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.
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.
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.
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?
• 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...
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.
• 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.
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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...
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.
• 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
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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...
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.
• 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)
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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...
U.S. 10th Circuit Court of Appeals, July 08, 2008 Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., No. 06-1434, 06-1435, 06-1463
In a suit brought by a federal contractor against a subcontractor after
it terminated the subcontractor for default, wherein the subcontractor
counterclaimed for wrongful termination, judgment and award to
defendant on its counterclaim is affirmed in part, reversed in part,
and remanded where: 1) a prior appeal did not discharge a supersedeas
bond and it was still in effect, but surety's liability, however, is
limited to the penal sum of the bond; 2) prejudgment interest was
properly awarded but was improperly calculated on the entire damage
award from the date of termination; 3) a duplication of damages
occurred and a remand for remittitur or new trial on damages was
required; 4) plaintiff was entitled to judgment as a matter of law on a
bond equitable adjustment; 5) challenges to the judgment against
plaintiff as to another subcontractor and surety failed; and 6) the
judgment requires amendment to reflect the accurate post-judgment
interest rate. Read more..
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.
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
Welcome 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!
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.
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 http://web.bna.com 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)
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...
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
Pertinent portions of Massachusetts v. EPA April 2, 2007
... The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842845 (1984). That discretion is at its height when the agency decides not to bring an enforcement action. Therefore, in Heckler v. Chaney, 470 U. S. 821 (1985), we held that an agencys refusal to initiate enforcement proceedings is not ordinarily subject to judicial review. Some debate remains, however, as to the rigor with which we review an agencys denial of a petition for rulemaking. There are key differences between a denial of a petition for rulemaking and an agencys decision not to initiate an enforcement action. See American Horse Protection Assn., Inc. v. Lyng, 812 F. 2d 1, 34 (CADC 1987). In contrast to nonenforcement decisions, agency refusals to initiate rulemaking are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formali- ties, including a public explanation. Id., at 4; see also 5 U. S. C. §555(e). They moreover arise out of denials of petitions for rulemaking which (at least in the circumstances here) the affected party had an undoubted procedural right to file in the first instance. Refusals to promulgate rules are thus susceptible to judicial review, though such review is extremely limited and highly deferential. National Customs Brokers & Forwarders Assn of America, Inc. v. United States, 883 F. 2d 93, 96 (CADC 1989). EPA concluded in its denial of the petition for rulemaking that it lacked authority under 42 U. S. C. §7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an air pollutant as that term is defined in §7602. In the alternative, it concluded that even if it possessed authority, it would decline to do so because regulation would conflict with other administration priorities. As discussed earlier, the Clean Air Act expressly permits review of such an action. §7607(b)(1). We therefore may reverse any such action found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. §7607(d)(9). VI On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a judgment that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, §202(a)(1) provides that EPA shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrators] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. 42 U. S. C. §7521(a)(1).
Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an air pollutant within the meaning of the provision. The statutory text forecloses EPAs reading. The Clean Air Acts sweeping definition of air pollutant includes any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . . §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word any.25 Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt physical [and] chemical . . . substance[s] which [are] emitted into . . . the ambient air. The statute is unambiguous.26 Rather than relying on statutory text, EPA invokes postenactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant when it amended §202(a)(1) in 1970 and 1977.27 And unlike EPA, we have no difficulty reconciling Congress various efforts to promote interagency collaboration and research to better understand climate change28 with the agencys pre-existing mandate to regulate any air pollutant that may endanger the public welfare. See 42 U. S. C. §7601(a)(1). Collaboration and research do not conflict with any thoughtful regulatory effort; they complement it.29 EPAs reliance on Brown & Williamson Tobacco Corp., 529 U. S. 120, is similarly misplaced. In holding that tobacco products are not drugs or devices subject to Food and Drug Administration (FDA) regulation pursuant to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S., at 133, we found critical at least two considerations that have no counterpart in this case. First, we thought it unlikely that Congress meant to ban tobacco products, which the FDCA would have required had such products been classified as drugs or devices. Id., at 135137. Here, in contrast, EPA jurisdiction would lead to no such extreme measures. EPA would only regulate emissions, and even then, it would have to delay any action to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance, §7521(a)(2). However much a ban on tobacco products clashed with the common sense intuition that Congress never meant to remove those products from circulation, Brown & Williamson, 529 U. S., at 133, there is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter. Second, in Brown & Williamson we pointed to an unbroken series of congressional enactments that made sense only if adopted against the backdrop of the FDAs consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco. Id., at 144. We can point to no such enactments here: EPA has not identified any congressional action that conflicts in any way with the regula- tion of greenhouse gases from new motor vehicles. Even if it had, Congress could not have acted against a regulatory backdrop of disclaimers of regulatory authority. Prior to the order that provoked this litigation, EPA had never disavowed the authority to regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority. See App. 54 (Cannon memorandum). There is no reason, much less a compelling reason, to accept EPAs invitation to read ambiguity into a clear statute. EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the publics health and welfare, 42 U. S. C. §7521(a)(1), a statutory obligation wholly independent of DOTs mandate to promote energy efficiency. See Energy Policy and Conservation Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency. While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) ([T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Acts capacious definition of air pollutant, we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles. VII The alternative basis for EPAs decisionthat even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this timerests on reasoning divorced from the statutory text. While the statute does condition the exercise of EPAs authority on its formation of a judgment, 42 U. S. C. §7521(a)(1), that judgment must relate to whether an air pollutant cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare, ibid. Put another way, the use of the word judgment is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits. If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (stating that [EPA] shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class of new motor vehicles). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design. EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, 68 Fed. Reg. 52932, that regulating greenhouse gases might impair the Presidents ability to negotiate with key developing nations to reduce emissions, id., at 52931, and that curtailing motor-vehicle emissions would reflect an inefficient, piecemeal approach to address the climate change issue, ibid. Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment. In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the Global Climate Protection Act of 1987, Congress authorized the State Departmentnot EPAto formulate United States foreign policy with reference to environmental matters relating to climate. See §1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list. §1103(b). Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 5293052931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty which, contrary to JUSTICE SCALIAs apparent belief, post, at 58, is in fact all that it said, see 68 Fed. Reg. 52929 (We do not believe . . . that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time (emphasis added))is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding. In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore arbitrary, capricious, . . . or otherwise not in accordance with law. 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPAs actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute. VIII The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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.
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.
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.
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.
