Sep 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16423. The Center for Biological Diversity (CBD), the Western Land Exchange Project, and the Sierra Club (collectively, Appellants) sued Asarco LLC (Asarco), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, BLM). Appellants contend that the BLM’s approval of a land exchange violated the National Environmental Policy Act (NEPA) and the Mining Law of 1872. If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872. If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872.
Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations (MPO) to the BLM. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed.
As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement (FEIS) pursuant to NEPA. In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision (ROD) approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences -- and the implications for the public interest -- would differ depending on whether the proposed land exchange occurs.
In a split decision, the Appeals Court ruled, "Because the BLM has conducted no comparative analysis, we hold that it has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was “arbitrary and capricious” in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving the actions of the BLM."
In a lengthy and harshly critical dissenting opinion, Justice Tallman said, "It has been said that the life of a canary in a coal mine can be described in three words: short but meaningful. So too apparently was the life of our decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). . . Having carefully reviewed and evaluated the record, I staunchly disagree with the majority’s conclusion . . .
"This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. . . In sum, the majority’s creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. . .
"Today’s opinion embodies the type of judicial meddling in agency action that we intended to put to rest in Lands Council. Its implications are far-reaching and severe. In order to achieve a particular result, my colleagues set the stage for a catastrophic collapse of the mine shaft timbers of deferential administrative law. For these reasons, I dissent. Has anyone seen the canary?"
Taylor McKinnon, public lands campaigns director with CBD said, “At stake in today’s decision were habitats for desert bighorn sheep, endangered desert tortoise habitat, and other threatened and endangered species. This is a victory for them -- a victory that will save lives.” CBD said the proposed exchange would have given Asarco 10,976 acres of public lands in exchange for 7,300 acres of the company’s private holdings, and would have facilitated the expansion of Asarco’s Ray Mine, an open-pit copper mine located 65 miles east of Phoenix and 50 miles north of Tucson. By gaining private ownership of the land, Asarco would no longer be subject to Federal planning, reclamation, and bonding requirements designed to minimize and mitigate the environmental impacts of hard-rock mining operations.
Access the complete opinion and dissent (click here). Access a release from CBD (click here).
Tuesday, September 15, 2009
Friday, September 11, 2009
Thomas v. Jackson (U.S. EPA)
Sep 10: In the U.S. Court of Appeals, Eighth Circuit, Case No: 08-2152. Plaintiffs filed a complaint in district court under the Administrative Procedure Act (APA), arguing that approval by the U.S. EPA of the State of Iowa’s 2004 “§ 303(d) lists” violated several aspects of the Clean Water Act (CWA). The district court dismissed the complaint and the Appeals Court affirmed the district court decision.
In part the Appeals Court ruled, "We disagree with Plaintiffs’ contention that when a state uses a non-compliant variation of approved water quality standards in drafting its § 303(d) list, the ultimate, EPA-approved list must be invalidated in its entirety even if the EPA applied the correct water quality standards rather than the non-compliant variation. See Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 912 n.14 (11th Cir 2007) (rejecting a similar argument where the court concluded that the record showed the EPA applied the approved standards rather than the challenged variation); see also 40 C.F.R. § 130.7(d)(2) (establishing a time frame for the EPA to develop § 303(d) list if it disapproves the state’s draft list). However, if the EPA were to itself apply the unapproved state modification, the resulting § 303(d) list would be undermined. Florida Public Interest Research Group Citizen Lobby v. EPA, 386 F.3d 1070, 1090–91 (11th Cir. 2004) (FPIRGCL) (remanding for additional review where the court concluded that the record showed that the EPA applied the challenged variation rather than the standards as approved)."
Second, Plaintiffs contended that the EPA impermissibly accepted Iowa’s distinction between “evaluated” and “monitored” waters and its position that waters evaluated, but not monitored, need not be placed on the § 303(d) list. The Appeals Court said, "The EPA maintains that it reviewed all 'evaluated' waters consistent with federal regulations, ignoring Iowa’s distinction. As with the Credible Data Law, Plaintiffs’ only evidence that the EPA adopted Iowa’s distinction is the fact that the EPA only added four of the 'evaluated' waters back to the § 303(d) list. Plaintiffs argue that '[w]e must assume' that the EPA approved of Iowa’s distinction. The burden of proof lies with Plaintiffs, however, and Plaintiffs cannot meet that burden through unsupported assumptions."
Finally, Plaintiffs contend that even relying on the approved water quality standards was in error because Iowa was in the process of revising its water quality standards. The EPA counters that applicable water quality standards remain in effect until the new standards are approved. The Appeals Court said, "As Plaintiffs have pointed to no authority to the contrary, and any
improper delay in the promulgation of the revised standards is not directly at issue in the case before us, we defer to the EPA’s reasonable application of its own regulations. . ."
Access the complete opinion (click here).
In part the Appeals Court ruled, "We disagree with Plaintiffs’ contention that when a state uses a non-compliant variation of approved water quality standards in drafting its § 303(d) list, the ultimate, EPA-approved list must be invalidated in its entirety even if the EPA applied the correct water quality standards rather than the non-compliant variation. See Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 912 n.14 (11th Cir 2007) (rejecting a similar argument where the court concluded that the record showed the EPA applied the approved standards rather than the challenged variation); see also 40 C.F.R. § 130.7(d)(2) (establishing a time frame for the EPA to develop § 303(d) list if it disapproves the state’s draft list). However, if the EPA were to itself apply the unapproved state modification, the resulting § 303(d) list would be undermined. Florida Public Interest Research Group Citizen Lobby v. EPA, 386 F.3d 1070, 1090–91 (11th Cir. 2004) (FPIRGCL) (remanding for additional review where the court concluded that the record showed that the EPA applied the challenged variation rather than the standards as approved)."
Second, Plaintiffs contended that the EPA impermissibly accepted Iowa’s distinction between “evaluated” and “monitored” waters and its position that waters evaluated, but not monitored, need not be placed on the § 303(d) list. The Appeals Court said, "The EPA maintains that it reviewed all 'evaluated' waters consistent with federal regulations, ignoring Iowa’s distinction. As with the Credible Data Law, Plaintiffs’ only evidence that the EPA adopted Iowa’s distinction is the fact that the EPA only added four of the 'evaluated' waters back to the § 303(d) list. Plaintiffs argue that '[w]e must assume' that the EPA approved of Iowa’s distinction. The burden of proof lies with Plaintiffs, however, and Plaintiffs cannot meet that burden through unsupported assumptions."
Finally, Plaintiffs contend that even relying on the approved water quality standards was in error because Iowa was in the process of revising its water quality standards. The EPA counters that applicable water quality standards remain in effect until the new standards are approved. The Appeals Court said, "As Plaintiffs have pointed to no authority to the contrary, and any
improper delay in the promulgation of the revised standards is not directly at issue in the case before us, we defer to the EPA’s reasonable application of its own regulations. . ."
Access the complete opinion (click here).
Thursday, September 10, 2009
State of Michigan v. EPA
Sep 9: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-2582. As explained by the Appeals Court, the cultural and religious traditions of the Forest County Potawatomi Community (the Community) often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests. To remedy this problem, it submitted a request to U.S. EPA) to redesignate certain tribal lands from Class II to Class I status under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act (the Act). This would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.
After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status [See WIMS 4/29/08]. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs.
The Appeals Court said, "Because Michigan lacks standing to pursue these claims, we dismiss its petition for review." The Appeals Court stated further in its conclusion, "The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan’s challenge to the EPA’s redesignation actions raises some important issues about the PSD program’s regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer. We dismiss the petition for review."
Access the complete opinion (click here). Access a 6/30/08 release from MDEQ (click here). Access the Dispute Resolution FR announcement (click here). Access the Final Rule FR announcement (click here). Access EPA's docket for this action with complete background information (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).]
After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status [See WIMS 4/29/08]. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs.
The Appeals Court said, "Because Michigan lacks standing to pursue these claims, we dismiss its petition for review." The Appeals Court stated further in its conclusion, "The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan’s challenge to the EPA’s redesignation actions raises some important issues about the PSD program’s regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer. We dismiss the petition for review."
Access the complete opinion (click here). Access a 6/30/08 release from MDEQ (click here). Access the Dispute Resolution FR announcement (click here). Access the Final Rule FR announcement (click here). Access EPA's docket for this action with complete background information (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
USA v. Apex Oil Company
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).]
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).]
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).
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