American Bottom Conservancy v. U.S. Army Corps of Engineers

Jun 14: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-3488. Appealed from the United States District Court for the Southern District of Illinois. The Appeals Court explains that, the "American Bottom" is a 175-square-mile floodplain of the Mississippi River in southwestern Illinois, across the river from St. Louis. The area contains wetlands that provide habitat for many different species of birds, butterflies, and other wildlife. The American Bottom Conservancy is an environmental organization that seeks to preserve the wetlands. Its members include birdwatchers and other people who enjoy seeing wildlife in the wild.

 

    Waste Management of Illinois, Inc., owns and operates a landfill in the American Bottom that it calls the "Milam Recycling and Disposal Facility." The landfill, located near the town of Madison, Illinois, is due east of St. Louis and southwest of a state park that contains a large lake -- Horseshoe Lake, the largest in Illinois, after Lake Michigan. Because the Milam landfill is filling up with waste from St. Louis, Waste Management wants to build another landfill -- the "North Milam Recycling and Disposal

Facility" -- on 180 acres of a 220-acre tract ("North Milam") that it owns just north of the Milam RDF; the tract is thus located between that landfill and the State park.

 

    Obtaining permission to build a new landfill, and building it, will take time. In the meantime Waste Management wants to remove the soil from some of the wetlands and transport it to its existing landfill for daily cover. The consequence will be to transform the wetlands into a dry "borrow pit." The wetlands occupy 26.8 acres of the tract and Waste Management wants to destroy 18.4 of them (69 percent). But to destroy wetlands it needed a permit from the Army Corps of Engineers. The Corps granted the permit on condition that Waste Management create double the amount of wetlands on a nearby tract that it owns. The company accepted the condition. Additionally, The application for permission to build the new landfill is pending.

 

    The district court dismissed a suit by the Conservancy, without prejudice on the ground that the Conservancy had not established standing to sue under Article III of the Constitution and therefore the suit did not invoke the district court's jurisdiction. The Appeals Court indicates that the only issue before it is the Conservancy's standing.

 

    The Appeals Court reviews a number of precedent-setting standing decisions and legal writings. The Appeals Court says, ". . .the plaintiff's affidavits claim that the destruction of the 18.4 acres of wetlands will reduce the amount of perceptible wildlife, and the claim is not so implausible that it can be rejected without counteraffidavits, which Waste Management has not submitted. And if a really substantial elimination of wildlife were required to establish standing, a cumulatively immense elimination of wildlife could occur as a result of numerous small projects requiring destruction of wetlands, none of which would create an injury great enough to support standing if such a requirement were imposed."

 

    The Appeals Court also said, "Since Waste Management has committed to creating twice the wetlands that it will destroy, maybe, despite the probable delay in their developing to the point at which they will provide habitat comparable to what is to be destroyed, the permit granted by the Corps of Engineers is actually a boon to the environment. But that is a question that goes to the merits of the Conservancy's challenge to the Corps; it does not detract from the injuries to the Conservancy's current members, who presented uncontradicted evidence that they will lose present enjoyment of wildlife if the existing wetlands are destroyed."

 

    Finally, responding to a request from Waste Management (not the Corps), the Appeals Court addresses why it cannot decide on the issue of the case. The Appeals Court said, "The district court dismissed the suit without prejudice, because on the view it took of standing it had no jurisdiction; it therefore could only dismiss without prejudice. Were we to decide the case on the merits we would be directing the entry of judgment with prejudice; otherwise the plaintiff would be free to relitigate the case. An appellee who wants, not that the judgment of the district court be affirmed on an alternative ground, but that the judgment be changed, in this case from a dismissal without to a dismissal with prejudice, must file a cross-appeal. . . Waste Management didn't do so. The judgment is reversed with instructions to reinstate the suit."

 

    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).] [*Solid, *CA7]

 

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Certain Underwriters at Lloyds v. NFC Mining, Inc.

Jun 10: In the U.S. Court of Appeals, Sixth Circuit Court of Appeals, Case No. 10-5232. Appealed from the Eastern District of Kentucky at Pikeville. After residents of Floyd County, Kentucky sued NFC Mining, claiming the company damaged their homes, Certain Underwriters at Lloyd's of London followed suit, literally. Underwriters filed a second lawsuit trying to establish that NFC's insurance policy did not cover the company's potential liability to the residents. The district court awarded partial summary judgment to Underwriters. The Appeals Court affirmed the district court ruling saying that NFC pursued only one point presented and failed to raise its other appellate arguments.

 

    In a brief 4-page opinion the Appeals Court said, "NFC first presses the one argument raised and rejected below -- that it reasonably expected the contract to insure against damage from coal dust and that the district court's interpretation of the insurance contract should have respected those expectations. The argument, which is premised on the language of a certificate of insurance Underwriters filed with a state agency, falters at both steps. NFC could not reasonably think that a certificate of liability insurance, as opposed to the insurance contract itself, would confer coverage for coal dust damages. NFC did not sign or approve the certificate; Underwriters filed the certificate with the State. Even then, moreover, the certificate says nothing about this issue. It does not mention the terms of coverage or the coverage limit, except to say that the policy's coverage is consistent with state law. Even had all of this not been true, even in other words if NFC had reasonably anticipated that the policy would cover damages caused by coal dust, the language of the exclusion defeats the company's claim (and expectation). We break no new ground in holding that the language of an insurance policy, not an insured's expectations, controls disputes over the meaning of a policy. In this instance the language of the exclusion is straightforward and inconsistent with NFC's position. . ."

 

    Access the complete opinion (click here). [*Air, *Energy/Coal]

Supreme Court Denies Hearing GE CERCLA Challenge

Jun 6: The U.S. Supreme Court refused to hear the appeals of General Electric Company, Petitioner v. Lisa P. Jackson, Administrator, Environmental Protection Agency, et al. Case No. 10-871. Appealed from the U.S. Court of Appeals D.C. Circuit (Case No. 09-5092, decided June 29, 2010 [See WIMS 6/30/10], with a rehearing also denied on September 30, 2010.

 

    In the case, General Electric challenges the constitutionality of a statutory scheme that authorizes U.S. EPA to issue orders, known as "unilateral administrative orders" (UAOs) directing companies and others to clean up hazardous waste for which they are responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In the D.C. Circuit, General Electric argued that the statute, as well as the way in which EPA administers it, violated the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. The D.C. Circuit said, "We disagree. To the extent the UAO regime implicates constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court."  

 

    The Appeals Court indicated that General Electric insists that the UAO scheme and EPA's implementation of it nonetheless violate due process because the mere issuance of a UAO can inflict immediate, serious, and irreparable damage by depressing the recipient's stock price, harming its brand value, and increasing its cost of financing. But, the Appeals Court said, ". . .such -- 'consequential' injuries -- injuries resulting not from EPA's issuance of the UAO, but from market reactions to it -- are insufficient to merit Due Process Clause protection. We therefore affirm the district court's grant of summary judgment to EPA.

 

    Access the Supreme Court docket for the case (click here). Access the D.C. Circuit opinion that now stands (click here). [*Remed, *SCOTUS]

 

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Pakootas v. Teck Cominco Metals, Ltd.

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35951 & 10-35045. Appealed from the United States District Court for the Eastern District of Washington. The Appeals Court addresses citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case involves a facility in Canada that is polluting waters across the border in the U.S.

 

    The Appeals Court indicates Teck Cominco Metals Limited (Teck Cominco), a Canadian mining company, owns a smelter in Trail, British Columbia. From 1905 to 1995, slag from the smelter was dumped in the Columbia River, ten miles north of the border with Washington. Pollution flowed downstream into the United States. Plaintiffs Joseph A. Pakootas and Donald R. Michel sued Teck Cominco to enforce the EPA's unilateral administrative order. They founded jurisdiction on the citizen suit provision of CERCLA, seeking: (1) a declaration that Teck Cominco was in violation of the order; (2) an injunction compelling compliance; (3) penalties for Teck Cominco's failure to comply; and (4) attorneys' fees and costs.

 

    The Appeals Court explains the complicated legal actions. Teck Cominco moved to dismiss for lack of subject matter and personal jurisdiction, and for failure to state a claim upon which relief could be granted. Before the district court ruled on the motion to dismiss, the State of Washington intervened in the litigation and sought the same relief. The district court denied Teck Cominco's motion to dismiss, but certified the order for interlocutory appeal. While that appeal was before us, the Confederated Tribes of the Colville Reservation joined as a party plaintiff. Subsequently, the State amended its complaint to seek the anticipated costs of the CERCLA recovery and assessment, as well as declaratory relief regarding the reasonable costs of assessing natural resource damages, a claim that is proceeding in district court. The Colville Tribes have added the same demand as the State, and these claims are now proceeding in district court.

 

    The Appeals Court affirmed the district court's denial of Teck Cominco's motion and held that the suit was not an extraterritorial application of CERCLA because even though the smelter was in Canada, slag had moved downstream into the United States. Because a "site" where a hazardous substance has "come to be located" falls within the definition of a "facility" in CERCLA, the Appeals Court held that the EPA was not acting extraterritorially in addressing that downstream "facility." The Appeals Court said, "The unilateral administrative order, we held, was addressed to this 'facility' within the State of Washington.We did not reach the question of whether Congress intended CERCLA to apply extraterritorially."

 

    While that appeal was pending, but before we had decided it, the EPA and Teck Cominco settled. The settlement went into effect in June 2006. Teck Cominco, the Canadian company together with its American subsidiary, and the EPA, signed what they called a "contractual agreement" (not a stipulation for a consent decree or other court order) to perform remediation. Teck Cominco consented to personal jurisdiction in the United States District Court "solely for the limited purpose of an action to enforce" designated provisions of the contract.

 

    Meanwhile, Teck Cominco had petitioned for certiorari from our decision. The Supreme Court, denied certiorari, so the arguments were not ruled upon. The Appeals Court explains that the district court held that the Pakootas-Michel claim for

penalties for the 892 days of noncompliance was a challenge barred by 42 U.S.C. § 9613(h), and that it did not fall within § 9613(h)(2)'s exception. "We generally agree with the district court's careful analysis and affirm." Following a lengthy discussion of the legal issues, the Appeals Court concludes, "As the district court correctly concluded, it lacked jurisdiction to adjudicate the Pakootas and Michel claims for penalties for the 892 days of noncompliance with the unilateral administrative order, and properly dismissed their claims."

 

    Access the complete opinion (click here). [*Remed]

Tomas Carijano v. Occidental Petroleum Corporation

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-56187 & 08-56270. Appealed  from the United States District Court for the Central District of California. In the partially split decision a petition for panel rehearing was granted. The majority opinion indicates that the cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (OxyPeru), an indirect subsidiary of defendant Occidental Petroleum Corporation (collectively Occidental), along the Rio Corrientes in the northern region of Peru.

 

    Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to Federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs appealed the dismissal of their suit.

 

    The Appeals Court said, "Occidental cross-appealed from the district court's determination that its motion to dismiss Amazon Watch for lack of standing is moot. Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal."

 

    The majority ruled, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."

 

    The Justice concurring in part, dissenting in part said, "I agree that the district court did not abuse its discretion in determining that Peru is an adequate alternative forum. I also believe that conditions on dismissal might be appropriate, but would not require that any be imposed. Nor would I reanalyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. . . The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference. . . Conditions such as accepting service, submitting to the jurisdiction, waiving the statute of limitations, making discovery, and agreeing to enforceability of the judgment may be appropriate here. I would, therefore, remand for the court specifically to consider whether its dismissal should be conditioned. Otherwise, I would affirm."

 

    Access the complete opinion and dissent (click here). [*Haz, *Toxics]

Sierra Club vs. Two Elk Generation Partners

May 31: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-8032. Appealed from the U.S. District Court for the District of Wyoming. Plaintiff-Appellant Sierra Club filed the action on January 29, 2009 under the citizen suit provision of the Clean Air Act (CAA), alleging that Defendant-Appellee Two Elk Generation Partners (Two Elk) is attempting to build a coal-fired power plant with an invalid Prevention of Significant Deterioration (PSD) permit in violation of the CAA. The district court granted Two Elk's motion to dismiss, holding that Sierra Club's suit was barred by the doctrine of "issue preclusion." In a split decision the Appeals Court affirmed the District Court opinion.

 

    Based on legal timelines and procedural matters, the majority ruled that, "Sierra Club chose not to intervene in the 2005 and 2007 proceedings before the Council. It never appealed the Council's 2005 Order, and it abandoned its appeal of the Council's 2007 Order. It now attempts to second guess the position taken by DEQ and the final decisions made by the Council and the Wyoming district court. Wyoming's policy of finality of judgments favors against allowing Sierra Club to relitigate issues that have already been decided."

 

    The dissenting justice indicated, "Because my colleagues expand the well-defined principles of parens patriae to include preclusion based on state intra-agency proceedings and because they misapply the doctrine of collateral estoppel, I respectfully dissent. The majority concludes that the common law applies to citizen suits under the Clean Air Act and thereby seeks to invoke parens partiae standing. But my colleagues ignore the Clean Air Act's impact on common-law principles. Even assuming

traditional preclusion doctrines were to apply, the 2005 and 2009 Orders lack preclusive effect."

 

    Access the complete opinion and dissent (click here). [*Air, *Energy/Coal]

 

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Jensen Family Farms, Inc. v. Monterey Bay Air Pollution District

May 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16790. Appealed from the United States District Court for the Northern District of California. In 2007, the Monterey Bay Unified Air Pollution Control District (District) adopted and began enforcing rules that regulate diesel-powered engines. In particular, the District's regulatory regime: (1) requires owners and operators to register and pay fees for certain diesel engines used in agricultural operations, and (2) sets emissions standards for stationary diesel engines within the District. The principal question in the case -- among other questions -- is whether the District's rules are preempted by the Federal Clean Air Act (CAA), 42 U.S.C. §§ 7401 et seq. The Appeals Court said, "We hold that the District rules are not preempted, and affirm the district court's judgment on the pleadings in favor of the defendants.

 

    Explaining further its decision, the Appeals Court said, "Jensen advances two theories of 'state preemption' of Rules 220 and 310. Jensen first argues that 'insofar as [Rules 220 and 310] were issued pursuant to Cal. Code Regs. tit. 17, § 93116, they are preempted.' Because Rules 220 and 310 were issued pursuant to Cal. Health and Safety Code §§ 39656, 39659 and 39666, not Cal. Code Regs. tit. 17, § 93116, there is no basis for Jensen's claim that § 93116 'preempts' Rules 220 and 310. Jensen also argues that Rules 220 and 310 are preempted by Cal. Code Regs. tit. 13, § 2450 et seq. which creates California's 'Portable Equipment Registration Program.' These regulations 'preempt districts from permitting, registering, or regulating portable engines and equipment units . . . except in the circumstances specified in the regulations.' Id. Registration is voluntary and '[i]n the event that the owner of an engine or equipment unit elects not to register under this program, the engine or equipment unit shall be subject to district permitting requirements. . . .' Id. at § 2451(d). Because Jensen has not alleged that it participated in this voluntary program, the Rules are not preempted as applied to Jensen."

 

    Access the complete opinion (click here). [*Land]