Travelers Casualty & Surety Co. v. Providence Washington Ins

Jul 12: In the U.S. Court of Appeals, First Circuit, No. 11-2193. Appealed from the District Court of Rhode Island, Providence. In summarizing the case the Appeals Court indicates that, invoking diversity jurisdiction, appellant Travelers Casualty and Surety Company, Inc. (Travelers) sought a declaratory judgment that appellee Providence Washington Insurance Company, Inc. (PWIC) is obliged to join in the defense of New England Container Company, Inc. (NE Container or NECC), in connection with a contribution action involving clean-up costs for the Rhode Island Centredale Manor Superfund Site. Granting summary judgment to PWIC, the district court ruled that PWIC did not owe NE Container a duty to defend in the underlying action. The Appeals Court ruled, "On Travelers' appeal, we reverse the decision, vacate the judgment, and remand."

 

    The Appeals Court concludes, "In the end, we conclude that under the pleadings test, the Emhart complaint [Emhart Industries, Inc. also a responsible party] triggered PWIC's duty to defend under its policies issued in the mid-1980s. In so holding, we recognize that there is exponentially more to this sprawling litigation than the Emhart complaint and the PWIC policies. Litigation involving environmental damage at the Superfund Site was well on its way prior to the 2006 Emhart action, and the Emhart action had advanced beyond a nascent stage by the time Travelers pursued its 2010 action against PWIC. The duty to defend question before us, however, begins and ends with the Rhode Island pleadings test. Having concluded this task, our review is complete.

 

    "We reverse the district court's decision, vacate the judgment in favor of PWIC, and remand for the district court to enter judgment in favor of Travelers that the Emhart complaint triggered PWIC's defense obligations under its policies. Any remaining requests for relief sought by Travelers will be addressed by the district court in due course."

 

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

 

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Kansas Gas & Electric Co. v. U.S.

Jul 12: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5044, 2011-5045. Appealed from the United States Court of Federal Claims. In this partially mixed opinion, Kansas Gas and Electric Company (KG&E), Kansas City Power & Light Company (KCPL), and Kansas Electric Power Cooperative, Inc. (KEPCO) (collectively the Kansas Companies) suffered damages due to the Government's partial breach of the Standard Contract for Disposal of Spent Nuclear Fuel And/Or High-Level Radioactive Waste (Standard Contract). In June 2010, the United States Court of Federal Claims conducted a nine-day trial and awarded the Kansas Companies $10,632,454.83.

 

    The majority indicated, "In determining the amount of damages, the trial court correctly did not award damages for cost of capital and for the costs associated with researching alternative storage options for spent nuclear fuel (SNF) and high level radioactive waste (HLW). The trial court also appropriately reduced the Kansas Companies' damages by the value of the benefit they received as a result of their mitigation activities. However, the trial court erred by not accepting the Kansas Companies' reasonable method for calculating overhead costs. Therefore, this court affirms-in-part and reverses-in-part the trial court's damages award."

 

    The majority court ruled, "The Kansas Companies' method for calculating over-head costs was reasonable and complied with FERC accounting standards. As such, this court reverses the trial court's refusal to accept these calculations. This court affirms the remainder of the trial court's decision. As such, there is no need to address the issues raised in the Government's cross-appeal."

 

    In a partial dissent, one Justice indicated, "The majority concludes that when the Kansas Companies used Federal Energy Regulatory Commission (FERC)-compliant accounting practices to allocate overhead to their mitigation efforts, they were dispositively entitled to recover the full amount of that overhead as damages. I respectfully disagree. When, as here, a trial court is presented with evidence that regulatory accounting practices were used to calculate the amount of overhead attributable to mitigation projects, that amount is presumptively a correct measure of damages for over-head. And our precedent firmly establishes that a trial court is not free to disregard it simply because it questions the precision of the accepted accounting practice."

 

    Access the complete opinion (click here). [#Haz/Nuclear, #CAFed]

 

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Tinicum Township v. US Department Of Transportation

Jul 6: In the U.S. Court of Appeals, Third Circuit, Case No. 11-1472 On Petition for Review of an Order of the United States Department of Transportation, Federal Aviation Administration. The Appeals Court explains this is an appeal of the Federal Aviation Administration's approval of a significant expansion of Philadelphia International Airport. Disputing the FAA's air quality analysis, Petitioners (collectively Tinicum) allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the consistency provision of the Airport and Airway Improvement Act, 49 U.S.C. § 47106(a)(1).

 

    The Appeals Court ruled, "Because we find the Federal Aviation Administration's decision was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' 5 U.S.C. § 706(2)(A), we will deny the petition for review." The Appeals Court said, "We review the FAA's action under the APA's arbitrary and capricious standard. . .  We confine our review to the administrative record upon which the FAA's Record of Decision was based."

 

    Further, the Appeals Court outlined the extent of its review saying, "Citing the EPA's comments, Tinicum alleges five technical errors in the FAA's air quality analysis that purportedly render its environmental review inadequate under NEPA. Each allegation pertains to a category of data excluded from the FAA analysis. While additional data might enable a more detailed environmental analysis, NEPA does not require maximum detail. Rather, it requires agencies to make a series of line-drawing decisions based on the significance and usefulness of additional information. . . With this in mind, we review the FAA's air quality analysis, considering each of the alleged technical defects. . ."

 

    The Appeals Court concluded, "In sum, the FAA gave serious consideration and reasonable responses to each of the EPA's concerns. As the lead agency, the FAA has some latitude to determine the level of analytical detail necessary to support an informed decision and to adequately disclose air quality impacts to the public. The technical errors alleged by Tinicum do not render the FAA's air quality analysis arbitrary or capricious." The Appeals Court also denied a request by the Township for a supplemental EIS, saying, "Where new information merely confirms the agency's original analysis, no supplemental EIS is indicated."

 

    Finally, Tinicum contends the FAA failed to comply with the consistency requirement of the Airport and Airway Improvement Act (AAIA), which provides that the FAA may only approve an airport project if it is "consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the airport." 49 U.S.C. § 47106(a)(1). The Appeals Court ruled, "The FAA reasonably looked to the DVRPC's [Delaware Valley Regional Planning Commission's] plans in making its consistency determination. Accordingly, that determination was neither arbitrary nor capricious."

 

    Access the complete opinion (click here). [#Air, #Transport, #Land, #CA3]

Delaware DNR v. US Army Corps of Engineers

Jul 3: In the U.S. Court of Appeals, Third Circuit, Case Nos. 11-1283 & 11-1421. Appealed from the United States District Court for the District of Delaware. According to the Appeals Court, at issue is whether the U.S. Army Corps of Engineers can deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive and at the same time, comply with statutes that protect the environment. The roots of the project trace back decades.

 

    In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next twenty years. Commencement was delayed for several reasons, but in the fall of 2009, the Corps was ready to proceed. In October 2009, New Jersey and Delaware filed suits in the District Courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel. They alleged violations of the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Coastal Zone Management Act (CZMA). Each District Court granted summary judgment to the Corps, holding no environmental statutes would be breached. The Appeals Court affirmed.

 

    Over the decades an Environmental Impact Statement, a Supplemental Environmental Impact Statement, and an updated  Environmental Assessment recommended the project proceed because its substantial economic benefits outweighed any possible adverse environmental effects. Citing numerous related decisions from other circuits, the Appeals Court said, "In our review of the Corps' conduct, we conclude that its publication of the 2009 EA was neither arbitrary nor capricious."

 

    The Appeals Court said further, "Despite the Corps' comprehensive public engagement, appellants contend it acted arbitrarily and capriciously under NEPA. They argue the Corps provided inadequate public notice; erred in declining to publish a FONSI alongside the EA; erred in not circulating a draft of the EA for public review before publication; and did not meaningfully review the comments submitted. None of these claims has merit."

 

    The Appeals Court concludes, "For over twenty years, the Corps has devoted substantial efforts to evaluating the proposed five foot deepening project for the Delaware River. It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies. Its decision in 2009 to proceed with the project was consistent with NEPA, the CWA, and the CZMA. Accordingly, we will affirm the judgments of the District Courts of New Jersey and Delaware."

 

    Access the complete opinion (click here). [#Water, #Wildlife, #Land, #CA3]

 

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Notice: July 4, 2012

Subscribers & Readers Note:

WIMS will not be publishing today,

July 4, 2012. We'll be back on July  5.

Be safe, stay cool, and

enjoy your July 4th holiday.

U.S. v. CB & I Constructors, Inc.

Jun 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55371. Appealed from the United States District Court for the Central District of California. According to the Appeals Court, defendant CB&I Constructors, Inc., (CB&I) negligently caused a June 2002 wildfire that burned roughly 18,000 acres of the Angeles National Forest in Southern California. The United States brought a civil action against CB&I to recover damages for harm caused by the fire. CB&I does not contest its liability or the jury's award of roughly $7.6 million in fire suppression, emergency mitigation, and resource protection costs. It challenges only the jury's additional award of $28.8 million in "intangible environmental damages."

 

    The district court denied CB&I's motions for judgment as a matter of law and a new trial or remittitur, concluding that under California law the government could recover damages for all of the harm caused by the fire, including intangible harm to the environment. The district court "held that the government provided sufficient evidence for the jury to determine the amount of environmental damages, and that the resulting award was not grossly excessive." The appeals Court affirmed the district court decision.

 

    In calculating the intangible harm, the jury also awarded the government an additional $28.8 million or $1,600 per acre of burned National Forest land. The Appeals Court indicated that CB&I and Amici argue that the government may not recover intangible environmental damages because noneconomic damages are not recoverable in negligence suits regarding harm to real property. However, the Appeals Court said, "CB&I and Amici err by relying on cases that merely limit damages for emotional distress or suffering. . . In sum, we see nothing in California law that prevents the federal government from recovering intangible, noneconomic environmental damages for a negligently set fire."

 

    Regarding the intangible harm, the government did not provide testimony on a specific dollar amount, but did provide testimony concerning the "extensive destruction and harm to animal habitats, soils, and plant life. This testimony included the harm caused by the fire to the endangered California red-legged frog and the destruction of the historic Hazel Dell mining camp." The Appeals Court said it agreed with the district court that the trial provided sufficient evidence for the jurors to quantify the intangible environmental harm.

 

    The Appeals Court said, "Given the scope of the environmental harm caused by the Copper Fire, we agree with the district court that the jury's damage award of $1,600 per acre was not grossly excessive or against the clear weight of the evidence. We conclude that the district court did not abuse its discretion by denying CB&I's motion for a new trial or remittitur."

 

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

 

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Snoqualmie Valley Preservation Alliance v. U.S. Army Corps

Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35459. Appealed from the United States District Court for the Western District of Washington. The Appeals Court explains that Puget Sound Energy (PSE) maintains and operates a hydroelectric power plant at the 268-foot-high Snoqualmie Falls in the State of Washington. The Snoqualmie River drains a large watershed above the falls, and all of the water from this area must pass through a single narrow channel before it reaches the falls, creating a bottleneck during heavy rains. This subjects the City of Snoqualmie, located just upstream of the falls, to persistent and significant flooding.

 

    In the process of upgrading and modifying the plant, PSE plans to lower the dam located in the channel above the falls in order to mitigate these upstream flooding problems. PSE has already obtained a license for the project from the Federal Energy Regulatory Commission (FERC). Because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the Clean Water Act (CWA) without a permit, PSE sought verification from the U.S. Army Corps of Engineers (Corps) that it could proceed under a series of general nationwide permits (NWPs) authorizing certain discharges, rather than applying to the Corps for an individual permit.

 

    The Corps verified that it could. Downstream property owners formed the Snoqualmie Valley Preservation Alliance (Alliance) to challenge this decision, which they contend will exacerbate flooding problems below the falls. The district court granted summary judgment for the Corps and the Appeals Court affirm the district court decision.

 

    The Alliance challenged a Verification Letter as inadequate, however, the Appeals Court said, "The Verification Letter at issue here does state reasons for the action taken: the agency verified that PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39. This conclusion is amply supported by facts in the administrative record. To require more would be contrary to the regulatory scheme, which devised the system of general nationwide permits to streamline the process, reduce redundancy, and conserve agency resources."

 

    The Appeals Court also responded to a NEPA challenge saying, "The Alliance bases its NEPA claim on the argument that the Corps was required by the CWA to inform PSE that it could not proceed under general nationwide permits, but instead must apply for an individual permit. However, because the Corps did not violate the CWA, it also did not violate NEPA. Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of the verification."

 

    Access the complete opinion (click here). [#Water, #Energy/Hydro, #CA9]

 

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