Natural Resources Defense Council v. U.S. EPA

Jan 4: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1250, consolidated with 09-1102 and 11-1430. On Petitions for Review of Final Rules of U.S. EPA. The four petitioners (Natural Resources Defense Council, Sierra Club, American Lung Association and Medical Advocates for Healthy Air) seek review of two final rules, promulgated pursuant to the Clean Air Act (CAA, Act), which govern implementation of the national ambient air quality standard (NAAQS) for "fine" particulate matter -- particulate matter (PM) having a diameter equal to or less than 2.5 micrometers (PM2.5). See Final Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586 (Apr. 25, 2007) (PM2.5 Implementation Rule); and Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed. Reg. 28,321 (May 16, 2008) (PM2.5 NSR Implementation Rule) (collectively, Final PM2.5 Implementation Rules).

 

    In particular, the Appeals Court explains and concludes, ". . .the petitioners challenge the decision of the Environmental Protection Agency (EPA) to promulgate the Final PM2.5 Implementation Rules pursuant to the general implementation provisions of Subpart 1 of Part D of Title I of the Act, 42 U.S.C. §§ 7501-7509a (Subpart 1), rather than the particulate-matter-specific provisions of Subpart 4 of Part D of Title I, id. §§ 7513-7513b (Subpart 4). We agree with the petitioners that EPA erred in applying the provisions of Subpart 1 rather than Subpart 4."

 

    The Appeals Court makes several conclusions saying: "First, EPA claims Subpart 4 'contains requirements that are expressly based upon the form of the PM10 NAAQS.' . . . This may be true but Subpart 4 also expressly governs implementation of the 'PM-10' standard. . . Thus, under Chevron step 1, EPA must implement all standards applicable to PM10 -- including its PM2.5 standards -- pursuant to Subpart 4."

 

    "Second, EPA urges that because in the 1987 PM NAAQS Revisions, it 'had considered whether to establish a separate NAAQS for fine particles, using PM2.5 as the indicator,' the Congress should have foreseen that it might do so later. . . It is not at all clear that the Congress should have so foreseen -- EPA cites a single, vague footnote to support its claim the Congress was on notice such a change was likely. . ."

 

    "EPA also argues that the Congress 'could have easily used the general term "particulate matter," rather than the

specific term "PM-10."' That the Congress could have done so does not negate the reality that the 'PM10' standard to which the Congress referred in fact included fine PM2.5 (both under the 1987 Rule and the 1990 statutory definition)."

 

    "In a final Chevron step 1 effort, EPA asserts that the legislative history makes the Congress's intent clear. Assuming legislative history could override the plain, unambiguous directive of Subpart 4, the history cited here is unconvincing. . . EPA additionally argues that its 'reading of the act is, at minimum, a "permissible" interpretation entitled to deference under Chevron step two.' . . . This argument is foreclosed, however, under Chevron step 1 because the statute is plain on its face."

 

    Finally, the Appeals Court concludes, "For the foregoing reasons, we grant the petitions for review of the Final Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586 (Apr. 25, 2007), and the Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed. Reg. 28,321 (May 16, 2008). We remand to EPA to repromulgate these rules pursuant to Subpart 4 consistent with this opinion." In a footnote, the Appeals Court says further, "

In light of our disposition, we need not address the petitioners' challenge to the presumptions in 40 C.F.R. § 51.1002(c)(3)-(4) that 2.5 volatile organic compounds and ammonia are not PM precursors as Subpart 4 expressly governs precursor presumptions. . . Moreover, we decline the petitioners' invitation to set a deadline for EPA upon remand or to retain jurisdiction pending such

action." The Appeals Court also cites previous decisions reminding that "mandamus affords a remedy for undue delay."

 

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

 

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In Re: Endangered Species Act Section 4

Jan 4: In the U.S. Court of Appeals, D.C. Circuit, Case No. MDL No. 2165. Appeal from the United States District Court for the District of Columbia. The Appeals Court summarizes saying the Center for Biological Diversity and the WildEarth Guardians sued to compel the Secretary of the Interior and the U.S. Fish and Wildlife Service (together, the Service) to comply with deadlines set forth in the Endangered Species Act, 16 U.S.C. § 1533(b)(3), for determining whether to list species as endangered or threatened. As the cases neared settlement, the Safari Club International (Safari Club) moved to intervene pursuant to Federal Rule of Civil Procedure 24 in order to oppose the settlements which would include three species that its members hunt. The district court denied intervention and approved the settlement agreements. The Appeals Court indicated, "On appeal, the Safari Club contends it qualified for intervention as of right, as well as permissively." The Appeals Court affirmed the district court denial. 

 

    The Appeals Court rules in part, ". . .the basis for the Safari's Club's motion for permissive intervention is the same as that for intervention as of right. To that extent the questions are 'inextricably intertwined.' It remains, however, an open question in this circuit whether Article III standing is required for permissive intervention. . .

 

    "If standing is required, then the Safari Club could not succeed on this theory, for the reasons discussed in Part II. If it is not, then the Safari Club would need to show that the district court abused its discretion in concluding that allowing the Safari Club to intervene this late in the settlement process would cause undue delay and prejudice by forcing the Service to continue to litigate instead of working to meet the agreed upon schedule in the settlement agreements, thereby consuming scarce resources and jeopardizing the settlements. Section 4 Deadline Litig., 277 F.R.D. at 8–9. This court has long acknowledged the 'wide latitude afforded' to district courts under Rule 24(b). National Children's Center, 146 F.3d at 1046 (internal citations omitted). 'In view of this unresolved standing issue, however, we think it inappropriate to exercise our pendant jurisdiction.' In re Vitamins, 215 F. 3d at 32. . . Accordingly, we affirm the decision of the district court without reaching the Safari Club's objections to the settlement agreements."

 

    Mark Salvo, Wildlife Program Director for WildEarth Guardians said in a release, "This is the right decision, and we are thankful for the Court's opinion. The decision preserves an effective, efficient, progressive settlement agreement that is already working to protect and recover endangered species."

    WildEarth Guardians indicated that the settlement agreement, approved by the District Court in September 2011, requires the Fish and Wildlife Service to address 252 candidate species for listing under the Endangered Species Act before the end of FY 2016. The agreement has already resulted in 54 new species listings and the designation of 94,689 acres and 2,032 stream miles of critical habitat to support their recovery. These include a suite of freshwater mussels in Alabama and Florida, a large number of Hawaiian species, and three plants threatened by energy development in Colorado.

    Access the complete opinion (click here). Access a release from WildEarth Guardians (click here). [#Wildlife, #CADC]

 

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REDOIL v. U.S. EPA

Dec 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-70518. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. The case involves Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. (collectively Shell); the purchased lease blocks in the Chukchi and Beaufort Seas off the North Slope of Alaska; and their plans for oil and gas exploration. Shell plans to conduct this exploration via its drillship, the Discoverer, along with an associated fleet of support vessels, including icebreakers, oil spill response vessels, and a supply ship. Shell applied for two Clean Air Act permits to emit pollutants in connection with its exploration activities. The EPA granted the permits, which were upheld in two administrative appeals to the EAB.

 

    Petitioners, Resisting Environmental Destruction on Indigenous Lands, an environmental organization, the Center for Biological Diversity (CBD), Natural Resources Defense Council (NRDC) and other environmental groups (collectively REDOIL), challenge the permits on the basis that they do not satisfy the Act's air permit requirements. Shell intervened to oppose REDOIL's petitions.

 

    According to a summary, the Appeals Court denied a petition for review, and upheld a decision of EPA granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The panel upheld the EPA's statutory and regulatory interpretations. Specifically, the panel held that the Clean Air Act is ambiguous as to the applicability of the best available control emissions to support vessels not attached to an Outer Continental Shelf source, and concluded that under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), deference that the EPA's construction of the statute was permissible and reasonable. The panel also held that the EPA's grant of a 500 meter ambient air exemption was not plainly erroneous or inconsistent with the EPA's regulations.

 

    The Appeals Court explained that since 1990, EPA has been responsible for regulating air pollution from offshore sources on the Outer Continental Shelf (OCS) under the Clean Air Act. The Appeals Court said, "We consider here whether the EPA's Environmental Appeals Board (EAB) properly upheld two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The petition for review challenges two aspects of the permits: (1) the determination that support vessels, unlike the drillship itself, do not require the best available control technology (BACT) to control emissions; and (2) the exemption of the area within a 500-meter radius of the drillship from ambient air quality standards.

 

    "The application of BACT to support vessels requires us to reconcile conflicting provisions of the Act. In doing so, under Chevron U.S.A., Inc. v. NRDC, Inc., we defer to the EAB's reasonable interpretation of those provisions and related regulations. 467 U.S. 837 (1984). Likewise, we evaluate whether the EAB's decision on the ambient air boundary is a permissible application of the EPA's regulations. In both cases, we uphold the EPA's statutory and regulatory interpretations, and we deny the petition."

 

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

 

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USA v. Charles Yi

Jan 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-50234. Appealed from the United States District Court for the Central District of California. According to a summary, the Appeals Court affirmed a jury conviction and sentence for conspiracy to violate the Clean Air Act arising from the defendant's role as CEO of a real estate development company that contracted to have condominium ceilings scraped and refinished without proper asbestos disposal or notice.

 

    The panel held that the district court did not err in giving or formulating a deliberate ignorance jury instruction, did not err in applying a sentence enhancement for an offense resulting in substantial likelihood of death or serious bodily injury, and did not err in applying an enhancement for the defendant's role as an organizer or leader.

 

    Testimony revealed that Yi contracted to have a condominium ceilings scraped and refinished that he knew contained asbestos. The agreed-upon price broke down to $1,500 per unit for the first ten -- less per unit than either the previously rejected bids for asbestos abatement or for installing drywall over the ceilings. The contractor, testified that no one informed him that the ceilings contained asbestos. He hired four or five men to do the scraping. They wore no special clothing to protect against asbestos exposure and only wore white masks. Testimony also said that powdery ceiling material was simply placed into bags and wheelbarrows before being thrown into dumpsters.

 

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

 

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Coalition for Responsible Regulation v. U.S. EPA

Dec 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with dozens of other cases and involving hundreds of attorneys. On Petitions for Rehearing En Banc. On June 26, 2012, the D.C. Circuit delivered a unanimous decision in support of U.S. EPA and Administration's ability to regulate greenhouse gases (GHG) under the Clean Air Act [See WIMS 6/26/12]. Now, the full Appeals Court has issued an order denying the request for a hearing before the full panel.

 

    Petitioners, including various states (including Michigan) and industry groups, argued that EPA's rules were based on improper constructions of the CAA and were otherwise arbitrary and capricious. The Appeals Court ruled in June, ". . .we conclude: (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and (3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."

 

    The various parties then petitioned the Appeals Court for the en banc hearing. On consideration, in brief summary, the Appeals Court Order indicates, "The petition of the Chamber of Commerce of the United States of America, joined by the State of Alaska, Peabody Energy Company, Southeastern Legal Foundation, et al., State Petitioners and Intervenors for Petitioners, for rehearing en banc; and the petition of the National Association of Manufacturers, et al. for rehearing en banc in No. 10-1073, et al. and No. 10-1167, et al., and the responses to the petitions were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petitions. Upon consideration of the foregoing, it is ordered that the petitions be denied."

 

    The majority of Justices concluded, "To be sure, the stakes here are high. The underlying policy questions and the outcome of this case are undoubtedly matters of exceptional importance. The legal issues presented, however, are straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent. There is no cause for en banc review." Two Justices issued dissenting opinions.

 

    Vickie Patton, General Counsel of Environmental Defense Fund (EDF) said in a release, "America's clean air laws are clear; EPA has the authority and the responsibility to address the carbon pollution that has profound consequences for our nation's health, safety and prosperity. It is now time for EPA to address the dangerous carbon pollution that comes from power plants by working with the dozens of states that have forged common sense clean energy solutions, as well as the numerous businesses that asked the President to carry out cost-saving energy efficiency solutions in reducing carbon pollution, and the communities across our nation afflicted by the clear and present danger of extreme weather that's linked to climate change."

 

    The National Association of Manufacturers (NAM) President and CEO Jay Timmons issued a statement on behalf of the industry coalition saying, "While it is unfortunate that the Court denied our rehearing petition of our challenge to these costly EPA regulations, we welcome the fact that two judges wrote careful and well-reasoned dissenting opinions that supported our arguments. These rare dissents send a clear signal that significant legal issues remain to be addressed. These costly and burdensome regulations will eventually force new permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources, such as universities, schools, hospitals and even American homes -- impacting every aspect of our economy. We will continue to fight against these regulations and are carefully considering seeking Supreme Court review. The debate over how to address climate change should take place in the halls of Congress and should foster economic growth and job creation, not impose additional costs on businesses."  

 

    Access the complete order, opinion and dissents (click here). Access the release with additional details from EDF (click here). Access the statement from NAM including a listing of coalition members (click here). [#Air, #Climate, #CADC]

 

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Norman Bernstein v. Patricia Banker

Dec 19: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1501 & 11-1523. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that this is the latest chapter in the story of the Environmental Chemical and Conservation Company (Enviro-Chem), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind.

 

    The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro-Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more.

 

    The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court's final judgment. The Appeals Court said, "Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims."

 

    In conclusion, the Appeals Court rules, ". . .we reverse the district court's dismissal of Counts I, II, III, and VII. In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC [Administrative Order by Consent]. The Trustees' Count II 'companion claim' for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA [Indiana Environmental Legal Actions Statute] claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court's denial of Auto Owners' motion for summary judgment on preclusion grounds. The trustees' suit is reinstated and remanded for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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Olin Corp. v. Am. Home Assurance Co.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case No. 11-4055. Appealed from an order of the United States District Court for the Southern District of New York. The district court granted summary judgment to American Home Assurance Company (American Home) on the ground that the attachment point for its excess insurance policies could not be reached by the alleged environmental damage at Olin Corporation's (Olin) site at Morgan Hill, California. In brief, the Appeals Court ruled, "We hold that the plain language of Olin's policies with American Home requires American Home to indemnify Olin for that damage. Accordingly, the judgment of the district court is vacated and the case is remanded for further proceedings."

 

    In concluding the Appeals Court said, ". . .we conclude that the district court's basis for granting summary judgment was in error. Condition C obligates American Home to indemnify Olin not only for property damage occurring during the policy period, but also for property damage arising from covered occurrences that continues after the policy period. Three decades of perchlorate exposure and the damage it created are treated as a single, multi-year occurrence for the purposes of this policy. And because this single, multi-year occurrence took place in part during each of the two policy periods here, the district court was incorrect to conclude that neither policy would be reached because of the allocation method. On the record before the district court, $72.6 million in damage falls within the coverage of the 1966-69 policy, while $62.7 million falls within the coverage of the 1969-72 policy. These figures exceed the American Home policies' $30.3 million attachment points. On remand, American Home may demonstrate that these attachment points cannot be reached for other reasons. For example, this estimate of the years in which property damage occurred may be inaccurate. Or the evidence may permit the court to assign greater damage to the years before the inception of the two policies. We decide only that issues of material fact remain regarding American Home's liability."

 

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

 

 

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