Archive for the ‘Administrative Procedures Act’ Category

The Man Who Bought An Island and Raised a Tortoise Army

Photo by Glisglis. Some rights reserved.

Moyenne is a .034 square mile island in the Seychelles archipelago, off the north coast of Mahé, the chain’s largest island, in the Indian Ocean. Abandoned by native inhabitants in the early 1900’s, the island was left to its own devices until 1962, when a then-36-year-old Yorkshire resident by the name of Brendon Grimshaw purchased the land for £8,000 from the Seychelles government. Grimshaw has been living on the island on his own ever since, and has made it his personal passion project to reintroduce nearly lost flora and fauna into his tiny kingdom in an effort to “give himself something to do,” something he knows is worthwhile.

What kind of fauna, you ask? Why, the indigenous giant land tortoise! Through his exhaustive efforts, Grimshaw now resides amongst 120 tortoises, who are free to roam about the island, free from any human threat. (A sign outside Grimshaw’s house reads “Please respect the tortoises. They are probably older than you!”) In addition, Grimshaw has built 4.8 kilometers of nature trails and planted 16,000 trees across the island’s small surface area (Grimshaw claims that when he first arrived on Moyenne, there were only 4 trees).

While many global capitalists would purchase and rebuild an island in the expectation that it could be sold back at a much higher price to hotel chains and the like, Grimshaw has done quite the opposite. With the help of his assistant, Rene Antoine Lafortune, he has been able to get Moyenne sanctioned as an official national park of the Seychelles (what has been crowned as the smallest national park in the world) so that visitors can come and enjoy its natural beauty. Watch the BBC’s new video report on Grimshaw and Moyenne, which includes a truly delightful interview, here.

Supreme Court Decision in Sackett v. EPA

Yesterday, 3/21/2012, the Supreme Court handed down a decision in Sackett v. EPA, No. 10-1062, concluding that

“[…] the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”

We first covered this story in June of last year. We’ve assembled a new Spotlight on the decision, compiling relevant news, opinions, blog posts, and law firm memos.

EPA Sued Over Nutrient Pollution in the Mississippi River Basin and Northern Gulf of Mexico

Photo by turtlemom4bacon. Some rights reserved.

Law Firm Faegre Baker Daniels sent out a Legal Update this week detailing two complaints filed simultaneously against the EPA over actions (and inactions) taken in regards to nitrogen and phosphorus runoff in the Mississippi River.

One complaint (Gulf Restor’n Network v. Jackson, E.D. La., No. 2: 12-cv-00677), filed March 13 in the U.S. District Court for the Eastern District of Louisiana by the Gulf Restoration Network (and others), claims that the EPA violated the Administrative Procedure Act by denying a 2008 petition that asked the EPA to establish state water quality standards and total maximum daily loads to address excessive nitrogen and phosphorous pollution in the waters of the Mississippi River Basin and northern Gulf of Mexico.

The other complaint (Natural Res. Def. Council, Inc. v. Jackson, S.D.N.Y., No. 12-CIV-1848), filed the same day in the U.S. District Court for the Southern District of New York by the Natural Resources Defense Council (and others), seeks to compel the EPA to address a 2007 petition requesting that the EPA publish updated standards on secondary treatment technology for publicly owned treatment works, and include nitrogen and phosphorous removal in those standards. The agency never even responded to the petition.

Faegre points out that, “[f]or the agriculture industry and farmers, the implications of the lawsuits are significant. According to the Iowa Farm Bureau, the cost of complying with the nitrogen and phosphorous standards sought by environmental groups could be as high as $600 million per year nationwide.”

The Sackett Racket: Oral Arguments in the Supreme Court in Sackett v. EPA

Photo by d'n'c. Some rights reserved.

UPDATE:  Supreme Court Renders Decision in Sackett v. EPA

Our previous coverage of Sackett v. United States Environmental Protection Agency generated the most traffic of almost any other post on our blog. The people – including Chantell and Michael Sackett – want to know: “If EPA essentially seizes control of your property by labeling it as ‘wetlands,’ do you have a right to appeal to a court of law?”

In 2007, the Sacketts started construction on a small plot of land in Idaho without first obtaining a Clean Water Act permit. Shortly thereafter, the EPA determined that the parcel of land contained federally recognized wetlands, ordering the Sacketts to halt construction and restore the parcel to its previous condition. When the Sacketts were unsuccessful in petitioning the EPA for a hearing, they filed suit. The case has seen both a District Court and the Ninth Circuit Court of Appeals, and, so far, everyone has ruled in favor of the government. Now the case has landed in the Supreme Court.

Quoted above, unsurprisingly, is Damien M. Schiff, an attorney from conservative law firm and Sackett rights champion, Pacific Legal Foundation. Schiff argued on behalf of the Sacketts in front of the US Supreme court today, January 9th, asking for the Sacketts’ right to challenge the EPA’s decision in a federal court.

As the Huffington Post points out, things weren’t looking great for the EPA in the hearing:

Justice Samuel Alito called EPA’s actions “outrageous.” Justice Antonin Scalia noted the “high-handedness of the agency” in dealing with private property. Chief Justice John Roberts said that the EPA’s contention that the Sacketts’ land is wetlands, something the couple disagrees with, would never be put to a test under current procedure.

According to Huffington, the justices are expected to rule by summer. Keep up with law firm analysis of the case by checking out Knowledge Mosaic’s Law Firm Memo search page. Do a text search for Sackett to bring up relevant memos.

D.C. Circuit to EPA: Guidance No Substitute for Cold, Hard Rulemaking

D.C. Circuit Court. Photo by Ken Lund. Some rights reserved.

Seattle-based Marten Law walks us through the EPA’s recent headbutt with the Natural Resources Defense Council (NRDC), as the agency tried to defend its actions with regards to Section 185 of the Clean Air Act (CAA). The struggle ended July 1, 2011, when the D.C. Circuit Court of Appeals vacated a Section 185 guidance document that the EPA has previously relied on.

The EPA is required by the CAA to establish national ambient air quality standards (NAAQS) for various pollutants, and to impose deadlines and/or fees on areas that fail to comply. Section 185 (42 U.S.C. § 7511d) addresses ozone nonattainment areas that are classified as “severe” or “extreme,” and the specific enforcement to be levied against the major stationary sources of the offending pollutants in those areas.

When the NAAQS were overhauled in 2004, many areas that were previously classified as “severe” or “extreme” in their nonattainment now only classified as “marginal” or “moderate.” The CAA’s “anti-backsliding” provision (42 U.S.C. § 7502(e)) prevented these areas from getting off the hook completely, but enforcement procedures in these cases were now a bit murky. In order to address the confusion, the EPA issued “Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS,” a document that ostensibly gave states the authorization to implement “alternative programs” in certain nonattainment areas, rather than the usual fee programs mandated by Section 185.

But this didn’t fly with NRDC or the D.C. Circuit. NRDC filed suit, and the Court subsequently found that the EPA violated the Administrative Procedure Act by issuing the guidance without following notice-and-comment rulemaking procedures. Is this becoming a trend? If so, it’s one that will likely not be tolerated. Marten Law concludes that the “EPA has, in recent years, tended to favor the use of interpretive guidance where it can, as the rulemaking process is typically long and arduous. No matter, the D.C. Circuit has joined other courts in holding that guidance is not a substitute for rulemaking.”

Making Molehills of Mountaintops

Photo by Stefan Didam. Some rights reserved.

As Green Mien contributor Julia posted previously, following an EPA recommendation that Arch Coal’s mountaintop removal mining project permit be withdrawn, the coal-cuddling West Virginia Governor Joe Manchin threatened legal action against the agency. And action he has certainly taken.

The lawsuit against the EPA was filed October 6, 2010, on behalf of the whole State of Virginia. Specifically, the plaintiffs are challenging the Enhanced Surface Coal Mining Pending Permit Coordination Procedures and the Detailed Guidance Memorandum issued by EPA earlier this year. According to the complaint, “those two documents became effective immediately upon their issuance,” and have been “used as standards by which EPA and the [Army Corps of Engineers] make decisions regarding, comment on, and object to surface (and other) mining permits, including those permits affecting West Virginia.” The complaint goes on to argue that “those agency actions were taken outside of formal rulemaking procedures and amount to de facto substantive rule changes in violation of the Administrative Procedures Act.”

In their “Prayer for Relief,” the plaintiffs seek an order vacating the two documents, as well as an order directing the EPA “to process and review all pending surface mining permits pursuant to the properly codified regulatory process and timelines.”

The suit, much like Manchin himself, is not restrained in expressing disdain for the EPA’s “brazen disrespect for the notice-and-comment rulemaking,” calling the EPA “impatient and anxious[…]to take a stand.” The contentious documents are, in the plaintiffs’ eyes, “arbitrary, capricious, an abuse of discretion,” which is probably why the EPA’s actions under them “could sound the death knell for surface coal mining.”

Folks (at least the vocal ones) are worried and angry in particular about effects on the West Virginia economy. According to an article in West Virginia’s MetroNews, since January of 2009 – when “the EPA began implementing new policies and procedures [for] permits for mountaintop mining” – twenty-three permits have been put on hold, including several in West Virginia. The suit accuses these delays of “threatening the economic well-being of the State of West Virginia and its citizens and imperiling the general public interest.” Manchin expressed the same sentiment at a news conference the day the complaint was filed.

What happens next? Read this recent RiskMetrics blog post to see how the 2010 midterm elections could change the course of coal and render some of Manchin’s arguments moot.

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