Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Environmental Law

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Helping Hand and the Center petition for review of the EPA's final decision granting Sierra Pacific a prevent of significant deterioration (PSD) permit for construction of a new biomass-burning power plant at its lumber mill in California. Because EPA properly took the requisite hard look at Sierra Pacific’s proposed design and the key purpose of burning its own biomass waste, the court held that EPA reasonably concluded that consideration of solar or increased natural gas would disrupt that purpose and redefine the source. Therefore, the EPA did not act arbitrarily or capriciously and Helping Hand’s petition is denied. Because EPA was largely relying on its own guidance, acting at the frontiers of science, the court deferred to the agency’s determination regarding the supplemental greenhouse best available control technology (BACT) analysis. In this case, Sierra Pacific’s application went through an extensive process to issue a reasoned PSD permit for its new biomass burning boiler. EPA properly defined the project and rejected control technologies that redefined the project with thoughtful and reasonable explanations. The Bioenergy BACT Guidance EPA applied to the greenhouse gas emissions from Sierra Pacific’s new facility is rational and thoroughly consistent with EPA’s prior guidance. View "Helping Hand Tools v. EPA" on Justia Law
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In 2013, BLM adopted a new Recreation Area Management Plan (RAMP) where the 26,098-acre North Algodones Dunes Wilderness tract would remain closed to off-road vehicles, as would 9,261 acres of milkvetch critical habitat. BLM additionally prepared an Environmental Impact Statement (EIS) analyzing the 2013 RAMP, and consulted with the Service pursuant to section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. As a result, the Service issued a new Biological Opinion finding that the 2013 RAMP was not likely to jeopardize the continued existence of the milkvetch or desert tortoise. The Center brought challenges under the ESA; the Clean Air Act (CAA), 42 U.S.C. 7401 et seq.; the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701–1785; the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; and the Administrative Procedure Act (APA), 5 U.S.C. 706 et seq. The district court granted summary judgment for BLM on all but one issue. The court concluded that the ESA does not require Biological Opinions to contain Incidental Take Statements for threatened plants. Therefore, the court need not consider separately the Services' interpretation of the statute. The court rejected the Center's remaining claims, concluding that the Center has failed to demonstrate that BLM’s emissions analysis was arbitrary and capricious. Accordingly, the court affirmed the judgment. View "Center for Bio. Diversity v. BLM" on Justia Law
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Glacier challenges the fee imposed on it by the NMFS pursuant to the agency’s cost recovery program developed under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1853(a). The final regulations required members of a catcher-processor coop to pay a percentage of the revenue earned by each vessel as a fee to NMFS. The court concluded that, because the catcher-processor coop permit is a limited access privilege, and Glacier can reasonably be said to be a “holder” of that permit, NMFS had the authority to collect a fee from the individual members of the coop, including Glacier. Therefore, the district court did not err in granting summary judgment to NMFS on this issue. Because NMFS’s regulations include the Council’s definition of incremental costs as net costs with and without the trawl rationalization program, NMFS complied with section 1853a(e), and the court rejected Glacier’s argument to the contrary. Finally, the court concluded that NMFS’s calculation of the 2014 cost recovery fee of the catcher-processor sector was inconsistent with NMFS’s own regulations. Therefore, the court reversed the district court’s grant of summary judgment to the extent it upheld NMFS’s fee calculation and remanded to the agency to re-determine that fee in accordance with its regulations. Accordingly, the court affirmed in part, reversed in part, and remanded in part. View "Glacier Fish Co. v. Pritzker" on Justia Law
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Plaintiffs challenge the NMFS's decision to calculate the amount of their initial share of the total allowable catch of Pacific whiting based on their participation in the fishery prior to 2003 and 2004, respectively, rather than on their much greater participation in the years immediately before 2010, when the regulations implementing this program were issued. The court concluded that NMFS's decision to apply the 2004 control date to processors was not arbitrary or capricious; with respect to the proposed decision on the 2003 and 2004 end dates for allocating quota shares, NMFS explained its analysis of dependence; because NMFS adequately took into account “dependence on the fishery” under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1853 (b)(6)(B), and “investments in, and dependence upon, the fishery” under section 1853a(c)(5)(A)(iii), its decision was not inconsistent with those statutory requirements; nor was NMFS’s decision inconsistent with the related standards identified by Pacific Dawn; because NMFS reasonably determined that retaining the 2003 and 2004 end dates would be the least disruptive to current fishing practices, its conclusion was not inconsistent with Objective 14 of the Groundfish Management Plan; and the court rejected Pacific Dawn's argument that NMFS’s decision was inconsistent with its practices in other fisheries, where NMFS had concluded that more recent participation reflected greater dependence on the fishery. Therefore, because NMFS properly considered the relevant factors and reasonably decided to maintain the 2003 and 2004 end dates, the court affirmed the district court's grant of summary judgment for defendants. View "Pacific Dawn LLC v. Pritzker" on Justia Law
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Plaintiffs' fouth amended complaint alleged that, in addition to dumping hazardous substances into the Columbia River, Teck also emitted hazardous substances into the air, in violation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9607(a)(3). The Ninth Circuit issued Center for Community Action & Environmental Justice v. BNSF Railway Co., which held that emitting diesel particulate matter into the air and allowing it to be “transported by wind and air currents onto the land and water” did not constitute “disposal” of waste within the meaning of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et seq. The court held that the owner-operator of the smelter can not be held liable for cleanup costs and natural resource damages under CERCLA. The court concluded that, while plaintiffs present an arguably plausible construction of “deposit” and “disposal,” Carson Harbor Vill Ltd. v. Unocal Corp., compels the court to hold otherwise, and while Center for Community Action does not totally foreclose plaintiffs’ interpretation of CERCLA, its textual analysis of 42 U.S.C. 6903(3) is persuasive. Accordingly, the court reversed the district court's orders denying Teck’s motion to strike and/or dismiss and motion for reconsideration, and remanded for the processing of plaintiffs’ remaining claims. View "Pakootas v. Teck Cominco Metals" on Justia Law
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This appeal concerns the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (LFA sonar). At issue is whether NMFS correctly authorized the incidental take of marine mammals in connection with the Navy’s use of LFA sonar for training, testing, and routine operations. The district court granted summary judgment to defendants on the issue of Marine Mammal Protection Act (MMPA), 16 U.S.C. 1371(a)(5)(A)(i), compliance. The court concluded that NMFS is required to prescribe regulations to achieve the “least practicable adverse impact” before it can authorize incidental take, and NMFS's proposed mitigation measures failed to do so. In this case, NMFS should have considered whether additional mitigation measures were necessary to achieve the least practicable adverse impact on marine mammals, and also whether these mitigation measures would be practicable in light of the Navy’s need for effective military readiness training. While NMFS’s finding that LFA sonar operations will have a “negligible impact” on marine mammal populations is a required element for approval of incidental take, it is not a substitute for an analysis of whether the proposed mitigation measures in the 2012 Final Rule reduce the impact of incidental take on marine mammals to the lowest level practicable. NMFS also did not give adequate protection to areas of the world’s oceans flagged by its own experts as biologically important. Accordingly, the court reversed and remanded for further proceedings. View "NRDC v. Pritzker" on Justia Law
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Plaintiffs filed suit alleging that the FWS violated its statutory authority under Public Law 99-625 by terminating a translocation program for the southern sea otter. The district court dismissed the complaint, concluding that it constituted a facial challenge to a 1987 regulation and was thus untimely. The court concluded that the operative agency action challenged is the 2012 program termination, and therefore plaintiffs’ 2013 challenge is timely. The court held only that plaintiffs may challenge FWS’s termination of the program within six years of the decision to terminate the program, and plaintiffs were not required to bring suit within six years of the 1987 rulemaking espousing the authority to terminate the program. To hold otherwise would require plaintiffs to have filed suit nearly a decade before FWS took the action that caused their injury. Accordingly, the court reversed and remanded. The district court on remand should decide if there is merit to plaintiffs’ position that FWS was without Congressional authority to terminate the translocation program. View "Cal. Sea Urchin Comm'n v. Bean" on Justia Law
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Petitioner filed suit under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., challenging the agencies' decision to change how they operated the Albeni Falls Dam during the winter months. The environmental assessment (EA) here concludes that no environmental impact statement (EIS) is required because the proposed action will not “result in any new significant impacts to the human environment.” The court concluded that NEPA only requires the preparation of an EIS when a proposed federal action is major. In this case, actions taken with respect to winter dam management since 1995 reinforce the conclusion that there was no change to the status quo. Because the period when the agencies held winter lake levels constant did not change the operational status quo, neither does the decision to revert to flexible winter operations. The court also concluded that, because the decision adopting flexible winter operations does not trigger NEPA’s requirement to publish an EIS, this and petitioner’s other challenges to the EA’s finding of no significant impact are moot. The court rejected petitioner's challenge to the BPA's failure to prepare a supplemental EIS. Accordingly, the court denied the petition for review. View "Idaho Conservation League v. BPA" on Justia Law
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After Whittaker was found liable for injuries caused by its pollution and paid to clean up the pollution, Whittaker filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., against the United States to recover expenses that it had incurred. The district court concluded that the Castaic Lake lawsuit triggered Whittaker’s right to bring an action for contribution, and that the instant lawsuit sought expenses that could have been reimbursed through such a contribution action. The court held, however, that Whittaker was not required to bring its claims in this case in a section 113(f) contribution action after its liability was resolved in Castaic Lake. In this case, Whittaker was found liable to the Castaic Lake plaintiffs for the expenses specifically related to removing perchlorate from the plaintiffs’ wells and replacing their water. Whittaker now seeks reimbursement from the government for a different set of expenses, for which Whittaker was not found liable in Castaic Lake. The court did not believe that Congress mandated parties who have been sued in section 107 cost recovery actions to bring all of their own CERCLA claims in the form of a contribution action, on an accelerated timeframe, regardless of the merit or the result of the section 107 cost recovery suit. Accordingly, the court reversed and remanded. View "Whittaker Corp. v. United States" on Justia Law
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JAC filed suit contending that the NIGC violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370h, when it approved the Tribe's gaming ordinance without first conducting a NEPA environmental review. The district court denied JAC's petition for a writ of mandamus under the Administrative Procedure Act (APA), 5 U.S.C. 706, holding that NIGC’s approval of the 2013 gaming ordinance was not “major federal action” within the meaning of NEPA. Even if NIGC's approval of the ordinance was a major Federal action, the court held that an agency need not adhere to NEPA where doing so would create an irreconcilable and fundamental conflict with the substantive statute at issue. In this case, the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701–2721, requires NIGC to approve a gaming ordinance or resolution pursuant to a mandatory deadline. There is no question that it would be impossible for NIGC to prepare an environmental impact statement (EIS) in the ninety days it has to approve a gaming ordinance. Contrary to JAC’s arguments, NIGC’s approval of the Tribe’s gaming ordinance without conducting a NEPA environmental review did not violate NIGC’s obligations under NEPA because "where a clear and unavoidable conflict in statutory authority exists, NEPA must give way.” Accordingly, the court affirmed the denial of plaintiff's requested writ of mandamus. View "Jamul Action Comm. v. Chaudhuri" on Justia Law