WIMS Environmental News Blogs

WIMS Environmental News Blogs - Sep 30: WIMS is relocating our offices and is taking a temporary leave from all of our publications and blogs. We will return on January 6, 2014.

In the meantime it is a great opportunity to check out our Environmental News Blogs. The blogs are continuously, automatically updated with the latest news and information from various RSS feed sources selected by WIMS.

• White House News;
  
• Congressional News;
  
• Federal Agencies News;
  
• Industry News;
  
• Enviro Group News;
  
• Air Quality News;
  
• Hazardous Waste News; and
  
• Transportation News

 

    

Minard Run Oil Company v. U.S. Forest Service

Sep 26: In the U.S. Court of Appeals, Third Circuit, Case No. 12-4160. Appealed from the United States District Court for the Western District of Pennsylvania. In this non-precedential opinions, The Appeals Court explains that the Allegheny Defense Project and Sierra Club (collectively Appellants) appealed from the District Court's order granting summary judgment for the Minard Run Oil Company and Pennsylvania Independent Oil and Gas Association (collectively Appellees), essentially converting a preliminary injunction into a declaratory judgment. "The issue raised on appeal is whether the District Court properly applied the law of the case doctrine to preclude arguments raised by Appellants in their cross-motion for summary judgment. . . we will affirm the District Court's order."

 

    This case arises from a dispute over the split-estate property rights of the Federal surface owner and private mineral rights owners in the Allegheny National Forest (ANF). The United States acquired the surface estates that now constitute the ANF pursuant to the Weeks Act of 1911. While the U.S. Forest Service manages the surface of the ANF, the mineral rights in most of the ANF are privately owned. From 1980 until recently, the Service and private mineral rights owners utilized a cooperative process to manage access to and use of the surface to drill for oil and gas.

 

    Under the "cooperative process," sixty days prior to any planned drilling, mineral rights owners would provide notice to the Service, and the Service would then issue a Notice to Proceed (NTP), acknowledging receipt of the owners' notice and memorializing any agreements relating to the planned drilling. In 2008, a number of environmental groups, including the Sierra Club, filed a lawsuit against the Service, stating that its policy of issuing NTPs constituted a "major federal action[" significantly affecting the quality of the human environment," under the National Environmental Policy Act of 1969 (NEPA), and therefore an NTP could not lawfully be issued before the appropriate environmental analysis under NEPA was conducted. In 2009, the parties to that litigation entered into a Settlement Agreement, requiring that the Service conduct the appropriate NEPA analysis prior to issuing further NTPs. Subsequently, the Service issued a statement to oil and gas companies operating in the forest, stating that no new drilling would be authorized until the forest-wide EIS was completed.

 

    Appellees, filed a complaint in the District Court arguing that the de facto ban on drilling in the ANF exceeded the authority of the Service because a NEPA analysis was not required as a matter of law. The District Court granted their motion for a preliminary injunction, and on appeal, the Third Circuit affirmed in a precedential opinion. Thereafter, the mineral rights owners moved for summary judgment in the case before the District Court, requesting entry of judgment in their favor, conversion of the preliminary injunction order into a final declaratory judgment, and a permanent injunction against the Service. Appellants filed a cross-motion for summary judgment seeking vacation of the preliminary injunction order and judgment in their favor. The District Court granted the mineral rights owners' motion in part (it denied the request for a permanent injunction). The Court vacated the Settlement Agreement, and converted its preliminary injunction order into a final declaratory judgment on the merits. It is this order that is challenged on appeal.

    In its concluding comments the Appeals Court said, "We may revisit a legal question which has already been resolved where any of the following 'extraordinary circumstances' exist: '(1) there has been an intervening change in the law; (2) new evidence has become available; or (3) reconsideration is necessary to prevent clear error or a manifest injustice.' Mukasey, 534 F.3d at 188 (quoting Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999)). Appellants contend that the third exception to the application of the law of the case is implicated here. They state that this Court's ruling that Section 9 of the Weeks Act provides that reserved mineral rights are subject only to regulations in the instrument of conveyance, was clearly erroneous. In Minard Run III, however, Judge Roth provided ample reasoning for the Court's statutory interpretation, which Judge McLaughlin quoted at length in Minard Run IV. See Minard Run IV, 894 F. Supp. 2d at 657-58 (quoting Minard Run III, 670 F.3d at 251-52). To the extent that Appellants simply disagree with the conclusion reached, they could have sought en banc review. This panel will not disturb the well-reasoned legal conclusion reached by the prior panel."

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

Rocky Mountain Farmers Union v. Corey (CARB)

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15131 & 12-15135. Appeal from the United States District Court for the Eastern District of California. In this partially split decision, the panel affirmed in part and reversed in part the district court's summary judgment, and vacated the district court's preliminary injunction and remanded in an action which alleged that California's Low Carbon Fuel Standard, violated the dormant Commerce Clause and was preempted by Section 211(o) of the Clean Air Act, 42 U.S.C. § 7545(o). There were many parties in the case and a number of states including Michigan filed an amicus brief opposing the California standard. The court staff summarized the opinion as follows:

 

    The panel held that the Fuel Standard's ethanol provisions were not facially discriminatory, and reversed that portion of the district court's decision and remanded for entry of partial summary judgment in favor of California Air Resources Board ("CARB"). The panel also reversed the district court's decision that the Fuel Standard was an impermissible

extraterritorial regulation and the panel directed that an order of partial summary judgment be entered in favor of CARB on those grounds. The panel remanded the case for the district court to determine whether the ethanol provisions discriminate in purpose or effect and, if not, to apply the balancing test established in Pike v. Bruce Church, Inc., 397

U.S. 137 (1970).

 

    The panel affirmed the district court's conclusion that the Fuel Standard's crude oil provisions (the 2011 Provisions), were not facially discriminatory, but reversed the district court's holding that the 2011 Provisions were discriminatory in purpose and effect. The panel directed the district court to enter an order of partial summary judgment in favor of CARB on those issues. The panel remanded to the district court to apply the Pike balancing test to the 2011 Provisions.

 

    The panel affirmed the district court's conclusion that Section 211(c)(4)(b) of the Clean Air Act does not insulate California from scrutiny under the dormant Commerce Clause.

 

    The panel remanded to the district court with instructions to vacate the preliminary injunction. The panel expressed no opinion on plaintiffs' claim that the Fuel Standard is preempted by the federal Renewable Fuel Standard (RFS). The panel also expressed no opinion on CARB's claim that the savings clause in the Energy Independence and Security Act of 2007 precludes implied preemption by the RFS.

 

    Concurring in part and dissenting in part, Judge Murguia agreed with the majority's conclusions concerning the crude oil regulations and preemption under the Clean Air Act. She dissented from the majority's conclusion that ethanol regulations do not facially discriminate against interstate commerce.

 

    In part, the Appeals Court stated: "California should be encouraged to continue and to expand its efforts to find a workable solution to lower carbon emissions, or to slow their rise. If no such solution is found, California residents and people worldwide will suffer great harm. We will not at the outset block California from developing this innovative, nondiscriminatory regulation to impede global warming. If the Fuel Standard works, encouraging the development of alternative fuels by those who would like to reach the California market, it will help ease California's climate risks and inform other states as they attempt to confront similar challenges."

    Tim O'Connor, Director of Environmental Defense Fund's (EDF's) California Climate Initiatives commented on the decision saying, "This is a great day for public health and the economy of California. The court clearly upheld a groundbreaking policy that will protect consumers and the environment by diversifying our fuel mix and providing more choices for a clean energy future."

    Natural Resources Defense Council (NRDC) Senior Attorney, David Pettit said, "Today's victory ensures Californians are given better, cleaner choices at the fuel pump, which is something everyone can support. This policy will spur American ingenuity to produce cleaner fuels with fewer impacts to our environment. The standard is working to reduce pollution while decreasing the state's reliance on oil. "We're already on track to achieve these goals, and today's ruling reaffirms California as a national leader for common sense actions to curb climate change."

 

    Access the complete opinion and partial dissent (click here). Access a release from NRDC (click here). Access a release from EDF (click here). [#Energy/Fuel, #Climate, #MIEnergy/Fuel, #MIClimate, #CA9]

NRIC v. NPCC

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-72104. Appealed from the Northwest Power and Conservation Council. The panel affirmed the Sixth Northwest Power Plan, adopted by the Northwest Electric Power and Conservation Council (NPCC), concerning a "due consideration" challenge to the accommodation of fish and wildlife interests with hydropower interests in the Columbia River Basin, and remanded on a limited basis for additional consideration.

 

    The Appeals Court explains that the present case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest Electric Power Planning and Conservation Act (the Power Act), 16 U.S.C. §§ 839–839h. That statute established the Northwest Power and Conservation Council (the Council), an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington that Congress tasked with promulgating both "a regional conservation and electric power plan" and "a program to protect, mitigate, and enhance fish and wildlife." 16 U.S.C. § 839b(d)(1), 839b(h)(1)(A).

 

    The case presents a challenge by an environmental group, the Northwest Resource Information Center (NRIC), to the Sixth Northwest Power Plan (the Plan) that the Council adopted in May 2010. NRIC's key complaint is that the Council failed to give due consideration to the accommodation of fish and wildlife interests when it adopted the Plan. The Appeals Court rules, ". . .we affirm the Plan with respect to NRIC's "due-consideration" challenge, but remand the Plan to the Council for the limited purposes of (1) allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and (2) reconsidering the inclusion in the Plan of a market-price-based estimate of the cost of accommodating fish and wildlife interests."

 

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

Louisiana Department Of Environmental Quality v. U.S. EPA

Sep 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-60482. A Petition for Review of an Order of the Environmental Protection Agency. In short summary, the Louisiana Department of Environmental Quality (LDEQ) petitioned for judicial review of a U.S. EPA objection to three title V air permits issued by LDEQ to Nucor Steel Louisiana (Nucor). The Appeals Court dismissed the petition saying it lacked subject matter jurisdiction.

 

    In some detail, the Appeals Court explains, "LDEQ and Nucor's counter-arguments fail to persuade. They first argue that, because the EPA failed to object during § 7661d(b)(2)'s 60-day window for granting or denying a petition, § 7661d(c)'s limitation on judicial review does not apply. Nucor offers no support for that interpretation of § 7661d(b)(2), other than legislative history indicating that Congress intended the title V petition process to be timely, and its argument ignores the plain language of § 7661d(b)(2). Section 7661d(b)(2) does not prohibit the EPA from issuing an objection after the 60-day window has expired, and § 7661d(c) does not distinguish between timely and late objections in defining the point at which judicial review may be sought. Nor did Congress provide a remedy for an untimely objection. In such cases, courts are not to supply loss of jurisdiction as a consequence of a late objection.26

 

    "LDEQ and Nucor next argue that the Objection is not an 'objection' within the meaning of § 7661d and therefore not subject to § 7661d(c)'s requirement that the Administrator take final action to issue or deny a permit before it can be subject to judicial review. LDEQ and Nucor point to no text supporting the distinction they attempt to draw, nor do they provide any workable rule for determining what constitutes an actual 'objection.' They essentially argue that because the Objection is improper, it is not an actual objection and is therefore subject to judicial review. But that same argument would apply in any action challenging an EPA objection. Accepting the argument would eviscerate § 7661d(c)'s limitation on judicial review of EPA objections, would require determination of the merits of the challenge to the Objection before determining jurisdiction, and is in tension with the necessity for subject matter jurisdiction to decide the merits of a challenge. Whatever may be the outer limits of an objection, relabeling the EPA action does not change its substance.

 

    "We hold that this Court lacks subject matter jurisdiction to review the Objection, but we do not determine whether LDEQ and Nucor may pursue other avenues of judicial review, such as an action in district court under 42 U.S.C. § 7604(a)(2). We conclude that review in this forum is not proper until the Administrator takes final action issuing or denying a permit."

 

    Access the complete opinion (click here). [#Air, #CA5]

Wild Fish Conservancy v. Jewell

Sep 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35303. Appealed from the United States District Court for the Eastern District of Washington. The panel dismissed an action brought by the Wild Fish Conservancy challenging the United States' diversion of water from Icicle Creek, a tributary of the Wenatchee River and the Columbia River, to the Leavenworth National Fish Hatchery.

 

    The Appeals Court explains that this appeal concerns the control of water necessary to sustain native fish populations in Icicle Creek, a tributary of the Wenatchee River, which is itself a tributary of the Columbia. The Wild Fish Conservancy and Harriet S. Bullitt (collectively, the Conservancy) allege that the United States is improperly diverting water from Icicle Creek to the Leavenworth National Fish Hatchery (the Hatchery) and otherwise violating Washington State law. The Appeals Court says, "We conclude that the Conservancy lacks prudential standing to bring its claim that the Hatchery operation violates the Washington water code, and that we lack jurisdiction to consider the Convervancy's other claims because they either do not challenge final agency action or rest on provisions of Washington law that are not incorporated into federal reclamation law. Therefore, on de novo review, we dismiss this action."

 

    In its summary the Appeals Court indicates, "As we have often acknowledged, '[s]almon and hydropower are the two great natural resources of the Columbia River Basin,' and ardent desires to promote one or the other have yielded a century of conflict. . . This iteration does not present the 'classic struggle between environmental and energy interests' . . .but instead a more nuanced conflict between two entities seeking to repair the damage that dams have done to the Basin's fisheries. Unlike the many cases we have decided concerning the fate of fish in the Columbia River Basin, the claims before us are not susceptible to federal judicial review. . ."

 

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

9th Circuit Sides With Enviros & EPA On AZ Haze Control

Sep 9: A release from Earthjustice indicates that the Ninth Circuit Court of Appeals denied a request from the State of Arizona and four utility companies to delay installing modern pollution controls on three large coal-fired power plants. The State and power companies were seeking a delay until litigation is complete concerning U.S. EPA's regional haze requirements for the Cholla, Coronado, and Apache power plants. 

    The decision by the Ninth Circuit Court of Appeals denies the requested stay of EPA's requirements for the three coal plants, while at the same time sending a positive signal that EPA's decision stands on solid legal ground. The coal plants must now move forward with installing updated pollution controls that limit nitrogen oxides pollution, which causes haze, ozone, and other air pollution. Earthjustice attorney Michael Hiatt, representing National Parks Conservation Association (NPCA) and Sierra Club in the litigation said, "The court's ruling prevents the state of Arizona and the utility companies' attempts to further delay installing long overdue pollution controls. Modern pollution controls at Cholla, Coronado, and Apache will result in cleaner air for Arizonans to breathe and will help restore the iconic scenic views at the Grand Canyon and other natural areas." 

    NPCA Arizona Senior Program Manager Kevin Dahl said, "Despite the promises of the 1977 Clean Air Act, 18 prized national parks have spent decades living in the shadow of the haze caused by air pollution from these plants. The cleanup plan the EPA has set in motion is rightfully sustained by this decision and once enforced will be an important turning point for those iconic places, by clearing the air and restoring the health and beauty these national parks deserve." Sandy Bahr, chapter director for the Sierra Club's Grand Canyon Chapter said, "Reducing pollution at three of our state's dirtiest coal plants is way past due. Moving forward with limiting these emissions protects both the skies of our iconic national parks and wilderness areas and our health."

    Access a release from Earthjustice (click here). [#Air, #CA9]