John v. Alaska Fish & Wildlife Conservation Fund

Jul 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36122 & 09-36127. Appealed from the United States District Court for the District of Alaska. The panel affirmed the district court's decisions upholding the 1999 Final Rules promulgated by the Secretary of the Interior and the Secretary of Agriculture to implement part of the Alaska National Interest Lands Conservation Act concerning subsistence fishing and hunting rights.

 

    The Appeals Court explained that these consolidated appeals concern the 1999 Final Rules (1999 Rules) promulgated by the Secretary of the Interior and the Secretary of Agriculture (Secretaries) to implement part of the Alaska National Interest Lands Conservation Act (ANILCA). The 1999 Rules identify which navigable waters within Alaska constitute "public lands" under Title VIII of ANILCA, which provides a priority to rural Alaska residents for subsistence hunting and fishing on such lands. Plaintiffs-Appellants Katie John, et al., argue that the 1999 Rules sweep too narrowly, in that they fail to designate certain navigable waterways as "public lands" subject to the Federal rural subsistence priority. Plaintiff-Appellant the State of Alaska argues that the 1999 Rules sweep too broadly, in that they include as "public lands" subject to the priority waters in which no Federal interest exists. The district court upheld the 1999 Rules against both sets of challenges. The Appeals Court affirmed.

 

    The Appeals Court concludes, "In reaching our decision, we recognize that we and the Secretaries have been working with imperfect tools. Katie John I was a problematic solution to a complex problem, in that it sanctioned the use of a doctrine ill-fitted to determining which Alaskan waters are 'public lands' to be managed for rural subsistence priority under ANILCA. But Katie John I remains the law of this circuit, and we, like the Secretaries, must apply it as best we can.

 

    "We conclude that, in the 1999 Rules, the Secretaries have applied Katie John I and the federal reserved water rights doctrine in a principled manner. It was reasonable for the

Secretaries to decide that: the 'public lands' subject to ANILCA's rural subsistence priority include the waters within and adjacent to federal reservations; and reserved water rights for Alaska Native Settlement allotments are best determined on a case-by-case basis."

 

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

Sahu, et al. v. Union Carbide Corp., et al.

Jun 27: In the U.S. Court of Appeals, Second Circuit, Case No. 12-2983. Appealed from the June 27, 2012 judgment of the United States District Court for the Southern District of New York. The Appeals Court issued a 9-page, non-precedential Summary Order.

 

    The Appeals Court states, "Plaintiff Janki Bai Sahu and several others similarly situated (referred to together as Sahu) bring this tort suit to recover from injuries allegedly caused by exposure to soil and drinking water polluted by hazardous wastes produced by the Union Carbide India Limited (UCIL) pesticide plant (Bhopal plant or plant) in Bhopal, India. Sahu seeks monetary damages and an injunction requiring remediation and medical monitoring from the Union Carbide Corporation (Union Carbide), which was formerly a majority owner of UCIL, and from Warren Anderson (together with the Union Carbide Corporation, UCC), Union Carbide's former CEO. Sahu now appeals from an order of the District Court granting summary judgment to UCC."

 

    The Appeals Court concludes, "Sahu and many others living near the Bhopal plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity. Accordingly, and for the reasons set out above, we affirm the June 27, 2012 judgment of the District Court."

 

    Access the complete Summary Order (click here). Access the Sahu v. Union Carbide website by EarthRights International for extensive background information on this case (click here). [#Toxics]

 

GET THE REST OF TODAY'S NEWS

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Koontz v. St. Johns River Water Management District

Jun 25: In the U.S. Supreme Court, case No. 11-1447, appealed from the Supreme Court of Florida. Background information indicates that for over eleven years, a Florida land use agency refused to issue any of the permits necessary for Coy A. Koontz, Sr., to develop his commercial property. The reason was because Koontz would not accede to a permit condition requiring him to dedicate his money and labor to make improvements to 50 acres of government-owned property located miles away from the project-a condition that was determined to be wholly unrelated to any impacts caused by Koontz's proposed development. A Florida trial court ruled that the agency's refusal to issue the permits was invalid and effected a temporary taking of Koontz's property, and awarded just compensation. After the appellate court affirmed, the Florida Supreme Court reversed, holding that, as a matter of Federal takings law, a landowner can never state a claim for a taking where: (1) permit approval is withheld based on a landowner's objection to an excessive exaction, and (2) the exaction demands dedication of personal property to the public.

 

    According to the docket, the questions presented are: 1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and 2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a

land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

 

    In a 5-4 decision in which Justices Alito, Roberts, Scalia, Kennedy and Thomas were the majority and Kagan, Ginsburg, Breyer and Sotomayor dissented, the majority ruled to overturn the Florida Supreme Court ruling. In the majority opinion, the Justices said, "Our decisions in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994), provide important protection against the misuse of the power of land-use regulation. In those cases, we held that a unit of government may not condition the approval of a land-use permit on the owner's relinquishment of a portion of his property unless there is a 'nexus' and 'rough proportionality' between the government's demand and the effects of the proposed land use. In this case, the St. Johns River Water Management District(District) believes that it circumvented Nollan and Dolan because of the way in which it structured its handling of a permit application submitted by Coy Koontz, Sr., whose estate is represented in this Court by Coy Koontz, Jr. blessed this maneuver and thus effectively interred those important decisions. Because we conclude that Nollan and Dolan cannot be evaded in this way, the Florida Supreme Court's decision must be reversed."

 

    The dissenting opinion indicates, "Our core disagreement concerns the second question the Court addresses. The majority extends Nollan and Dolan to cases in which the government conditions a permit not on the transfer of real property, but instead on the payment or expenditure of money. That runs roughshod over Eastern Enterprises v. Apfel, 524 U. S. 498 (1998), which held that the government may impose ordinary financial obligations without triggering the Takings Clause's protections. The boundaries of the majority's new rule are uncertain. But it threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny. I would not embark on so unwise an adventure, and would affirm the Florida Supreme Court's decision. I also would affirm for two independent reasons establishing that Koontz cannot get the money damages he seeks. . ."

 

    Access the complete opinion and dissent (click here). Access the SupCt docket (click here). Access the SCOTUS blog for briefs and additional information on the case (click here). [#Land, #SupCt]

 

GET THE REST OF TODAY'S NEWS

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Supreme Court Denies Hearing Controversial E15 Waivers Case

Jun 24: The U.S. Supreme Court denied a request to hear the controversial challenge of U.S. EPA's E15 ethanol waivers. The Plaintiffs had sought a hearing of the D.C. Circuit's 2-1 decision [See WIMS 8/17/12], followed by a denial for an en banc hearing [See WIMS 1/16/13]. Plaintiffs including, Grocery Manufacturers Association, American Fuel & Petrochemical Manufacturers, Alliance of Automobile Manufacturers, et al; had sought to overturn two EPA decisions approving the introduction of E15 -- a blend of gasoline and 15 percent ethanol -- for use in select motor vehicles and engines [See WIMS 8/17/12]. In the highly controversial decision, the original majority Appeals Court ruled 2-1, "Because we hold that no petitioner has standing to bring this action, we dismiss all petitions for lack of jurisdiction."

 

    The Renewable Fuels Association (RFA) President and CEO Bob Dinneen commented on decision not to take up the case saying, "I am pleased that today's Supreme Court action ends a long and drawn out petroleum industry effort to derail the commercialization of E15. The uncertainty created by this lawsuit has chilled commercial activity that would provide American consumers more affordable choices at the pump. With this decision, E15 can finally become a meaningful option for more Americans."

 

    The American Fuel & Petrochemical Manufacturers (AFPM) expressed disappointment in the decision. AFPM President Charles Drevna said, "The Supreme Court's decision denies the petitioners their day in court and will have negative repercussions for consumers.  It is unfortunate that EPA's decision to place politics ahead of science will stand." AFPM indicated that EPA's waiver allows gasoline containing 15 percent ethanol, called E15, a fifty per cent increase over a safe and efficient product to be sold into the general fuel supply. AFPM challenged the legality of EPA's decision because E15 has been shown to cause engine damage in most automobiles, boats and outdoor power equipment, such as chainsaws and lawnmowers.

    The D.C. Circuit Court, which first considered AFPM's case, ruled that the refining industry lacked standing to challenge EPA's decision. The court reached this conclusion despite the fact that refiners are forced to produce new gasoline blendstocks, invest in the infrastructure necessary to carry two types of fuels, and face potential liabilities from engine damage because of EPA's decision. In a dissenting opinion, Judge Kavanaugh of the D.C. Circuit found EPA "ran roughshod over the relevant statutory limits." AFPM petitioned the Supreme Court to reconsider the district court's ruling, arguing that the DC Circuit's decision incorrectly limits the ability of injured parties to seek judicial review of federal agency actions.

    AFPM said it continues to assert that EPA overstepped its authority under the Clean Air Act when it granted partial waivers to allow the use of E15 in certain engines, including vehicles model year 2001 and newer. Objective tests have shown that E15 may cause engine damage in vehicles and therefore should not be an approved fuel under the Clean Air Act that can be sold in the general gasoline supply.

    Access the denial order (click here, page 7). Access the SupCt docket (click here). Access the RFA statement (click here). Access the AFPM release (click here). [#Energy/E15]

GET THE REST OF TODAY'S NEWS

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Supreme Court Will Hear Appeals Of Cross State Air Pollution Rule

Jun 24: The U.S. Supreme Court agreed to hear the controversial cases challenging the D.C. Circuit's decision to vacate U. S. EPA's Cross State Air Pollution Rule (CSAPR) and leave in place the existing Clean Air Interstate Rule (CAIR) pending EPA's further action. On August 21, 2012, the Appeals Court, in a split 2-1 decision, dealing with U.S. EPA's controversial CSAPR, vacated the Transport Rule and the Transport Rule FIPs and remand the proceeding to EPA [See WIMS 8/21/12]. On January 24, 2013, the D.C. Circuit denied a request by EPA and others for an en banc (full panel) rehearing of the case [See WIMS 1/24/13]. The High Court, in its order to hear the case said specifically, "The petitions for writs of certiorari are granted limited to the questions presented by the petition in No. 12-1182. The cases are consolidated and a total of one hour is allotted for oral argument."

 

    The two petitions granted were: Environmental Protection Agency, et al., Petitioners v. EME Homer City Generation, L.P., et al. (No. 12-1182), and American Lung Association, et al., Petitioners v. EME Homer City Generation, L.P., et al. (No. 12-1183).

 

    According to the EPA petition, the questions presented are: (1) Whether the court of appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that "contribute significantly" to air pollution problems in other states until after the EPA has adopted a rule quantifying each state's inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term "contribute significantly" so as to define each upwind state's "significant" interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state's physically proportionate responsibility for each downwind air quality problem.

    Howard Learner, Executive Director of the Environmental Law & Policy Center (ELPC) said, "The U.S. Supreme Court is likely taking this case in order to reverse the D.C. Circuit panel's decision that is contrary to law and would further delay long-needed clean air standards necessary to protect our public health.  The Supreme Court has twice upheld EPA's statutory responsibility to reduce dangerous air pollution.  The D.C. Circuit panel's ruling is contrary to consistent Supreme Court decisions and should be reversed. We believe that the Supreme Court will uphold the EPA's scientific and technical expertise in moving forward to clean up the air we breathe, reduce asthma and protect public health, especially for children and the elderly."

    The American Lung Association (ALA) issued a brief statement saying it applauds the decision by the U.S. Supreme Court to hear the appeal by the U.S. Environmental Protection Agency on the Cross State Air Pollution Rule. "This Rule follows the 'good neighbor' principle established in the Clean Air Act to cut pollution that spreads across the borders of 28 eastern states. For too long, ozone smog and particle pollution have traveled far from their sources, threatening lives and health across far away state borders. If the Court upholds the Cross State Air Pollution Rule, these protections would save up to 34,000 lives each year. We look forward to sharing with the Court information about the health benefits of this important decision."

    Environmental Defense Fund (EDF), the American Lung Association, the Clean Air Council, Natural Resources Defense Council, and the Sierra Club. Other parties filed briefs in support of EPA's request, including numerous states and cities that are adversely affected by interstate pollution, and two major power companies. the Supreme Court decision means the High Court will hear an appeal of the lower court's decision during its next term, which begins in the fall. EDF general counsel Vickie Patton said, "This is welcome news for the millions of Americans afflicted by harmful air pollution from power plants."

    Access the order (click here, page 6). Access the SupCt dockets (click here) and (click here). Access the SCOTUS blog for No. 12-1182 (click here). Access the SCOTUS blog for No. 12-1183 (click here). Access the ELPC statement (click here). Access the statement from ALA (click here). Access a release from EDF (click here). Access EPA's CSAPR website for background and further details (click here). [#Air]

GET THE REST OF TODAY'S NEWS

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Evergreen Partnering Group v. Pactiv Corporation

Jun 19: In the U.S. Court of Appeals,  First Circuit, Case No. 12-1730. Appealed from the U.S. District Court of Massachusetts, Boston. Plaintiff Evergreen Partnering Group, Inc. (Evergreen) appealed from a judgment of the United States District Court for the District of Massachusetts dismissing its Second Amended Complaint (complaint). The complaint alleges that defendants-appellees, polystyrene food service packaging manufacturers and two trade associations, refused in concert to deal with Evergreen in a recycling business method for polystyrene food service products. Evergreen also appeals the district court's refusal to grant it leave to amend its complaint. The Appeals Court ruled, "After careful consideration, we vacate the judgment of dismissal and remand for further proceedings." The lengthy opinion provides fascinating insight into the inner workings of the polystyrene recycling business and its major players.

 

    Evergreen, founded in 2002 by Michael Forrest (Forrest), is the first company to develop a business model to recycle polystyrene products by using a post-consumer polystyrene resin (PC-PSR) to create trademark products known as "Poly-Sty-Recycle." Polystyrene food service products must be "food-grade" as deemed by the Food and Drug Administration (FDA), and Evergreen's Poly-Sty-Recycle was the first recycled polystyrene product to be so deemed.

 

    The complaint paints a picture of the polystyrene industry increasingly coming under criticism from environmental advocacy groups, local governments, and dissatisfied customers prior to and during the period of the alleged conduct. Past efforts to make polystyrene products more environmentally friendly resulted in failure, and the producer defendants have maintained that their products are non-recyclable because production of recyclable polystyrene is not economically feasible. This has resulted in movements to ban polystyrene products -- including city-wide bans in 30 California cities -- as well as to discourage their use through implementing producer-responsibility mandates and product surcharges.

 

    The five polystyrene producer defendants -- Pactiv Corporation (Pactiv), Genpak, LLC (Genpak), Dart Container Corporation (Dart), Dolco Packaging, a Tekni-Plex Company (Dolco"), and Solo Cup Company (Solo) -- are alleged to control an estimated 90 percent of the market for single-service polystyrene food service packaging and tableware.Defendant American Chemistry Council (ACC) is a trade association that engages in advocacy, trade and lobbying for the chemical and plastic industry. The Plastics Food Service Packaging Group (PFPG) is a business group within the ACC. In or about late 2005 or 2006, the PFPG met to address criticisms of the polystyrene industry, and at that meeting, the complaint alleges, John McGrath of Pactiv announced to PFPG members that recycling polystyrene products was not an option in the industry's battles with polystyrene's critics.

 

    The complaint alleges that, following the meeting, the named defendants "combined and conspired to unreasonably restrain trade and commerce in the market for single[-]service polystyrene food service products by refusing in concert to deal with Evergreen in a sole-source closed-loop recycling business method for polystyrene food service products" until at least 2009. The purpose of the concerted refusal to deal was to:

"ensure that polystyrene products will remain non-recyclable and without post-consumer content recycled material so that the Defendants' existing market shares will not be disrupted, the status quo will be maintained, and the Defendants will be able to offer higher-priced products such as paper, pulp, bio-plastics, R-PET, PLA, ceramic, bamboo, and others, without any low cost options for consumers."

    Defendants collectively and individually moved to dismiss Evergreen's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. They argued, inter alia, that the complaint did not set forth a plausible basis for finding any agreement, but rather merely listed allegations consistent with unilateral refusals to deal based on business decisions. Evergreen opposed defendants' motions, arguing that the complaint met the standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), but requested in its opposition permission to file an amended complaint if the court did not agree.

 

    Evergreen argues on appeal that the allegations in its complaint are sufficient to support a plausible conspiracy claim under § 1 of the Sherman Act, and the district court erred in concluding otherwise. The Appeals Court says, "After reviewing the district court's analysis of the facts alleged and its application of the Twombly plausibility standard, we agree with Evergreen. . .we hold that Evergreen alleged sufficient facts to adequately plead its § 1 claim. Since the district court summarily dismissed Evergreen's Massachusetts Chapter 93A claim because it 'fail[ed] for the same reasons that the Sherman Act claim fails,' we remand for the district court to reconsider this issue consistent with the strictures of this opinion. We thus vacate the district court's judgment and remand the case for further proceedings. Costs of appeal awarded to plaintiff. Vacated and Remanded."

 

    Access the complete opinion (click here). [#P2, #Solid, #CA1]

 

GET THE REST OF TODAY'S NEWS

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals

Starr Indemnity & Liab Co. v. SGS Petroleum Service

Jun 18: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-20545. Appeal from the United States District Court for the Southern District of Texas. The Appeals court summarizes, "An insurer sought a declaratory judgment that it was not required to show prejudice before denying coverage for liability arising out of a pollution occurrence which the insured did not report within thirty days, as required by a pollution buy-back clause in the policy. The district court granted the insurer's motion for judgment on the pleadings and denied the insured's motion for summary judgment. We affirm." The decision is based primarily on decisions of the Texas Supreme Court.

 

    On November 7, 2010, an accidental release of the chemical meta-toluene demine occurred while an SGS employee was conducting unloading operations at a Bayer chemical plant in Baytown, Texas. SGS learned of the release that same day. Based on the initial report and information Bayer provided SGS, the preliminary estimate for the clean-up costs was between $600,000 and $1 million. Because this was within the $2 million coverage limit of its primary policy with Allianz, SGS did not inform Starr of the release. However, on December 20, 2010, Bayer presented SGS with invoices reflecting clean-up costs of over $4 million. Only in late December did SGS first realize the costs exceeded $2 million and would trigger coverage beyond the limits of its policy with Allianz. On January 5, 2011, fifty-nine days after SGS learned of the chemical release, SGS sent an email reporting the release to Starr.

 

    Starr and SGS had added to the policy a provision, commonly called a pollution "buy-back," which deleted the pollution exclusion and replaced it with ". . .This exclusion shall not apply, however, provided that the assured establishes that all of the following conditions have been met: . . . (4) the discharge, dispersal, release or escape was reported in writing to these underwriters within 30 days after having become known to the assured.

 

    SGS argues that the opinion is "no longer tenable" and its reasoning is "deeply flawed." It maintains that the Texas Supreme Court has now changed the law pertaining to notice requirements in insurance contracts, citing two cases referenced as PAM, Inc. v. Hanover Ins. Co., 243 S.WE.3d 630 (Tex. 2008) and Prodigy Communications Corp. v. Agricultural Excess & Surplus Ins. Co., 288 S.WE.3d 374 (Tex. 2009). But, the Appeals Court disagreed and said, ". . . we are dealing with a specific endorsement, separately negotiated by the parties, and with a clear notice requirement. Following an inquiry similar to the one outlined in PAM and Prodigy, Matador concluded that a notice requirement in this type of supplemental pollution endorsement is essential to the bargained-for coverage. We remain bound by that precedent."

 

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

 

GET THE REST OF TODAY'S NEWS

Access subscription information (click here)

Want to know more about WIMS? Check out our LinkedIn company website (click here).

33 Years of Environmental Reporting for serious Environmental Professionals