Natural Resources Defense Council v. U.S. EPA

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1105. On Petition for Review of a Final Rule of the Environmental Protection Agency. The Appeals Court explains that the case follows up a D.C. Circuit decision in Environmental Defense, Inc. v. EPA, 509 F.3d 553 (D.C. Cir. 2007), in which the Appeals Court reviewed U.S. EPA's promulgation of a final rule for "PM2.5 and PM10 Hot Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards," 71 Fed. Reg. 12,468 (Mar. 10, 2006) (the 2006 Rule).

 

    The "conformity determinations" referred to in the rule's title are approvals needed under the Clean Air Act (CAA) for Federally funded transportation projects in an area that is designated "nonattainment" or "maintenance" with respect to the National Ambient Air Quality Standards (NAAQS) -- approvals required in order to assure that the project "conforms" to the applicable State Implementation Plan (SIP). See Environmental Defense, 509 F.3d at 555–58. "Hot spot" analysis means simply analysis of a project's localized impact. See 2006 Rule, 71 Fed. Reg. at 12,469/3.

 

    In a brief, 10-page opinion the Appeals Court said, "We start with a quick review of the statutory and regulatory provisions at issue in our remand in Environmental Defense, explain the nature of that remand, describe the EPA's response to the remand, and (finally) explain the adequacy of that response."

 

    Much of the case looks at the 1990 Congress amended CAA's conformity provisions to provide that [c]onformity to an implementation plan means— . . . "(B) that such activities will not— (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or milestones in any area."

    The Appeals Court indicates that, "The pertinent passage of the 2006 Rule, however, appeared to disregard subsection (B)(iii). It provided that a new transportation project:

must not [1] cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or [2] increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied . . . if it is demonstrated that . . . no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.

    ". . .Obviously the segments designated [1] and [2] neatly match (B)(i) and (B)(ii), and are paralleled in the sentence beginning 'This criterion is satisfied if . . . .' But if the statutory language 'any area' required application of the (B)(i) and (B)(ii) requirements at the local level, then the EPA's seeming failure to address B(iii), or to explain its not doing so, was arbitrary and capricious."

    In summation, the Appeals Court rules, ". . .given the EPA's clarification that (B)(iii) applies to local projects and its persuasive explanation of how the substance of the "delay" condition is met, we are satisfied that the 2010 Rule is not arbitrary, capricious, or inconsistent with law for the reasons raised in Environmental Defense. In particular, it is now clear that a project giving rise to the 'counterbalance' hypothetical we described in that case would not be deemed conforming." Accordingly, the petition of three environmental organizations is denied.

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ASPCA v. Feld Entertainment, Inc

Oct 28: Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. The Appeals Court summarizes, "In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals [i.e. American Society for Prevention of Cruelty to Animals (ASPCA)] allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants -- bullhooks and chains -- harms the animals in violation of the Endangered Species Act. But the district court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree."

 

    The Appeals Court indicates that the district court held a six-week bench trial, heard testimony from approximately thirty witnesses, reviewed hundreds of documents entered into the evidentiary record, and concluded that both Rider (Tom Rider, a barn helper) and API (another plaintiff, Animal Protection Institute) had failed to establish standing. The district court found that Rider was "essentially a paid plaintiff and fact witness" whose trial testimony, and particularly his claim that he had developed an attachment to the elephants, lacked credibility. The district court also rejected API's two theories of standing.

 

    Following an exhaustive analysis of standing issues, the Appeals Court indicates, "Because Rider has failed to show that the district court applied an erroneous legal standard, we are left to review the district court's fact-findings and credibility determination for clear error. . . we see no basis for finding clear error." The Appeals Court also rejects claims of "informational standing" [i.e. FEC v. Akins, 524 U.S. 11, 21 (1998)] and "Havens Standing [i.e. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)] and ultimately concludes that, "API and Rider lack Article III standing to maintain this action. We therefore affirm."

 

    Access the complete opinion (click here). [#Wildlife, #CADC]

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State Of Wyoming v. USDA Forest Service

Oct 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 08-8061 & 09-8075. Appealed from the United States District Court for the District of Wyoming. Defendants Forest Service and Defendants-Intervenors-Appellants Environmental Groups appeal the Wyoming district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule), which the Forest Service promulgated in 2001. Intervening Environmental Groups include the Biodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.

 

    In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act), and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups ask the Appeals Court to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. The Appeals Court indicates that, "Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction."

 

    Plaintiff-Appellee State of Wyoming and Intervenor-Appellee Colorado Mining Association (CMA) request the Appeals Court to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. The Appeals Court indicates that, "In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple-Use Sustained-Yield Act (MUSYA), and also the National Forest Management Act (NFMA).

 

    In a lengthy 120-page opinion, the Appeals Court reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. On the NFMA issue the Appeals Court ruled, ". . .because the Roadless Rule was promulgated under the authority of the Organic Act and MUSYA, and was not otherwise governed by NFMA, the Forest Service was not required to comply with NFMA's provisions.

Wyoming's NFMA claim must therefore fail."

 

    Regarding the permanent injunction remedy the Appeals Court said, "The district court permanently enjoined the Roadless Rule on a nationwide basis. . . Although the district court acknowledged that the issuance of a permanent injunction 'is an extraordinary remedy,' it nevertheless found that a permanent injunction was proper. . . In order to obtain a permanent injunction, a party must prove: '(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.' . . We review a district court's grant of a permanent injunction for an abuse of discretion. . . examining its factual findings for clear error and its legal determinations de novo. . .  As discussed. . .  Wyoming failed to demonstrate that the Forest Service's promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims."

 

    A release from the environmental groups indicates that the "long-awaited, landmark decision" secures "critical legal protections for nearly 50 million acres of pristine National Forest lands" by protecting wild national forests and grasslands from new road building, logging, and development. This decision formally ends an injunction against the Rule's enforcement imposed by a Wyoming federal district court in 2008.

 

    Tim Preso, an Earthjustice attorney representing the conservation groups said, "The  public forests we've fought so hard to protect are now safe. All Americans can now know that a key part of our nation's natural heritage won't be destroyed." The 2001 Roadless Area Conservation Rule was the product of the most comprehensive rulemaking process in the nation's history, including more than 2 million comments from members of the public, hundreds of public hearings and open houses, and a detailed environmental review. The rule came under relentless attack by logging and resource extraction interests, certain states, and the Bush administration."

 

    Mike Francis with The Wilderness Society said, "This is a great victory for the American people who have spoken out, time and again and in record numbers, for protection of these wild public lands." Mary Scurlock of Pacific Rivers Council said, "Roadless areas protect our rivers and streams -- protect our salmon, trout, drinking water. The Roadless Rule is common-sense, and finally the question of its legality is settled."

 

    The groups said, "Now, conservation, faith, and recreation groups trust that the Obama administration will support and enforce the 2001 Roadless Rule as the law of the land, including defending its protections for all 58.5 million acres of roadless lands in the country. That includes national forests in Alaska, currently subject to a separate legal challenge and national forests in Idaho, whose roadless area protections were weakened in 2008." The groups cited candidate President Obama who said: "Road construction in national forests can harm fish and wildlife habitats while polluting local lakes, rivers, and streams. The Roadless Area Conservation Rule -- which was made on the basis of extensive citizen input -- protects 58.5 million acres of national forest from such harmful building. I will be proud to support and defend it."

 

    Access the complete opinion (click here). Access the release from environmental groups (click here). [#Land, #CA10]

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Neal Parker v. Schmiede Machine & Tool Corporation

Oct 21: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 10-14703 & 10-14741. Appealed from the United States District Court for the Northern District of Georgia. In this unpublished opinion the plaintiffs are all current or former employees of the Lockheed Martin Corporation (Lockheed) who worked in its aircraft manufacturing plant in Marietta, Georgia. They have had a variety of different job responsibilities, time periods of employment, and work areas at the Lockheed facility, but they all have worked with and around beryllium-containing products.

 

    According to the Plaintiffs, any action that disturbs the surface layer of beryllium ceramic or metal can produce respirable particles. Sandblasting, polishing, drilling, and other types of high-velocity abrading are especially likely to generate respirable particles. In 1948, the Atomic Energy Commission established an exposure standard for beryllium of 2.0 μg/m³. This exposure standard was adopted by the Occupational Safety and Health Administration (OSHA") and remains in place today. The Plaintiffs assert that even though this remains OSHA's standard, the beryllium manufacturing industry has long known that this standard is

inadequate to keep workers safe from the effects of respirable beryllium.

 

    The Plaintiffs claim that their handling of beryllium or their presence in areas where beryllium was being handled led to three of them contracting chronic beryllium disease (CBD), and nine of them getting beryllium sensitization, a precursor to CBD. The plaintiffs sued Lockheed and various manufacturers of beryllium parts in Georgia state court alleging a number of claims, of which only the failure-to-warn claims remain. The defendants removed the action to the District Court for the Northern District of Georgia.

 

    After a year-and-a-half of extensive discovery, the defendants moved for summary judgment. Although the district court originally denied the defendants' motions for summary judgment, the court later reversed itself and, in September 2010, granted summary judgment on the basis of the "sophisticated user doctrine" and the lack of direct causation. The plaintiffs appealed the rulings.

 

    The Appeals Court agreed with the district court and ruled, ". . . the Plaintiffs have failed to make a showing sufficient to create a genuine issue of fact that the Defendants possessed information regarding a hazard of beryllium and that Lockheed lacked actual knowledge of that hazard. The Plaintiffs have failed with respect to both prongs; the Plaintiffs have failed to show either that Lockheed lacked knowledge of a particular hazard, or that these Defendants did have knowledge of that hazard. The overwhelming evidence in this record shows that Lockheed was a learned and sophisticated user of beryllium, and, if anything, possessed knowledge superior to that of these four Defendants.

 

    After a review of the briefs and the evidence cited by the parties. . . as well as the benefit of oral argument, we conclude that the Plaintiffs have not adduced any evidence that would rebut the Defendants' defense that Lockheed Martin was a learned intermediary and a sophisticated user of beryllium. Accordingly, we affirm the judgment of the district court."

 

    Access the complete opinion (click here). [#Toxics, #CA11]

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Cunney v. Board. Of Trustees Village Of Grand View

Oct 19: In the U.S. Court of Appeals, Second Circuit, Case No.10-0485. Appealed from the United States District Court for the Southern District  of New York. Brendan Cunney appealed from the December 18, 2009 order and the January 20, 2010 judgment of the District Court which dismissed his complaint against the Board of Trustees of the Village of Grand View-on-Hudson, the Zoning Board of Appeals (ZBA) for the Village, and Joseph W.

Knizeski, in his capacity as the Village's building inspector (collectively, the Village Defendants).

 

    The Appeals Court held that "the relevant provision of the Village Zoning Law as applied to Cunney's property is unconstitutionally vague." Accordingly the Appeals Court reversed the district court's grant of summary judgment in favor of the Village Defendants on Cunney's "void-for-vagueness" claim, and directed the district court to enter summary judgment in favor of Cunney on his claim. In addition, the Appeals Court vacated the district court's grant of summary judgment in favor of the Village Defendants on Cunney's "substantive due process" claim, and remanded the case for further proceedings consistent with the opinion.

 

    By way of background, the Appeals Court explains that Cunney brought this action against the Village Defendants alleging a violation of his constitutional rights as a result of the ZBA's denial of his application for a certificate of occupancy (CO") for his newly-built home. Specifically, Cunney asserted that the Village Zoning Law, Chapter IX, Section E is "void for vagueness" and that the Village Defendants violated his substantive due process rights by denying him a CO.

 

    The district court granted summary judgment in favor of the Village Defendants on both claims. The district court concluded that Cunney's vagueness claim failed because a reasonable person could discern that section E prohibited the building of structures that rise more than four and one-half feet above the easterly side of River Road. Despite the district The court also determined that Cunney's substantive due process claim failed because Cunney did not possess a legitimate claim of entitlement to a CO.

 

    The Appeals Court ruled, "We hold that section E of the Village Zoning Law is unconstitutionally vague as applied to Cunney's property because it provides inadequate notice of the elevation point on River Road from which Cunney should measure the height of his house to determine compliance, and because it authorizes arbitrary and discriminatory enforcement. Furthermore, we hold that the ordinance's constitutionality is not otherwise saved by its core meaning because a reasonable enforcement officer could find that the height of Cunney's house is in compliance with section E's restrictions. We therefore reverse the district court's grant of summary judgment in favor of the Village Defendants on Cunney's void-for-vagueness claim, and direct the court to enter summary judgment in favor of Cunney on this claim. In addition, we vacate the grant of summary judgment in favor of the Village Defendants on Cunney's substantive due process claim, and remand for further proceedings consistent with this opinion."

   

    Access the complete opinion (click here). [#Land, #CA2]

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Redondo Waste Systems, Inc. v. Lopez-Freytes

Oct 18: In the U.S. Court of Appeals, First Circuit, Case No. 10-1865. Appealed from the U.S. District Court for the District of Puerto Rico. Plaintiffs Redondo Waste Systems, Inc., and Big Blue Corp. (collectively Redondo) appealed the district court's dismissal of their complaint alleging various malfeasance by the Puerto Rico Environmental Quality Board (EQB). The Appeals Court said, "Because Redondo's complaint states no plausible claim against any identifiable defendant, we affirm."

 

    Redondo is a Puerto Rico-based business engaged in the treatment and disposal of regulated biomedical waste (sometimes abbreviated RBW). On November 17, 2008, Redondo filed the complaint at issue against the members of EQB's Governing Board. Redondo's complaint alleges that EQB treated Redondo's competitor BFI/Stericycle much more favorably than it treated Redondo.

 

    The Appeals Court ruled, "Redondo's complaint did not meet even minimal pleading standards; therefore, we affirm the district court's dismissal order. The district court correctly denied Redondo's belated attempt to remedy the complaint's deficiencies; therefore, we affirm the district court's denial of Redondo's motion to alter or amend. Costs to appellees. So ordered."

 

    Access the complete opinion (click here). [#Haz, #CA1]

 

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Thiebaut vs. Colorado Springs Utilities

Oct 12: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1471. The Appeals Court explains that in 2005, Bill Thiebaut -- the District Attorney for the Tenth Judicial District of Colorado -- filed a lawsuit pursuant to section 1365(a) of the Clean Water Act (CWA) against the City of Colorado Springs (City). Thiebaut named three plaintiffs: (1) himself, in his official capacity as District Attorney, (2) the Office of the District Attorney for the Tenth Judicial District of Colorado, and (3) the People of the State of Colorado (collectively Thiebaut). Thiebaut sought injunctive relief and civil penalties against the City for its alleged discharge of pollutants into a creek in violation of the CWA. The district court granted the City's motion for summary judgment, concluding that Thiebaut lacked standing to bring his claims. Thiebaut has appealed that ruling. The Appeals Court affirmed the district court's grant of summary judgment in favor of the City and also held that Thiebaut lacked standing.

 

    Fountain Creek is a watershed that flows through Colorado Springs, Colorado and Pueblo County, Colorado. From 1998 through at least 2007, the City allegedly discharged raw sewage, non-potable water, and chlorine into Fountain Creek in violation of the CWA. The discharges have had a significant adverse impact on Fountain Creek and the recreational opportunities and economy in Pueblo County, Colorado.

 

    The district court rejected all of Thiebaut's arguments. It first stated that Thiebaut did not have direct standing to assert his CWA claims in his official capacity because the Colorado Legislature has not authorized him to file a CWA citizen suit in

federal court. It further stated that Thiebaut did not have parens patriae [i.e. "parent of the nation" or the power and authority of the state to protect persons who are legally unable to act on their own] standing because the Colorado Legislature has not authorized him to invoke the sovereign capacity of the State of Colorado and because "the citizens of Colorado are . . . able to act for themselves in this matter." Finally, the court concluded Thiebaut did not have associational standing because, "[e]ven assuming that the Tenth Judicial District is an 'association' and [that] its citizens are 'members,'" the interests Thiebaut's suit sought to protect are not "germane to his office's purpose."

 

    Thiebaut argued that the district court should have permitted him to remain as a plaintiff in this case after it determined that the Sierra Club had standing. The Appeals Court said, "In other words, Mr. Thiebaut argues that once a court has found that one plaintiff in a case has standing, it must permit all co-plaintiffs to remain in the case even if it determines they do not have standing. We disagree."

 

    The Appeals Court agreed and said in conclusion, "We hold that Mr. Thiebaut does not qualify for parens patriae or associational standing. Additionally, we reject Mr. Thiebaut's 'standing for one is standing for all' theory as applied to this case and hold that the district court did not err in dismissing Mr. Thiebaut's claims even though it determined that the Sierra Club had standing. Because Mr. Thiebaut lacks standing, we affirm the district court's grant of summary judgment in favor of the City and dismiss this appeal."

 

    Access the complete opinion (click here). [#Water, #CA10]

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