September 20, 2008
Findlaw's Environmental Law Case Summaries
ENVIRONMENTAL LAW CASES
• Fund For Animals v. Kempthorne
• US v. Capital Tax Corp.
• Missouri Coalition for the Env't Found. v. US Army Corps of Eng'rs
• NRDC v. Winter
• National Resources Defense Council v. US Envtl. Prot. Agency
• Northwest Coalition for Alternatives to Pesticides v. US Envtl. Prot. Agency
• Ctr. for Biological Diversity v. FPL Group, Inc.
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U.S. 2nd Circuit Court of Appeals, September 18, 2008
Fund For Animals v. Kempthorne, No. 052603
In a claim challenging defendants' Public Resource Depredation Order on the ground that it violated treaty obligations of the United States and federal statutes by allowing employees to kill unlimited number of federally protected double-crested cormorants in New York and other states, summary judgment for defendant-government is affirmed where: 1) the Depredation Order is a reasonable method of effectuating the goals of the Migratory Bird Treaty Act (MBTA); 2) the Depredation Order does not conflict with treaties to which the United States is a party; 3) the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence to the Fish and Wildlife Service (FWS); 4) FWS complied with the Administrative Procedure Act (APA) in adopting the Depredation Order; and 5) the FWS did not violate National Environmental Policy Act (NEPA) in adopting the Depredation Order. Read more...
U.S. 7th Circuit Court of Appeals, September 19, 2008
US v. Capital Tax Corp., No. 07-3744
In a suit by the government under CERCLA to recover costs incurred in cleaning up hazardous waste, summary judgment for plaintiff is vacated and remanded where: 1) there was insufficient evidence in the record to determine whether the defendant had entered into a valid contract with a third party for the sale of the land, and thus whether the doctrine of equitable conversion would remove the burden of ownership under CERCLA from the defendant; and 2) the harm was not divisible among parcels since the parcels were contiguous and hazardous materials moved between them. Read more...
U.S. 8th Circuit Court of Appeals, September 16, 2008
Missouri Coalition for the Env't Found. v. US Army Corps of Eng'rs, No. 07-2218
In an action brought by an environmental group seeking disclosure of a number of documents from the U.S. Army Corps of Engineers pursuant to the Freedom of Information Act (FOIA), summary judgment for defendant-Corps is remanded for further proceedings where: 1) a Vaughn index was not inadequate on its face; 2) the Vaughn index was sufficient to establish that some of the information requested was, in fact, exempted by the deliberative process privilege; but 3) because the district court failed to analyze the segregability of the documents, it was not possible to conclude that the privilege applied to all 83 responsive documents in their entirety. Read more...
U.S. 9th Circuit Court of Appeals, September 16, 2008
NRDC v. Winter, No. 07-55294
The award of enhanced attorney's fees from an environmental case against the Navy is vacated and remanded for recalculation where: 1) co-counsel senior law firm partners and junior NRDC counsel did possess specialized experience needed in the litigation; but 2) co-counsel junior law firm associates did not qualify for enhanced fees due to lack of specialized experience; and 3) plaintiff had not shown that appropriate counsel could not be found at the statutory rate. Read more...
U.S. 9th Circuit Court of Appeals, September 18, 2008
National Resources Defense Council v. US Envtl. Prot. Agency, No. 07-55183, 07-55261
In a Clean Water Act (CWA) case seeking to force the EPA to promulgate guidelines relating to storm water pollution discharges caused by construction and development, summary judgment for plaintiffs is affirmed where: 1) plaintiffs challenged the EPA's failure to promulgate industry wide rules under section 505(a)(2) of the Clean Water Act, not the substance of existing regulation; 2) plaintiff has standing because organization members' use of particular waterways is diminished due to concern from construction sites, the injury is traceable and is redressable by the effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) sought by plaintiff; and 3) the EPA listed construction sites as a point source category under CWA section 304(m), for which it must promulgate ELGs and NSPSs. Read more...
U.S. 9th Circuit Court of Appeals, September 19, 2008
Northwest Coalition for Alternatives to Pesticides v. US Envtl. Prot. Agency, No. 05-75255, 05-76807
In a case challenging pesticide tolerance levels set by the EPA, petition for review is granted in part and reversed in part and the case remanded to the EPA, where: 1) the Food Quality Protection Act requires the EPA to set pesticide tolerance levels at a ten times reduction (10x reduction) absent reliable data that a higher tolerance will be safe for infants and children; 2) the EPA data presented, including computer modeling, was reliable data for avoiding the 10x reduction on four of seven challenged pesticide tolerances; but 3) the EPA did not explained its data rationale for avoiding the 10x reduction for tolerances of three pesticides. Read more...
California Appellate Districts, September 18, 2008
Ctr. for Biological Diversity v. FPL Group, Inc., No. A116362
In action alleging that defendant owners and operators of wind turbine electric generators were, by the operation of their wind turbines, responsible for killing and injuring raptors and other birds in violation of the public trust doctrine, dismissal of the action is affirmed where: 1) the proper method of challenging the issuance of conditional use permits was by writ of administrative mandate, the time for filing which long passed; 2) it was too late for an action against the county to set aside the conditional use permits that had already been issued; and 3) dismissal was also justified by the absence of a necessary and indispensable party. Read more...
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