Wednesday, December 10, 2008

Case Law from Westlaw

Van Valin v. Gutierrez, (D.D.C.)
December 8, 2008: Game - Rescission of final rule limiting halibut harvest and promulgation of new regulations rendered challenge to rule moot.

The Secretary of Commerce's rescission of a final rule, limiting the harvest of Pacific halibut taken by guided sport charter vessel anglers in southeast Alaska, and forthcoming promulgation of new regulations based on a different rationale completely and irrevocably eradicated the effects of the rule's alleged violations of the Halibut Act and the Administrative Procedure Act (APA). Thus, the charter fishing operators' suit challenging the final rule was moot.

Animal Welfare Institute v. Martin, (D.Me.)
December 8, 2008: Endangered Species -   Injunction preventing trapping of Canada lynx in leghold traps was not warranted.      

Although animal protection organizations established a likelihood of success on merits of their claims that state violated Endangered Species Act (ESA) by authorizing take of Canada lynx without an incidental take permit, an injunction preventing the trapping of the lynx in leghold traps was not warranted. The temporary detention of a lynx in a leghold trap without some indication of permanent injury did not constitute irreparable injury.

Clark Fork Coalition v. Montana Dept. of Environmental Quality, (Mont.)
December 8, 2008: Clean Water - Before issuing permit DEQ had to determine whether water discharged after mine closed would require treatment in perpetuity.

Under a regulation promulgated by Montana's Board of Environmental Review (BER) on permits to discharge into Tier 2 waters, the Montana Department of Environmental Quality (DEQ) had to determine whether water discharged from a proposed mine would continue after the mine was closed and whether such water would require treatment in perpetuity. The mine would eventually close, and once the mine was closed there would not necessarily be an entity that would continue to treat the discharged water.

This decision may not yet be released for publication.   

December 10, 2008 in Cases | Permalink | TrackBack (0)

Tuesday, December 2, 2008

CGD Contribution to Development Index - Environment

Go check out the Center for Global Development's 2007 Commitment to Development Index page.  Its got some great graphics that you have to see to appreciate.  Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9.  Center for Global Development Commitment to Development Index   

CGD reports:

Norway tops this year’s environment standings. Its net greenhouse gas emissions fell during 1995–2005, the last ten years for which data are available, thanks to steady expansion in its forests, which absorb carbon dioxide. Also high is Ireland, whose economy grew 6.6 percent per year faster in the same period than its greenhouse gas emissions; and the U.K., which has steadily increased gasoline taxes and supported wind and other renewable energy sources. Spain finishes low as a heavy subsidizer of its fishing industry while Japan is hurt by its high tropical timber imports. The U.S. has not ratified the Kyoto Protocol, the most serious international effort yet to deal with climate change. That gap, along with high greenhouse emissions and low gas taxes, puts the U.S. last. Two notches up, Australia cuts a similar profile, with the highest per-capita greenhouse gas emissions in the group.      


The environment component of the CDI compares rich countries on policies that affect shared global resources such as the atmosphere and oceans. Rich countries use these resources disproportionately while poor ones are less equipped to adapt to the consequences, such as global warming. Countries do well if their greenhouse gas emissions are falling, if their gas taxes are high, if they do not subsidize the fishing industry, and if they control imports of illegally cut tropical timber.

A healthy environment is sometimes dismissed as a luxury for the rich. But people cannot live without a healthy environment. And poor nations have weaker infrastructures and fewer social services than rich countries, making the results of climate change all the more damaging. A study co-authored by CGD senior fellow David Wheeler predicts that a two-meter sea level rise would flood 90 million people out of their homes, many of them in the river deltas of Bangladesh, Egypt, and Vietnam.

The environment component looks at what rich countries are doing to reduce their disproportionate exploitation of the global commons. Are they reining in greenhouse gas emissions? How complicit are they in environmental destruction in developing countries, for example by importing commodities such as tropical timber? Do they subsidize fishing fleets that deplete fisheries off the coasts of such countries as Senegal and India?

December 2, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Saturday, September 20, 2008

Findlaw's Environmental Law Case Summaries




• 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.

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
To view the full-text of cases you must sign in to

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...


September 20, 2008 in Cases | Permalink | TrackBack (0)

Monday, September 15, 2008

Corps Jurisdictional Determinations are not Final Agency Actions under APA

The 9th Circuit ruled on Friday in Fairbanks North Star Borough v. U.S. Army Corp of Engineers that a final jurisdictional determination by the Army Corps of Engineers that an entire parcel is subject to CWA 404 jurisdiction is not a final agency action reviewable under the Administrative Procedure Act.  Fairbanks North Star Borough opinion   The decision indicates that, even though the Corps does not contemplate additional action regarding jurisdiction, its jurisdictional determinations do not finally fix or deprive the plaintiff of any rights or privileges.  That occurs only in the permitting decision that follows the jurisdictional determination. 

The Corps had created a regulation establishing a procedure for obtaining final jurisdictional determinations in the 1980s after defending a spat of lawsuits challenging its jurisdictional determinations.  On a policy level, the Corps preferred to litigate the question of jurisdiction early.

The 9th Circuit's decision is consistent with the Fourth Circuit's decision in Champion Intl. Paper v. U.S. EPA that EPA assuming jurisdiction to grant a permit under CWA 402(d) is not final agency action, because the agency will be making a permit decision.

September 15, 2008 in Biodiversity, Cases, Governance/Management, Land Use, Law, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Friday, September 12, 2008

Findlaw Environmental Law Case Summaries




• Kentucky Waterways Alliance v. Johnson
• Geerston Seed Farms v. Monsato Co.
• Wong v. Bush
• Sierra Club v. Johnson
• Ctr. for Biological Diversity v. California Fish and Game Comm'n.

To view the full-text of cases you must sign in to

U.S. 6th Circuit Court of Appeals, September 03, 2008
Kentucky Waterways Alliance v. Johnson, No. 065614
In a matter brought under the Clean Water Act (CWA), judgment of district court in favor of defendant Environmental Protection Agency (EPA) is affirmed in part, reversed in part, vacated in part and remanded where: 1) with respect to plaintiffs' challenge to the EPA's approval of Kentucky's categorical exemption of six types of pollution discharges from Tier II review, though the EPA's decision document details the tests conducted to measure each exemption's impact, the document often fails to include the resulting measurements; 2) court cannot review this legal conclusion's reasonableness without the EPA first discussing its assimilative-capacity loss estimates and explaining why it deems them insignificant; 3) EPA's approval of Kentucky's classification of certain waters as eligible for Tier I protection rather than Tier II protection was not arbitrary, capricious, and contrary to law. Case is remanded to EPA so that it may address the deficiencies in its consideration of ! state's de minimis exemptions. Read more...

U.S. 9th Circuit Court of Appeals, September 02, 2008
Geerston Seed Farms v. Monsato Co., No. 07-16458
In a National Environmental Policy Act case, grant of permanent injunction against planting disputed genetically engineered alfalfa seed pending completion by the U.S. Animal and Plant Health Inspection Service (APHIS) of an Environmental Impact Statement and deregulation decision, is affirmed despite the lack of an evidentiary hearing because the district court performed the traditional balancing test and the injunction would last only until completion of APHIS analysis. Read more...

U.S. 9th Circuit Court of Appeals, September 05, 2008
Wong v. Bush, No. 07-16799
In a case alleging First Amendment and National Environmental Protection Act violations by the U.S. Coast Guard in establishing safety zones insulating a private super-ferry from blockade by local protesters, denial of declaratory judgment is affirmed despite plaintiff's standing to sue where: 1) the safety zones established by the Coast Guard did not violate the First Amendment; and 2) the Coast Guard need not consider the secondary environmental effects of the super-ferry itself in the decision to establish safety zones. Read more...

U.S. 11th Circuit Court of Appeals, September 02, 2008
Sierra Club v. Johnson, No. 0711537
In a Clean Air Act case involving a dispute over what triggers the Environmental Protection Agency's statutory duty to object to the issuance of a Title V operating permit, petition to review EPA decision is denied where: 1) EPA Administrator's actions fell within the bounds of his discretion; and 2) a violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator's duty to object under 42 U.S.C. section 7661d(b)(2). Read more...

California Appellate Districts, September 02, 2008
Ctr. for Biological Diversity v. California Fish and Game Comm'n., No. C055059
Judgment overturning rejection of petition is affirmed where the California Fish and Game Commission erred in rejecting at the threshold a petition to add the California tiger salamander to the Commission's list of endangered species, under the California Endangered Species Act (CESA). Read more...


September 12, 2008 in Air Quality, Biodiversity, Cases, Environmental Assessment, Law, US, Water Quality | Permalink | TrackBack (0)

Friday, August 29, 2008

ExxonMobil agrees to pay most of the reduced Exxon Valdez damage award - about 3 % of its most recent quarterly profits


This week ExxonMobil and plaintiffs' lawyers in the Exxon Valdez case concluded a settlement to pay out most of the $507.5 million maximum damages award set by the U.S. Supreme Court in June. August 26, 2008 AK Daily news Exxon will pay $383.4 million to be distributed to 33,000 commercial fishermen and others who sued after the Exxon Valdez tanker spilled almost 11 million gallons of oil in Prince William Sound in 1989.  Exxon continues to battle with plaintiffs over another $70 million and potential interest of $488 million on the Supreme Court judgment. The figures don't add up because ExxonMobil will reimburse itself $54 million -- the largest single payout -- under terms of a side agreement Exxon made in 1991with seven Seattle-based fish-processing companies.  The $ 383.4 million payment represents roughly 3 % of $11.7 BILLION profits ExxonMobil garnered last quarter, the largest corporate profit ever gained in history. 7/31/08 AP report on ExxonMobil 2d quarter profits  At this profit rate, ExxonMobil will pay roughly 8/10th of 1% of its annual profits.  Oh, I'm sure that ExxonMobil is quaking in their boots about ever being so negligent again. The average American family would pay a larger fine (as a percentage of their take home income or even their total income) for tossing a gum wrapper out the window of a car.  Litter fines What's the take home message of the Supreme Court....maybe litter fines are unconstitutionally excessive?  They might actually deter littering by the likes of ExxonMobil! If ExxonMobil had been fined at the rate of $1000 per cubic foot (the Washington State fine for littering more than a cubic foot of litter), ExxonMobil would have owed $ 1.47 BILLION.  Forgive me.  I'm still a bit irritated by the Supreme Court's sense of justice in the damages case.

August 29, 2008 in Cases, Constitutional Law, Economics, Energy, Governance/Management, Law, North America, Sustainability, US, Water Quality | Permalink | Comments (1) | TrackBack (3)

Monday, August 25, 2008

EPA Sued for Failure to Regulate CO2 in Oil Refinery NSPS

Planet Ark reports:

New York, California, Connecticut, Delaware, Massachusetts, Maine, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia and the City of New York,  are suing federal environmental regulators over greenhouse gas emissions from oil refineries. The states and cities contend EPA violated the federal Clean Air Act by refusing to issue new source performance standards to control global warming pollution emissions from oil refineries.  States have also sued the EPA to require it to regulate global warming emissions from power plants (2006 petition for review) and protect the states' right to regulate pollution emissions from automobiles.  The suit was filed in the US Court of Appeals for the D.C. Circuit.  About 15 percent of US industrial emissions of carbon dioxide come from crude refineries, which burn oil as they make gasoline and jet fuel. The suit seeks to force the EPA to control oil refinery emissions of greenhouse pollution and to order the agency to adopt the standards. Planet Ark link  NY AG's office link

August 25, 2008 in Air Quality, Cases, Climate Change, Energy, Governance/Management, Law, Sustainability, US | Permalink | TrackBack (0)

Findlaw Environmental Law Case Summaries




• Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin.
• El Comite para el Bienestar de Earlimart v. Warmerdam
• James River Ins. Co. v. Ground Down Engineering, Inc.
• Sierra Club v. Envtl. Prot. Agency

Sign into Findlaw to read full cases

U.S. 9th Circuit Court of Appeals, August 18, 2008

Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., No. 06-71891
States' and public interest organizations' petition for review of a rule issued by the NHTSA setting corporate average fuel economy tandards for light trucks, including many SUVs and other vehicles, is granted where: 1) the rule is arbitrary and capricious, contrary to the Energy Policy and Conservation Act (EPCA) in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close an SUV loophole, and failure to set fuel economy standards for all vehicles in a particular weight class; and 2) an Environmental Assessment was inadequate under NEPA and petitioners raised a substantial question as to whether the rule may have a significant impact on the environment. (Substituted opinion) Read more...

U.S. 9th Circuit Court of Appeals, August 20, 2008
El Comite para el Bienestar de Earlimart v. Warmerdam, No. 06-16000, 06-16131
In a challenge under section 304 of the Clean Air Act (CAA) brought by a coalition of community organizations against California state officials responsible for designing and implementing a state air quality plan, challenging the process by which EPA approval of the plan was obtained and the final outcome of the approval process, summary judgment for plaintiff and a remedies order are reversed and vacated where, because section 304 of the CAA provides jurisdiction only to enforce an "emission standard or limitation," and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy. Read more...

U.S. 11th Circuit Court of Appeals, August 20, 2008
James River Ins. Co. v. Ground Down Engineering, Inc. , No. 07-13207
In plaintiff-insurer's claim seeking a declaratory judgment that it is not obligated to provide a legal defense to defendant-insured, dismissal of claim is vacated where: 1) district court erred in holding that the pollution exclusion does not apply; and 2) the pollution exclusion clearly covers the claims asserted against defendant. Read more...

August 25, 2008 in Air Quality, Biodiversity, Cases, Climate Change, Energy, Governance/Management, Law, Sustainability, US | Permalink | TrackBack (0)

Monday, July 21, 2008

Teaching in the 21st Century -- An Experimental Offering -- Hands of God

    Dear friends and colleagues, Here's my video offering called "Hands of God."  I am busy taking a course in Communication Theology -- and I'm reading about how 21st century students learn differently and may even have brains structured differently than those of us who are 20th century babies..  Obviously, if you are here, you are somewhat familiar and comfortable with new media.  I am just experimenting with how to use YouTube and other new media to communicate with and teach our 21st century digital native students.  If you haven't tried this, give it a whirl -- but be forewarned -- a 5 minute video, even one as imperfect as this, is about a 25 hour investment.  It may only be worth the effort if the message is really important.  That's why I bothered with this one.

July 21, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law | Permalink | TrackBack (0)

Monday, July 14, 2008

Environmental Case Summaries

Here are Findlaw's environmental case summaries:

Table of Contents

• City of Bangor v. Citizens CommunicationsCo.
• Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc. (continuation page)
• Wilderness Workshop v. US Bureau of Land Mgmt.
• Am. Wildlands v. Kempthorne
• N.C. v. EPA
• Florida Dept. of Envtl. Protection v. ContractPoint Florida Parks, LLC (continuation page)

   To view the full-text of cases you must sign in to                

U.S. 1st Circuit Court of Appeals, July 09, 2008
City of Bangor v. Citizens CommunicationsCo., No. 07-2193, 07-2255, 07-2759, 07-2777
In a suit involving the responsibility for the cleanup of the contamination of a river bed in Maine under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA), entry of a consent decree allocating certain responsibilities among various parties and dismissal of motions for judgment as to non-settling third and fourth parties' liability are affirmed where: 1) appellants had standing to challenge the consent decree; 2) the deference given to Maine's decision to sign onto the consent decree is not the same as that given to the EPA in a consent decree, and does not displace the baseline standard of review for abuse of discretion; 3) there was no abuse of discretion in not scrutinizing the purported assignment to test its validity; 4) there was no abuse of discretion in finding the decree to be procedurally fair; 5) the district court's substantive fairness finding was well within its discretion; 6) there was no abuse of discretion in a finding ! that the consent decree complied with CERCLA; and 7) there was no obligation to rule on the motions for judgment before it approved the decree. Read more...

U.S. 10th Circuit Court of Appeals, July 08, 2008
Wilderness Workshop v. US Bureau of Land Mgmt., No. 08-1165
In a suit challenging a decision by agency defendants authorizing defendant/intervenor to construct, operate, and maintain a natural gas pipeline through roadless national forest land, denial of plaintiffs' motion for preliminary injunction is affirmed where: 1) plaintiffs failed to show a substantial likelihood of success as to a claim that defendants' authorization of the project violated the Forest Service's Roadless Rule; 2) they also failed to show a substantial likelihood of success as to a NEPA claim; and 3) there was no abuse of discretion as to the analysis of the remaining prongs of the preliminary injunction test. Read more...

U.S. D.C. Circuit Court of Appeals, July 08, 2008
Am. Wildlands v. Kempthorne, No. 07-5179
In a petition to the Fish and Wildlife Service to list the westslope cutthroat trout as a threatened species due to interbreeding with other trout species, denial of the petition by the agency and a denial to supplement the record with material supporting plaintiffs' cause are affirmed where: 1) although new data might require a future listing of the fish as threatened, the agency engaged in reasoned decision-making based on the best available science; and 2) the district court did not abuse its discretion in refusing to supplement the record. Read more...

U.S. D.C. Circuit Court of Appeals, July 11, 2008
N.C. v. EPA, No. 05-1244
In a petition for review of various aspects of the Clean Air Interstate Rule (CAIR) and several challenges to the EPA's authority under Title I and Title IV, the circuit court vacates the rule in its entirety based on several fatal flaws in the rule, and the fact that the Environmental Protection Agency (EPA) adopted the rule as one, integral action. Read more...



Continue reading

July 14, 2008 in Biodiversity, Cases, Climate Change, Energy, Environmental Assessment, Forests/Timber, Governance/Management, Law, Sustainability, Toxic and Hazardous Substances, US | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2008

D.C.Circuit - EPA's delay on regulating CO2 is just alright with us

The D.C. Circuit denied Sierra Club's petition for mandamus (PDF Mandamus Petition) in Massachusetts v. EPA with a per curiam decision.  (Mandamus Denial  PDF) Judge Tatel wrote a thoughtful opinion concurring that mandamus was not warranted, but dissenting in the Court's decision to deny mandamus, rather than hold the petition in abeyance.  He observed that the Court regularly holds the Agency's feet to the fire by requiring regular reports on the Agency's progress on remand.  Tatel referenced the shenanigans of the Bush Administration in tabling EPA's proposed regulation. 

July 8, 2008 in Air Quality, Cases, Climate Change, Energy, Governance/Management, Law, Sustainability, US | Permalink | TrackBack (0)

Tuesday, April 15, 2008

Zg Plater, Pat Parenteau and others to appear at 30th Anniversary Symposium of TVA v. Hill

Here is the announcement:

“A Symposium on TVA v. Hill:
A 30-Year Retrospective on the Legendary Snail Darter Case”

at The University of Tennessee College of Law, Knoxville, Friday, April 18.
The Symposium will start at noon EDST, and you are welcome to join via Webcast.  The Symposium website has a variety of intersting materials.Symposium Website link   The WEBCAST itself can be accessed at Webcast Link   The different sections of the webcast (which will have to be individually cued, starting at noon), are

The Little T Valley:  Home of the Snail Darter
The Saga of How a Citizen Suit Goes National
The TVA History of the Darter Case
The Snail Darter Case in a National Perspective
Overview Wrap-Up Panel

Exactly 30 years before this coming Friday the Supreme Court heard the oral arguments in Tennessee Valley Authority v. Hiram Hill, et al., perhaps the most dramatic national legal story to come out of Tennessee in the past 75 years. Developing over the course of most of a decade, the Tennessee lawsuit— the little endangered snail darter fish versus TVA’s Tellico Dam — became a cultural icon, famous or infamous around the world.

The University of Tennessee College of Law’s thirty-year darter-versus-dam symposium offers a beneficial opportunity finally to put the case into an academic forum and accurate perspective, free of the spins, disinformation, and politicking that graced its years of notoriety, 1973-1980. Thirty years later the elements of the controversy have become broadly clear — the dam project was never a hydro project, but a recreational and land development scheme that was found to be economically dysfunctional from the start, in a unanimous decision  by the world’s first “God Committee” session under the ESA. Within a year, however, an appropriations rider nevertheless ended the case and the river. The merits of this saga will be addressed objectively in an academic forum, and lessons drawn.

Presenters include Dr. David Etnier who discovered the endangered species, several farmers who were displaced by Kelo-like condemnations, Zygmunt Plater who spent six years on the judicial, agency, and congressional battles in the case, Hank Hill & Peter Alliman who shaped the litigation effort as students at UT College of Law, Patrick Parenteau who provided sage support for the citizens’ efforts in Washington D.C. over three years of the case, Prof. Bruce Wheeler who co-authored an intensive internal history of TVA’s campaign to build the dam, and LSU Prof. Ken Murchison who wrote a recent book on the legal history of the case.

A bar journal cover story on the case can be accessed at Tennesee Bar Assn

Please join us electronically if you cannot be with us in person!

April 15, 2008 in Biodiversity, Cases, Energy, Environmental Assessment, Governance/Management, Law, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Monday, April 14, 2008

Supreme Court Grants Cert to Consider Whether to Reverse the Second Circuit's Decision that CWA Cooling Water Intake Structure Technology-Based Rules Cannot be Based on Cost-Benefit Analysis

The U.S. Supreme Court has granted certiorari in the Riverkeeper v. US EPA (Riverkeeper II), 475 F.3d 83 (2d Cir. 2007), which remanded EPA rules on power plant cooling water intake structures that included a number of utility-friendly provisions.  Even so, the industry has estimated that implementation of the rules will cost $ 1 billion.  According to Jim May, the Solicitor General argued against cert.  E & E reports that the US opposes the 2d Circuit decision on the merits.  Petitioners naturally expressed enthusiasm about the Court's grant of cert.  EE quoted the Entergy spokesman as saying: 

The high court "recognizes the national importance of EPA's authority and responsibility to balance the extra cost of regulations ... with the benefits that might be provided,"..."The Supreme Court should take the opportunity to establish rationality in this analysis ... and re-establish EPA's authority to draw a line in the sand about costs that are significantly greater than the benefit they create for the environment"

In Riverkeeper II, 2d Cir opinion pdf the Second Circuit held that CWA 316(b) mandated use of "best technology available" for cooling water intake structures at power plants and did not permit use of cost-benefit analysis, although cost could be considered to determine benchmark technology or to engage in cost-effectiveness analysis.  The court concluded that EPA must explain how the technology selected by EPA “approached” the performance of closed cycle cooling.  The court also held that  EPA exceeded its authority by (1) permitting existing plants to meet national performance standards via use of restoration measures and (2) including a site-specific “cost-benefit” variance.  The court sustained EPA regulation of existing as well as new power plants. Finally, the court held that two provisions, the inclusion of a site-specific “cost-cost” variance and the categorical inclusion in “existing facilities” of new units that are part of same industrial operation, violated the APA notice and comment requirements.

April 14, 2008 in Biodiversity, Cases, Energy, Governance/Management, Law, Sustainability, US, Water Quality | Permalink | TrackBack (1)

Sunday, April 13, 2008

Recent Opinions Available through BNA

BNA recently published the following opinions.  For those of you not familiar with environmental law, BNA frequently obtains and publishes opinions that are not readily available through other sources.  subscribers can access the full test -- for a free trial or to subscribe contact BNA at or call BNA Customer Relations at 800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET).

California Merchant Vehicle Rules Restricting PM, NOx, and SO2 emissions from marine vessel engines within 24 miles of California coast are preempted by the Clean Air Act:(1) CAA preempts state standards regulating nonroad engine emissions unless California receives approval for specific standards from Environmental Protection Agency; (2) agency did not seek approval for its rules; (3) even though rules only apply to non-new engines, preemption under act applies to regulation of both existing and new engines; (4) agency's rules are standards under act; and (5) rules are not "in-use requirements" not subject to preemption under act. See Pacific Merchant Shipping Ass'n v. California Air Resources Board (9th Cir. 2/27/08)

9th Circuit stayed preliminary injunction prohibiting sonar testing off California coast because: (1) federal district court did not explain why injunction could not be tailored to authorize testing with mitigation measures court previously approved, (2) Navy presented substantial case on appeal, (3) Navy will be harmed absent stay, and (4) public interest in national defense militates in favor of granting stay. See NRDC v. Navy Department (9th Cir. 8/31/07)

Successor corporation claims that CERCLA 106 administrative order violates due process dismissed: (1) order did not deprive successor of protected property or liberty rights, (2) successor has meaningful opportunity to challenge order in court, (3) government's role as potentially responsible party potentially liable for cleanup of site does not render issuance of administrative order unconstitutional, and (4) Section 120(a)(1) of CERCLA only waives government's sovereign immunity and does not establish any substantive rights that Section 106 orders could violate. See Raytheon Aircraft Co. v. United States (D. Kan., 8/10/07)

Summary judgment issued for NMFS regarding claim that NMFS Hatchery Fish Policy without EIS violated NEPA.   ESA procedures displace NEPA as to listing determinations, critical habitat designations and any other action taken pursuant to the listing policy: (1) NEPA purposes were served by service providing public with notice and opportunity to comment on listing policy, (2) service considered alternatives proposed in public comments, and (3) ESA environmental protection procedures that displace NEPA EIS procedures as to listing determinations and critical habitat designations will apply to any action taken pursuant to listing policy. See Trout Unlimited v. National Marine Fisheries Service (W.D. Wash. 6/13/07)

April 13, 2008 in Cases | Permalink | TrackBack (0)

Findlaw Environmental Law Case Summaries

These environmental law case summaries are provided by Findlaw.  To read the whole text of the cases, sign into Findlaw.

U.S. 1st Circuit Court of Appeals, April 08, 2008
Commonwealth of Massachusetts v. US, No. 07-1482, 07-1483
In an action where Massachusetts sought to participate directly in a re-licensing proceeding of two nuclear energy plants as a party before the U.S. Nuclear Regulatory Commissions (NRC) issues its renewal decision, petition for review of NRC's dismissal of the Commonwealth's hearing request is denied where: 1) Massachusetts sought the wrong path, as a matter of law, in seeking to raise safety issues as a party in the licensing proceedings; 2) Massachusetts retains a meaningful opportunity to seek judicial review under the procedural course advanced by the agency; and 3) the agency has not issued a final order regarding the rulemaking petition for purposes of judicial review. Read more...

U.S. 1st Circuit Court of Appeals, April 10, 2008
Esso Standard Oil Co. v. Lopez-Freytes, No. 07-1218
An order which permanently enjoined defendants, several members and officials of the Puerto Rico Quality Board, from imposing a $76 million fine on plaintiff is affirmed over claims that: 1) the district court should have abstained from exercising jurisdiction pursuant to the Younger abstention doctrine; and 2) in any event, the court erred in concluding that there existed bias necessitating the imposition of the injunction. Read more...

U.S. 9th Circuit Court of Appeals, April 10, 2008
US v. Vasquez-Ramos, No. 06-50553,06-50694
Denial of defendants' motion to dismiss their indictments for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA), is affirmed where, pursuant to prior circuit precedent which remains binding, the prosecutions did not violate the Religious Freedom Restoration Act (RFRA). Read more...

California Appellate Districts, April 09, 2008
Comm. to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles, No. B197018
In an action to compel a city to rescind its permit for a wooden fence that a homeowner had constructed atop a historic granite walls in Hollywoodland, denial of petitioners' writ of mandate is affirmed and reversed in part where: 1) although under the terms of Hollywoodland Specific Plan (HSP) and the Municipal Code, the city properly granted an exception to the HSP; nevertheless 2) the city improperly granted an exemption under the California Environmental Quality Act. Read more...

California Appellate Districts, April 10, 2008
Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors, No. H030986
In a case primarily addressing the limitations period for challenging a public agency's decision under CEQA, dismissal pursuant to demurrer is reversed and remanded where the trial court incorrectly sustained defendant's demurrer without leave to amend on grounds that the proceedings were necessarily time barred by either Public Resource Code section 21167 or Government Code section 65009. Read more...


April 13, 2008 in Cases | Permalink | TrackBack (0)

Monday, March 24, 2008

Huh?: The Bush Administration Response to Massachusetts v. EPA and the Rule of Law

It is quite fashionable for American politicians and pundits to suggest that somehow the United States has a unique role in spreading the rule of law throughout the world.  The response of the Bush administration to the Supreme Court's decision certainly calls into question the United States' qualifications as an epitome of diligent observance of the rule of law.  Almost one year ago, the Supreme Court held that EPA's denial of the petition was arbitrary and capricious and remanded the case for further proceedings consistent with its opinion.  It concluded, as it always does, "It is so ordered."   EPA dutifully prepared an "endangerment" finding on the petition and forwarded it for White House review.  The White House is simply sitting on the finding, now suggesting that somehow the new CAFE rules excuse it from complying with the Court's mandate.  And now EPA has been forced to dodge and weave in oversight hearings on the Hill and decline to provide documents to Congress concerning its response.  Even if one does not regard the Bush administration's current attempt to avoid the clear import of the Supreme Court's decision as blatantly illegal or unconstitutional, the interplay between EPA, the White House, and Congress in the past year in response to the Supreme Court should be required reading for any student of law or government.

If you're interested in raising the issue, you might start with:
Massachusetts v. EPA decision  (the most relevant excerpt is posted below)
House Oversight Committee's letter to EPA's Administrator Steve Johnson
Hearing held by House Select Committee on Global Warming

EPA has refused to provide the documents that would establish the role of the White House and EPA's political management in drafting the endangerment finding required to comply with the Supreme Court's decision. e-NewsUSA Report on EPA Refusal 

Other excellent substantive blog postings include:
Center for American Progress - Robert Sussman
Hill Heat
Warming Law



Continue reading

March 24, 2008 in Air Quality, Cases, Climate Change, Constitutional Law, Economics, Energy, Governance/Management, Law, Sustainability, US | Permalink | Comments (1) | TrackBack (0)

Monday, March 17, 2008

Drink Water for Life

This article is written by Denise Olivera, Columbia School of Journalism, about the Drink Water for Life Challenge originated by 1st Congregational Church, U.C.C. of Salem, Oregon.  The article was covered by the Great Reporter newsservice link The congregation pledges to give up some of its lattes, sodas, etc. during Lent and give the money to our Pure Water Fund.  In celebration of Lent, spring, or World Water Day, please chose to follow this lead.

March 17, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Friday, March 14, 2008

EPA Sets Primary Ozone Standard at 75 ppb Ignoring Scientific Advice; Sets Unlawful Secondary Standard Based on Bush's Personal Order

EPA's Clean Air Scientific Advisory Committee recommended a primary health standard no higher than 70 ppb and EPA's Children's Health Protection Advisory Committee recommended the standard be set at 60 ppb because children are more vulnerable to air pollution.  EPA estimates that excess deaths of 1700 - 5700 will occur from the new standard as opposed to a 65 ppb standard.

In addition, EPA set the secondary standard identical to the primary standard, not based on science, but based on an order from the President.

Juliet Eilperin of the Washington Post reported yesterday:

Documents obtained by The Washington Post indicate that White House officials chafed at the idea that they could not factor costs into the ozone rule, which requires setting one standard for protecting health and a separate one for protecting public welfare, and that the president himself intervened in the process Monday. In a March 6 memo to the EPA, Susan E. Dudley of the Office of Management and Budget questioned the need for two different ozone limits, noting that the Clean Air Act's definition of public welfare includes "effects on environmental values." The EPA's Marcus C. Peacock replied the next day that it is important to keep in mind that "EPA cannot consider costs in setting a secondary standard."... The rule's preamble indicates Bush settled the dispute March 11, saying the president concluded the secondary standard should be set "to be identical to the new primary standard, the approach adopted when ozone standards were last promulgated."

Apparently industry has actively lobbied to keep the standard at 84 ppb to avoid the estimated cost to industry of $7.6 - $ 8.8 billion a year.  EPA estimates that the new standard will yield $2 billion to $19 billion in health benefits.  For many years, I've maintained that having the government prepare these estimates under EO 12866  (or allowing industry to provide agency decision-makers with its estimates) skews the process towards an illegal cost-benefit analysis.

It is no surprise that faced with numbers, President Bush interfered in what should have been a legal/scientific decision.  Legal because the secondary standard must be set to protect public welfare and there is no basis for assuming that the secondary NAAQS should be the same as the primary NAAQS.  Scientific because only the science should matter: cost and benefit numbers are not what EPA is supposed to consider under the CAA.  Bush had no business making any decision about this.  Bush should not have those cost-benefit numbers in front of him because it leads to bad choices.  Don't put cookies in front of a starving child unless you want them to eat.  Don't put a stack of million dollar bills in front of a thief unless you want to part with them. 

It was the Attorney General's responsibility to tell EPA to set the primary and secondary standards according to science, not cost-benefit estimates.  Period.  End of discussion.  Apparently, some officials at the Justice Department attempted to tell the President just that.

Juliet Eilperin of the Washington Post reported today:

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and on Tuesday ordered the agency to increase the limit, according to the documents. "It is unprecedented and an unlawful act of political interference for the president personally to override a decision that the Clean Air Act leaves exclusively to EPA's expert scientific judgment," said John Walke, clean-air director for the Natural Resources Defense Council....The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone....Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court... As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

I don't envy my former colleagues at the Justice Department who get to defend this embarrassingly illegal action.

March 14, 2008 in Air Quality, Biodiversity, Cases, Economics, Energy, Governance/Management, Law, US | Permalink | TrackBack (0)

Friday, March 7, 2008

Plug in to NRDC's Blog

Wednesday, March 5, 2008

Pulitzer Prize Anyone??? Only if you write by March 12th

Well, no prize, but...You can become a Pulitzer Center Citizen Journalist!!! 


  • Read the corresponding coverage at Pulitzer’s website. Your article should draw on information from the Pulitzer Center articles; but you may also include include original reporting of your own or firsthand experiences. The goal is to provide fresh insight in a compellingly written article.
  • Share your perspective on the issue and write your best article at Helium by March 12th.

March 5, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)