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."

Author info

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