Sierra Club v. EPA

Jan  20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-71457 and 10-71458. On Petition for Review of an Order of U.S. EPA. The Appeals Court explains that Sierra Club and several environmental groups, (collectively, Petitioners), petition for review of U.S. EPA's approval of the 2004 State Implementation Plan (2004 SIP) for the San Joaquin Valley's nonattainment area for the one-hour ozone National Ambient Air Quality Standard (NAAQS). Petitioners contend that: 1) EPA acted arbitrarily and capriciously, in violation of the Administrative Procedures Act (APA), by approving the 2004 SIP knowing that the emissions inventory data on which the plan relied were, as an actual matter, outdated and inaccurate by the time EPA approved the plan in 2010; 2) EPA violated the Clean Air Act (CAA) by approving the 2004 SIP because the emissions inventory data on which it relied were outdated and inaccurate within the meaning of the statute; 3) EPA violated the CAA by approving the 2004 SIP without the inclusion of the State-adopted regulations on which the plan relied; and 4) EPA violated the CAA by approving the 2004 SIP knowing that attainment of the one-hour ozone NAAQS by the 2010 deadline was impossible.

 

    The Appeals Court held that EPA's 2010 approval of the 2004 SIP, which was based on data current only as of 2004, was arbitrary and capricious. The Appeals Court indicated that no other issued need be decided. The Appeals Court concluded, "Our role is not to substitute our conclusions based on the facts presented for those of the agency, and we express no opinion as to what conclusion EPA should have reached, with respect to the validity of the 2004 SIP, upon consideration of the 2007 data. But we should not silently rubber stamp agency action that is arbitrary and capricious in its reliance on old data without meaningful comment on the significance of more current compiled data. We hold that EPA's failure to even consider the new data and to provide an explanation for its choice rooted in the data presented was arbitrary and capricious. . . We grant the petition for review and remand the matter to EPA for further proceedings consistent with our decision."

 

    Access the complete opinion (click here). [#Air, #CA9]

 

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Montana Sulphur & Chemical v. U.S. EPA

Jan 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 02-71657 and 08-72642. On Petition for Review of an Order of U.S. EPA. In these appeals, consolidated for decision, the Appeals Court address the propriety of various actions taken by U.S. EPA under the Clean Air Act with respect to Montana air quality from 1993 to 2008.

 

    In No. 02-71657, Montana Sulphur & Chemical Company (Montana Sulphur) seeks review of the EPA's final rule which partially disapproved a proposed revision to Montana's State Implementation Plan (SIP) governing sulfur dioxide (SO2) emissions. 67 Fed. Reg. 22,168 (May 2, 2002). Montana Sulphur also seeks review of a prior EPA action in 1993 known as a "SIP Call," which preceded the formal SIP revision and started the review process. 58 Fed. Reg. 41,430 (Aug. 4, 1993). The final agency action incorporated documents supporting its SIP Call -- in particular EPA reliance on various modeling calculations -- into the administrative record for partial disapproval of the SIP.

 

    In No. 08-72642, Montana Sulphur seeks review of the EPA's April 2008 final rule promulgating a Federal Implementation Plan (FIP) for the State of Montana's SO2 emissions. 73 Fed. Reg. 21,418 (April 21, 2008). The FIP is designed to fill perceived gaps the EPA identified in the SIP. This later appeal focuses on the EPA's authority to promulgate the FIP and the reasonableness of certain specific requirements set forth therein.

 

    The Appeals Court ruled, "Because we conclude that the agency did not act arbitrarily or capriciously with respect to either the SIP or FIP, we deny both petitions for review." The Justices said further, ". . . we conclude the EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP. We therefore deny the petition for review in both 02-71657 and 08-72642."

 

    Explaining further, they said, "The EPA's continued use of the ISC model was not arbitrary or capricious. The model was properly employed at both the time of the state SIP and the proposed FIP. The FIP did not replace the entire SIP, but only the limited portions the EPA had disapproved; because use of a different model could have yielded results that did not comport with the remainder of the SIP, it was not arbitrary or capricious for the EPA to continue with the existing model despite some later technological improvements." Montana Sulphur had argued that the EPA acted arbitrarily and capriciously because it used outdated modeling in the FIP.

 

    Access the complete opinion (click here). [#Air, #CA9]

 

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Hearts Bluff Game Ranch, Inc. v. U.S.

Jan 19: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5164. Appealed from the United States Court of Federal Claims. The Appeals Court explains that Hearts Bluff Game Ranch, Inc. (Hearts Bluff) appeals from the decision of the United States Court of Federal Claims (the Claims Court) dismissing its claim for just compensation under the Fifth Amendment for an alleged taking based on the Army Corps of Engineers' (the Corps') denial of Hearts Bluff's proposal to operate a mitigation bank on its property. Hearts Bluff Game Ranch, Inc. v. United States, No. 09-498L (Ct. Cl. June 11, 2010) (the Order). The Appeals Court ruled, "Because Hearts Bluff did not have a cognizable property interest in obtaining a mitigation banking instrument, we affirm."

 

    The Appeals Court ruled further, "As for Hearts Bluff's assertion that the denial of the mitigation banking instrument was arbitrary and capricious, that issue is not before us. Hearts Bluff brought suit under the Tucker Act, a concession that the government action was valid. Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993) ('[The] claimant must concede the validity of the government action which is the basis of the taking claim to bring suit under the Tucker Act.'). In order to challenge the legality of the denial of the mitigation banking instrument, Hearts Bluff would have had to sue in a district court under the Administrative Procedure Act. Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (The Court of Federal Claims 'lacks the general federal question jurisdiction of the district courts, which would allow it to review [an] agency's actions and to grant relief pursuant to the Administrative Procedure Act.'). It did not."

 

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

 

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System Fuels v. U.S.

Jan 19: In these two separate and related cases in the U.S. Court of Appeals, Federal Circuit, Case Nos. 2008-5025, -5035; and Case Nos. 2010-5116, -5117. Appealed from the United States Court of Federal Claims.

 

    In the first case, after trial, the United States Court of Federal Claims awarded Plaintiffs-Cross Appellants System Fuels, Inc. and Entergy Arkansas, Inc. (collectively SFI Arkansas or Plaintiffs) damages arising from the Department of Energy's (DOE) partial breach of a contract. System Fuels, Inc. v. United States, 79 Fed. Cl. 37, 40 (2007). The majority Appeals Court said, "Because the trial court properly declined to offset the damages award by the amount of Plaintiffs' one-time fee, this court affirms. On the other hand, this court reverses the trial court's denial of Plaintiffs' capital suspense loader costs. This court also remands the action for analysis in view of this court's decisions in Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008) and Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008)."

 

    In the second case, on summary judgment, the United States Court of Federal Claims determined that the United States breached its contract with Plaintiffs-Appellants System Fuels, Inc., System Energy Resources, and South Mississippi Electric Power Association (collectively Plaintiffs) for the removal of spent nuclear fuel. Sys. Fuels, Inc. v. United States, 66 Fed. Cl. 722, 732-33 (2005) (SFI I). The trial court also granted summary judgment in favor of the Government regarding the implied covenant of good faith and fair dealing. Id. at 735. The trial court set damages for the breach at $10,014,114 as well as the cost of borrowed funds for financing the construction of the dry fuel storage project. Sys. Fuels, Inc. v. United States, 78 Fed. Cl. 769, 809 (2007) (SFI II). On reconsideration, the trial court reduced damages to $9,735,634 and denied the cost of borrowed funds. Sys. Fuels, Inc. v. United States, 92 Fed. Cl. 101, 114 (2010) (SFI III). The majority Appeals Court ruled, "This court affirms the trial court's denial of borrowing costs and reverses the denial of overhead costs. On damages, this court affirms the trial court's award."

 

    The majority said further, "Because the trial court properly adhered to the decision of England [England v. Contel Advanced Systems, Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004)], this court affirms the denial of Plaintiffs' claim for the cost of borrowed funds. This court reverses the trial court's denial of overhead costs. This court affirms the trial court's causation analysis and revised award of nominal damages."

 

    The dissenting Justice in both cases said, "I concur in the court's opinion and the rulings based thereon, with the exception of the ruling that damages for breach of contract cannot include the cost of financing the construction and storage expenditures required to mitigate the breach. As explained in my dissenting opinion in the companion case, System Fuels, Inc. v. United States, No. 2010-5116, -5117, these costs were incurred solely because of the government's breach of contract, and thus are recoverable as damages for the breach."

 

    Access the complete opinion in case one (click here). Access the complete opinion in case two (click here). [#Haz/Nuclear, #Energy/Nuclear, #CAFed]

 

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Jon Bowers v. Richard Whitman

Jan 12: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-35966 & 10-36029. Appealed from the United States District Court for the District of Oregon. The Appeals Court explained that In this consolidated appeal, the Appeals Court must determine whether the State of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs' due process rights, or violated Plaintiffs' equal protection rights when Oregon voters enacted Measure 49 to replace and modify remedies available under the previous Measure 37.

   

    All of the Plaintiffs in the cases are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37 and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and, because of Measure 49, none have been able to proceed with any development of their land under the waivers granted.

 

    Measure 37 required "state and local governments to compensate private property owners for the reduction in the fair market value of their real property that results from any land use regulations of those governmental entities that restrict the use of the subject properties." Measure 49, was also approved by the voters and The Oregon Supreme Court examined the text and context of Measure 49 and found that it "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners."

 

    The Appeals Court ruled, "We conclude that Oregon did not commit a constitutional taking when it modified the remedies available under Measure 37, because any potential property interest that Plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class, Measure 49 also survives rational basis scrutiny and has not violated Plaintiffs' equal protection rights. Therefore, we affirm the district court."

 

    Access the complete opinion (click here). [#Land, #CA9]

 

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Ohio River Valley v. Kenneth Salazar (Interior Dept.)

Jan 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1049. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. In this unpublished opinion which is not binding precedent in the circuit, the appeal concerns West Virginia's statutory and regulatory program under the Surface Mining Reclamation and Control Act of 1977 (SMCRA). Appellants Ohio River Valley Environmental Coalition, Inc. and West Virginia Highlands Conservancy, Inc. (collectively OVEC) challenge Appellee Kenneth Salazar's approval, in his official capacity as Secretary of the Interior (Secretary), of two amendments to West Virginia's surface coal mining regulations.

 

    On cross-motions for summary judgment, the district court considered OVEC's argument that the Secretary's approval was arbitrary and capricious because the amendments violate SMCRA's mandate that "[n]othing in [the Act] shall be construed as superseding, amending, modifying, or repealing" the Clean Water Act (CWA), 33 U.S.C. §§ 1151-75, "the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality," 30 U.S.C. § 1292(a)(3). The district court denied OVEC's motion for summary judgment, granted summary judgment in favor of the Secretary and Intervenors-Appellees West Virginia Department of Environmental Protection (WVDEP) and West Virginia Coal Association (WVCA) (collectively Intervenors), and entered a final judgment in favor of the Secretary and Intervenors. The Appeals Court affirmed the district court decision.

 

    The focus of this case is West Virginia's regulatory provision requiring WVDEP to prepare a CHIA [cumulative hydrologic impact assessment] in conjunction with its review of surface coal mining permits. West Virginia's first proposed amendment repeals its definition of "cumulative impact" in the State's CHIA provision and the second amendment at issue in this case adds a definition for "material damage to the hydrologic balance outside the permit area."

 

    The Appeals Court concluded that, ". . .we agree with the district court's analysis. The district court properly determined that the Secretary 'has provided an adequate basis for his approval' and that 'West Virginia's material damage definition does not supersede, amend, modify, or repeal the [CWA].' . . Accordingly, we affirm on the basis of the district court's well reasoned opinion."

 

    Access the complete opinion (click here). [#Energy/Coal, #Water, #CA4]

 

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SCOTUS Hears Arguments In Sackett v. EPA Wetlands Case

Jan 9: The U.S. Supreme Court (SCOTUS) heard oral arguments in the case of Chantell and Michael Sackett v. U.S. EPA (SupCt No.10-1062). The case is being appealed from the Ninth Circuit [See WIMS 9/21/10]. In the case the Ninth Circuit said, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."

 

    Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from EPA claiming that they filled a jurisdictional wetland without a Federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years. The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to Federal jurisdiction. The questions presented to the Supreme Court are: Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a) (3) of the Clean Water Act?

 

    Access the transcript of the oral arguments (click here). Access the merit briefs and numerous amicus briefs filed in the case (click here). Access the SupCt docket in the case (click here). [#Water, #SCOTUS]

 

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