Mar 292012

Congress is out to stop EPA and the Army Corps of Engineers from issuing their final guidance on the scope of the agencies' regulatory authority under Section 404 of the Clean Water Act.

Sen. John Barrasso (R-Wyo.) and 30 other senators are co-sponsoring the “Preserve the Waters of the U.S. Act” (S. 2245), which Barrasso said would "prevent[] the EPA and the [Corps] from using their overreaching 'guidance' to change legal responsibilities under the [CWA]" (press release).

The guidance is currently in draft form. It's unclear whether the agencies will issue a final version this year.

Sen. James Inhofe (R-Okla.), a co-sponsor and the chairman of the Senate Environment and Public Works Committee, said the guidance would result in "an increase in Army Corps jurisdictional determinations of as much as 17 percent," but also would change the way states and individual citizens deal with the Clean Water Act.

"These kinds of changes, and passing along more unfunded mandates to state and local governments, should never be done via a guidance document," Inhofe said. "I call on my colleagues from both the Senate and the House to join us in stopping EPA and the Army Corps from making these unprecedented regulatory changes through a guidance document. I look forward to swift action on this bill.”

All of the bill's co-sponsors are Republicans. Environmentalists had been working in recent weeks on Capitol Hill to urge Democrats not to sign on.

In addition to Inhofe and Barrasso, co-sponsors of the bill include Sens. Jeff Sessions (Ala.), Dean Heller (Nev.), Mitch McConnell (Ky.), Mike Enzi (Wyo.), David Vitter (La.), John Boozman (Ark.), Mike Crapo (Idaho), Pat Roberts (Kansas), John Thune (S.D.), Roger Wicker (Miss.), Jim Risch (Idaho), John Cornyn (Texas), Richard Lugar (Ind.), Chuck Grassley (Iowa), Tom Coburn (Okla.), Roy Blunt (Mo.), Marco Rubio (Fla.), Jon Kyl (Ariz.), Pat Toomey (Pa.), Dan Coats (Ind.), Rand Paul (Ky.), Mike Johanns (Neb.), Saxby Chambliss (Ga.), John Hoeven (N.D.), Jerry Moran (Kansas), Johnny Isakson (Ga.), Ron Johnson (Wis.). Jerry Moran (Kansas) and Thad Cochran (Miss.).

Speaking of "navigable waters," here's an interesting opinion from the Second Circuit Court of Appeals finding that the Federal Power Act does not pre-empt regulation of navigable waterways (Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 10-4402).

The FPA "does not supplant the hydropower-licensing powers of state actors except in those areas where state and federal agencies both attempt to make a final decision on 'the same issue' -- that is, where a state-federal conflict arises," the court said. (Opinion from ESWR site)

Niagara Mohawk, doing business as National Grid, challenged the Hudson River-Black River Regulating District's authority to levy assessments against it "for benefits that its property along the Hudson River receives from a dam and reservoir that the District operates," the court noted.

But the lands at issue are not involved in the production of hydropower.

"In the present case, the district’s assessment powers over vacant, non-licensee, non-hydropower plots of land does [sic] not overlap FERC’s powers in any way. Thus, while the FPA does indeed preempt some state and local laws, its scope is far narrower than National Grid suggests, and does not affect the district’s challenged assessments," the court said in its March 7 opinion.

Here's more from the opinion:

National Grid argues that the FPA “wholly pre-empted regulation of navigable waterways in the United States, except with respect to State regulation of irrigation or municipal uses” or, in the alternative, “all matters regarding navigable waterways,” and that, because the District is a FERC licensee, the FPA limits the District’s “assessments for matters other than irrigation and municipal purposes . . . to ‘headwater benefit assessments, as determined by FERC.’” Because the FPA does not contain express preemption language, and because the District’s actions fall within the powers traditionally exercised by states, we begin with a strong presumption against finding that the District’s powers are federally preempted, see Clarkstown, 612 F.3d at 104 – a presumption that National Grid fails to overcome.

. . .

The Supreme Court recognized in First Iowa [Hydro-Elec. Coop. v. FERC, 328 U.S. 152, 171 (1946)] that the FPA "was distinctly an effort to provide federal control over and give federal encouragement to water power development.” Id. at 180 n.23 (emphasis added). The case concerned a hydroelectric project that, unlike National Grid’s vacant parcels of land, was “clearly within the jurisdiction of [FERC] under the Federal Power Act.” Id. at 163. And although the Court described the FPA as an "enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the nation,” id. at 180, the context of the controversy makes clear that the “water resources” in question are hydroelectric power resources. Nothing in the opinion suggests that Congress intended to federalize anything more than the licensing of hydropower projects; the opinion does not indicate that the FPA, as National Grid contends, renders state actors powerless to engage in other forms of regulation of navigable waters, including assessing vacant, non-FERC-licensed, non-hydropower parcels within their jurisdiction for benefits from water-control projects not related to power production.

On the contrary, the Court noted that the FPA recognizes “a separation of those subjects which remain under the jurisdiction of the states from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission [FERC’s predecessor] with authority to act.”

Mar 292012

Apropos of the NRC report released today (see post below), FWS has concluded that "the San Francisco Bay-Delta Distinct Population Segment (DPS) of longfin smelt warrants consideration for protection" under the ESA," but that it is "precluded at this time from drafting a formal listing rule by the need to address other higher priority species."

More information here at FWS's longfin smelt page

Juvenile longfin smelt (Photo by Bureau of Reclamation)

Mar 292012

The news release is here (and reprinted below) and the full report is here.

Date:  March 29, 2012

Increasing Water Scarcity in California's Bay-Delta Will Necessitate Trade-offs;
'Hard Decisions' Needed to Balance Various Environmental Risks

WASHINGTON — Simultaneously attaining a reliable water supply for California and protecting and rehabilitating its Bay-Delta ecosystem cannot be realized until better planning can identify how trade-offs between these two goals will be managed when water is limited, says a new report from the National Research Council.  Recent efforts have been ineffective in meeting these goals because management is distributed among many agencies and organizations, which hinders development and implementation of an integrated, comprehensive plan.  Additionally, it is impossible to restore the delta habitat to its pre-disturbance state because of the extensive physical and ecological changes that have already taken place and are still occurring, including those due to multiple environmental stressors.

The delta region receives fresh water from the Sacramento and San Joaquin rivers and their tributaries, and ultimately flows into San Francisco Bay and the Pacific Ocean.  Water-pumping stations divert water from the delta, primarily to supply Central Valley agriculture and metropolitan areas in southern California, the Bay Area, and the delta itself.  An increasing population and the operation of the engineered water-control system have substantially altered the delta ecosystem, including its fish species.  Conflicts among various water users have grown, and there are sharp differences of opinion concerning the timing and amount of water that can be diverted from the delta for agricultural, municipal, and industrial purposes and how much water, and of what quality, is needed to protect the delta ecosystem.  The U.S. departments of the Interior and Commerce asked the Research Council to identify the factors affecting fish species in the delta, review future water supply and delivery options, determine gaps in knowledge, and advise on the degree of delta restoration that is attainable while maintaining both an environmentally sustainable ecosystem and a reliable water supply.

It is likely that water scarcity in the delta will become increasingly severe, the report says.  Failure to acknowledge this problem and craft plans and policies that address water scarcity for all needs has made delta water management more difficult than is necessary.  The committee that wrote the report suggested establishing priorities for water use, accounting for trade-offs in decision making, optimizing the availability of existing water supplies, enforcing California's constitutional prohibition against non-beneficial and wasteful water use, and practicing water conservation, among other principles and guidelines.

Multiple environmental stressors -- such as dams; water pumping stations; introduced and invasive species; and changes in nitrogen and phosphorus concentrations and amounts, water flow, and habitat -- negatively affect five delta fishes listed as endangered or threatened, the committee said.  Successfully rehabilitating the delta ecosystem by targeting how an individual stressor impacts a particular species seems doubtful.  Therefore, hard decisions will need to be made about balancing risks for different water uses, such as allocating water to support economic activity, sanitation, or other needs.  In addition, alleviating any one stressor alone is unlikely to reverse declines in these species, but opportunities exist to mitigate or reverse the effects of many stressors.  To increase the likelihood that actions to rehabilitate the ecosystem are cost-effective, continued analyses, modeling, and monitoring will be needed, the committee noted.

Climate change is one of the most challenging and important issues confronting the management and rehabilitation of the delta ecosystem.  It is expected to affect the physical and ecological structure and functioning of the delta as well as the availability of water in the state.  For instance, assessments suggest that many species will be affected by changes in runoff from precipitation and snowmelt, which would likely occur earlier in the year than currently.  In addition, projected sea-level rise and extremes of precipitation could increase the frequency of levee failure and the inundation of islands.  Sea-level rise also has the potential to move more salt water into the delta and alter water quality.  The committee recommended that future planning should include a climate change-based risk model, analysis that incorporates data on the actual changes in delta conditions, and alternative future climate scenarios and their probability.

Additionally, the instability of levees and potential of one levee failure to affect others are liable to be major issues for achieving any measure of water supply reliability or ecosystem rehabilitation.  Continuing the status quo of improving levees will not always be the most environmentally sustainable or economically defensible response in the years ahead, the committee noted.

The lack of integrated, comprehensive planning has made science less useful in decision making for the delta, the committee said.  It recommended that California review water planning and management in anticipation of future circumstances.  This review should devote attention to water scarcity, balanced consideration of all statewide water uses and the practices that govern them, and available engineering alternatives.  In the absence of a review, it would be difficult to resolve delta water management problems in other than a piecemeal fashion.

"Science is necessary to inform actions and proposals, but it does not provide the entire overview and integration that the committee recommends," said committee member Henry J. Vaux Jr., professor emeritus of resource economics at the University of California.  "Societal and political considerations are also integral factors in determining the most appropriate policies toward managing the water resources in the delta and balancing the needs of all water users."

The study was sponsored by the U.S. Department of the Interior and U.S. Department of Commerce.  The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies.  They are independent, nonprofit institutions that provide science, technology, and health policy advice under an 1863 congressional charter.  Committee members, who serve pro bono as volunteers, are chosen by the Academies for each study based on their expertise and experience and must satisfy the Academies' conflict-of-interest standards.  The resulting consensus reports undergo external peer review before completion.  For more information, visit  A committee roster follows.


Jennifer Walsh, Media Relations Officer
Luwam Yeibio, Media Relations Assistant
Office of News and Public Information
202-334-2138; e-mail


Division on Earth and Life Studies
Water Science and Technology Board
Committee on Sustainable Water and Environmental Management in the California Bay-Delta

Robert J. Huggett (chair)
Professor Emeritus
College of William and Mary
Seaford, Va.

James J. Anderson
Research Professor and Co-Director of Columbia Basin Research
School of Aquatic and Fishery Sciences
University of Washington

Michael E. Campana
Department of Geosciences
Oregon State University

Thomas Dunne [1]
Donald Bren School of Environmental Science and Management
University of California
Santa Barbara

Jerome B. Gilbert [2]
Consulting Engineer
Orinda, Calif.

Albert E. Giorgi
President and Senior Fisheries Scientist
BioAnalysts Inc.
Redmond, Wash.

Christine A. Klein
Chesterfield Smith Professor of Law
College of Law
University of Florida

Samuel N. Luoma
U.S. Geological Survey
Menlo Park, Calif.

Thomas Miller
Chesapeake Biological Laboratory
Center for Environmental Science
University of Maryland

Stephen G. Monismith
Associate Professor
Civil Engineering Department
Terman Engineering Center
Stanford University
Stanford, Calif.

Jayantha Obeysekera
Director of Hydrologic and Environmental Systems Modeling
South Florida Water Management District
West Palm Beach

Hans W. Paerl
Distinguished Professor
Institute of Marine Sciences
University of North Carolina
Morehead City

Max J. Pfeffer
Department of Rural Sociology
Cornell University
Ithaca, N.Y.

Denise Janet Reed
Department of Earth and Environmental Sciences
Pontchartrain Institute for Environmental Sciences
University of New Orleans
New Orleans

Kenneth A. Rose
E.L. Abraham Distinguished Professor
Department of Oceanography and Coastal Sciences
Louisiana State University
Baton Rouge

Desiree D. Tullos
Assistant Professor
Department of Biological and Ecological Engineering
Oregon State University

Henry J. Vaux Jr.
Professor Emeritus of Resource Economics
University of California
El Cerrito


David Policansky
Study Director

1 Member, National Academy of Sciences
2 Member, National Academy of Engineering

Mar 272012

The Supreme Court declined yesterday (March 26) to review a Ninth Circuit decision which found that attorney fees were due the plaintiff even though the legal issue was found moot (Marina Point Development Co. v. Center for Biological Diversity, 11-782). The question posed by the petition was "whether courts can properly award attorney’s fees and costs under fee-shifting statutes that limit such awards to “appropriate” circumstances when, as here, the matter becomes moot on appeal, the judgment of this district court is vacated and undone, and the plaintiff ultimately accomplishes nothing?"

The fee-shifting provision is contained in the ESA. CBD's attorney fee award amounted to $1.1 million, after being reduced by more than $500,000 when the Ninth Circuit determined that it was not due fees for its Clean Water Act claim. (See SCOTUSBlog link for more documents.)

The high court also said no to a petition challenging shoreline buffers in Washington state.

Links in Kitsap Alliance of Property Owners v. Central Puget Growth Management Hearings Board (11-457)

  • Challenge goes to Supreme Court (Article on Pacific Legal Foundation website)
  • Amicus brief filed by Citizens' Alliance for Property Rights
  • Opposition brief (Hood Canal Environmental Council, Futurewise, People for Puget Sound, Kitsap Citizens for Responsible Planning, and West Sound Conservation Council)

SCOTUSBlog also informs that the court's March 30 conference will include consideration of Arkansas Game & Fish Commission v. United States, which raises the question of whether purposefully flooding land is a Fifth Amendment taking.

Interior announces final voluntary onshore wind energy guidelines

They were released Friday (March 23). (FWS press release) (Fact sheet) (FWS wind energy page)

Mingo Logan wins in D.C.

In the district court in Washington, D.C., Friday, Judge Amy Berman Jackson found conclusively for Mingo Logan Coal Company in its challenge to EPA's invalidation of a 404 permit granted by the Corps for the Spruce No. 1 mine.

Jackson concluded

that EPA exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a). Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA’s view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404. Indeed, it is the Court’s view that it could deem EPA’s action to be unlawful without venturing beyond the first step of the analysis called for by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). But it is undeniable that the provision in question is awkwardly written and extremely unclear. So, the Court will go on to rule as well that even if the absence of a clear grant of authority to EPA to invalidate a permit is seen as a gap or ambiguity in the statute, and even if the Court accords the agency some deference, EPA’s interpretation of the statute to confer this power on itself is not reasonable. Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be. Therefore, the Court will grant plaintiff Mingo Logan’s motion for summary judgment [Dkt. # 26] and deny defendant’s cross-motion [Dkt. # 46].

CAA climate change case advances

Here's an excerpt from another decision from the federal court in D.C., this one issued by U.S. District Judge Frederick J. Scullin Jr., a senior U.S. District Judge sitting in Syracuse. The complaint in Center for Biological Diversity v. EPA (10-985 FJS, D.D.C.) claims EPA violated the Clean Air Act by failing to determine whether greenhouse gas and black carbon emissions from marine vessels and engines, aircraft engines, and non-road vehicles and engines "cause or contribute to dangerous air pollution."

Having carefully reviewed the entire record in this matter, the parties' submissions and oral arguments, as well as the applicable law, and for the reasons stated at oral argument, the Court hereby ORDERS that the parties' cross-motions for summary judgment are DENIED as moot with regard to Plaintiffs' first claim because Defendant EPA has agreed in both its motion papers and during oral argument that it will respond to Plaintiffs' three outstanding rulemaking petitions within ninety days of the date of this Order; and Defendant EPA is hereby ORDERED to do the same; and the Court further ORDERS that Defendant EPA's motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED with regard to Plaintiffs' fourth claim because Plaintiffs have not shown that Defendant EPA has unreasonably delayed in determining whether aircraft engine emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;1 and the Court further 1 The Court reminds Defendant EPA that the degree to which it is entitled deference and discretion is neither unlimited nor unchecked; and, although the Court finds that Defendant EPA has not yet unreasonably delayed in making an endangerment determination under section 231 of the CAA regarding emissions from aircraft engines, such a finding does not entitle Defendant EPA to delay unduly in taking the appropriate agency action.

Plaintiffs are Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment and Oceana.

Scullin ordered that a telephone conference take place on June 26.

FOIA opinion (Public Employees for Environmental Responsibility v. United States Section, International Boundary and Water Commission, U.S.-Mexico, 11-261-BJR, D.D.C.)

Coming up Thursday . . . the long-awaited report from the NRC on the Bay-Delta.

New Report Examines Water and Environmental Management in Calif. Bay-Delta

On Thursday, March 29, the National Research Council will hold a one-hour telephone news conference to release its new report, SUSTAINABLE WATER AND ENVIRONMENTAL MANAGEMENT IN CALIFORNIA’S BAY-DELTA.

Supplied by the Sacramento and San Joaquin rivers and their tributaries, the California Bay-Delta ultimately flows into San Francisco Bay and the Pacific Ocean.  Water-pumping stations divert water from the delta, primarily to supply Central Valley agriculture and metropolitan areas in southern California, the Bay Area, and in the delta region.  An increasing population and the operation of the engineered water-control system have substantially altered the delta ecosystem, including its fish species.  In addition, conflicts among various water users have grown, and there are sharp differences of opinion concerning the timing and amount of water that can be diverted from the delta for agriculture and municipal and industrial purposes and how much water, and of what quality, is needed to protect the delta ecosystem.

The new report examines the factors affecting fish species in the delta, reviews future water-supply and delivery options, identifies gaps in knowledge, and advises on the degree of delta restoration that is likely attainable, while maintaining both an environmentally sustainable ecosystem and a reliable water supply.

From SCI v. Salazar: "For the reasons explained below, the motions for intervention are granted in part as to FOA and DOW, and denied as to HSUS and Born Free USA."

Mar 232012

Chantell and Michael Sackett have won their Supreme Court case with nary a dissent. All nine justices agreed that the Idaho landowners should be allowed to challenge the Environmental Protection Agency's Compliance Order in court.

There were, however, two concurrences, from the left and the right of the court.

Justice Ruth Bader Ginsburg said she was with her colleagues so long as it was clear they were not taking any position on whether the Sacketts can challenge the terms and conditions of the Compliance Order itself. Considering that the court was saying that the landowners can contest EPA's jurisdictional call, it's not clear how that helps the agency, but here's what she said:


Faced with an EPA administrative compliance order threatening tens of thousands of dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for the order.” Brief for Petitioners 9. “As a logical prerequisite to the issuance of the challenged compliance order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over [our] property.” Id., at 54–55. The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.

Then Justice Samuel Alito weighed in, using language that, at least to this casual observer of the Supreme Court, seemed to be more politically minded than one usually sees:

The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.


Mar 152012
Judge Ezra did not abuse discretion, court finds

In addition to weighing in on the constitutionality of Congress's wolf delisting rider, the Ninth Circuit yesterday opined on (and approved of) a consent decree designed to reduce the impact of Hawaii's longline fishery on loggerhead sea turtles (Turtle Island Restoration Network v. U.S. Dep't of Commerce,11-15783).

Loggerhead turtle (Caretta caretta)Photo: Marco Giuliano/ Fondazione Cetacea

Here are a few excerpts:

[I]f the Longliners’ position is carried to its logical conclusion, then any attempt by federal agencies to settle litigation involving a regulation would entail a return to the same rulemaking process by which the regulation was created—a proposition that contradicts the Supreme Court’s policy determination in another context. See Local No. 93, 478 U.S. at 524 n.13 (recognizing that a limit on the government’s ability to enter a consent decree would make it substantially more difficult to settle Title VII litigation).

The Longliners contend that the district court used the Consent Decree impermissibly to modify substantive regulatory rules. See Mt. St. Helens Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 721, 728 (9th Cir. 2004) (“[T]he APA does not empower the district court to . . . order the agency to reach a particular result.”). This argument fails for the same reasons discussed above. Specifically, the Consent Decree vacates only a portion of the Final Rule and the supporting 2008 Biological Opinion and incidental take statements, thus restoring the 2004 regulations during the remand and reconsideration process. The Consent Decree leaves NMFS free on remand to fashion a new rule based on the new biological opinion without imposing any substantive requirements on its terms.

The fact that the Federal Agencies complied with the Magnuson Act’s rulemaking requirements when they issued both the 2009 Final Rule and the 2004 Regulations, see 74 Fed. Reg. 65460, 65462 (Dec. 10, 2009); 69 Fed. Reg. 40734, 40734 (July 6, 2004), and that any subsequent regulations incorporating the new biological opinion’s findings will be subject to the Magnuson Act’s rulemaking procedures further supports upholding the validity of the Consent Decree.

Notably, on September 16, 2011, while this appeal was pending, NMFS uplisted the North Pacific Ocean Distinct Population Segment of loggerhead turtles (the population segment at issue here) as endangered. On January 30, 2012, NMFS issued the biological opinion contemplated in the Consent Decree.

The longliners also had argued that the judge's finding that a return to 2004 incidental take limits would be "more protective" of turtles was clearly erroneous. In part, they contended that any increased take would be “statistically and biologically insignificant” to the loggerhead turtle populations as a whole.

But the appeals court disagreed. There is "no clear error regarding the 'more protective' finding because a reduction in the actual number of incidental take, even if statistically insignificant, is still a logical basis for the finding that turtles would be more protected."

More links

Hawaii longline fishing regs (fact sheet)

Opinion from the Ninth Circuit's site

Some recent Earthjustice press releases

Grand Canyon Uranium Mining Ban Defended by Havasupai Tribe, Conservation Coalition  (3/13/2012)

Conservation Groups Support Swinomish Tribe Battle to Protect Skagit River and Salmon  (3/7/2012)

NAS: EPA Underestimated Number of Polluted Florida Streams, Lakes, Rivers and Springs in Florida  (3/6/2012)

Mar 142012

The press release is here  and audio of the teleconference with Deputy Secretary of the Interior David J. Hayes and Fish and Wildlife Service Director Dan Ashe is here.

The Advance Notice of Proposed Rulemaking can be accessed here.


Landowner incentives page

Mar 142012

Photo by Gary Kramer/USFWS

The Ninth Circuit Court of Appeals has denied a challenge brought by the Center for Biological Diversity and other conservation groups to a congressional rider that effectively delisted Northern Rocky Mountain gray wolves.

"A three-judge panel rejected the conservation organizations’ argument that the rider is unconstitutional because it violates the separation-of-powers doctrine," CBD said in a press release.

The panel included Circuit Judges Mary M. Schroeder, Stephen Reinhardt and Mary H. Murguia. Schroeder wrote the decision. Here is the court's analysis and conclusion:


The cornerstones of plaintiffs’ separation of powers challenge were laid in the mid-19th century when the Supreme Court decided United States v. Klein, 80 U.S. 128 (1871) and Pennsylvania v. The Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855).

In Klein, the Supreme Court struck down an act of Congress that dictated the result in pending litigation. The plaintiff in Klein sued the government for the proceeds of property sold during the Civil War. The suit was filed under a statute granting such a cause of action to noncombatant confederate landowners who could show proof of loyalty to the federal government. The Supreme Court, in an earlier case, had decided that receipt of a Presidential pardon was sufficient proof of “loyalty” under this law. The Court of Claims in Klein followed that decision and awarded recovery. While the government’s appeal was pending, Congress passed a statute providing that no pardon could be admitted as proof of loyalty to the federal government and that acceptance of a pardon, under most circumstances, was conclusive evidence of disloyalty. The statute thus directed the Supreme Court and the Court of Claims to find that a claimant who had accepted a Presidential pardon was in fact disloyal and, therefore, not entitled to land sale proceeds. The newly enacted statute further directed the Supreme Court to dismiss any case, for want of jurisdiction, if the claimant had prevailed upon proof of loyalty by Presidential pardon.

In striking down the statute, the Supreme Court in Klein explained that the effect of the new law was to deny jurisdiction to the Supreme Court and Court of Claims in pending cases “solely on the application of a rule of decision, in causes pending, prescribed by Congress.” Id. at 146. This, the Court held, Congress could not do: “It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.” Id. Because Congress had “prescribe[d] a rule for the decision of a cause in a particular way,” Congress “passed the limit which separates the legislative from the judicial power,” and the provision was declared unconstitutional. Id. at 146-47.

The Court in Klein had to distinguish Wheeling Bridge. There, the Court had originally held that a bridge was an obstruction to navigation. 59 U.S. at 429. Intervening legislation, however, made the bridge a post-road for passage of the United States mail and forbade users of the river from interfering with the bridge. The Court concluded in Wheeling Bridge that this new statute had changed the earlier law that the bridge was obstructing navigation. “[A]lthough [the bridge] still may be an obstruction in fact, [it] is not so in the contemplation of law.” Id. at 430. The Court in Klein held Wheeling Bridge differed from Klein in a critically important aspect: Congress had changed the law, not told the Court that it should decide the case differently under the same law. “No arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In [Klein] no new circumstances have been created by legislation.” Klein, 80 U.S. at 146-47.

Klein, however, has remained an isolated Supreme Court application of the separation of powers doctrine to strike down a statute that dictated the result in pending litigation. This court relied on Klein in Seattle Audubon Society v. Robertson, 914 F.2d 1311 (9th Cir. 1990), rev’d, Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) to strike down a statute enacted to affect pending environmental litigation aimed at restricting logging and protecting the endangered spotted owl. While the litigation was still ongoing, and after the environmental groups had won a preliminary injunction on the ground that there had been inadequate study of the logging’s environmental effects, Congress intervened and passed section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No. 101-121, 103 Stat. 701, 745-50 (1989) (“section 318”). Section 318 allowed logging in parts of the disputed spotted owl habitat. Section 318(b)(6)(A) specified how the environmental concerns in the pending litigation were to be satisfied and barred judicial review. It provided:

Without passing on the legal and factual adequacy of the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide-Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 12, 1988 or the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.

Our court held that section 318 violated the rule in Klein in that it directed the court “to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court.” 914 F.2d at 1316. We noted that, although subsections (b)(2), (b)(3), and (b)(5) added additional requirements, the statute did not by its plain language repeal or amend the environmental laws underlying the litigation. Id.

The Supreme Court, however, told us the error of our ways. Robertson, 503 U.S. 429. The Court held that section 318 amended the law because subsections (b)(3) and (b)(5) replaced the legal standards underlying the old growth forest litigation. Id. at 437. The Court held that the rule of Tennessee Valley Authority, requiring repeal of a law to be explicit, did not apply because section 318 did not repeal, but “amended” or changed the environmental laws applicable to a specific case and therefore did not violate the constitutional prerogative of the courts. Id. at 440 (citing TVA v. Hill, 437 U.S. 153, 190 (1978)).

    [1] Here, as in Robertson, Congress has directed an agency to take particular action challenged in pending litigation by changing the law applicable to that case. In Robertson, Congress replaced the environmental laws applicable to the spotted owl litigation with new provisions and effectively directed the agency to comply with the new provisions. Here, Congress has directed the agency to issue the rule “without regard to any other provision of statute or regulation that applies to issuance of such rule.” This court has held that, when Congress so directs an agency action, with similar language, Congress has amended the law. Consejo de Desarollo Economico, Mexicali v. United States, 482 F.3d 1157, 1169 (9th Cir. 2007) (“[W]hen Congress has directed immediate implementation ‘notwithstanding any other provision of law,’ we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation.”). In Consejo, Congress directed the immediate commencement of a project to line a canal “notwithstanding any other provision of law.” We relied upon our earlier decision in Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989) which upheld a statute that exempted a project from environmental laws. We said in Consejo that, like the legislation underpinning Stop H-3, “the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers.” Id. at 1170; see also Apache Survival Coal. v. United States, 21 F.3d 895, 902 (9th Cir. 1994) (“[L]ike in Robertson, the statute substituted preexisting legal standards that governed a particular project, in this case ESA and NEPA, with the new standards . . . .”). We must reach the same result here.

   [2] Appellants’ arguments that Section 1713 is a repeal rather than an amendment must fail for a similar reason. Congress did not repeal any part of the ESA. Rather, Congress effectively provided that no statute, and this must include the ESA, would apply to the 2009 rule. Congress thus amended the law applicable to the agency action.

Appellants also contend that the meaning and effect of the 2009 Rule as reissued under Section 1713 are unclear, and that ambiguity prevents the court from finding an amendment. We cannot agree. The meaning and intended effect of Section 1713 are perfectly clear. The partial delisting was to take effect within 60 days, with no court review or interference.

   [3] Section 1713’s bar to judicial review does not remove it from the broad safe harbor recognized in Robertson. The bar has the same purpose and effect as the statutory language in Consejo that directed agency action “without delay” and “notwithstanding any other provision of law.” See 482 F.3d at 1168-69. As we stated in Consejo, particular language “is not dispositive.” Id. There are no “magic words” that can sweep aside constitutional concerns. See id. Here, as in Consejo, however, it is clear that Congress intended to amend the law so as to avoid the usual course of administrative proceedings that include judicial review; otherwise, “it would have been unnecessary for Congress to act at all.” Id. at 1169. The D.C. Circuit has reached the same conclusion when dealing with a statute that also stated, expressly, that an agency action “shall not be subject to judicial review.” Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001). In National Coalition, the court held that the preclusion of review tracked language elsewhere in the statute that the project at issue “be ‘constructed expeditiously’ ” and, therefore, “demonstrate[d] Congress’s clear intent to go ahead” with the project “regardless of the . . . relation to pre-existing general legislation.” Id. We agree with the D.C. Circuit that preclusion of judicial review indicates Congressional intent to change the law applicable to the project.

Section 1713 could be read to bar judicial review of even its own constitutionality. Such a construction would, of course, raise serious questions concerning the constitutionality of Section 1713. See Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366 (1974). The government has disavowed this interpretation before the district court and this court. We reject any such interpretation.

   [4] Finally, we observe that while Section 1713 bars judicial review of the reissuance of the 2009 Rule, the 2009 Rule does provide standards by which the agency is to evaluate the continuing viability of wolves in Montana and Idaho. See, e.g., 74 Fed. Reg. 15,123 at 15,186. Review of any regulations issued pursuant to the Rule or of agency compliance with the standards, does not appear to be restricted. Section 1713 itself, however, ordering the Rule to issue without regard to the laws that might otherwise apply, is entitled to be enforced.


For the reasons given above, the decision of the district court is AFFIRMED and the motion for an injunction pending appeal is DENIED as moot.

Mar 132012
EIS was never officially final, court says

Could the Yazoo Pumps, conceived in 1941 and resurrected repeatedly for decades, be dead?

That's the question that pops to mind after reading the Fifth Circuit's decision last week finding that a legal "final" Environmental Impact Statement for the project was never submitted to Congress (Board of Mississippi Levee Commissioners v. U.S., EPA, 11-60302).

EPA vetoed the project in 2008, prompting the Board of Mississippi Levee Commissioners to file suit. The commission lost in district court last year, and on March 6, the appeals court affirmed that decision.

The problem, the court said, was that a final EIS was never submitted to Congress. If one was, there is no record of it.

The court said that "two ambiguous letters" sent to members of Congress in 1983 did not satisfy the requirement that a final EIS be submitted.

"[W]ithout further evidence that the EIS prepared for the project was transmitted to Congress, [the letters] are insufficient to show that the EPA’s decision that [Clean Water Act] section 404(r) does not apply is erroneous," the court said.

Additionally, even if we were to find that the letters showed that the EIS for the project was included as an attachment, there is no evidence in the record to show that the EIS complied with guidelines developed pursuant to section 404(b)(1) of the Water Act or with the [National Environmental Policy Act]. The district court concluded, and we agree, that it is unlikely that the “final EIS” mentioned in the letters—even if it was the EIS related to the project—was actually “final” under the regulations. Certainly it is not so likely that we must overturn the EPA’s contrary finding.

The letters -- really, an identical letter sent to Sen. Robert Stafford (D-Vt.) and Rep. James J. Howard (D-N.J.) -- referred to attachments, but none can be found in the Administrative Record.

The Associated Press (link to story below) quoted Pacific Legal Foundation lawyer Damien Schiff as saying he would have to speak with his clients before deciding whether to request a rehearing or ask the Supreme Court to review the case:

If the ruling stands, “it’s unfortunate that the people of the south Mississippi Delta won’t get the flood protection that Congress has promised them for 75 years,” Schiff said.

But an editorial in the Jackson Clarion-Ledger wondered whether the decision is the "last gasp" for the project, whose history it compared to a bad horror movie.

You can't make a silk purse out of a sow's ear. Whether pushed by self-described conservatives or not, it's still pork: A big government project intended to benefit the few.

Maybe Tuesday's ruling will be the stake through the heart this project deserves. Or, maybe not.

The Yazoo Pump: The Monster That Will Not Die.


Mar 092012

Conservation groups and scientists have voiced their strong opposition to a Fish and Wildlife Service proposal interpreting the ESA provision that allows FWS to list species as threatened or endangered if they face threats throughout a "significant portion" of their range.

Here's the first paragraph of the news release from the environmental groups, which helpfully includes links to both letters.

WASHINGTON— In separate letters today [actually, yesterday -- Thursday, March 8], 89 conservation groups and 97 scientists expressed opposition to a proposed Obama administration policy that would sharply limit protection for the nation’s imperiled wildlife by reinterpreting a key phrase in the Endangered Species Act that determines when plants and animals qualify for protection. Conservation groups opposing the policy include the Center for Biological Diversity (CBD), Endangered Species Coalition, Earthjustice and the Humane Society of the United States.

“This wrong-headed proposal strikes at the very heart of the Endangered Species Act, which was enacted to conserve the ecosystems on which imperiled species depend,” Patrick Parenteau, a law professor at the Vermont Law School, said. “Instead of conserving ecosystems for their biological and economic values, this policy would promote fragmentation and degradation, driving more and more species to the brink of extinction. This is bad science, bad law and bad policy.”

And Noah Greenwald, CBD's endangered species director, said that for species, the proposed policy “is like ignoring an injured patient in the emergency room and jumping into action only when he’s at death’s door. If this policy had been in place when the Endangered Species Act was passed, the bald eagle would never have been protected in any of the lower 48 states, because there were still a lot of eagles up in Alaska.”

Said the news release from CBD, "Under the Act, an endangered species is defined as any 'in danger of extinction in all or a significant of portion of its range.' The phrase 'significant portion of range'  is important, because it means that a species need not be at risk of extinction everywhere it lives to receive protection. The proposed Obama policy reinterprets this phrase by defining 'significant' to mean that loss of the species from that portion of range would threaten the survival of the species, creating a much higher threshold for imperiled wildlife to be protected under the Endangered Species Act. It also limits consideration of whether species are endangered in portions of their range to only where they currently exist and not their historic range — effectively pretending species have not already experienced massive losses from which they need to recover."

More links (to be added to)

Reuters coverage