A Court-Side Seat: February in the Federal Appellate Courts

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It’s been an active month in terms of recent environmental and administrative law cases decided by the federal appellate courts.

Flood Control and the Endangered Species Act. On January 17, 2020, in Wildearth Guardians v. US Army Corps of Engineers (ACOE), the U.S. Court of Appeals for the Tenth Circuit affirmed the lower court, holding that the ACOE was not required by law to consult with the Bureau of Reclamation regarding the alleged negative impacts that its flood control management projects would have on endangered species in the Central New Mexico reaches of the Rio Grande River. The Corps’ duties are set forth with specificity in federal flood control acts enacted in 1948 and 1960, and for several years the Corps had engaged in non-mandatory ESA consultations with the Bureau of Reclamation. When that consultation ended in 2013, and showed no signs of being revived, the ACOE resumed its management of various flood control projects without the participation of the Bureau. Wildearth Guardians challenged this decision in federal court, but both the trial court and the appellate court held that the flood control laws did not allow the Corps to deviate from its basic flood control responsibilities, and therefore no ESA consultation was required.

“NEPA Is Not an Animal Protection Statute.” For many years, the number of white-tailed deer in the Fire Island National Seashore Park have increased to such an extent that it has resulted in a large number of “undesirable human-deer interactions” and other worrisome contacts. In 2015, the National Park Service approved a plan to reduce the deer populations and to manage its impacts on the remaining deer population. The plaintiffs challenged this plan for allegedly violating NEPA, but the courts held that the agency had taken the requisite “hard look” at this plan and concluded the agency had carefully considered all options. On February 3, 2020, in Friends of Animals v. US National Park Service, the U.S. Court of Appeals for the Second Circuit decided the case, noting that “NEPA is not an animal protection statute” and the number of deer are only one of many environmental factors the agency was required to consider.

A Lack of Jurisdiction. The Narraganset Tribe, located in Massachusetts, sought judicial review of a FERC order which denied it motion to intervene in a natural gas pipeline certification proceeding before FERC after the initial FERC certificate of public convenience and necessity had issued. The Tribe was concerned that the construction of the pipeline across affected lands that have a “sacred significance” to the Tribe. By the time this matter reached the DC Circuit, the pipeline had been constructed, with the attendant injuries the Tribe feared. On February 7, 2020, in Narragansett Indian Tribe Historic Preservation Office v. Federal Energy Regulatory Commission (FERC), the U.S. Court of Appeals for the DC Circuit ruled against the Tribe for lack of jurisdiction. The Tribe also sought an Order from the court to compel the agency to amend its rules so that the time for useful action on behalf of petitioners would not be affected by the ongoing procedural rules enforced by the agency, but this too was unsuccessful because the Tribe had no standing to pursue this action because the alleged violation was no longer redressable.

The Unavoidable Cost of Parking. In Alpern v. Ferebee, issued on February 7, 2020, the Tenth Circuit Court of Appeals agreed with the lower court that the plaintiff’s facial challenge to a U.S. Forest Service’s $10 parking fee to use one of the parking lots in the White River National Forest should be dismissed because the applicable statutes do not support his claim. The court’s exacting analysis of a complex statutory program in this interesting case is exemplary.

Fuzzy on Limitations. On February 11, 2020, in Federal Energy Regulatory Commission v. Powhatan Energy Fund, LLC, et al., the U.S. Court of Appeals for the Fourth Circuit decided an unusual statute of limitations issue. The Federal Power Act prohibits the manipulation of the interstate energy markets, and this prohibition is enforced through the assessment of civil penalties. (The applicable five-year statute of limitation is 28 USC Section 2467.) The defendant in this penalty action argued that FERC acted too late and let too much time slip away, so that the applicable  5 year statute of limitations ran. However the court, after its review of the statutes, determined that the defendant, when it decided to have the case tried by a federal court instead of by the Commission, triggered some preliminary court-filing requirements and procedures that had the effect of nullifying their  statute of limitations defense. By that measure, the action first accrued for purposes of calculating the beginning of the five-year period on July 31, 2015—when the lawsuit was filed—or well within the five-year limit. The defendants here argued the action first accrued on August 3, 2010, when the last questionable trade was made, but the court disagreed.

Condemnation, Valuation and the Natural Gas Act. On February 11, 2020, in UGI Sunbury LLC v. A Permanent Easement for 1.7575 acres, et al., the U.S. Court of Appeals for the Third Circuit issued an important evidentiary ruling in the case of This case involves a pipeline operator’s power of condemnation under the Natural Gas Act and a dispute over the value of the lands condemned in accordance with the Act. Here, an expert provided his testimony as to the value of the lands that were condemned for purposes of calculating the appropriate amount of compensation. The trial court accepted his testimony, but the Third Circuit held that it was not reliable under the provisions of Section 702 of the federal rules of evidence as interpreted by the courts. Although this is a pipeline case, the expert based his testimony on his analysis of properties affected by oil spills and radiation exposures and releases. The preferred valuation “lacks a clearly stated basis,” and the judgments of the trial court were vacated and remanded.

A CERCLA of Limitations. On February 14, 2020, in Government of Guam v. United States of America, the DC Circuit ruled that the Territory of Guam’s CERCLA Section 113 cost recovery lawsuit against the U.S. government must be dismissed on statute of limitations grounds. As stated by the court, for nearly half a century, the U.S. Government operated the “Ordot Dump’ as a repository of discarded munitions, chemicals and everyday garbage (described as a 280-foot mountain of trash), yet the dump lacked basic environmental safeguards. In 1983, EPA added this site to its CERCLA National Priorities List, and the U.S. Navy was identified in 1988 as a potentially responsible party in the Record of Decision. However, by that time, the United States had relinquished sovereignty over the island and the site, which now belonged solely to Guam. In 2002, EPA sued Guam under the Clean Water Act for its inability to conduct an adequate remediation, and in 2004, the United States and Guam entered into a consent decree to remediate the site. However, the cost is estimated to be $ 160 million, which caused Guam to sue the United States in a CERCLA Section 113 contribution action. The lower court agreed with Guam that it could maintain this action, but the DC Circuit reversed, holding that the Section 113 contribution action was subject to CERCLA’s three-year statute of limitations which was triggered by the 2004 settlement. The court noted that this result was harsh, but it could not rewrite the statute Congress has enacted.


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