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Note:
Status of cases is as of September 22, 2005. Readers are encouraged
to advise the authors of pending appeals that should be included.
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FLORIDA SUPREME COURT
Vanderbilt Shores Condominium Association, Inc., et al. v.
Collier County, et al., Case No. SC05-54. Appeal of Second
DCA dismissal of action filed by condominium associations for
declaratory relief and mandamus, challenging county's issuance of
building permit for construction of condominium. 891 So.2d 583.
Status: Petition for review denied June 23. 907 So.2d 1172 (Fla.
2005).
Crist v. Department of Environmental Protection, Case
No. SC03-844. Petition by the Attorney General to review a First DCA
decision holding that the trade secrets exemption in what is now
section 812.045, F.S., should be read to exempt from disclosure as
public records all trade secrets meeting the definition in section
812.081, regardless of whether such documents are stored on or
transmitted by computers, to the extent those documents were
submitted to a public agency under a written claim of
confidentiality. The court held that the exemption applied to public
records disclosures even though it is contained in a chapter
entitled "Computer-Related Crimes" and not the Public Records Law,
Chapter 119, F.S. SePro Corp. v. Department of Environmental
Protection, 839 So. 2d 781 (Fla. 1st DCA 2003), reh'g denied (2003).
Status: Review denied August 29.
FIRST DCA
Miccosukee Tribe of Indians v. DEP, Case No.
1D04-3157. Appeal of a DOAH final order on the Everglades Phosphorus
Criterion Rule, 62-302.540, FAC, approving the rule as a valid
exercise of the Department's delegated legislative authority. DOAH
Case No. 03-2872RP (Final Order entered June 17, 2004). Status:
Affirmed per curiam on July 19. 906 So.2d 1064 (Fla 1st DCA 2005).
Butler Chain Concerned Citizens,
Inc. v. DEP, Case No. 1D04-3941. Appeal of a DEP final order
holding that the petitioner failed to prove standing to challenge a
consent agreement between DEP and the developer that allowed
dredging and filling of sovereign submerged lands in Lake Butler, as
the developer's removal of muck and a tussock in the cove would
improve water quality in the lake. Status: On July 29, the court
affirmed for lack of standing. 907 So.2d 1257 (Fla. 1st DCA 2005).
Jonesville Properties, Inc., et
al. vs. Florida Dept. of Community Affairs and Alachua Co.,
Case No. 1D05-2432. Appeal of final order determining that proposed
amendments to Alachua County comprehensive plan are in compliance.
Status: Motion to dismiss pending.
Florida Wildlife Federation, et
al v. St. Johns County and DCA, Case No. 1D04-3511. Appeal
of final order determining comprehensive plan amendments to be in
compliance. Status: Dismissed per curiam July 18 for lack of
standing for failing to demonstrate that their business interests
are "adversely affected" by the challenged order. Motion for
rehearing denied. 2005 WL 1660806 (Fla. 1st DCA 2005); 30 Fla. L.
Weekly D 1714.
The St. Joe Company v. Rawlis
Leslie, Deborah Crosby, et al., Case No. 1D04-5462. Appeal
of a circuit court’s grant of class certification for property
damage claims arising out of disposal of paper mill waste under
theories of nuisance, trespass, unjust enrichment, strict liability,
negligence and statutory liability under Fla. Stat. 376.313. Status:
Reversed and remanded on July 29. 2005 WL 1788830 (Fla. 1st DCA
2005); 30 Fla. L. Weekly D1839. Motions for rehearing and rehearing
en banc denied. Petition for review filed in Florida Supreme Court
on September 21.
Montgomery Land Co., et al v.
City of Jacksonville, Case No. 1D04-5329. Appeal from order
rejecting a challenge to a City ordinance that requires a permit and
mitigation for removal of certain trees. Status: Oral argument held
September 20.
FOURTH DCA
1000 Friends of Florida, et al. v. DCA, Case No.
4D05-2068. Appeal of final order determining that proposed
amendments to Palm Beach County comprehensive plan to accommodate
the proposed Scripps biomedical campus are in compliance. Status:
Oral argument scheduled for October 5.
Tuten v. DEP, Case No. 4D04-1253. Appeal from order
issuing environmental resource permit to dredge canal to provide
fill material for building pad. In a prior decision, the Fourth DCA
required DEP to issue a default permit. Tuten v. DEP, 819 So.2d 187
(Fla. 4th DCA 2002). DEP subsequently issued the permit with
conditions, and the landowner appealed. Status: On July 20, the
court reversed the issuance of the default permit and remanded to
DEP to conduct an administrative hearing pursuant to the court's
instruction. 906 So.2d 1202 (Fla. 4th DCA 2005).
FIFTH DCA
St. Johns River Water Management District v. Womack,
Case No. 5D03-2493. Appeal of a circuit court decision ordering the
District to pay Womack $262,383 in damages pursuant to 42 U.S.C. s.
1983, for denying Womack equal protection under the laws and holding
that the District's action constituted an unreasonable exercise of
police power in violation of s. 373.617, F.S. Status: On September
16, the court reversed (although the court said it was reluctant to
do so in light of the trial court's "factual finding of impropriety
during the District's proceedings"). 2005 WL 2253833 (Fla. 5th DCA
2005).
St. Johns River Water Management District v. Koontz,
Case No. 5D04-2113. Appeal of final judgment in inverse condemnation
case. Status: Denied per curiam on June 24; motion for rehearing en
banc denied. 908 So.2d 518 (Fla. 5th DCA 2005).
Brevard County v. Charles R. Stack, Trustee, etc., et al.,
Case No. 5D05-1270. In this appeal, Brevard County claimed that the
Bert Harris Act violated the Florida Constitution's eminent domain
provision, that it was an unlawful delegation of legislative power,
and that it created an unconstitutional gift of public funds.
Status: Review denied on August 12.
St. Johns/St. Augustine Committee, etc. v. City of St.
Augustine, et al., Case No. 5D04-3519. Petition for review
of order from the circuit court relating to modifications of a
Planned Unit Development (PUD) for a proposed development which was
recently annexed into the City. Status: Review denied on September
2. 2005 WL 2104610 (Fla. 5th DCA 2005); 30 Fla. L. Weekly D2077.
Osceola County, et al. v. Best Diversified, Inc., and Peter L.
Huff, et al., Case Nos 5D04-216, 5D04-217. Appeal by
Osceola County and DEP from a final judgment awarding damages for
inverse condemnation under the Bert J. Harris Jr. Private Property
Rights Protection Act. Damages were awarded to the owner and
operator of a construction and demolition debris landfill that were
denied permits to continue operating the landfill due to residents’
complaints and DEP’s finding that the operation constituted a public
nuisance. Status: Affirmed in part and reversed in part on July 29;
motion for rehearing en banc pending. 2005 WL 1787438 (Fla. 5th DCA
2005); 30 Fla. L. Weekly D 1831.
U.S. SUPREME COURT
Honeywell International Inc. v. Interfaith Community
Organization, Case No. 04-1560. Petition to review a Third
Circuit decision upholding a district court decision that the
community group had proven an "imminent and substantial
endangerment" to health and the environment under the RCRA citizen
suit provision, affirming the district court's finding that the
hexavalent chromium found in the soil at the Honeywell site exceeded
New Jersey standards by an average of more than 7,500 ppm and that
excavation and removal of the contamination was necessary to
eliminate the threat of exposure. Significantly, the appellate court
held that citizens were not required to exhaust administrative
remedies before filing suit under RCRA's citizen suit provision.
Status: Petition denied June 20. 125 S.Ct. 2951
Kelo et al. v. New London, CT, Case No. 04-108.
Petition to review a decision of the Connecticut Supreme Court
holding that the City of New London was entitled to take property by
eminent domain to facilitate the development of a new major drug
research complex; the Fifth Amendment's public use requirement
authorizes eminent domain of property for the sole purpose of
"economic development" to potentially increase tax revenues and
improve the local economy. 843 A.2d 500 (Ct. 2004). Status: Affirmed
June 23. 125 S.Ct. 2655. Petition for rehearing denied. 2005 WL
2000781.
Alabama v. North Carolina, Case No. 132, original
jurisdiction. Motion for leave to file bill of complaint to settle a
dispute among the seven member states of the Southeastern Low-Level
Radioactive Waste Compact pursuant to the Court's original
jurisdiction, regarding North Carolina's withdrawal from the Compact
in 1999 and liability for $90 million in sanctions based on that
withdrawal. Status: The Court agreed to hear the bill on June 16,
2003. On November 17, 2003, the Court appointed a special master to
mediate the suit.
Carabell v. U.S. Army Corps of Engineers, Case No.
04-1389. Appeal of Sixth Circuit ruling that a wetland separated by
a manmade berm from a ditch that connects to navigable waters
through tributaries still qualifies for CWA protection, even though
there is no hydrological connection between the wetland and the
ditch. Status: Distributed for Conference of October 7, 2005.
FOURTH CIRCUIT
United States v. Duke Energy
Corp., Case No. 04-1763. Appeal of district court decision
that EPA's definition of "modification" in the new source review (NSR)
program must be consistent with the definition in the new source
performance standard (NSPS) program, holding that an "emissions
increase" means an increase in the hourly rate of emissions, as it
is defined under NSPS, not an increase of actual emissions measured
on an annual basis, as EPA contended. As a result, the company could
increase actual emissions by expanding its operating hours, as long
as the hourly emission rate did not increase. 278 F. Supp. 2d 619
(M.D. N.C. 2003). Status: The court affirmed on June 15. 411 F.3d.
539.
Ohio Valley Environmental
Coalition, et al. v. Bulen, et al., Case No. 04-2129. Appeal
of a district court decision barring the U.S. Army Corps of
Engineers from issuing general discharge permit Nationwide 21 (NWP
21) for mountaintop mining in the southern district of West
Virginia, on the ground that the permits unlawfully allow placement
of mining debris into streams below (a practice called "valley
fills") using procedures Congress never intended for general permits
under section 404 of the CWA. The Justice Department is arguing that
the decision will lead to inconsistent application of the NWP 21
nationwide. Ohio Valley Environmental Coalition v. Bulen, Case No.
CIV.A.3:03-2281, 2004 WL 1576726 (S.D.W.Va. July 8, 2004), modified
in part, 2004 WL 2384841 (Aug. 13, 2004), reconsideration denied
(Aug. 31, 2004). Status: Oral argument held September 19.
SEVENTH CIRCUIT
Texas Independent Producers & Royalty Owners Assn. v. EPA,
Case No.03-3277. Challenge to various aspects of the NPDES
stormwater general permit for construction activities on the ground
that the requirements are vague or arbitrary and capricious. Status:
The court upheld the general permit on June 13, holding that it did
not violate the Clean Water Act’s provisions requiring public notice
and comment or the Endangered Species Act consultation requirement.
Rehearing and rehearing en banc denied August 26. 410 F.3d 964.
ELEVENTH CIRCUIT
Southern Waste Systems, LLC v. City of Delray Beach, et al.,
Case No. 04-13035. Appeal of a summary judgment declaring that a
contractual agreement between the City and Waste Management, Inc.,
was unconstitutional, and enjoining its enforcement because it
violates the Commerce Clause. Status: On August 16, the court
reversed the judgment, vacated the injunction and remanded. 2005 WL
1958367; 18 Fla. L. Weekly Fed. C 845.
D.C. CIRCUIT
Association of Irritated Residents v. EPA, Case No.
05-1177. Petition to review an agreement between EPA and operators
of concentrated animal feeding operations (CAFO) that would allow
CAFOs to avoid prosecution for past violations of the Clean Air Act
if they participate in an emissions study to allow EPA to gather
emissions data. Status: Petition filed May 27. The petitioners’
unopposed motion to hold the case in abeyance was granted August 3.
U.S. Telecom Association & CenturyTel, Inc. v. FCC,
Case No. 03-1443. Petition to review a FCC rule on the grounds that
the FCC failed to conduct an assessment under the Regulatory
Flexibility Act, which requires agencies to justify their proposed
rules and explain how the rule(s) may affect small businesses.
Status: On March 11, the court remanded the rule to require the FCC
to conduct the requisite assessment. This could impact other agency
rulemakings. 400 F.3d 29. On August 26, the court denied a motion
for attorneys’ fees brought against the FCC.
Environmental Defense v. EPA, Case No. 05-1159;
Chesapeake Bay Foundation v. EPA, Case No. 05-1267. Various
petitions challenging EPA’s March 15 rule allowing coal-fired power
plants to avoid maximum achievable control technology (MACT)
emissions controls for mercury. Status: Petitions filed in July. The
cases were consolidated, and a motion by EPA to hold the cases in
abeyance pending agency action is pending.
Minnesota Power v. EPA, Case No. 05-1246; North
Carolina v. EPA, Case No. 05-1244. Various petitions challenging
EPA’s Clean Air Interstate Rule (CAIR), which was issued March 10.
The CAIR implements an emissions trading system to reduce emissions
of sulfur dioxide and nitrogen oxides from power plants. Status: The
cases have been consolidated. EPA’s motion to hold the cases in
abeyance pending agency action is pending.
Commonwealth of Massachusetts v. EPA, Case No.
03-1361. Petition by a dozen states challenging EPA’s decision not
to regulate carbon dioxide and other greenhouse gases from vehicles
under the Clean Air Act. Status: A three-judge panel of the court
denied the petitions on July 15. 415 F.3d 50. A petition for
rehearing and rehearing en banc was filed August 29.
Natural Resources Defense Council v. EPA, Case No.
04-1323. Challenge to emission limits issued on July 30 for
hazardous air pollutants from makers of plywood and composite wood
products, particularly focusing on provisions exempting facilities
found to present a low risk to human health; the challengers have
also filed a petition with EPA requesting reconsideration of the
rulemaking. Status: Challenge filed September 28, 2004; order
entered July 29 granting motion to continue to hold case in
abeyance.
New York v. EPA, Case No. 03-1380. Challenge to EPA's
New Source Review rule amendments published on October 27, 2003,
which expands the "routine maintenance/equipment replacement"
exclusion from review under the New Source Review/Prevention of
Significant Deterioration (NSR/PSD) programs. The rule amendments
were scheduled to take effect on December 26, 2003. Status: EPA
denied reconsideration of the rule on June 6. Order establishing
briefing schedule entered August 31.
New York v. EPA, Case No. 02-1387. Challenge to EPA
rule amendments granting additional exemptions from NSR/PSD
requirements. Status: On June 24, the court upheld major portions of
EPA's rule for measuring increases in emissions that trigger new
source review/prevention of significant deterioration review
(upholding EPA's definition of "modification"), but rejected certain
aspects of the rule, including a recordkeeping exemption and
exemptions for pollution control projects and clean unit
designations. 413 F.3d 3.
American Iron & Steel v. EPA, Case No. 00-1435.
Petition to review EPA's final air pollution monitoring rule and
performance standard published August 10, 2000, requiring use of
continuous opacity monitors. Status: The EPA and Petitioners have
begun settlement discussions and agree that maintaining the stay of
litigation while these discussions occur will serve the interests of
the parties and judicial efficiency. EPA was due to file a status
report on September 12.
Commonwealth of Massachusetts, et al, v. USEPA, Case
No. 03-1361. Appeal by multiple states and environmental groups of
EPA’s denial of a petition asking it to regulate carbon dioxide and
other greenhouse gas emissions from new motor vehicles under the
Clean Air Act. EPA concluded that it did not have statutory
authority to regulate greenhouse gas emissions from new motor
vehicles and that, even if it did, it would not exercise the
authority at this time. EPA’s determination was based, at least in
part, on contradictory evidence as to whether greenhouse emissions
from new motor vehicles have caused or will cause a significant
change in global climate. EPA also relied on the lack of regulatory
approaches to reduce such emissions. Status: The court found that
the EPA Administrator properly exercised his discretion under the
Clean Air Act by not regulating greenhouse gas emissions from new
motor vehicles.
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Lawrence E. Sellers, Jr., received his J.D. from the
University of Florida College of Law in 1979. He is a partner in
the Tallahassee office of Holland & Knight LLP.
Susan L. Stephens, received her J.D. from the Florida
State University College of Law in 1993. She is a partner in the
Tallahassee office of Holland & Knight LLP.
Stacy
Watson May, stacy.watsonmay@hklaw.com, received her J.D. from The
John Marshall Law School in 1997. She is a senior attorney who
practices in the Jacksonville and Orlando offices of Holland +
Knight LLP.
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