granted summary judgment in favor of Defendants-Appellees FSB, et al. The Appeals Court said, "After a careful review of the record, we find no reason to set aside the FSB’s C & T determination" and affirmed the decision of the district court.
Access the complete opinion (click here). [*Wildlife, *Land]
Tuesday, September 23, 2008
Northwest Coalition for Alternatives to Pesticides v. U.S. EPA
Sep 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 05-75255, 05-76807. The petitioners are two environmental groups challenging the U.S. EPA's establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. The Appeals Court in a split (2-1) decision granted the petition in part, denied it in part, and remanded the case to the EPA.
The case involves the regulation of pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FDCA). The Appeals Court notes that in 1996, Congress amended the FDCA by enacting the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489. One of the key provisions of the FQPA requires the EPA to give special consideration to risks posed to infants and children when establishing pesticide tolerances.
The FQPA directs the EPA to use an additional tenfold margin of safety . . . to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children. EPA may “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children." "Unfortunately," as the Appeals Court points out, the FQPA does not define “reliable data,” and says, "The dispute before us turns on the definition of this term."
Between December 2001 and April 2002, EPA published seven regulations establishing tolerances for the pesticides acetamiprid, fenhexamid, halosulfuron-methyl, isoxadifen-ethyl, mepiquat, pymetrozine, and zetacypermethrin and did not apply the presumptive 10x child safety factor to any of these seven pesticides. EPA reduced the 10x child safety factor to 3x for four of the pesticides (acetamiprid, fenhexamid, isoxadifen-ethyl, and pymetrozine), and did not apply a child safety factor at all for the others.
The majority concluded, "Because the EPA failed to adequately explain the basis for its deviations from the 10x child safety factor for acetamiprid, mepiquat, and pymetrozine, we grant the petitions for review in part and remand to the EPA for further proceedings consistent with this opinion. On all other issues, we deny the petitions for review." The dissenting Justice indicated in part concurring and in part and dissenting, "I agree with the majority’s conclusion that 'the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.'" and did not act arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine; but disagreed with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetrozine must be remanded.
Access the complete opinion (click here).
The case involves the regulation of pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FDCA). The Appeals Court notes that in 1996, Congress amended the FDCA by enacting the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489. One of the key provisions of the FQPA requires the EPA to give special consideration to risks posed to infants and children when establishing pesticide tolerances.
The FQPA directs the EPA to use an additional tenfold margin of safety . . . to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children. EPA may “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children." "Unfortunately," as the Appeals Court points out, the FQPA does not define “reliable data,” and says, "The dispute before us turns on the definition of this term."
Between December 2001 and April 2002, EPA published seven regulations establishing tolerances for the pesticides acetamiprid, fenhexamid, halosulfuron-methyl, isoxadifen-ethyl, mepiquat, pymetrozine, and zetacypermethrin and did not apply the presumptive 10x child safety factor to any of these seven pesticides. EPA reduced the 10x child safety factor to 3x for four of the pesticides (acetamiprid, fenhexamid, isoxadifen-ethyl, and pymetrozine), and did not apply a child safety factor at all for the others.
The majority concluded, "Because the EPA failed to adequately explain the basis for its deviations from the 10x child safety factor for acetamiprid, mepiquat, and pymetrozine, we grant the petitions for review in part and remand to the EPA for further proceedings consistent with this opinion. On all other issues, we deny the petitions for review." The dissenting Justice indicated in part concurring and in part and dissenting, "I agree with the majority’s conclusion that 'the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.'" and did not act arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine; but disagreed with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetrozine must be remanded.
Access the complete opinion (click here).
USA v. Capital Tax Corp
Sep 19: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-3744. Capital Tax Corporation (Capital Tax) is an Illinois company that purchases distressed real estate properties and resells them for profit. At a Cook County scavenger sale in October 2001, Capital Tax successfully bid on tax certificates to a derelict paint factory on the south side of Chicago. Capital Tax claims that it then entered into an agreement to sell the property to a man named Mervyn Dukatt. Pursuant to this alleged contract, Capital Tax exercised its option on the tax deed and delivered possession of the property to Dukatt. Capital Tax retained legal title to the property, however, as security for the remainder of the purchase price. Dukatt never made another payment, leaving Capital Tax with title to an unwanted property.
Both the Chicago Department of the Environment (CDOE) and U.S. EPA were called to the old paint factory after receiving complaints that toxic paint products were leaking out of the factory into nearby streets and sewers. The inspections revealed thousands of rusty and leaking barrels containing hazardous waste. The EPA ordered Capital Tax to dispose of the waste but Capital Tax refused; the EPA cleaned up the site itself.
The Government then initiated the legal action under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for the response costs it incurred. The district court granted summary judgment in favor of the Government on both liability and damages. Capital Tax appealed the decision, raising two basic arguments. (1) it claims that it is not liable under CERCLA because it is not the “owner” of the facility; and (2) even if it is liable, Capital Tax claims that it is only responsible for the cleanup of the parcels it owned.
On the ownership and liability issue the Appeals Court said, "From this record, it is difficult for us to determine whether Capital Tax had a valid and enforceable contract for the sale of land under Illinois law. If there is no valid contract, then Capital Tax is the 'owner' under § 107(a)(1) and is liable under CERCLA. If there is a valid contract and if equitable conversion applies, Capital Tax is not the 'owner' under § 107(a)(1) and is not liable under CERCLA. The case will likely turn on whether the facts show that Dukatt was, in fact, a bona fide buyer."
On the apportionment issue, the appeals Court indicates that, "As the district court noted, Capital Tax’s mistake is in attempting to apportion liability based on where the hazardous materials were located on the day they were removed. Those hazardous materials could easily have originated in another part of the plant. As in the game of 'musical chairs,' the fact that the chemicals came to rest in any particular place when production ended was largely happenstance. . . Because we have commingling, cross-contamination and migration occurring on a site that formerly operated as a single, unitary operation, there is no basis for apportionment. [citing: See Burlington Northern, 520 F.3d at 956-58].
The Appeals Court also ruled, "A 'sufficient cause' for failing to comply is a reasonable belief that one is not liable under CERCLA. See United States v. Barkman . . .Because we are remanding this case to district court on the issue of liability, we find it appropriate to vacate the award of damages. The district court may reassess the issue of penalties, if it deems that action necessary, after resolving the liability issue."
Access the complete opinion (click here).
Both the Chicago Department of the Environment (CDOE) and U.S. EPA were called to the old paint factory after receiving complaints that toxic paint products were leaking out of the factory into nearby streets and sewers. The inspections revealed thousands of rusty and leaking barrels containing hazardous waste. The EPA ordered Capital Tax to dispose of the waste but Capital Tax refused; the EPA cleaned up the site itself.
The Government then initiated the legal action under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for the response costs it incurred. The district court granted summary judgment in favor of the Government on both liability and damages. Capital Tax appealed the decision, raising two basic arguments. (1) it claims that it is not liable under CERCLA because it is not the “owner” of the facility; and (2) even if it is liable, Capital Tax claims that it is only responsible for the cleanup of the parcels it owned.
On the ownership and liability issue the Appeals Court said, "From this record, it is difficult for us to determine whether Capital Tax had a valid and enforceable contract for the sale of land under Illinois law. If there is no valid contract, then Capital Tax is the 'owner' under § 107(a)(1) and is liable under CERCLA. If there is a valid contract and if equitable conversion applies, Capital Tax is not the 'owner' under § 107(a)(1) and is not liable under CERCLA. The case will likely turn on whether the facts show that Dukatt was, in fact, a bona fide buyer."
On the apportionment issue, the appeals Court indicates that, "As the district court noted, Capital Tax’s mistake is in attempting to apportion liability based on where the hazardous materials were located on the day they were removed. Those hazardous materials could easily have originated in another part of the plant. As in the game of 'musical chairs,' the fact that the chemicals came to rest in any particular place when production ended was largely happenstance. . . Because we have commingling, cross-contamination and migration occurring on a site that formerly operated as a single, unitary operation, there is no basis for apportionment. [citing: See Burlington Northern, 520 F.3d at 956-58].
The Appeals Court also ruled, "A 'sufficient cause' for failing to comply is a reasonable belief that one is not liable under CERCLA. See United States v. Barkman . . .Because we are remanding this case to district court on the issue of liability, we find it appropriate to vacate the award of damages. The district court may reassess the issue of penalties, if it deems that action necessary, after resolving the liability issue."
Access the complete opinion (click here).
Friday, September 19, 2008
National Resources Defense Council v. U.S. EPA
Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55183, 07-55261. Plaintiffs-Appellees, National Resources Defense Council (NRDC) and Waterkeeper Alliance Inc. (collectively, NRDC), sued Defendants-Appellants, U.S. EPA and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the Administrative Procedure Act (APA), seeking to compel EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water pollution discharges caused by the construction and development industry (construction industry).
The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.
The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision and denied Defendants’ motion to dismiss; granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry; and issued a permanent injunction compelling EPA to do so. The Appeals Court affirmed the district court decision.
The Appeals Court ruled in part saying, "Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this case, we also must consider whether the EPA properly avoided this duty when it removed the construction industry from its plans published pursuant to § 304(m). Nothing in the CWA expressly grants the EPA the authority to remove a point-source category from a § 304(m) plan. . . " The Appeals Court said, first, ". . .once a category is identified under subsection B, the promulgation of guidelines 'shall be no later than . . . 3 years after the publication of the plan.' This timeline effectuates Congress’ stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had the authority to delist point-source categories at its whim, however, this deadline would be rendered meaningless as the EPA could delist any point-source category to avoid the deadline set forth in § 304(m)(1)(c)."
Secondly, the Appeals Court said, "Congress determined that by the time a point-source category is listed in a § 304(m) plan, the EPA must have already engaged in a review process to consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be."
NRDC issued a release on the decision and said it will help to ensure that construction site pollution won’t cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies. Melanie Shepherdson, staff attorney at NRDC said, “This decision will go along way towards protecting America’s streams and rivers from the construction and development industry. The court made it very clear that EPA can’t just shirk its responsibilities to reign in pollution from this industry.”
Access the complete opinion (click here). Access the release from NRDC (click here).
The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.
The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision and denied Defendants’ motion to dismiss; granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry; and issued a permanent injunction compelling EPA to do so. The Appeals Court affirmed the district court decision.
The Appeals Court ruled in part saying, "Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this case, we also must consider whether the EPA properly avoided this duty when it removed the construction industry from its plans published pursuant to § 304(m). Nothing in the CWA expressly grants the EPA the authority to remove a point-source category from a § 304(m) plan. . . " The Appeals Court said, first, ". . .once a category is identified under subsection B, the promulgation of guidelines 'shall be no later than . . . 3 years after the publication of the plan.' This timeline effectuates Congress’ stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had the authority to delist point-source categories at its whim, however, this deadline would be rendered meaningless as the EPA could delist any point-source category to avoid the deadline set forth in § 304(m)(1)(c)."
Secondly, the Appeals Court said, "Congress determined that by the time a point-source category is listed in a § 304(m) plan, the EPA must have already engaged in a review process to consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be."
NRDC issued a release on the decision and said it will help to ensure that construction site pollution won’t cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies. Melanie Shepherdson, staff attorney at NRDC said, “This decision will go along way towards protecting America’s streams and rivers from the construction and development industry. The court made it very clear that EPA can’t just shirk its responsibilities to reign in pollution from this industry.”
Access the complete opinion (click here). Access the release from NRDC (click here).
Fund For Animals v. Kempthorne (Interior Department)
Sep 18: In the U.S. Court of Appeals, Second Circuit, Case No. 05-2603. In this case the Plaintiffs appeal from a decision of the district court that granted defendants, Department of Interior, Fish and Wildlife Service (FWS), a summary judgment and dismissing plaintiffs' claims challenging the defendants' Public Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of treaty obligations and Federal statutes. The Appeals Court affirmed the decision of the district court.
The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].
The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.
In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."
Access the complete opinion (click here).
The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].
The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.
In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."
Access the complete opinion (click here).
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