Energy and Environment Monitor

Endangered Species Act Listing Decisions

American pika. (Ochotona princeps): Climate change; recreation; forest management. The U.S. Fish and Wildlife Service (“Service”) determined that listing of the species is not warranted. (74 FR 64377; February 9, 2010). Listing had been sought by the Center for Biological Diversity (“CBD”), which alleged that because the species is extremely thermosensitive, it was being adversely affected by climate change and global warming. The pika is a small mammal found in alpine terrain at higher elevations in the Rockies from Canada to New Mexico and the Sierras in California and Nevada. The determination that protection for the species was not warranted noted that even after being exposed to temperatures in excess of 77.9º F., the pika can move to higher elevations, and that the species as a whole has sufficient habitat even if the lower elevations in its range were subject to warming. The Service found that climate change was the primary threat to the pika (in addition to invasive plants, fire suppression and grazing) and worked with the National Oceanic and Atmospheric Administration (“NOAA”) to develop local-scale models to predict variables in surface temperatures. Listing decisions pursuant to the ESA must be supported by the best available scientific and commercial information. Judicial review is governed by the Administrative Procedure Act, 5 U.S.C. §701.  

Black-tailed prairie dog. (Cynomys ludovicianus): Land use; agriculture; energy development. This small ground squirrel is estimated to occupy 2.4 millions acres in ten (10) states east of the Continental Divide. Wild Earth Guardians (“WEG”) had petitioned that the species be listed as threatened or endangered due primarily to habitat loss, hunting, poisoning and climate change. On December 2, 2009, the Service, by means of a status review required in settlement of litigation determined that listing was not warranted. (74 FR 63343). In 1999, eleven (11) states (through their respective Fish and Wildlife Management agencies) entered into a Conservation Strategy for this species in order to provide some voluntary protections and forestall the need for listing and the associated restrictions on use of both public and private lands. (This was well prior to 2003, when the Service published its “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” 68 FR 15100, March 28, 2003.)  There are four other species of prairie dogs, also found only in North America: the Utah prairie dog (listed as a threatened species); the Mexican prairie dog (listed as an endangered species); the white-tailed prairie dog; and the Gunnison prairie dog. 

Greater sage grouse. (Centrocercus urophasianus): Mineral and renewable energy development; land use. On March 5, 2010, the Fish and Wildlife Service announced that the listing is warranted, but precluded by higher priority actions, another installment in a battle over ESA protection for the grouse that began in December 2003 with petitions to list it. The finding means that the grouse is now a candidate for listing, and its status will be periodically reviewed. The bird is currently found in portions of eleven (11) states and two (2) Canadian provinces, much of which is also critical to wind energy facilities and mineral exploration and development. Multiple petitioners alleged threats caused by drought, disease, predation, and lack of regulatory protection, particularly in areas subject to intense energy activity. A previous finding that listing for the species was “not warranted” was challenged in Western Watersheds v. Fish and Wildlife Service, 535 F. Supp.2d 1173 (D. Idaho 2007). The Court found that the 2005 decision not to list (listing “not warranted”) was tainted by the interference of a political appointee at the Department of the Interior. On March 8, 2010, Western Watersheds filed a First Supplemental Complaint alleging that the Service’s decision not to propose the species for listing is unlawful and requesting the Court to reverse the finding that listing is “precluded’ and to remand with instructions for the Service to publish a proposed listing rule in accordance with a Court-ordered deadline. 

Diamond Darter. (Crystallaria cincotta): candidate species. This member of the perch family (Percidae) is found only in a 36-mile reach of the Elk River in Kanawha and Clay Counties, West Virginia. It is now a candidate for possible future listing to be reviewed periodically. The Service believes is has been extirpated from the rest of its historic range in the Ohio River system and is now very rare. The restrictions of the Endangered Species Act do not apply to candidate species, but federal agencies consider them carefully (often as “Species of Concern”) in the Section 7 process (Interagency Cooperation) and permit applicants should examine measures that might forestall or postpone listing, such as Candidate Conservation Agreements. Another new candidate species is the rabbitsfoot mussel (Quadrula cylindrica cylindrical) found in parts of Illinois, Indiana, Missouri and Ohio. The findings were published in the Service annual report on listing actions. (74 FR 57804, November 9, 2009).

EPA, “A Framework for Categorizing the Relative Vulnerability of Threatened and Endangered Species to Climate Change. Comment period extended to March 25, 2010 (75 FR 8053). The EPA requested comments (74 FR 61671, November 25, 2009) on a document intended “to provide information to ecosystem and resource managers to support their decision-making about management actions that reflect consideration of those threatened and endangered species that are most vulnerable to climate change”. 

Litigation: ESA and mining reclamation:Friends of the East Fork v. NOAA, WD Wash, No. CO5-189 (February 11, 2010). The Court remanded a Final Biological Opinion (“FBO”) containing an Incidental Take Statement authorizing take of listed species issued in connection with gravel mining operations. The baseline analysis had not considered that the required reclamation from previous mining had not been completed, which caused the court to conclude that the issuance of the FBO violated the APA. The term “environmental baseline” is specific to the ESA (see 50 C.F.R. §402.02); not to be confused with 40 C.F.R. § 1502.15, the NEPA regulations requiring analysis of the “affected environment” where a proposed action may occur. The Court set aside the FBO because it did not consider (the baseline) accurately in that the project area had not been restored as required by state law. 

This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.

15 Minute Industrial Emergency Rule – Status of WV Legislative Actions

    On February 3, 2010 time ran out on “The 15-Minute Rule” officially titled the  “Industrial Accident Rapid Response Rule,” when the Secretary of State announced the expiration of filing of the legislative rule and expiration of filing of the emergency rule, 170 CSR 2, which was in place. The Department of Homeland Security & Emergency Management failed to file with the Legislative Rulemaking Review Committee (“LRRC”) within 90 days after the conclusion of the hearing/public comment period as required by W.Va. Code §29A-3-9. The normal procedure for an expired rule, is that the entire rule must be resubmitted to the Secretary of State for another hearing/public comment period.     

    This left the only authority for implementation of the industrial accident law the existing statutory law W.Va. Code, §15-5B- 3a et seq. which still require the basics of reporting , but leaves out important implementing elements which the legislative rule provided such as further defining when a release must be reported, providing the methods for reporting , clarifications on facility access and penalty categories and penalty adjustment factors and procedures for penalty appeal and waiver.     

    However, the West Virginia Legislature with urging from the Division of Homeland Security and Emergency Management and the regulated community is effecting a last minute rescue to enact the previously existing rule, 170 CSR 2, via H.B. 4081. H.B. 4081 is the bundled rules bill for the Department of Military Affairs and Public Safety.   On March 9, 2010, H.B. 4081 passed the Senate Judiciary Committee containing the basic rule 170 CSR 2 conforming it to the statutory fine structure. The rule that passed in the House still contained the language that would allow fines for up to $200,000 for each event.  With the help of Senators Evan Jenkins (Cabell) and Joe Minard (Harrison), industry lobbyists were able to amend the rule so that if passed it would reflect the original intent of the Legislature when it passed SB 279 last year.  The rule, as amended, now will only allow fines up to $100,000. The bundled bill has moved to the floor for passage.  Once the bill is passed by the Senate, it will have to return to the House for their approval.  We will keep you apprised of the final developments for this process. The 2010 WV Legislative Session ends on Saturday, March 13, 2010.    

    The following industrial accident obligations never expired: (1) the reporting requirements for CAA §112(r) facilities and those facilities that received written notice from Homeland Security that they will be included in the definition of a regulated facility, (3) the event communications system requirements, (4) the authorized access to public officials, and (5) the applicable civil penalties never expired since they were statutory. Therefore covered facilities should maintain their existing procedures to comply with the “15 Minute Rule”. 

    For more information contact either Barbara D. Little (304) 340-1355 or Kathy G. Beckett (304) 340-1019. This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

EPA’s Proposed FY2011 Budget “Cut” 2.7% from FY2010, but still up 31% from FY2009

If you get a 31% pay raise this year, would you complain about a 2.7% cut in your salary next year? No way! That’s the situation at the U.S. Environmental Protection Agency (EPA), where the budgetary good times keep on rolling.  The US economy is in the tank, regulated industries and energy producers are under greater duress than ever, but EPA continues living large. 

On February 1, 2010, the Obama administration proposed a fiscal year (FY) 2011 budget of $10.02 billion for the EPA.  The proposed FY2011 budget would be the second largest in the agency’s 40-year history, although a 2.7% drop from their FY2010 allocated funds of $10.3 billion. However, the FY2011 budget would still amount to a 31% funding increase over FY2009’s $7.6 billion EPA budget. 

EPA Administrator Lisa P. Jackson recently touted the rock-ribbed fiscal responsibility of the proposed FY2011spending level for her Agency:  

“The budget also reflects President Obama’s commitment to fiscal responsibility. Families across America are tightening their budgets; the President has directed us to do the same. 

The $10 billion proposed for EPA – though a reduction from last year – will support key priorities in a time of fiscal challenges.” 

I don’t believe that the average American family would consider a 2.7% spending cut after receiving a 31% spending increase to equate to financial belt-tightening. But in EPA’s world, it does. 

The EPA lists the following “highlights” of their proposed FY2011 budget: 

• “To take action on climate change and promote clean energy, the budget includes an increase of more than $43 million. This will support implementation of the Greenhouse Gas Reporting Rule and facilitate permitting and enforcement under the Clean Air Act. 
• In addition, $55 million will be invested in the successful Energy Star program, cutting energy costs and emissions for homes and businesses. 
• To clean up our communities, we’re proposing investments that will get dangerous pollution out, and put good jobs back in. That starts with $215 million for Brownfields, with increases for planning, cleanup, job training and redevelopment. We’ll also provide funding for assessment and cleanup of underground storage tanks and other petroleum contamination on Brownfields. 
• $1.3 billion for Superfund cleanup efforts across the country, and continue the commitment to civil and criminal enforcement announced last month. 
• $2 billion for the Clean Water State Revolving fund and $1.3 billion for the Drinking Water State Revolving Fund.  
• $63 million for the Chesapeake Bay program including increased funding to implement President Obama’s Chesapeake Bay Executive Order.” 

Superfund Excise Tax -- Coming in 2011

EPA has not forgotten about its plan to reinstate the Superfund excise taxes, which expired in 1995. The FY2011 budget proposal includes restarting Superfund excise taxes beginning in January 2011. The reinstated Superfund taxes are estimated to generate an EPA revenue level of over $1.3 billion in 2011, increasing to over $2.5 billion annually by 2020.  

Of course, one person’s “increased revenue level” is another person’s added taxation burden, and one more disincentive to continue to operate and provide good jobs in the US. 

For further details on EPA’s FY2011 budget and policy priorities, see the following web sites:

http://www.epa.gov/budget/2011/2011bib.pdf#9

http://yosemite.epa.gov/opa/admpress.nsf/8d49f7ad4bbcf4ef852573590040b7f6/405c7357a4f6f26f852576bd006e5e06!OpenDocument

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers. For more information on the author see here.

EPA Launches New Web Site for Regulatory Information

On February 18, 2010, the U.S. Environmental Protection Agency (EPA) launched a new web site called Rulemaking Gateway located at http://yosemite.epa.gov/opei/RuleGate.nsf/. EPA’s stated purpose in establishing the web site is to create transparency and give the public additional opportunity to participate in the agency’s rulemaking process. Information is limited to EPA’s “priority” rules.   The new web site can be used as a supplement to EPA’s Semi-Annual Regulatory Agenda and Monthly Action List. It is worth bookmarking because if offers a quick and easy way to check the status of a particular priority rulemaking, especially on the front-end of the rulemaking process.

Gateway provides information on priority rules from pre-proposal through publication of the final rule in the Federal Register. EPA will begin posting information on a priority rulemaking after the agency’s Regulatory Policy Officer determines it is appropriate to start working on the regulation via a process known as “commencement approval,” which occurs once a month. Thus, a rulemaking may appear on the Gateway months or even years before a docket is opened on EPA’s Regulations.gov web site. EPA intends to update Gateway on a monthly basis as new information becomes available. According to EPA’s press release, the Agency plans to update notice of public meetings and other “[t]ime-sensitive information…on a daily basis.” Rulemakings will not remain on the Gateway forever. They will be removed one year after they are published in the Federal Register as a final rule or one year after they are published in the Federal Register as fully withdrawn. 

In addition to offering information on the status of a rulemaking as early as pre-proposal, Gateway provides additional search functionality. Priority rules can be searched by phases, e.g., pre-proposal, proposal, open for public comments, final rule published as well as access enforcement and compliance information. Rules can be searched by topic such as air, pesticides, toxic substances, waste, water, and general.    Finally, rules can be searched by effects. The categories of searchable effects on Gateway include: children’s health; energy supply, distribution, or use; environmental justice; federal government – other agencies; federalism; international; local governments; small businesses; small governments; small not-for-profit organizations; state governments; tribal governments; and unfunded mandates. EPA has established a discussion forum to solicit comments on gateway and also to encourage the public to suggest more effects and topics by submitting them via the Discussion Forum found at http://blog.epa.gov/rulegateway/.

EPA’s Gateway also offers a summary or, in EPA’s words, “a distilled ‘snapshot’” of a rule. Comprehensive information on a rule can still be found at EPA’s Regulations.gov web site located at http://www.regulations.gov/search/Regs/home.html.

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

Litigation Filed Over 2008 Removal Of The WV Northern Flying Squirrel From Protection as an Endangered Species

The West Virginia Northern Flying Squirrel was listed as endangered in 1985, and a 1990 recovery plan set out criteria for delisting. The previous presence of the squirrel on the list of endangered species was used by a variety of groups to oppose timber removal, wind projects and ski resort development in the West Virginia highlands area. In April 2008, the US Fish and Wildlife Service (‘USFWS”) removed the WV Northern Flying Squirrel from the list of endangered species under the Endangered Species Act.  

On November 12, 2009, Friends of Blackwater, the Wilderness Society and others sued the Department of Interior and USFWS in a Washington. D.C. federal court challenging the removal decision.  The suit cites the scientific community's objections to the delisting. Scientists say the surviving populations of the squirrel could constitute disconnected "sinks" destined for extinction. Plaintiffs say that the Carolina northern flying squirrel, a species with nearly identical threats, remains listed as endangered. The plaintiffs seek declaratory and injunctive relief setting aside the final delisting rule, which went into effect in August 2008. Additionally, they advance claims that the USFWS did not adequately address the impact that climate change will have on the squirrel's habit and on increased competition from the Southern Flying Squirrel. According to the environmental groups, the delisting decision also failed to consider the effects of logging, development and tree pests in the fragmentation and alteration of squirrel habitat in the Virginia and West Virginia Allegheny Highlands. 

With regard to the Bush administration, these groups argue Bush-era agencies disregarded the law to take the West Virginia Northern Flying Squirrel off the endangered species list. Plaintiffs say the Bush administration delisted the squirrel though the delisting criteria were not met. The Plaintiffs direct attention to the fact that despite 2004 agency testimony against delisting, the Bush administration in 2006 declared the squirrel's recovery completed though the criteria had not been met, the complaint states. It is asserted that the government merely dismissed the recovery criteria without explanation. 

As this matter continues to evolve and briefing occurs, we will keep you posted. 

 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or kbeckett@jacksonkelly.com. For more information on the author see here.

West Virginia’s Draft Sustainability and Environmental Excellence (SEE) Bill

On November 6, 2009, the West Virginia Department of Environmental Protection (WVDEP) released a draft bill titled “Sustainability and Environmental Excellence Program,” that the agency intends to brand as “SEE Change”. It is anticipated that the legislation, or a version of the legislation, will be introduced during the 2010 Legislative Session. The SEE Program is intended to replace the state Environmental Excellence Program, W. Va. Code §§ 22-25-1 et seq. (2009 Repl. Vol.), that was automatically repealed on June 30, 2009. To read the full text of the draft SEE bill, click here.  

With the repeal of the state Environmental Excellence Program, the WVDEP convened a task force to consider the future of the program in West Virginia in light of the U.S. Environmental Protection Agency’s termination of its National Performance Track Program which the state Environmental Excellence Program was intended to mirror. The task force consisted of representatives from industry, manufacturing, electric power generation, tourism, government, academic circles, and environmental and community groups.  

The SEE Program is broader in scope than the Environmental Excellence Program. The purpose of the SEE Program, as stated in the draft bill, is to “promote, inspire, and reward leadership and excellence in developing and implementing sustainable strategies that include an emphasis on integrating societal, environmental, and economic benefits.” Goals of the program would include setting “measurable and identifiable goals for reducing [participants’] environmental footprint,” “promoting strategies, technologies and programs that incentivize sustainability and environmental stewardship,” and “lowering the barriers to and the costs associated with sustainable operational processes and procedures”.  

The draft bill contemplates that the WVDEP Secretary would establish an executive committee to assist in the administration of the program. The committee would consist of the WVDEP Secretary, the Secretary of the Department of Commerce, the Secretary of the Department of Revenue, the Secretary of the Department of Administration, the Secretary of the Department of Education, the Chair of the Public Service Commission, at least one person who represents local governments, at least one person who represents industries regulated by the WVDEP or their trade associations, at least one person who represents organized labor, at least one person who represents organizations advocating environmental protection, and at least two persons who represent the public at large.  

The executive committee would be tasked with studying the issues, developing a long-term strategy, and issuing a report to the Legislature by July 1, 2011. The report to the Legislature would contain recommendations concerning appropriate methods to encourage the development of the SEE Program, any legislation to incentivize participation in the program, methods of facilitating the wide-spread implementation of companion sustainability and environmental excellence programs throughout West Virginia, methods of financing program operations, and the executive committee’s long-term strategy for the promotion of sustainability and environmental excellence in West Virginia. The executive committee would also assist the WVDEP in developing and promulgating legislative rules implementing the program.  

While the state Environmental Excellence Program was limited to incentives granted by the WVDEP, the draft SEE bill seeks to expand the scope of incentives by authorizing the WVDEP Secretary to negotiate with federal regulatory agencies and state and local agencies within West Virginia to obtain authority to grant incentives under federal and other state or local programs. Examples of incentive categories that the executive committee would be tasked with considering include: marketing support and recognition; capacity building; single points of contact, streamlined communication, and technical assistance at the WVDEP and any other interested agency; tax benefits; reduced energy or water rates based upon implemented facility-wide conservation measures; access to low cost capital in the form of state and private loans or state and federal grants or priority assistance for local economic development funds; “consideration” regarding monitoring, inspections, reporting, and permitting; membership discounts to trade associations and green business networks; and expedited consideration for zoning variations by local government entities. 

The draft bill would set minimum criteria for registration and for participation in the program and authorize the WVDEP Secretary to establish additional program elements. The minimum criteria are set forth in section 6 of the draft bill and extend well beyond traditional environmental matters. The minimum criteria for registration would include: “compliance with environmental laws,” “commitment[s] to develop a sustainability policy[,]…an environmental management system[, and] …a pollution prevention and conservation plan,” and “commitment[s] to transparency,… community involvement,…economic development,…and leadership development”. Minimum criteria for participation would include: “sustained compliance with environmental laws,” “well developed sustainability policy[,]…environmental management system,…[and] pollution prevention and conservation plan,” “transparency, openness, communication, and accountability in operations,” “active community involvement,” and “active participation in economic development…and…leadership development”.  

To implement the SEE Program, the WVDEP Secretary and participants would enter into a SEE performance agreement. Similarly, under the Environmental Excellence Program, the WVDEP Secretary and program participants entered into performance agreements. The contents of the performance agreements under the Environmental Excellence Program and the draft bill are very similar with one exception. The one exception is that the Environmental Excellence Program included a plan for integrating into the agreement any relevant regulations that are promulgated during the duration of the agreement. The draft SEE bill does not list a similar provision for the contents of the SEE performance agreement. 

Under both the former Environmental Excellence Program and the proposed SEE Program, any participant may elect to withdraw from membership in the program at any time upon written notice. Under the Environmental Excellence Program, the notice was given to the WVDEP Secretary, whereas under the SEE Program, the notice would be given to the executive committee. The executive committee would also have authority to continue, suspend, or terminate the membership of any participant in the program.  

Unlike the Environmental Excellence Program, the draft SEE bill does not include provisions for judicial review of the WVDEP’s decision on acceptance of applications to participate in the program. Nor does the draft SEE bill require the WVDEP Secretary to propose legislative rules establishing incentives to be granted to any participant that complies with all of the mandatory program elements.  

The draft bill attempts to address funding. The WVDEP Secretary would be authorized to receive on behalf of the state for deposit into the state treasury any monies that state institutions of higher learning or state or federal agencies may be authorized to transfer to the Secretary, and all gifts, donations, or contributions that private entities or others may provide to defray the expense of administering program. Any amounts so received would be expended by the WVDEP solely for the purposes of the SEE Program. The bill tasks the Executive Committee with developing funding mechanisms for financing program operations, including the creation of a trust fund in the state treasury with the funds dedicated and appropriated to the WVDEP to administer the program. The Environmental Excellence Program included a similar funding concept. See W. Va. Code 22-25-11. However, the Environmental Excellence Program also authorized the WVDEP Secretary to establish by legislative rule reasonable application, renewal and administration fees to recover the cost to the agency in developing, negotiating and publicizing an environmental performance agreement. The draft SEE bill does not contain a similar cost recovery provision. 

The draft bill provides that the SEE Program would sunset June 30, 2015. Comments on the draft bill have been requested by November 20, 2009. Comments are to be submitted directly to the WVDEP’s contractor and addressed to adam.saslow@plexusli.com. The draft bill will be presented as a point of information to the Advisory Council on December 9, 2009.  

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Industrial Facility Accident Reporting Rule Civil Penalty Issue

Many industrial facilities throughout West Virginia will be regulated and affected by the recently enacted Industrial Facility Accident legislation (“SB 279”) passed in the 2009 legislative session and signed into law by Governor Joe Manchin. Also, the legislation has spawned a proposed Industrial Accident Rapid Response administrative rule (“170 CSR 2”) to provide greater guidance and detail on the issue. A major issue that needs to be resolved as the rule develops is the disparity between the statute’s civil penalty provision and the rule’s civil penalty provision. The rule’s civil penalty provision is double the amount intended by the legislature in the statute. The civil penalty provision of the statute states: 

(e) Civil penalties.

(1) The director shall impose a civil penalty of up to $100,000 on the industrial facility if he or she determines that the industrial facility failed to comply with the reporting requirement of subsection (b) of this section…
(2) The director shall impose a civil penalty on the operator or operators of an industrial facility if he or she determines that the industrial facility failed to comply with the communication or access requirements of subsections (c) and (d) of this section…

W.Va. Code §15-5b-3a(e) 

The statute caps the reporting penalty at $100,000 but is silent on the communication and access penalty. The proposed rule contains tables 170-2 A & 170-2 B at the end of the rule developed under the authority of section 5. These tables show a regulated facility may be exposed to a total of $200,000 for violations of the rule: $100,000 of potential liability for a violation of the reporting requirement and $100,000 of potential liability for a violation of the communication and access requirements.  

It was clearly the legislature’s intent to cap the entire penalty for all violations of the statute at $100,000. As evidence of this intent, the Senate Judiciary Committee subcommittee on SB 279 amended the flat $100,000 penalty language by inserting “up to” language because they felt the mandatory $100,000 penalty was arbitrary and capricious without considering the extent of the violation. So, while the legislature undertook measures intended to mitigate the $100,000 penalty, the Division of Homeland Security has developed a civil penalty provision exposing regulated facilities to twice the $100,000 liability ($200,000). The civil penalty provision in the proposed rule runs contrary to the legislature’s intent on this issue. 

There are two rule amendments, if it is decided that the agency’s interpretation is highly objectionable, that would address this problem. First, the proposed rule's maximum penalty for a notification infraction could be lowered from $100,000 to $50,000 and the maximum penalty for communication/access infractions could be lowered from $100,000 to $50,000. Second, the proposed rule could have one penalty matrix or table accounting for all circumstances that is capped at $100,000. With either of these rule amendments, the maximum penalty would be capped at $100,000 to meet the legislature’s intent on the civil penalty issue. 

This article was authored by Donnie L. Adkins, Jackson Kelly PLLC. For more information on the author see here.

Fourth Circuit Reverses “Blackwelder” Test For Granting Preliminary Injunctions

   In the case of The Real Truth About Obama, Inc. v. Federal Election Commission, No. 1977 (4th Cir. Aug. 5, 2009) (http://www.fec.gov/law/litigation/rtao_ac_opinion_deny_pi.pdf), the Fourth Circuit Court of Appeals substantially tightened the test for obtaining preliminary injunctions. Prior to its recent ruling, the standard for obtaining a preliminary injunction in the Fourth Circuit examined first the balance of hardship among the parties. Thus, the first step in the process was for the Court to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If the analysis resulted in an imbalance in the plaintiff’s favor, then the Court merely had to determine whether the plaintiff raised questions on the merits of the case so serious, substantial, difficult and doubtful as to make them fair ground for litigation. See Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 149 (4th Cir. 1977).  

    In The Real Truth About Obama, the Court observed that its Blackwelder standard now stands in fatal tension with the United States Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008). In Winter, the Supreme Court articulated clearly what must be shown to obtain a preliminary injunction, stating that the plaintiff must establish: (1) that it is likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the absence of injunctive relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Winter, 129 S. Ct. at 374. The new preliminary injunction test in the Fourth Circuit, which follows the decision in Winter, alters the Blackwelder standard as follows: 

•    First, the plaintiff must make a clear showing that it will likely succeed on the merits at trial. (In Blackwelder, the Fourth Circuit instructed that the likelihood of success requirement be considered, if at all, only after a balancing of hardships.) 

•    Second, the plaintiff must make a clear showing that it is likely to be irreparably harmed absent preliminary relief. (Blackwelder, on the other hand, required that the courts balance the irreparable harm to the respective parties, requiring only that the harm to the plaintiff outweigh the harm to the defendant.) 

•    Third, courts should pay particular regard to the public consequences of employing the extraordinary remedy of injunction. 

•    Fourth, while Winter articulates four requirements, each of which must be satisfied, Blackwelder allowed requirements to be conditionally redefined as other requirements were more fully satisfied so that granting or denying a preliminary injunction depended upon a “flexible interplay” among all the factors considered.  

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

Supreme Court Strikes Down Programmatic Challenge on Basis of Standing

            In a March 3, 2009 decision, the United States Supreme Court has limited environmental groups’ challenge of federal agency regulations based upon the standing of those groups to bring a civil action. Summers v. Earth Island Institute, No. 07-0463 (Mar. 3, 2009). The case challenged rules issued by the Forest Service under its Decisionmaking and Appeals Reform Act which exempts certain agency projects from public notice, comment, and administrative appeal procedures. The plaintiffs initially challenged the rules as applied to a specific project in the Sequoia National Forest.  They settled that claim, but sought to pursue a facial challenge in the case to the rules themselves. The federal district court and Ninth Circuit Court of Appeal agreed that the plaintiffs, lead by the Earth Island Institute, had standing to pursue its facial challenges to the rules notwithstanding the settlement to the as-applied challenge. One such basis of standing was an alleged procedural injury arising from the groups’ inability to provide comments to Forest Service plans.

            In an opinion authored by Justice Antonin Scalia, the Supreme Court reversed by a vote of 5-4. Because the underlying project-specific challenge was settled, the Court held that affidavits submitted by Earth Island failed to establish that any of its members would imminently suffer a concrete and specific injury-in-fact – a mandatory requirement for Article III standing. In order to demonstrate standing, plaintiffs’ claim of procedural harm (e.g., lack of appeal rights to certain projects), must be coupled with an unambiguous, and actual or imminent harm that was subject to a project under the challenged regulations. The decision has implications well beyond these specific Forest Service rules.  The programmatic nature of the Forest Service rules under challenge are similar in many respects to the nationwide permits that the Corps of Engineers uses to approve fills constructed as part of coal mining operations.

I.          The Facts of the Case

            The Forest Service Decisionmaking and Appeals Reform Act (ARA), required the Forest Service to establish administrative processes, including notice and comment and rights of appeal, for proposed projects and activities that implement land and resource management plans. The Forest Service published regulations in June 2003 to implement the ARA.  The 2003 Regulations exempted from the ARA’s notice-and-comment and administrative-appeal requirements those projects that were also categorically exempt from review under the NEPA). The Forest Service subsequently established new NEPA categorical exemptions for small-scale post-fire rehabilitation projects and post-fire timber salvage sales. By establishing these NEPA categorical exemptions, the Forest Service also exempted conforming projects from the ARA’s public notice, comment, and appeal requirements under the 2003 Regulations.

            The plaintiffs filed suit in June 2003 challenging both the 2003 Regulations as applied to a specific project and the validity of the 2003 Regulations themselves. To demonstrate standing, Earth Island filed two affidavits alleging that one organization member had repeatedly visited the project site, had plans to do so again, and would be injured if the project went forward without an opportunity for his comment.  Earth Island also filed the affidavit of another member who claimed to have visited numerous National Forests and had plans to visit unidentified National Forests in California and elsewhere later that year. The affidavit further stated that the 2003 Regulations had prevented him from appealing a number of unspecified timber sales.

            The parties settled their dispute regarding approval of the project that was the subject of the “as applied” challenge, and it was dismissed with prejudice. With respect to the remaining facial challenges to the 2003 Regulations, the Forest Service argued that, as a result of the settlement, Earth Island lacked Article III standing because its members were no longer threatened with an injury-in-fact.. Rejecting these arguments, The District Court rejected this defense and invalidated a portion of the 2003 Regulations, including the public notice, comment, and appeal provisions. On appeal, the Ninth Circuit partially affirmed the District Court’s decision. The Ninth Circuit found that Earth Island had standing to pursue its procedural injury claims, even though its “as applied” challenge to the individual project was mooted by the settlement.

II.         The Court’s Decision

            Writing for the Court, Justice Scalia held that Earth Island lacked standing to pursue its facial challenges to the 2003 Regulations. The Court specifically held that neither of the affidavits established a concrete and particularized injury. To satisfy Article III standing requirements, the Court repeated what are now familiar requirements of standing.  A plaintiff must demonstrate that it has suffered an injury-in-fact that is concrete, specific and actual or imminent. The injury must be fairly traceable to the challenged action.  It must be likely that the injury will be redressed by the requested relief. Organizations can satisfy the “concrete and particularized injury” requirement by demonstrating that the recreational or aesthetic interests of one of its members will be affected.

            The Court first held that the affidavit submitted to establish standing as to the specific project did not establish an injury-in-fact to a programmatic challenge. The Court noted that “injury in fact with regard to that project has been remedied” in light of the settlement with Earth Island.  The Court further stated: “We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action … apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III’s injury-in-fact requirement.”

            The majority next disagreed with Earth Island's contention that the second affidavit testifying to a future intent to visit unspecified Forest Service locations established a concrete-and-specific injury. The Court first noted that the second affidavit failed to identify any specific timber sales that were subject to the 2003 Regulations. The affidavit also failed to identify concrete and specific plans to visit National Forest areas that would be impacted by such projects. According to the majority, without such specification, a court is unable to tell what projects are unlawfully subject to the regulations and whether the affiant may suffer a recreational or aesthetic injury by encountering them during visits to National Forests. “Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.”

            The Court next rejected the Ninth Circuit’s determination that Earth Island had standing based on an alleged procedural injury. Earth Island contended that, as a result of the 2003 Regulations, it was denied the opportunity to comment on certain Forest Service projects. The Ninth Circuit agreed, holding that the “preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests.” The Supreme Court, however, held that “deprivation of a procedural right without some concrete interest that is affected by the deprivation – a procedural right in vacuo – is insufficient to create Article III standing.”

            In his majority opinion, Justice Scalia explicitly rejected a test for standing proposed by Justice Breyer in his dissent, describing it as “a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of the members are threatened with concrete injury.” While recognizing that it is possible (or even likely) that one of Earth Island's members will suffer an injury-in-fact in the future, Justice Scalia concluded that “speculation will not suffice. Standing … is not an ingenious academic exercise in the conceivable … [but] requires … a factual showing of perceptible harm.”

III.       Observations

            The Supreme Court said little in the Earth Island decision that is new.  What is interesting about the case, however, is the Court’s insistence that standing is a flexible concept that adjusts according to the nature of the claim asserted.  Accordingly, there was no question that the Plaintiff’s affiant who alleged injury based on the specific project that was challenged and settled had standing as to that project.  The same facts that provided standing as to the specific project challenged, however, were insufficient to create standing to challenge the rule generally. Moreover, the facts alleged in the second affidavit regarding the “procedural injury” were considered too speculative to establish any concrete injury to any specific person who was a member of the plaintiff group.

            Much of the Clean Water Act litigation over the last decade has been comprised of programmatic challenges parading as challenges to specific individual permits or authorizations.  Although standing affidavits can frequently be crafted by counsel for plaintiffs to meet the requirements of the injury claimed, the Earth Island opinions acts as a reminder that “a factual showing of perceptible harm” still remains the standard by which standing is judged.  Moreover, the broader the claim of injury – such as the inability to provide comment on an agency action - the more difficult it may be to describe with particularity the concrete injury that an affiant suffers.

             This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.

Supreme Court Strikes Down Programmatic Challenge on Basis of Standing

            In a March 3, 2009 decision, the United States Supreme Court has limited environmental groups’ challenge of federal agency regulations based upon the standing of those groups to bring a civil action. Summers v. Earth Island Institute, No. 07-0463 (Mar. 3, 2009). The case challenged rules issued by the Forest Service under its Decisionmaking and Appeals Reform Act which exempts certain agency projects from public notice, comment, and administrative appeal procedures. The plaintiffs initially challenged the rules as applied to a specific project in the Sequoia National Forest. They settled that claim, but sought to pursue a facial challenge in the case to the rules themselves. The federal district court and Ninth Circuit Court of Appeal agreed that the plaintiffs, lead by the Earth Island Institute, had standing to pursue its facial challenges to the rules notwithstanding the settlement to the as-applied challenge. One such basis of standing was an alleged procedural injury arising from the groups’ inability to provide comments to Forest Service plans.

            In an opinion authored by Justice Antonin Scalia, the Supreme Court reversed by a vote of 5-4. Because the underlying project-specific challenge was settled, the Court held that affidavits submitted by Earth Island failed to establish that any of its members would imminently suffer a concrete and specific injury-in-fact – a mandatory requirement for Article III standing. In order to demonstrate standing, plaintiffs’ claim of procedural harm (e.g., lack of appeal rights to certain projects), must be coupled with an unambiguous, and actual or imminent harm that was subject to a project under the challenged regulations. The decision has implications well beyond these specific Forest Service rules.  The programmatic nature of the Forest Service rules under challenge are similar in many respects to the nationwide permits that the Corps of Engineers uses to approve fills constructed as part of coal mining operations.

I.          The Facts of the Case

            The Forest Service Decisionmaking and Appeals Reform Act (ARA), required the Forest Service to establish administrative processes, including notice and comment and rights of appeal, for proposed projects and activities that implement land and resource management plans. The Forest Service published regulations in June 2003 to implement the ARA.  The 2003 Regulations exempted from the ARA’s notice-and-comment and administrative-appeal requirements those projects that were also categorically exempt from review under the NEPA). The Forest Service subsequently established new NEPA categorical exemptions for small-scale post-fire rehabilitation projects and post-fire timber salvage sales. By establishing these NEPA categorical exemptions, the Forest Service also exempted conforming projects from the ARA’s public notice, comment, and appeal requirements under the 2003 Regulations.

            The plaintiffs filed suit in June 2003 challenging both the 2003 Regulations as applied to a specific project and the validity of the 2003 Regulations themselves. To demonstrate standing, Earth Island filed two affidavits alleging that one organization member had repeatedly visited the project site, had plans to do so again, and would be injured if the project went forward without an opportunity for his comment. Earth Island also filed the affidavit of another member who claimed to have visited numerous National Forests and had plans to visit unidentified National Forests in California and elsewhere later that year. The affidavit further stated that the 2003 Regulations had prevented him from appealing a number of unspecified timber sales.

            The parties settled their dispute regarding approval of the project that was the subject of the “as applied” challenge, and it was dismissed with prejudice. With respect to the remaining facial challenges to the 2003 Regulations, the Forest Service argued that, as a result of the settlement, Earth Island lacked Article III standing because its members were no longer threatened with an injury-in-fact.. Rejecting these arguments, The District Court rejected this defense and invalidated a portion of the 2003 Regulations, including the public notice, comment, and appeal provisions. On appeal, the Ninth Circuit partially affirmed the District Court’s decision. The Ninth Circuit found that Earth Iland had standing to pursue its procedural injury claims, even though its “as applied” challenge to the individual project was mooted by the settlement.

II.         The Court’s Decision

            Writing for the Court, Justice Scalia held that Earth Island lacked standing to pursue its facial challenges to the 2003 Regulations. The Court specifically held that neither of the affidavits established a concrete and particularized injury. To satisfy Article III standing requirements, the Court repeated what are now familiar requirements of standing.  A plaintiff must demonstrate that it has suffered an injury-in-fact that is concrete, specific and actual or imminent. The injury must be fairly traceable to the challenged action.  It must be likely that the injury will be redressed by the requested relief. Organizations can satisfy the “concrete and particularized injury” requirement by demonstrating that the recreational or aesthetic interests of one of its members will be affected.

            The Court first held that the affidavit submitted to establish standing as to the specific project did not establish an injury-in-fact to a programmatic challenge. The Court noted that “injury in fact with regard to that project has been remedied” in light of the settlement with Earth Island.  The Court further stated: “We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action … apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III’s injury-in-fact requirement.”

            The majority next disagreed with Earth Island's contention that the second affidavit testifying to a future intent to visit unspecified Forest Service locations established a concrete-and-specific injury. The Court first noted that the second affidavit failed to identify any specific timber sales that were subject to the 2003 Regulations. The affidavit also failed to identify concrete and specific plans to visit National Forest areas that would be impacted by such projects. According to the majority, without such specification, a court is unable to tell what projects are unlawfully subject to the regulations and whether the affiant may suffer a recreational or aesthetic injury by encountering them during visits to National Forests. “Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.”

            The Court next rejected the Ninth Circuit’s determination that Earth Island had standing based on an alleged procedural injury. Earth Island contended that, as a result of the 2003 Regulations, it was denied the opportunity to comment on certain Forest Service projects. The Ninth Circuit agreed, holding that the “preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests.” The Supreme Court, however, held that “deprivation of a procedural right without some concrete interest that is affected by the deprivation – a procedural right in vacuo – is insufficient to create Article III standing.”

            In his majority opinion, Justice Scalia explicitly rejected a test for standing proposed by Justice Breyer in his dissent, describing it as “a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of the members are threatened with concrete injury.” While recognizing that it is possible (or even likely) that one of Earth Island's members will suffer an injury-in-fact in the future, Justice Scalia concluded that “speculation will not suffice. Standing … is not an ingenious academic exercise in the conceivable … [but] requires … a factual showing of perceptible harm.”

III.       Observations

            The Supreme Court said little in the Earth Island decision that is new.  What is interesting about the case, however, is the Court’s insistence that standing is a flexible concept that adjusts according to the nature of the claim asserted.  Accordingly, there was no question that the Plaintiff’s affiant who alleged injury based on the specific project that was challenged and settled had standing as to that project.  The same facts that provided standing as to the specific project challenged, however, were insufficient to create standing to challenge the rule generally. Moreover, the facts alleged in the second affidavit regarding the “procedural injury” were considered too speculative to establish any concrete injury to any specific person who was a member of the plaintiff group.

            Much of the Clean Water Act litigation over the last decade has been comprised of programmatic challenges parading as challenges to specific individual permits or authorizations.  Although standing affidavits can frequently be crafted by counsel for plaintiffs to meet the requirements of the injury claimed, the Earth Island opinions acts as a reminder that “a factual showing of perceptible harm” still remains the standard by which standing is judged.  Moreover, the broader the claim of injury – such as the inability to provide comment on an agency action - the more difficult it may be to describe with particularity the concrete injury that an affiant suffers.

This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.