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July 2007 |
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Note: Status of cases is as of June 8, 2007. Readers are encouraged to advise the authors of pending appeals that should be included. Florida Department of Environmental Protection, et al. v. Save Our Beaches, Inc, et al., Case No. SC06-1447 and 1449. Petition to review decision of First DCA relating to DEP's final order allowing the renourishment of 6.9 miles of beaches and dunes within the City of Destin and Walton County. 31 Fla. L. Weekly D1173. The First DCA certified as a question of great public importance whether the Beach and Shore Preservation Act (Part I of Chapter 161) has been unconstitutionally applied so as to deprive the members of Stop the Beach Renourishment, Inc. of their riparian rights without just compensation for the property taken, so that the exception provided in Rule 18-21.004(3), exempting satisfactory evidence of sufficient upland interest if the activities do not unreasonably infringe on riparian rights, does not apply. Status: Oral argument held on April 19. Mid-Chattahoochee River Users v. DEP, Case No. SC07-520. Petition for review of First DCA decision affirming final order dismissing petition for administrative hearing on the basis of lack of standing. 943 So.2d 989 Status: Petition filed March 26, 2007. Advisory Opinion to the Attorney General re: Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, Case No. SC06-521. The Attorney General asked the Court for an advisory opinion as to whether the financial impact statement prepared by the Financial Impact Estimating Conference on the constitutional amendment, proposed by initiative petition, entitled "Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans," is in accordance with section 100.371, Florida Statutes. Status: Oral argument held January 9.
Patrick W. Brannon and Kathryn C. Brannon v. Steven W. Boldt,
Case No.SC07-563. Appeal from the Second DCA holding that an
easement by implication to access the water did not grant the
holders the right to fish or remain on the property for extended
periods. The Second DCA interpreted Cartish v. Soper, 157 So.2d 150
(Fla. 2d DCA 1963), and considered the nature and extent of riparian
rights transferred to lot owners as an easement by implication but
not those transferred in an express easement. Status: Oral argument
set for September 21. Don and Pamela Ashley v. State of Florida Administration Commission, et al, Case No. 1D07-95. Appeal from a final order determining amendments to Franklin County Comprehensive Plan not in compliance as defined in ? 163.3184 (1)(b), Florida Statutes. The order also required the County to adopt remedial measures regarding capital improvements, affordable housing, coastal high hazard area and planning periods. Status: Notice of Appeal filed January 4; all briefs have been filed.
Florida Hometown Democracy, Inc., et al. v. Sue M. Cobb, in
her official capacity as Florida Secretary of State, Case
No. 1D06-5059. Appeal of summary judgment entered in favor of the
defendant. Plaintiff challenged the constitutionality of a then
proposed constitutional revision changing the deadline for filing a
constitutional amendment (SJR 2394 (2004)), and a state statute
limiting ballot summaries of certain constitutional amendments to 75
words (s. 101.161(1), F.S.). Status: Affirmed March 30, 2007. 32
Fla. L. Weekly 852a. Peninsular Properties Braden River, et al. v. City of Bradenton, Florida, Case No. 2D06-5302. Appeal of the lower court's dismissal of petition as untimely. The petition for review of the City of Bradenton's denial of petitioners' Mira Isles project was filed fifty-one days later, rather than the jurisdictional thirty-day timeframe for seeking judicial review of local government action. The trial court determined it was without jurisdiction to rule on the merits of the petition. Status: Notice of appeal filed November 20, 2006; oral argument held May 22. Collier County Board of County Commissioners v. Florida Fish & Wildlife Conservation Commission, Case No. 2D07-1777. Appeal by Collier County and others from a final order approving the Fish and Wildlife Commission's permit granted to the City for the placement of waterway markers. The final order rejected much of the Administrative Law Judge's recommended order finding that 1) the parties had standing to challenge the permit and the necessity of the ordinance underlying the waterway marker permit application; and 2) the Fish and Wildlife Commission was obligated to determine independently whether the local ordinance was needed. Status: Notice of Appeal filed April 17; Order Granting Consolidation with 2D07-1744 and 2D07-1796 entered May 15. 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: Response to Court's Order requesting status of Ordinances 2004-34 to 2004-39 and 2004-63 to 2004-64 and whether appeal is moot, filed June 5, 2006; jurisdiction relinquished to the Department of Community Affairs on July 12, 2006 (for 120 days); joint status report filed November 27, 2006; order granting extension of time for relinquishment of jurisdiction rendered December 7, 2006, and recommending case remain with the DCA through October 15, 2007. Alfred J. Trepanier, Successor Trustee, et al. v. County of Volusia, Florida, Case No. 5D05-3892. Appeal by owners of oceanfront property from a summary judgment for the County. The owners had sued the County for allowing (and directing) the public to park on property they claim they own. Status: Oral argument held November 7, 2006. Wilkie v. Robbins, Case No. 06-219. Petition to review whether Bureau of Land Management officials can be guilty under RICO (federal racketeering laws) of extortion for canceling grazing allotments and other actions taken to retaliate for a rancher’s refusal to grant an easement on his property. Status: Oral argument held March 19, 2007 DuPont v. U.S., Case No. 06-726. Petition to review a Third Circuit decision holding that potentially responsible parties (PRPs) could not use Section 107 of CERCLA as a means to recover response costs from other PRPs, holding that no implied right of contribution exists. 460 F. 3d 515 (3rd Cir. 2006). Status: Petition filed November 21, 2006. Joint amicus briefs filed December 27. Teck Cominco Metals Ltd. v. Pakootas, Case No. 06-1188. Petition for review of Ninth Circuit decision holding the Canadian firm Teck Cominco liable under CERCLA for contamination in the Upper Columbia River in Washington as a result of discharges from its lead and zinc smelter in British Columbia. 452 F 3d 1066 (9th Circ. 2006) Status: Petition filed February 27; amicus briefs filed May 2; On June 4, the Solicitor General was invited to file brief on behalf of the United States. U.S. Forest Service v. Earth Island Institute, Case No. 06-797. Petition for review of preliminary injunction entered by the Ninth Circuit barring the Forest Service from proceeding with two projects to restore portions of the Eldorado National Forest that were severely damaged by fire, holding that the projects likely violated the National Environmental Policy Act (NEPA) and National Forestry Management Act (NFMA). The question presented is whether the Ninth Circuit erred in ordering the preliminary injunction by: (a) relying on declarations filed by the respondents in the district court, rather than confining its review to the administrative record, when it determined that respondents had shown a likelihood of success on the merits; (b) holding that respondents could satisfy the “irreparable injury” prong of the test for a preliminary injunction by showing only a “possibility” of such injury; and (c) discounting competing interests in the use of forest lands under multiple use principles, and the Forest Service’s balance of those competing uses, in weighing the balance of harms and the public interest. Status: Petition denied March 19. EPA v. New York, Case No. 06-736. Petition to review decision by the D.C. Circuit Court invalidating EPA’s New Source Review (NSR) rule (equipment replacement rule) that limits the circumstances in which NSR permitting requirements apply to maintenance/ equipment replacement projects at industrial plants, on the ground that the phrase “any physical change” in the definition of “modification,” in Section 111(a)(4) of the Clean Air Act (CAA), unambiguously requires EPA to adopt the broadest meaning of the phrase. 443 F. 3d 880 (D.C. Cir. 2006) Status: Court denied the petition denied on April 30. United States v. Atlantic Research Corp., Case No. 06-562. Petition to review Eighth Circuit decision finding an implied right to contribution under Section 107(a) of CERCLA, holding a PRP that voluntarily cleaned up a contaminated site could seek contribution from remaining PRPs. 459 F. 3d 827 (8th Cir. 2006). Status: Oral argument held April 23. EPA v. Defenders of Wildlife, Case No. 06-549. Request for review of Ninth Circuit case finding that EPA violated the Endangered Species Act (ESA) by not consulting with the U.S. Fish and Wildlife Service (FWS) when granting NPDES permitting authority to Arizona under Section 402(b) of the Clean Water Act. 420 F. 3d 946 (9th Cir. 2005). Status: Oral argument held May 17. [Author’s Note: This case has been consolidated with National Home Builders Association v. Defenders of Wildlife, Case No. 06-340.] Environmental Defense v. Duke Energy Corp., Case No. 05-848. Review of Fourth Circuit decision narrowing the scope of NSR air pollution construction permitting program under the CAA to require EPA to interpret an emissions increase that triggers NSR requirements as an increase in the maximum hourly emissions rate of a plant rather than as an increase in actual annual emissions. This ended effectively the enforcement action brought against Duke Energy. 411 F.3d 539, 60 ERC 1577 (4th Cir. 2005). Status: On April 2, the Court vacated and remanded, holding that the Fourth Circuit improperly invalidated NSR rules defining what constitutes a “major modification” and upholding EPA’s interpretation of the term. Massachusetts v. EPA, Case No. 05-1120. Review of D.C. Circuit decision that EPA did not violate the CAA in declining to regulate carbon dioxide emissions (i.e., “greenhouse gases”) from automobiles. 415 F.3d 50, 60 (D.C. Cir. 2005). Status: Reversed and remanded on April 2. The Court ruled that carbon dioxide is a “pollutant” as defined under the CAA and that EPA has the discretion to regulate CO2 emissions from mobile sources such as automobiles. This ruling is already being cited by environmentalists to force additional CO2 regulations at stationary sources (industrial facilities) (see below). Rockwell International Corp. v. U.S., Case No. 05-1272. Petition to review Tenth Circuit decision that the relater of information had satisfied the False Claims Act’s disclosure requirements and was thus eligible to be an “original source” of information for the government under the Act, to assist the federal government in recovering money for fraudulent contracting and other claims, including those brought by contractors for environmental cleanup. 92 Fed. Appx. 708 (2004) Status: Court reversed on March 27; petition for rehearing denied May 14. UGI Utilities, Inc. v. Consolidated Edison of New York, Case No. 05-1323. Petition to review Second Circuit decision allowing a private party to bring a cost recovery action under Section 107 of CERLCA against other PRPs after it voluntarily cleaned up a contaminated site. 423 F. 3d 90 (2nd Cir. 2005) Status: Petition filed April 14, 2006; jurisdictional briefs have been filed. United Haulers Association, Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al., Case No. 05-1345. Petition to review Second Circuit decision holding that two local flow-control ordinances that require waste to be sent to any publicly owned landfill (as opposed to specifying a particular landfill) did not violate the Commerce Clause and that any burden on commerce imposed by the ordinance is “insubstantial” and not excessive. 438 F. 3d 150 (2nd Cir. 2006). Status: Ordinances upheld as constitutional on April 30, finding any burden on interstate commerce outweighed by the benefit to the public derived from the ordinances. Chemtura Canada Co/CIE and Hercules, Inc. v. EPA, Case No. 06-1014. Petition to review Eighth Circuit decision upholding the award of costs incurred by EPA for cleanup at an Arkansas Superfund site, on the issue of whether retroactive imposition of $110 million in liability under CERCLA violates due process provisions of the Fifth Amendment of the U.S. Constitution. 453 F. 3d 1031 (8th Cir. 2006) Status: Petition denied April 23. Cinergy Corp. v. EPA, Case No. 06-850. Petition to review Seventh Circuit decision holding that EPA can reinterpret its NSR rules to declare existing coal-fired electric generating plants “new sources” even though the plants had not undergone a “modification” as that term is defined under EPA’s NSR rules. The Seventh Circuit upheld EPA’s interpretation of the rules requiring NSR permits for any physical change or change in operating methods that increases annual emissions and stated that EPA had the discretion to interpret the term “modification” differently for the New Source Performance Standards (NSPS) rules and the NSR program. Cinergy argued that the proper interpretation of “modification” is in conflict with the Fourth Circuit’s Duke Energy case. 458 F.3d 705 (2006). [Editor’s note: the Duke Energy case was reversed and remanded by the Supreme Court; see above] Status: Petition denied April 16. Watters v. Wachovia Bank, Case No. 05-1342. Petition by the State of Michigan to determine the scope of the federal government’s ability to preempt Michigan banking laws that would allow the state to prevent a subsidiary of Wachovia from operating in the state. Wachovia argued that because it is a national bank, its subsidiary is regulated by the federal Office of the Comptroller of the Currency and that this preempts state law. Sources believe that a ruling in favor of the state could hinder EPA claims in future cases that it can preempt states in situations where Congress has not explicitly granted preemption. 431 F. 3d 556 (6th Cir. 2006) Status: Affirmed on April 17. It remains to be seen how this ruling will impact environmental preemption cases.
SECOND CIRCUIT
San Francisco BayKeeper v. Cargell Salt Division, Case
No. 04-17554. Appeal of 2003 trial court holding that a pond located
on a salt-processing facility near the edge of San Francisco Bay
that collects contaminated runoff from the facility seasonally was
subject to federal jurisdiction under the section 402 of the Clean
Water Act because it was adjacent to Mowry Slough, a tributary to
the bay. Status: On March 8, the Ninth Circuit reversed, holding
that BayKeepers had provided no evidence that any water had ever
flowed from the pond to the slough.
ELEVENTH CIRCUIT United States v. Alabama Power Co., Case No. 06-15456. Appeal of holding that the federal government used the wrong interpretation of what constituted an emissions increase in charging that Alabama Power violated NSR by modifying power plants and increasing emissions without installing the required modern pollution controls. EPA interpreted “emissions increase” as an increase in actual emissions measured on an annual basis. The company argued that “emissions increase” should be interpreted as an increase in the maximum potential hourly emissions rate. 37 ER 2118 (10/20/06). See also, Duke Energy, supra. Status: Motion to vacate and remand (due to the U.S. Supreme Court decision in Duke Energy, supra) is pending. Sierra Club v. U.S. Army Corps of Engineers, Case No. [ADD] and Natural Resources Defense Council. Case No. [ADD]. Appeal of lower court rulings upholding a general wetlands alteration permit issued to St. Joe Company, arguing that the Corps failed to conduct a full assessment of the permit’s wetlands impacts. Status: Notice of appeal filed February 20. Friends of the Everglades v. SFWMD, Case No. 07-11905. Notice of appeal of district court order staying proceedings in one of two cases involving the issue of whether the water management district is required to obtain a NPDES discharge permit for its pumping facilities; the court granted a stay for one year or until the conclusion of the appeals process in the related case (Case No. 02-80309-CIV-ALTONAGA), whichever is sooner. Status: Notice of appeal filed April 25. South Coast Air Quality Management District v. EPA, Case No. 04-1200. Challenge by states and environmentalists to EPA’s rules implementing the 8-hour ozone national ambient air quality standard finalized in 2001. The rule detailed how states with nonattainment areas must draft their attainment plans, including timetables for doing so. Status: December 22, 2006, the court vacated the rule, stating that it violates the CAA by giving certain areas a less stringent classification known as “subpart 1,” providing more flexibility and staggered deadlines for compliance. Subpart 1 classifications were previously used only in maintenance areas, not in nonattainment areas. 472 F. 3d 882 (2006). In other words, DEP gave certain areas too much time, in the court’s eyes, to come into compliance. Petitions for rehearing and rehearing en banc filed March 22. Minnesota Power v. EPA, Case No. 05-1246, and North Carolina v. EPA, Case No. 05-1244. Various petitions challenging EPA’s Clean Air Interstate Rule (CAIR) issued on March 10, 2005. CAIR implements an emissions trading system to reduce emissions of sulfur dioxide and nitrogen oxides from power plants. Status: Petition filed July 11; proposed briefing format and schedule filed by EPA on September 11. Environmental Defense v. EPA, Case No. 05-1159, and 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, which include pollution control technology “floors,” under EPA’s National Emission Standards for Hazardous Air Pollutants (NESHAPs). Status: Petition filed May 18, proposed briefing format and schedule was filed by EPA on August 29; motion to dismiss in related case filed May 18. Sierra Club v. EPA, Case No. 03-1202. Petition challenging EPA’s NESHAPs for brick and ceramic kilns, saying the MACT standard set is too lenient and in some cases non-existent. Status: The MACT standard was vacated on March 13, in part because EPA did not consider requiring facilities to use cleaner clay as an emissions reduction option. This decision could impact any industries that rely on extracted materials for feedstock, such as cement kilns. National Resources Defense Council v. EPA Petition challenging EPA’s boiler MACT as setting too lenient a technology “floor.” Status: Oral argument held on February 23;. EPA made a supplemental filing on March 26 asking the Court to vacate the technology “floor” for the boiler MACT as well as the compliance dates for the entire MACT, to allow EPA to consider the implications of the Sierra Club v. EPA case decided on March 13 (see above). National Resources Defense Council v. EPA Petition challenging EPA’s MACT for plywood manufacturing on the ground that the MACT allows an exemption for facilities determined by EPA to be “low-risk” or below the threshold for health effects, a first for a MACT standard. Status: Oral argument held on April 23. At oral argument, the panel focused on whether the petitioners had standing to challenge the “low risk” exemption, essentially contemplating whether a petitioner must assert a quantified level of risk or harm to have standing.
New York State v. EPA Petition challenging EPA’s
refusal to regulate CO2 emissions from power plants and other
stationary sources under NSPS, arguing that Massachusetts v. EPA
(see above) requires EPA to regulate CO2 from stationary sources. Stacy
Watson May,
stacy.watsonmay@hklaw.com, received her J.D. from The John
Marshall Law School in 1997. She practices in the Jacksonville and
Orlando offices of Holland + Knight LLP. |
