Defenders Of Wildlife v. Bureau Of Ocean Energy Management

Jun 22: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-12598 & 11-12599. Petitions for Review of a Decision of the Department of the Interior. The case concerns a challenge to an exploratory drilling plan under the Outer Continental Shelf Lands Act (OCSLA). 43 U.S.C. § 1331 et seq. The Bureau of Ocean Energy Management (BOEM) approved the Shell Exploration Plan S-7444 (Shell EP) to conduct drilling in the Gulf of Mexico. The Shell EP covers ten exploratory wells on offshore Alabama leases in the Central Gulf of Mexico between 7,100 and 7,300 feet deep.

 

    The case is a consolidated appeal in which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et al. (Petitioners), filed comments on the Shell EP, participated in the administrative proceeding, and filed the petition for review. The only issues on petition for review are whether the Shell EP violates the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), 16 U.S.C. § 1536 et seq. The Appeals Court ruled, "After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we deny the petition for review."

 

    The Appeals Court said, "Petitioners insist, BOEM's decision not to prepare an EIS and its subsequent FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our extremely deferential 'arbitrary or capricious' standard of review." Among other items, Petitioners argue that BOEM failed to include a site-specific analysis of potential catastrophic spills and underestimated the likelihood of a spill. However, the Appeals Court indicates, "To the contrary, the EA extensively analyzes the risks and consequences of such an event. Appendix B of the EA, 'Catastrophic Spill Event Analysis,' evaluates the impact of a low-probability catastrophic spill. After taking into account regulations put into effect after the Deepwater Horizon disaster, BOEM determined that the risk of another spill was low. While this analysis is derived from a generalized scenario, it is based on the only two large spill disasters in the Gulf of Mexico -- the 1979 Ixtoc blowout in the Bay of Campeche Mexico and the 2010 Deepwater Horizon disaster. An oil spill is an unexpected event, and its parameters cannot be precisely known in advance. Thus, it is appropriate for BOEM to summarize potential impacts resulting from a hypothetical oil spill."

 

    Further the Petitioners argued that BOEM's failed to evaluate the worst case discharge spill of 405,000 barrels of oil per day, but the appeals Court ruled, ". . .BOEM is not required to base its NEPA analysis on a worst case scenario. . . NEPA does not require a 'worst case discharge' analysis. Thus, we conclude that BOEM's reliance on analysis based on a lower spill rate, which it determined to be more likely than the worst case discharge, was not arbitrary or capricious or in violation of NEPA."

 

    Additionally, Petitioners' final complaint with BOEM's site-specific analysis is that the EA fails to discuss some endangered species present in the Gulf, including the piping plover, Gulf sturgeon, and various species of beach mice. The Appeals Court said, "Petitioners suggest that every EA requires a detailed analysis of each species that could possibly be affected by a potential oil spill. NEPA clearly does not require such analysis. An EA is intended to be a document that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].' 40 C.F.R. § 1508.9(a)(1). Although the EA does not describe every possible environmental effect of an oil spill, BOEM took a hard look at environmental impacts, and its site-specific analysis of expected drilling operations is consistent with NEPA."

 

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

 

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National Association of Home Builders v. U.S. EPA

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1183. On Petition for Review of a Final Rule of the Environmental Protection Agency. The case involves the 2008 rule issued by the U.S. EPA regulating renovation and remodeling activities that create health hazards arising from lead paint. The rule contained an "opt-out" provision, which exempted owner-occupied housing from the rule's requirements if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision.

 

    The National Association of Home Builders (NAHB) and other trade associations petitioned for review of the amended rule on two grounds: (1) that the decision to abandon the opt-out provision was arbitrary and capricious, in violation of the Administrative Procedure Act (APA); and (2) that EPA failed to convene a panel of representatives of small businesses before issuing the new rule, in violation of the Regulatory Flexibility Act. The Appeals Court ruled, "Because we conclude that EPA's decision was not arbitrary or capricious, and because we lack jurisdiction to entertain the petitioners' second challenge, we deny the petition for review."

 

    NAHB argued that it was arbitrary and capricious for EPA to change its mind about the opt-out provision. In 2008, they said, EPA "provided a reasoned basis for its approach that was consistent with congressional intent." In contrast, they said, "EPA has provided no justification for its decision to reverse course . . . that is grounded in any information or experience that was not available to the Agency when it included the Opt Out Provision in the original rule."

 

    The Appeals Court said, "This kind of argument is largely foreclosed by FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), in which the Supreme Court declared that there is 'no basis in the Administrative Procedure Act or in our opinions for a

requirement that all agency change be subjected to more searching review.'" The Appeals Court said further, "In light of Fox, we must reject the petitioners' contention that, 'because the Rule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.' The fact that the original opt-out provision was consistent with congressional intent is irrelevant as long as the amended rule is also 'permissible under the statute.'" The Appeals Court also ruled that EPA satisfied the core requirement that Fox makes clear that an agency must meet when changing course: it must "provide reasoned explanation for its action," which "would ordinarily demand that it display awareness that it is changing position."

 

    On the second issue, the Appeals Court indicates that the small business advocacy review panel requirement "is a purely procedural device, a process by which interested parties can present their views to the agency. . . And courts may not, under the guise of the APA's arbitrary-and-capricious review standard, impose procedural requirements that the APA's procedural provisions. . .do not themselves impose."

 

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

 

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Patton Boggs, LLP v. Chevron Corporation

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-7082 & 11-7089. Appeals from the United States District Court for the District of Columbia. The Appeals Court explains this case is but a small part of a long-running and now sprawling international litigation battle in which various indigenous Ecuadorian groups claim that Chevron Corporation is liable for environmental harm caused in the Amazon over three decades. Patton Boggs LLP represents the plaintiffs and would like to continue to do so. The Appeals Court said, "The district court denied Patton Boggs both a declaratory judgment that it could not be disqualified from that representation and leave to amend its complaint with claims that Chevron and its counsel, Gibson, Dunn & Crutcher LLP, tortiously interfered with the firm's contract with its clients. . . we affirm the district court."

 

    The Appeals Court said further, "The complaint does not allege the requisite 'plausible scenario' that could show Patton Boggs is entitled to relief. Jones, 634 F.3d at 595. We agree with the district court that the allegation is nothing but 'an unadorned, the-defendant-unlawfully-harmed-me accusation.' Chevron II, 825 F. Supp. 2d at 42 (quoting Iqbal, 556 U.S. at 678). . ."

 

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

 

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Southern Union Co. v. United States

Jun 21: In the U.S. Supreme Court, Case No. 11-94. Appealed from the U.S. Court of Appeals, First Circuit [See WIMS 1/4/11]. Justices Sotomayor, Roberts, Scalia, Thomas, Ginsburg and Kagan were in the majority. Justice Breyer filed a dissenting opinion in which Kennedy and Alito joined. The case raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.

 

    In summary, the majority says, "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000); Blakely v. Washington, 542 U. S. 296 (2004). We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does."

 

    In this case, Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Island. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mercury, and spread it around the facility and complex. The complex's residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.

 

    Violations of the RCRA are punishable by, inter alia, "a fine of not more than $50,000 for each day of violation." §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation's approximate start date (i.e., "on or about"), and argued that the court's instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require fact-finding by the court, in contravention of Apprendi.

 

    The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the "content and context of the verdict all together" that the jury found a 762-day violation.

    The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a "community service obligatio[n]" of $12 million. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court's conclusion that the jury necessarily found a violation of 762 days. But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. Other Circuits have reached the opposite conclusion. The majority Supreme Court said, "We granted certiorari to resolve the conflict. . . and now reverse. . . We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

    The High Court explains, "Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U. S., at 490. The 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not 'inflict[to] punishment that the jury's verdict alone does not allow.'"

    The dissenting opinion indicates, "Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts -- facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that 'the finding of a particular fact' of this kind was ordinarily a matter for a judge and not necessarily 'within "the domain of the jury."' Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court's contrary conclusion, I believe, is a historical and will lead to increased problems of unfairness in the administration of our criminal justice system."

    Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access the oral argument transcript (click here). Access the briefs filed in the case (click here). [#Haz, #Remed, #SupCt]

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The Save The Peaks Coalition v. U.S. Forest Service

Jun 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona [See WIMS 2/10/12]. The Appeals Court explains that Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's

fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, "grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate."

 

    The Appeals Court indicates, ". . .we find that Shanker's conduct merits sanctions against him personally. As detailed in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), Shanker grossly abused the judicial process in bringing this case solely 'to ensure further delay and forestall development' at Snowbowl. Save the Peaks Coal., 669 F.3d at 1028. Shanker acted with subjective bad faith. He engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). His intent was to harass Snowbowl. Therefore, we conclude that Shanker is subject to sanctions under § 1927. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002); New Alaska Dev. Corp., 869 F.2d at 1306."

 

    The Appeals Court says, "As an appropriate remedy, we hold Shanker 'personally liable for excessive costs for unreasonably multiplying proceedings.' Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney's fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl's favor against Shanker. Therefore, the court awards costs in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896) to Snowbowl, to be paid entirely by Shanker, counsel for Plaintiffs-Appellants. Thus, Snowbowl's Motion for Attorneys' Fees is denied, and its accompanying motion for costs is granted, as modified by this order."

 

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

 

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Pacific Rivers Counsel v. US Forest Service

Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565. Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, "This court's opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012) [See WIMS 2/6/12], is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied."

 

    According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental

Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, "The gravamen of Pacific Rivers' complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians." On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

 

    The Appeals Court rules, "Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service's analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service's analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court."

 

    In a lengthy dissenting opinion, one Justice concludes, ". . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . ."

 

    Access the complete opinion and dissent (click here). [#Land, #Water, #Wildlife, #CA9]

 

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U.S. v. California State Lands Commission

Jun 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56568. Appealed from the United States District Court for the Southern District of California. The California State Lands Commission (the Lands Commission) appeals the district court's final judgment in this eminent domain case, wherein the United States took a fee simple interest in about 32.42 acres of land (the Property) on behalf of the Navy, which has continuously leased this parcel since 1949. In condemning the Property, the United States sought to extinguish California's public trust rights. The Lands Commission contends that California's public trust rights cannot be extinguished by the United States' power of eminent domain.

 

    The Appeals Court notes that the Lands Commission does not dispute the United States' power to take and use the land without trust restrictions. Instead, it asks the Appeals Court to hold that California's public trust rights become "quiescent" while the United States owns the land but will "re-emerge" if the United States seeks to transfer the Property to a private party.

 

    The district court held that the United States' condemnation extinguished California's public trust on the entire parcel, and that the 27.54 acres which are filled can be conveyed to a private party free of any trust, but that the 4.88 acres that remained tidelands at the time of the taking are now subject to a Federal public trust and may not be conveyed to a private party.

 

    The Appeals Court said, "The issue before us is whether the United States can extinguish California's public trust rights when exercising its federal power of eminent domain. We hold that it can, and affirm the judgment of the district court." The Appeals Court explains further, "Having paid just compensation, the United States is entitled to the interest it sought in its complaint in condemnation: full fee simple, free of California's public trust. We have concluded that neither the equal-footing doctrine nor the public trust doctrine prevents the federal government from taking that interest in the land unencumbered."

 

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

 

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