Note: Status of cases is as of March 15, 2002. Readers are
encouraged to advise the authors of pending appeals that should be
included.
FLORIDA SUPREME COURT
U.S. Sugar v. Henson, Case No. SC01-1127. Petition to
review a First DCA decision in a workers' compensation case admitting
scientific evidence concerning the effect of chronic exposure to
pesticides. 787 So. 2d 3 (Fla. 1st DCA 2001). Status: Petition granted
October 11, 2001. No oral argument will be heard.
Costco Wholesale Corp. v. Orange County, Case No.
SC01-382. Petition to review a Fifth DCA case holding that an
ordinance which required a 5,000 foot minimum setback between liquor
package stores was arbitrary and capricious and therefore
unconstitutional, as it lacked a reasonable relationship to public
health, morals and welfare. 780 So. 2d 198 (Fla. 5th DCA 2001).
Status: Oral argument held January 7.
Panda Energy International v. Jacobs, et al., Case No.
SC01-284. Appeal of a determination of need issued to the Florida
Power Corporation by the Public Service Commission for construction of
a new 530 megawatt power plant in Polk County. The issues are whether
FPC's self-build option was properly selected over that of Panda
Energy and whether the FPC need determination was valid. Status: Oral
argument held December 6, 2001.
Barley v. South Florida Water Management District, Case
No. SC00-1998. Petition to review a Fifth DCA decision holding that
the "Polluter Pays" amendment to the constitution did not bar the
water management district from levying a tax to clean up the
Everglades on all property owners within the district, because the
amendment is not self-executing. 766 So. 2d 433 (Fla. 5th DCA 2000).
Status: Oral argument held August 28, 2001.
Sarnoff v. Department of Highway Safety & Motor Vehicles,
Case No. SC01-351. Petition to review the constitutionality of the $10
fee motorists in six counties were required to pay up until July 2000
under the mandatory auto emissions inspection program. The First DCA
reversed an order granting class certification on the ground that the
plaintiffs had failed to exhaust their administrative remedies by
first seeking a refund of the fee from the state comptroller. 776 So.
2d 976 (Fla. 1st DCA 2001). Status: Oral argument held November 7,
2001.
Pinecrest Lakes, Inc. v. Shidel, Case No. SC01-2429.
Petition to review a Fourth DCA decision holding that because section
163.3194 of the Florida Statutes provides for injunctive relief to
prevent a local government from taking action on a development order
that is inconsistent with its comprehensive plan, courts are required
to grant an injunction whenever an aggrieved party shows that a
project is inconsistent with the comprehensive plan, notwithstanding
the fact that the County Commission had earlier determined that the
development order was consistent with the comprehensive plan and that
issuance of the injunction would require the builder to remove five
apartment buildings. 795 So. 2d 191 (Fla. 4th DCA 2001). Status:
Petition filed on November 5, 2001.
City of Jacksonville v. Dixon, Case No. SC01-103.
Petition to review a First DCA decision reversing a circuit court
order which denied the Dixons' motion to enjoin the City from
implementing an ordinance (development order) which would rezone
certain property to allow construction of a hotel. Applying the strict
scrutiny test, the court held that the development order was
inconsistent with the City's comprehensive plan and that the City was
not entitled to deference in its interpretation of its own
comprehensive plan. 774 So. 2d 763 (Fla. 1st DCA 2000). Status:
Petition granted January 22. No oral argument will be heard.
Board of Trustees of the Internal Improvement Trust Fund v. Day
Cruise Association, Case No. SC01-2656. Petition to review a
First DCA decision holding that a proposed Trustees rule prohibiting
gambling "cruises to nowhere" from docking over sovereign submerged
lands was an invalid exercise of delegated legislative authority. 798
So. 2d 847 (Fla. 1st DCA 2001). Status: On November 2, 2001, on motion
for clarification, rehearing, certification or rehearing en banc, the
court certified the following question: "Is proposed rule
18-21.004(1)(i) an invalid exercise of delegated authority within the
meaning of section 120.52(8)(b)?" Petition filed December 3, 2001.
Caribbean Conservation Corp. v. Florida Fish & Wildlife
Conservation Commission, Case No. SC01-1885. Petition to
review a First DCA case holding that Chapter 99-245, Laws of Florida,
is a constitutional statutory delegation of authority over endangered
marine life to the Fish and Wildlife Conservation Commission (FWCC)
and holding that the FWCC is subject to the rulemaking requirements of
the APA in promulgation of rules related to such species. 789 So. 2d
1053 (Fla. 1st DCA 2001). Status: Petition filed August 28, 2001.
FIRST DCA
Bradfordville Phipps L.P. v. Leon County, Case No.
1D01-541. Appeal of a trial court holding in favor of the County in an
inverse condemnation suit. The County denied Phipps' application for a
development permit for property in the Bradfordville Study Area on the
ground that an injunction against development there had been entered
by a trial court in another case. Phipps claimed that the County's
settlement agreement in the other case not to challenge the injunction
deprived Phipps of the beneficial use of its property and constituted
a taking. The trial court held that the taking claim was not ripe
because Phipps had not intervened in the other case, the property was
not taken because it could still be used for some other beneficial
purpose, and that the imposition of the development restrictions was
not "reasonably unexpected." Status: The court affirmed on November
26, 2001. Rehearing denied January 7. 804 So. 2d 464.
Florida Wildlife Federation v. Collier County, Case No.
1D01-1299. Appeal concerning whether the county regulations must
include an intensity standard for agricultural use similar to that
required for other non-residential land uses. Status: Oral argument
held March 12.
FIFTH DCA
Mann v. Orange County, Case No. 5D01-1741. Petition for
certiorari review of a circuit court decision upholding the County's
action in denying a proposed rezoning request based on a lack of
adequate school facilities to support the planned residences. Status:
Petition denied February 11. Motion for rehearing is pending.
U.S. SUPREME COURT
Hansen v. United States, Case No. 01-1104. Petition to
review an Eleventh Circuit opinion upholding the 1999 criminal
convictions of three officials of a manufacturing company for RCRA,
CERCLA and Clean Water Act violations. 262 F. 3d 1217 (11th Cir.
2001). Status: Petition filed January 24.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, Case No. 00-1167. Petition to review a Ninth
Circuit opinion holding that a temporary moratorium on development in
the Lake Tahoe region did not constitute a categorical regulatory
taking. 216 F. 3d 764 (9th Cir. 2000). Status: Oral argument held
January 7.
United Haulers Assoc. v. Oneida-Herkimer Solid Waste Management
Authority, Case No. 01-686. Petition to review a Second
Circuit opinion holding that ordinances which required waste generated
within the subject counties to be delivered to publicly owned
facilities in the counties did not violate the Commerce Clause of the
federal constitution. 261 F. 3d 245. Status: Petition denied January
7.
Hamm v. Waste Management Holdings, Case No. 01-808.
Petition to review a Fourth Circuit opinion holding that the Virginia
statute that capped the amount of out-of-state waste landfills in the
state could accept and restricting the use of barges to transport
waste violated the federal Commerce Clause. Waste Management Holdings
v. Gilmore, 252 F. 3d 316 (4th Cir. 2001). Status: Petition filed
October 30, 2001.
United States v. Knott and Riverdale Mills Corp., Case
No. 01-717. Petition to review a Fifth Circuit opinion holding that
Riverdale and its principal owner, Knott, are not entitled to
attorneys fees from EPA under the Hyde Test for criminal enforcement
charges brought for alleged wastewater discharge violations, where the
lower court ruled that EPA and DOT had obtained the evidence for the
charges illegally. The Fifth Circuit reversed the lower court award of
fees on the ground that the government's conduct was not sufficiently
"vexatious." 256 F. 3d 20 (5th Cir. 2001). Status: Petition filed
November 21, 2001.
Carson Harbor Village, Ltd. v. Braley, Case No. 01-1091.
Petition to review a Ninth Circuit ruling holding that a former
property owner could be held liable for passive migration of hazardous
substances onto his property only if the substance originated in a
container or vessel. 270 F. 3d 863 (9th Cir. 2001). Status: Petition
filed January 22.
Piney Run Preservation Association v. Carroll, Case No.
01-1172. Petition to review a Fourth Circuit decision holding that the
operator of a municipal sewage treatment plant could assert the permit
shield defense to a Clean Water Act citizen suit alleging violation of
a State of Maryland water quality standard. Status: Petition filed
February 13.
Maharg, Inc. v. Van Wert Solid Waste Management District,
Case No. 01-615. Petition to review a Sixth Circuit opinion affirming
the dismissal of a lawsuit brought by a private waste hauler against
the local solid waste district, alleging that the district's flow
control policy violated the Commerce Clause where it did not designate
an out-of-state landfill as an authorized disposal site. 249 F. 3d 544
(6th Cir. 2001). Status: Petition denied January 7.
Bragg v. West Virginia Coal Association, Case No.
01-619. Petition to review a Fourth Circuit decision barring citizens
in coal-producing states from challenging state-administered mining
programs in federal court. 248 F. 3d 275 (4th Cir. 2001. Status:
Petition denied January 22.
THIRD CIRCUIT
South Camden Citizens in Action v. New Jersey Department of
Environmental Protection, Case No. 01-2224, 01-2296. Appeal of
a district court decision granting a preliminary injunction
prohibiting the NJDEP from issuing an air permit for a cement
processing facility, on the grounds that the disparate impacts from
granting the permit violated Title VI of the Civil Rights Act. 145
F.Supp.2d 505 (D.N.J. 2001). Status: The court reversed on December
17, 2001. Rehearing en banc denied January 15. 274 F. 3d 771.
FIFTH CIRCUIT
Aviall Services, Inc. v. Cooper Industries, Inc., Case
No. 00-10197. Appeal of a district court decision holding that the
plaintiff was not entitled to recover cleanup costs from a third party
under Superfund if EPA has not issued a cleanup order. 2000 WL 31730
(N.D. Tx 2000). Status: On August 14, 2001, the Fifth Circuit held
that the plaintiff was not entitled to recover the cleanup costs. 263
F. 3d 134. On December 19, 2001, the court agreed to rehear the matter
en banc.
NINTH CIRCUIT
California v. Norton, et al., Case No. 01-16637. Appeal
of a district court decision holding that the U.S. Minerals Management
Service illegally extended 36 oil and gas development leases along
California's central coast because it failed to comply with the
Coastal Zone Management Act and the National Environmental Policy Act.
California v. Norton, Case No. 99-4964 (N.D.Cal. June 21, 2001).
Status: Notice of appeal filed August 22, 2001.
Pronsolino v. United States, Case No. 00-16026. Appeal of a district
court decision upholding EPA's authority to require TMDLs (cleanup
plans) for waters impaired only by non-point sources of pollution. 91
F. Supp. 2d 1337 (N.D. Cal. 2000). Status: Oral argument held on July
9, 2001.
A.G.G. Enterprises, Inc, v. Washington County, Oregon,
Case No. 00-35510. Appeal of a district court decision holding that
recyclable materials are "property," not "waste," and therefore not
subject to federal regulation under RCRA. 2000 WL 361892 (D. Ore.
2000). Status: The court reversed on March 12. 2002 WL 378127.
TENTH CIRCUIT
Power Engineering v. United States, Case No. 01-1217.
Appeal of a district court opinion holding that, in an RCRA hazardous
waste case, if a state enforcement action did not address a particular
issue, EPA could initiate a separate enforcement action. 126 F. Supp.
2d 1050 (D. Colo. 2000). Status: Oral argument was held March 2.
ELEVENTH CIRCUIT
Tennessee Valley Authority v. EPA, Case No. 00-12310.
Challenge to an EPA administrative compliance order holding that TVA
violated the Clean Air Act because various upgrades over the years
were major modifications requiring New Source Review, not routine
maintenance. Status: On January 8, the court denied EPA's motion to
dismiss and granted private utilities standing as parties. 278 F. 3d
1184.
Miccosukee Tribe of Indians v. South Florida Water Management
District, Case No. 00-15703. Appeal of a district court
decision finding that the operator of a pumping station violated the
Clean Water Act and granting an injunction prohibiting operation of
the station. 49 ERC 2065 (S.D. Fla. 2000). Status: On February 1, the
court affirmed the conviction, but vacated the injunction. 280 F. 3d
1364.
D.C. CIRCUIT
Environmental Defense Fund v. EPA, Case No. 98-1363.
Challenge to EPA’s revocation of the one-hour ozone standard for 2,901
counties on June 5, 1998, on the ground that EPA must first formally
re-designate the counties as being in attainment with the standard.
Status: In abeyance pending settlement discussions; motions to govern
future proceedings due July 1.
American Corn Growers Assoc. v. EPA, Case No. 99-1348.
Challenge to EPA's final regional haze rule, on the ground that EPA
failed to consider adverse impacts of the rule on farmers. Status:
Oral argument held February 25.
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, for requiring use of continuous
opacity monitors. Status: Oral argument held February 25.
American Farm Bureau Federation v. Whitman, Case No.
00-1320; The TMDL Coalition v. EPA, Case No. 00-1468; and consolidated
cases. Petitions to review EPA's Total Maximum Daily Load (TMDL) rule.
Status: On July 16, EPA filed a motion to stay to allow time to review
the rule, and proposing to extend the effective date of the TMDL rule
by 18 months.
National Petrochemical & Refiners Association v. EPA,
Case No. 01-1052. Petition to review a Clinton-era EPA rule that would
cut by 90 to 95% allowable emissions of particulate matter and
nitrogen oxides from diesel trucks and buses by 2002, and would
require diesel fuel to have an average sulfur content of 15 ppm by
2006, a 97% reduction. Status: Oral argument held February 26.
American Trucking Association v. EPA, Case No. 97-1440.
On remand from the U.S. Supreme Court, the court will decide whether
there was adequate scientific justification for the revised ozone and
particulate matter air standards EPA proposed in 1997. Status: Oral
argument held December 18, 2001.
Natural Resources Defense Council v. Whitman, Case No.
01-1515. Petition challenging EPA's primary drinking water standard
for arsenic as not sufficiently protective of public health. Status:
Petition filed December 14, 2001.
_________________
Lawrence E. Sellers, Jr.,
lsellers@hklaw.com, 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,
slstephe@hklaw.com, 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.
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