Aug 25: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3433. As explained by the Appeals Court, Apex Oil Company appeals from the grant of an injunction, at the behest of U.S. EPA and on the authority of the Resource Conservation and Recovery Act of 1976, that requires Apex to clean up a contaminated site in Hartford, Illinois. In a 178-page opinion following a 17-day bench trial, the district judge made findings that millions of gallons of oil, composing a “hydrocarbon plume” trapped not far underground, are contaminating groundwater and emitting fumes that rise to the surface and enter houses in Hartford and in both respects are creating hazards to health and the environment. The Appeals Court said, "The judge deemed it Apex’s legal responsibility to abate this nuisance because the plume was created by an oil refinery owned by a corporate predecessor of Apex. Apex challenges the findings and conclusion, but the challenge has no possible merit."
The Appeals Court indicated, "The principal question presented by the appeal is unrelated to the district judge’s findings and conclusions; it is whether the government’s claim to an injunction was discharged in bankruptcy and therefore cannot be renewed in a subsequent lawsuit -- this suit. The bankruptcy judge’s confirmation (approval) of a claim in a Chapter 11 proceeding discharges the debtor from 'any debt that arose before the date of' confirmation, with immaterial exceptions." The Appeals Court affirmed the decision and said, "There is no improper delegation to the EPA (compare United States v. Microsoft Corp., 147 F.3d 935, 955 (D.C. Cir. 1998)), because its exercise of 'oversight and approval' will be subject to the court’s override."
Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]
Friday, September 4, 2009
Tuesday, September 1, 2009
Coalition On West Valley Nuclear Wastes v. Chu
Aug 31: In the U.S. Court of Appeals, Second Circuit, Case No. 07-5243. As explained by the Appeals Court, the Coalition on West Valley Nuclear Wastes, et al contend that the United States Department of Energy (DOE, & Secy. Chu) violated both the National Environmental Policy Act (NEPA) and the terms of a 1987 settlement between the Coalition and the DOE by issuing an environmental impact statement concerning waste management activities at the West Valley Project site, a portion of the Western New York Nuclear Service Center, that did not address long-term closure issues regarding the rest of the Center. The district court granted summary judgment in favor of DOE on all claims and the Appeals Court affirmed the decision.
On one of the main issues of contention, the Appeals Court said, "The DOE’s final Record of Decision on the Waste Management EIS indicates that its waste management actions entail shipping certain kinds of waste off-site and storing high-level waste at the West Valley site until it can be shipped to a geologic repository. . . As the district court found, removing the waste from the site has “independent utility,” for instance in storing the waste more safely, regardless of whether the Center as a whole is closed or decommissioned. Appellants have failed to present any evidence that would suggest that dealing in a more permanent fashion with waste that is currently left on the Project site somehow depends on closing the entire Center for its justification. Thus, we agree with the district court’s conclusion that the waste management actions are not “connected” to the closure actions. . . We also perceive no basis in the record for concluding that the actions are either cumulative in character, yielding cumulative environmental impacts that should be discussed in the same EIS . . . or that they are so similar that the 'best way to assess adequately the combined impacts . . . is to treat them in a single impact statement' . . ."
Access the complete opinion (click here).
On one of the main issues of contention, the Appeals Court said, "The DOE’s final Record of Decision on the Waste Management EIS indicates that its waste management actions entail shipping certain kinds of waste off-site and storing high-level waste at the West Valley site until it can be shipped to a geologic repository. . . As the district court found, removing the waste from the site has “independent utility,” for instance in storing the waste more safely, regardless of whether the Center as a whole is closed or decommissioned. Appellants have failed to present any evidence that would suggest that dealing in a more permanent fashion with waste that is currently left on the Project site somehow depends on closing the entire Center for its justification. Thus, we agree with the district court’s conclusion that the waste management actions are not “connected” to the closure actions. . . We also perceive no basis in the record for concluding that the actions are either cumulative in character, yielding cumulative environmental impacts that should be discussed in the same EIS . . . or that they are so similar that the 'best way to assess adequately the combined impacts . . . is to treat them in a single impact statement' . . ."
Access the complete opinion (click here).
Monday, August 31, 2009
Kennedy Bldg. Assoc. v. CBS Corp.
Aug 18: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3622. According to a court summary the district court's order finding that CBS has substantially complied with the remediation requirements imposed upon it was consistent with this court's mandate, and it did not abuse its discretion in determining that no further relief was required by the provisions of the injunction previously entered in the case. The district court was without authority under the mandate to increase the bond in the case; Kennedy's Rule 60(b)(2) motion to increase the bond was untimely.
The mandate did not preclude the district court from considering Kennedy's claim for response costs and as the court cannot determine whether the district court denied the motion on the merits or because it believed the request was outside the scope of the mandate, and the matter was remanded for further proceedings. In its final ruling the Appeals Court said, ". . .we affirm the order of the district court modifying the MERA [Minnesota Environmental Rights Act] injunction and denying Kennedy’s motion to increase the bond. We remand this case for clarification of the district court’s order denying Kennedy’s request for response costs." The Appeals Court said, ". . .we direct that the district court make the appropriate findings: (1) Which, if any, of Kennedy’s claimed response costs are compensable; and (2) The amount of money damages, if any, to which Kennedy is entitled."
Access the complete opinion (click here).
The mandate did not preclude the district court from considering Kennedy's claim for response costs and as the court cannot determine whether the district court denied the motion on the merits or because it believed the request was outside the scope of the mandate, and the matter was remanded for further proceedings. In its final ruling the Appeals Court said, ". . .we affirm the order of the district court modifying the MERA [Minnesota Environmental Rights Act] injunction and denying Kennedy’s motion to increase the bond. We remand this case for clarification of the district court’s order denying Kennedy’s request for response costs." The Appeals Court said, ". . .we direct that the district court make the appropriate findings: (1) Which, if any, of Kennedy’s claimed response costs are compensable; and (2) The amount of money damages, if any, to which Kennedy is entitled."
Access the complete opinion (click here).
United States v. Northshore Mining Co.
Aug 17: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-1423, 08-1529, & 08-1533. According to a court written summary, Northshore received all of the relief it sought in its motion to dissolve the injunction in the case, and it lacked standing to appeal the order; nor did Northshore have standing to appeal the district court's collateral ruling denying its Rule 60(b) motion as the court's ruling on that motion was immaterial to the ultimate ruling vacating the injunction; the United States' appeal must also be dismissed because it was not aggrieved by the district court's order since its interest did not extend to air-emissions programs and the order involved only affects air emissions.
With respect to the remaining appeal by Minnesota and the Minnesota Pollution Control Agency, those parties have failed to show that the district court abused its discretion by vacating sua sponte [acting spontaneously without prompting from another party] the injunction's air-emissions programs as the State and the agency have sufficient regulatory tools to monitor and control the plant's fibre emissions in ways which parallel the injunction. In its conclusion, the Appeals Court said, ". . .we dismiss Northshore’s appeal, dismiss the United States’ cross-appeal, and affirm the district court’s conclusion that the air-emissions provisions of the injunction are moot."
Access the complete opinion (click here).
With respect to the remaining appeal by Minnesota and the Minnesota Pollution Control Agency, those parties have failed to show that the district court abused its discretion by vacating sua sponte [acting spontaneously without prompting from another party] the injunction's air-emissions programs as the State and the agency have sufficient regulatory tools to monitor and control the plant's fibre emissions in ways which parallel the injunction. In its conclusion, the Appeals Court said, ". . .we dismiss Northshore’s appeal, dismiss the United States’ cross-appeal, and affirm the district court’s conclusion that the air-emissions provisions of the injunction are moot."
Access the complete opinion (click here).
Friday, August 14, 2009
Sierra Forest Legacy v. Rey
Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. This complicated appeal and decision concerns three United States Forest Service (USFS) projects -- Empire, Slapjack and Basin -- that attempt to fund fire prevention activities in the Plumas National Forest in California by awarding logging contracts to private parties. The Appeals Court said, "We must decide whether the district court abused its discretion by denying plaintiffs’ request to preliminarily enjoin the three projects."
USFS developed Empire, Slapjack and Basin under the “2004 Framework,” an amendment to the forest plans governing California’s Sierra Nevada region, including Plumas. Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act (NEPA), by failing to consider a reasonable range of alternatives before adopting the 2004 Framework.
The 2004 Framework replaced the “2001 Framework” as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter. The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework.
In a previously filed opinion in this case, the Ninth Circuit held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008) [See WIMS 5/14/09]. Plaintiffs were therefore likely to succeed on the merits. Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs’ requested preliminary injunction.
Defendants filed a petition for rehearing and petitions for rehearing en banc. The Appeals Court rules, "With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc.
"We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim. However, the Supreme Court’s intervening decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008) [See WIMS 11/12/09], requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits -- irreparable harm, balancing of equities and the public interest. In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested -- to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested. . ."
Access the complete opinion (click here).
USFS developed Empire, Slapjack and Basin under the “2004 Framework,” an amendment to the forest plans governing California’s Sierra Nevada region, including Plumas. Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act (NEPA), by failing to consider a reasonable range of alternatives before adopting the 2004 Framework.
The 2004 Framework replaced the “2001 Framework” as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter. The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework.
In a previously filed opinion in this case, the Ninth Circuit held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008) [See WIMS 5/14/09]. Plaintiffs were therefore likely to succeed on the merits. Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs’ requested preliminary injunction.
Defendants filed a petition for rehearing and petitions for rehearing en banc. The Appeals Court rules, "With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc.
"We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim. However, the Supreme Court’s intervening decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008) [See WIMS 11/12/09], requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits -- irreparable harm, balancing of equities and the public interest. In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested -- to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested. . ."
Access the complete opinion (click here).
Steven Pollack v. DOJ
Aug 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3857. The case involves a gun range that the United States government operates on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The Appeals Court affirmed the district court decision.
Plaintiff, Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (Blue Eco), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws.
To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.
The district court dismissed the suit for lack of subject matter jurisdiction saying that plaintiffs concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm. Additionally, the district court held that expressed concerns over birds, fish, and wildlife were "too general and did not allege any particular or specific harm" that had been caused by the bullets at the gun range.
The Appeals Court concluded, "Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is affirmed."
In a separate concurring opinion, one Judge wrote, "This is without question a close case. As the case law laid out by the majority suggests, 'injury in fact' can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical."
Access the complete opinion (click here).
Plaintiff, Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (Blue Eco), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws.
To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.
The district court dismissed the suit for lack of subject matter jurisdiction saying that plaintiffs concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm. Additionally, the district court held that expressed concerns over birds, fish, and wildlife were "too general and did not allege any particular or specific harm" that had been caused by the bullets at the gun range.
The Appeals Court concluded, "Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is affirmed."
In a separate concurring opinion, one Judge wrote, "This is without question a close case. As the case law laid out by the majority suggests, 'injury in fact' can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical."
Access the complete opinion (click here).
Thursday, August 13, 2009
Mirant Potomac River, LLC v. EPA
Aug 12: In the U.S. Court of Appeals, Fourth Circuit, Case No. 08-1277. The Appeals Court explained that Mirant Potomac River, LLC (Mirant) appealed the U.S. EPA approval of Virginia’s Clean Air Interstate Rule State Implementation Plan (CAIR SIP). The Court said Mirant’s alleged injury, however, "flows from Virginia’s Nonattainment Provisions, which are separate emissions standards adopted by Virginia’s Air Pollution Control Board (Virginia Board) under the authority of the Virginia legislature. Because Mirant’s injury cannot fairly be traced to EPA’s approval of Virginia’s CAIR SIP, we dismiss for lack of standing."
The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."
In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."
Access the complete opinion (click here).
The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."
In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."
Access the complete opinion (click here).
Subscribe to:
Posts (Atom)
Posts
