March 2007

Note: Status of cases is as of March 8, 2007.  Readers are encouraged to advise the authors of pending appeals that should be included.

• FLORIDA SUPREME COURT
• FIRST DCA
• SECOND DCA
• THIRD DCA
• FOURTH DCA
• FIFTH DCA
• U.S. SUPREME COURT
• SECOND CIRCUIT
• ELEVENTH CIRCUIT
• D.C. CIRCUIT

FLORIDA SUPREME COURT

Best Diversified, Inc., and Peter L. Huff, et al. v. Osceola County, et al., Case Nos. SC06-1823. Petition to review decision of Fifth DCA's reversal of an award of damages for inverse condemnation under the Bert J. Harris, Jr., Private Property Rights Protection Act to owner and operator of a construction and demolition debris landfill that was denied permits to continue operating the landfill due to residents’ complaints and DEP’s finding that the operation constituted a public nuisance. 31 Fla. L. Weekly D2143. Status: Petition denied on December 4, 2006.

Brevard County v. Stack, Case No. SC06-1616. Petition to review decision of the Fifth DCA rejecting County's argument that the Bert J. Harris, Jr., Private Property Rights Protection Act is unconstitutional. 932 So.2d 1258. Status: Petition denied and motion for attorneys' fees granted on January 24.

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 regarding 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 question of great public importance, the issue of whether the Beach and Shore Preservation Act (Part I of Chapter 161) had 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 – did not apply. Status: Petition granted; all briefs have been filed; oral argument set for April 19.

 

FIRST DCA

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 that changed the deadline for filing a constitutional amendment (SJR 2394 (2004)), and a state statute limiting ballot summaries for certain constitutional amendments to 75 words (s. 101.161(1), F.S.). Status: All briefs have been filed.

Association of Florida Community Developers, et al. v. DEP, Case No. 1D06-1425. Appeal of final order rejecting challenge to DEP's so-called Water Reservation Rule. Status: Affirmed on December 12, 2006, 943 So.2d 989.

DEP v. Florida Petroleum Marketers and Convenience Store Association, Case No. 1D06-0817. Appeal of final order granting attorneys fees to the Association on the basis that DEP was not "substantially justified" in promulgating the contamination notification requirements of Rules 62-770(3)(b) and (4). Status: Affirmed, per curiam, on October 30, 2006, 940 So.2d 1130.

Mid-Chattahoochee River Users v. DEP, Case No. 1D06-0371. Appeal of final order dismissing petition for administrative hearing on the basis of lack of standing Status: Affirmed on November 22, 2006, 943 So.2d 989; motion for rehearing en banc denied on February 16.


 

SECOND DCA

Peninsular Properties Braden River, et al. v. City of Bradenton, Florida, Case No. 2D06-5302. An appeal of the lower court's dismissal of a petition as untimely. The petition, which sought 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 requested.

THIRD DCA

Florida Keys Citizens Coalition, Inc., et al., vs. Florida Administration Commission, et al., Case No. 3D05-1800. Appeal from final order of Division of Administrative Hearings finding that proposed Florida Administrative Code rules regarding the comprehensive plans of Monroe County and the City of Marathon were not invalid exercises of delegated legislative authority. Status: Affirmed per opinion on November 15, 2006; motion for clarification, rehearing, rehearing en banc denied February 13.

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 which would accommodate the proposed Scripps biomedical campus were 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.

FIFTH DCA

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 in favor of the County. Owners sued the County for allowing (and directing) the public to park on property they claimed they owned. Status: Oral argument held November 7, 2006.

Volusia County School Board v. Volusia Home Builders Association, Inc., Case No. 5D05-3535. Appeal of an administrative ruling that the School Board's recommendation of increasing the school impact fee to the Volusia County Council constituted the enactment of a rule or the amendment of a pre-existing rule. Status: Held that the recommendation was neither a rule nor an amendment and that the Volusia Home Builders Association lacked standing to challenge the recommendation; motion for rehearing or clarification/motion for rehearing en banc denied January 25, 946 So.2d 1084.

 

U.S. SUPREME COURT

Teck Cominco Metals Ltd. v. Pakootas, Case No. 06-1188. Petition for review of a Ninth Circuit decision holding the Canadian firm Teck Cominco liable under CERCLA for contamination in the Upper Columbia River in Washington caused by discharges from its lead and zinc smelter in British Columbia. 452 F 3d 1066 (9th Circ. 2006) Status: Petition filed February 27.

Chemtura Canada Co/CIE and Hercules, Inc. v. EPA, Case No. 06-1014. Petition to review an Eighth Circuit case upholding the award of costs incurred by EPA for cleanup at an Arkansas Superfund site. The issue under review is whether retroactive imposition of $110 million in liability under CERCLA violates the due process provisions of the Fifth Amendment of the U.S. Constitution. 453 F. 3d 1031 (8th Cir. 2006) Status: Petition filed January 22.

Cinergy Corp. v. EPA, Case No. 06-850. Petition to review a 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 “modifications” as that term is defined under EPA’s NSR rules. The Seventh Circuit upheld EPA’s interpretation of the rules which required NSR permits for any physical change or change in operating methods that increased annual emissions and stated that EPA had the discretion to interpret the term “modification” differently under the New Source Performance Standards (NSPS) rules and the NSR program. Cinergy argues 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 is currently before the Supreme Court, the status of which is noted above] Status: Petition filed December 15, 2006.

U.S. Forest Service v. Earth Island Institute, Case No. 06-797. Petition for review of a 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. The Ninth Circuit held 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 obtaining 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, when it weighed the balance of harm and the public interest. Status: Petition filed December 8, 2006.

Morrison v. U.S., Case No. 06-749. Petition for review of a Sixth Circuit decision to determine whether the appellate court applied the appropriate test to assess Clean Water Act (CWA) jurisdiction over petitioners’ wetlands. The Morrisons attempted to repair a malfunctioning water supply valve on property in the vicinity of a canal that empties into the St. Clair River in Michigan. The U.S. sued them for violating section 404 of the CWA, arguing that the repair involved unpermitted discharge of dredged or fill materials into wetlands. Two weeks before the Rapanos case was decided, the Sixth Circuit upheld the $25,000 fine and denied petitioners’ motion for rehearing. 178 Fed. Appx. 481 (2006). [Author’s Note: The Rapanos case (126 S. Ct. 2208) was decided on June 19, 2006, and is summarized in this column in the October 2006 issue of the Reporter.] Status: Petition denied March 5.

EPA v. New York, Case No. 06-736. Petition to review a decision by the D.C. Circuit Court invalidating an EPA New Source Review (NSR) rule that limits the circumstances in which NSR permitting requirements apply to maintenance 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: Petition filed November 27, 2006.
City of New York v. Catskill Mountains Chapter of Trout Unlimited, Case No. 06-729. Petition to review a Second Circuit decision holding that water transfers through tunnels, channels, or natural streams for public water supply purposes require NPDES permits under Section 402 of the CWA. 451 F.3d 77 (2006). Status: Petition denied February 26.

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 because 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.

The Coy/Superior Team v. BNFL, Inc., Case No. 06-656. Petition to review a Sixth Circuit decision allowing the owner of hazardous waste at a Superfund site to transfer title and liability for the waste to a demolition/salvage company under CERCLA. The U.S. Department of Energy contracted with BNFL to decommission and decontaminate buildings at a uranium enrichment site, and BNFL subcontracted the demolition work to Coy/Superior. 174 Fed. Appx. 901 (2006). Status: Petition denied January 8.

Baccarat Fremont Developers LLC v. U.S. Army Corps of Engineers, Case No. 06-619. Petition for review of a Ninth Circuit ruling, relying on Justice Kennedy’s concurring opinion in the Rapanos case, which also addressed the issue of wetlands jurisdiction, that the Corps does not need “significant hydrological and ecological connection” between wetlands and adjoining streams to exert authority. 425 F. 3d 1150 (2006). [Author’s Note: The Rapanos case (126 S. Ct. 2208) was decided on June 19, 2006, and is summarized in this column in the October 2006 issue of the Reporter.] Status: Petition denied February 20.

Rodriguez-Perez v. v. Esso Standard Oil Co., Case No. 06-579. Petition to review a First Circuit decision dismissing Puerto Rico state law counterclaims for lost income, attorneys’ fees, slander, and injunctive relief brought in a RCRA suit seeking contribution of response costs incurring in the cleanup of hazardous waste at a gas station in Barranquitas, Puerto Rico. 455 F. 3d 1 (2006). Status: Petition denied January 8.

United States v. Atlantic Research Corp., Case No. 06-562. Petition to review an Eighth Circuit decision finding an implied right to contribution under Section 107(a) of CERCLA and holding that a PRP who cleaned up a contaminated site voluntarily could seek contribution from remaining PRPs. 459 F. 3d 827 (8th Cir. 2006). Status: Petition granted January 19.

EPA v. Defenders of Wildlife, Case No. 06-549. Request for review of a 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: Petition granted January 5. [Author’s Note: This case has been consolidated with National Home Builders Association v. Defenders of Wildlife, Case No. 06-340.]

Pacific Gas & Electric Co. v. San Luis Obispo Mothers for Peace, Case No. 06-466. Petition for review of Ninth Circuit holding that NEPA requires the Nuclear Regulatory Commission (NRC), as part of its review of a proposed federal action, to consider the environmental impact of a potential terrorist attack even if the risk is not sufficiently quantifiable to be meaningful or to assist agency decision making under NEPA. The federal respondents did not file their own petition and recommended denying review at this time, recognizing that the issue may warrant the Supreme Court’s review in the future if a circuit split develops or the Ninth Circuit imposes burdensome requirements in other cases. 449 F. 3d 1016 (9th Cir. 2006) Status: Petition denied January 16.

Mineral County, Montana v. Ecology Center, Inc., Case No. 06-344. The question presented is whether the Ninth Circuit failed to apply the proper standard of review under the Administrative Procedure Act (APA) in its evaluation of whether the Forest Service had complied with NEPA, 42 U.S.C. 4321 et seq., and the National Forest Management Act of 19769, 16 U.S.C. 1600, et seq. 430 F. 3d 1057 (9th Cir. 2005) Status: Petition denied January 8.

D. C. Water and Sewer Authority v. Friends of the Earth, Inc., Case No. 06-119. Petition to review a D.C. Circuit ruling that the word "daily" in the phrase "total maximum daily load" (TMDL) in the CWA means "every day" under the plain language of the statute and holding that EPA erred when it approved TMDLs based on annual limits for oxygen-depleting substances. Status: In response, EPA argued that review was not warranted because its recently issued nationwide guidance (December 1, 2006) that provided sufficient flexibility to state permitting agencies and permit holders to apply a daily limit for TMDLs for all parameters. 446 F. 3d 140 (D.C. Cir. 2006). Status: Petition denied January 16.

United Haulers Association, Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al., Case No. 05-1345. Petition to review a Second Circuit decision which held that a local flow-control ordinance that required that wastes be sent to any publicly owned landfill (as opposed to a specific 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: Oral argument held January 8.

Watters v. Wachovia Bank, Case No. 05-1342. Petition by the State of Michigan challenging 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, which preempts state law. Sources believe that a ruling in favor of the state could hinder EPA claim in subsequent cases that it can preempt state law in situations where Congress has not explicitly granted preemption. 431 F. 3d 556 (6th Cir. 2006) Status: Oral argument heard November 29, 2006.

UGI Utilities, Inc. v. Consolidated Edison of New York, Case No. 05-1323. Petition to review a 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.

Rockwell International Corp. v. U.S., Case No. 05-1272. Petition to review a Tenth Circuit decision holding 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 and 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: Petition granted September 26, 2006.

Massachusetts v. EPA, Case No. 05-1120. Review of a D.C. Circuit decision that EPA did not violate the CAA when it declined to regulate carbon dioxide emissions (i.e., “greenhouse gases”) from automobiles. 415 F.3d 50, 60 (D.C. Cir. 2005). Status: Oral argument held November 29, 2006. A key issue raised at oral argument was whether the coalition of states that brought suit had standing to do so under the “injury in fact” test.

Environmental Defense v. Duke Energy Corp., Case No. 05-848. Review of Fourth Circuit decision narrowing the scope of the NSR air pollution construction permitting program under the CAA by requiring EPA to interpret the emissions increase that triggers NSR requirements as an increase in the maximum hourly emissions rate of a plant rather than an increase in actual annual emissions. This effectively ended the enforcement action brought against Duke Energy. 411 F.3d 539, 60 ERC 1577 (4th Cir. 2005). Status: Oral argument held November 1, 2006.
 

SECOND CIRCUIT

Riverkeeper, et al. v. EPA, Case No. 04-6692. Challenge to EPA’s controversial phase II cooling water intake rule, which set standards under which existing power plants could draw in water used to create steam for electric power generation. Status: On January 25, the court rejected EPA’s use of a cost-benefit analysis to determine the “best technology available” (BTA), EPA’s performance range for selecting intake technologies, provisions allowing the plants to undertake restoration measures in lieu of preventing ecological harm, and a controversial new definition that determined when plant expansions are subject to strict technology standards as “new” facilities. 475 F.3d 83 (2007). EPA has indicated that it may seek rehearing.

 

ELEVENTH CIRCUIT

United States v. Alabama Power Co., Case No. 06-15456. Appeal of a decision that the federal government applied the wrong interpretation of what constituted an emissions increase when it charged that Alabama Power violated NSR when it modified power plants and increased emissions without installing the required modern pollution controls. EPA interprets “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: The court issued a memorandum on October 24 questioning its own jurisdiction. On November 14, the court granted a motion to stay the case until the U.S. Supreme Court reaches a decision in Duke Energy, supra.

 

D.C. CIRCUIT

Utility Air Regulatory Group v. EPA, Case No. 05-1353. Challenge to EPA’s Clean Air Visibility Rule, which sets guidelines for states to determine best available retrofit technology (BART) for reducing haze-forming emissions from existing power plants and other sources of air pollution. The rule also sets forth procedures for states to use when determining which sources must install BART. Industry petitioners generally challenged the rule as inappropriately requiring states to require the application of pollution controls to too many sources, while the National Parks Conservation Association argued that the rule improperly allows states to exempt too many facilities from those requirements. 37 ER 1388, 6/30/06. Status: On December 12, 2006, the court upheld the rule as a reasonable interpretation of the CAA. 471 F. 3d 1333 (2006).

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), which was issued March 10, 2005. The CAIR implements an emissions trading system designed 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. Status: Petition filed May 18, proposed briefing format and schedule was filed by EPA on August 29.

South Coast Air Quality Management District v. EPA, Case No. 04-1200. Challenge by states and environmentalists to EPA’s rules implementing the e-hour ozone national ambient air quality standard finalized in 2001. The rule detailed how states that have not attained the standard must revise their attainment plans. Status: On 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). EPA has indicated that it may seek rehearing en banc.
 

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.

Lawrence E. Sellers, Jr., larry.sellers@hklaw.com, received his J.D. from the University of Florida College of Law in 1979. He practices in the Tallahassee office of Holland + Knight LLP.

Susan L. Stephens, susans@hgslaw.com, received her J.D. from the Florida State University College of Law in 1993. She is of counsel at Hopping Green & Sams in Tallahassee.