Environmental Groups Join DL and NJ Opposing Army Corps Dredging

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

More Reaction to Forest Service Denial of Crested Butte Ski Area Expansion

More news outlets in Colorado and environs are reacting to the Forest Service's decision (discussed in this post from Monday) to turn down Crested Butte Ski Area's application for a "special use" permit to expand ski runs and lifts onto Snodgrass Mountain, in the middle of National Forest land.

The Watch out of Telluride is reporting how pleased local environmentalists are, in an article you can read here. Notably, it reports that Rocky (natch) Smith, Forest Watch Program Director for Colorado Wild "said that only once during his 25-year career reviewing Forest Service projects (including the Telluride Ski and Golf Company’s expansion into Prospect Basin that he opposed) has he ever seen the agency turn down a request to expand a ski area or open a new one." So a shift from not only the Bush Administration, but the Clinton, Bush I, and Reagan administrations as well.

Meanwhile, the Gunnison Times reports here that the owners of the ski area found the Forest Service's decision to be "on the verge of appalling" and are planning on fighting the decision in court, if necessary. If it gets that far, it will be interesting to hear what the district court and perhaps ultimately the Tenth Circuit say it takes for a special use permit decision--which has a lot of discretion written into it by law--to withstand review. The ski area owners really seem to feel that they are entitled to NEPA review. The question is whether this is based on tradition, rather than anything legal.

A Little History Lesson

Elizabeth Garrett at USC Law Revisits TVA v. Hill.

When discussing yesterday's Ninth Circuit decision in National Parks Conservation Association v. BMA, I noted that, although the project at issue (a landfill adjacent to Joshua Tree National Park) could technically go forward after BLM goes back and complies with the panel's rulings on its NEPA evaluation, approval delayed is often approval denied.

The real nuclear bomb in environmentalists' arsenal is, of course, the Endangered Species Act, which absolutely forbids action that would constitute a "take" of listed species. (A substantive road block, rather than the procedural road block NEPA throws up.) The mother of all ESA cases, paving the way for decades of ESA-based attempts to litigate controversial projects to a halt is TVA v. Hill, 437 U.S. 153 (1978), in which the Tellico Dam was almost stopped by the Endangered Species Act for the sake of the infamous endangered snail darter.

Now Elizabeth Garrett, a scholar of legislative process at USC Law (and a former University of Chicago Law professor) is putting out a book on the subsequent legislative history of the controversy, in which Congress used appropriations legislation to overrule the Court. A preview of Professor Garrett's book, The Story of TVA v. Hill, Congress has the Last Word, can be read here, and a post on the book at Legal History Blog, here.

The book should be instructive, in light of the fact that Congress's tactic of using lines inserted into appropriations bills is alive and well. Far more recently, for example, Senator Domenici of New Mexico used an appropriations bill to override a ruling by the U.S. District Court for the District of New Mexico ordering the Army Corps of Engineers to release water set aside for farmers in the Rio Grande watershed back into the river to protect the endangered silvery minnow. You can read an article on the controversy, circa 2003, here.

Ninth Circuit Affirms Reversal of BLM Decision Allowing Landfill Next to Joshua Tree

In National Parks Conservation Association v. BLM, the Ninth Circuit yesterday affirmed a district court ruling overturning a Bureau of Land Management (BLM) decision allowing a massive landfill serving Los Angeles to be built on abandoned mining sites adjacent to Joshua Tree National Park. The NPCA press release can be read here, and the full opinion here.

The National Parks Conservation Association (NPCA) and local citizens fought the project at the administrative level and in federal court, out of concern for the impact it would have on the local ecosystem. They urge in this fact sheet on the case that the landfill "would severely disrupt the surrounding desert ecosystem by subsidizing and inflating the population of predators, such as ravens and coyotes, which in turn would reduce numbers of desert tortoise, reptiles, songbirds, and other wildlife. In addition, light, air, and noise pollution, other impacts to wildlife, and the eventual contamination of groundwater would permanently alter Joshua Tree and the adjacent Chuckwalla Valley."

The group challenged BLM's original decision to allow the landfill (and a land exchange that would have enabled it to happen) under the Federal Land and Policy Management Act (FLPMA) and NEPA. Two NEPA claims survived and won the day before the Ninth Circuit: First, that BLM had, in its NEPA alternatives analysis, delineated the purpose of the project too narrowly--so narrowly that the only alternative method of achieving that purpose was to build a landfill. Slip. Op. at 15124. The panel held that one of the main objectives of the NEPA process--fully evaluating all feasible alternatives to the proposed project--was thwarted by a conception of the purpose so narrow that all alternatives that failed to meet "specific private objectives" were excluded. This, they affirmed, invalidated the resulting environmental impact statement (EIS).

Second, the panel held that BLM had failed to analyze the impact of "eutrophication" (introduction of extra nutrients to the landscape) in a manner sufficient to allow the conclusion that decision makers and the public were fully informed on the issue. BLM apparently tried the "its in there somewhere" defense. The Ninth Circuit held, in essence, that that was insufficient, since even an informed reader would have a hard time finding the discussion, and would have to hunt through the whole EIS, clip several sections, and paste them all together to get a decent picture of the issue. This, they said, is not a "reasonably thorough" discussion of the issue sufficient to meet NEPA's process requirements. Slip. Op. at 15127.

The project now goes back to BLM for further review. It is technically possible that it could still be approved and ultimately survive judicial scrutiny. After all, NEPA mandates process, not outcome, and the court's rulings on the substantively significant FLPMA claims were more favorable to the Bureau (meaning it would be hard to win a legal argument that BLM failed to comply with FLPMA's requirements). But in a NEPA case, approval delayed is approval denied, and NPCA is claiming victory. Presumably, the plaintiffs are hoping that the prospect of further extensive reviews will cause the investors and the Los Angeles to pack up and ship their garbage elsewhere.

Forest Service Blocks Ski Area Expansion onto Public Lands

Forest supervisor says expansion would be "against public interest."

In a letter dated November 5, 2009, the Forest Supervisor for the Grand Mesa, Uncompaghre and Gunnison National Forests rejected an application by the Crested Butte Ski Resort for a special use permit to expand onto national forest land on nearby Snodgrass Mountain. The resort owners had sought the expansion in part to develop more beginner and intermediate ski runs to broaden their appeal. In a decision that shows which way the winds are blowing in the Forest Service, the Forest Supervisor determined that although the plan met the minimum initial screening requirements, the expansion failed second-level review as against the public interest, citing 36 CFR 251.54(e)(5).

The Forest Supervisor made his adverse public-interest finding on the basis that, among other things, the expansion (a) lacked community support, (b) posed too many economic and social costs, (c) would place too much development pressure on the surrounding area, changing its character, (d) was problematic in light of the fact that Snodgrass Mountain is in an Inventoried Roadless Area (IRA), (e) would impinge on lynx habitat, and (f) would require an extensive and costly NEPA process for which there was insufficient justification in light of all the other concerns.

The Forest Supervisor's citation of the fact that the proposed expansion is in a roadless area is particularly interesting in light of the fact that the Roadless Rule's fate is not yet decided (as I explained in this post, last week)--and in light of the fact that the Obama Administration has recently filed briefs on behalf of the Roadless Rule, reversing eight years of Bush Administration litigation strategy. Obviously, this Forest Supervisor has gotten the memo. He wrote:

Several Federal Circuit Courts are currently considering the future management of IRAs. A final decision on how ski areas can develop ski facilities in IRAs may be several years away. It is very reasonable to expect; however, that any decision to develop Snodgrass Mountain will be challenged based upon consistency with both the intent and ecological values of roadless areas.

His analysis of community support for the project was also interesting. The project has engendered significant opposition. (Friends of Snodgrass Mountain, which was formed to fight the project, has an only-in-Colorado slogan: "It's Not Light. It's Not Intermediate. And It Won't Work!"). But opposition is not unanimous. Here, the Forest Supervisor cited the lack of unanimous support as a reason that the project is not in the public interest, whereas one might expect the Forest Service in prior administrations to cite the lack of unanimous opposition as a basis for moving ahead. See Nov. 5, 2009 Letter at p. 2 ("Based on what I have heard and read, I am convinced that the community is deeply divided over the proposed development of Snodgrass Mountain."). Almost any project that would require NEPA review could be said to "deeply divide" local communities--there are a lot of environmental litigators who would love to see this cited as a reason not to perform NEPA review, or to choose a no-build alternative to a proposed project. (Especially since project proponents so often form pro-development citizens groups that would not have arisen spontaneously.)

The owners of the ski resort released a press statement today expressing their disappointment in the decision. They said they were "blindsided" by the decision, and had thought, based on earlier interactions with the Forest Service, that everything was going well for them. They also complain that many other ski areas in Colorado have gotten special use permits for similar expansions in the past, and expected that they would be able to get one as well. The release ends with positive statements about what the expansion "will" provide to the resort and the community, perhaps indicating the owners' intent to appeal the Forest Service's decision.

If they do appeal, they will have to go to federal court, as the letter specifies that the decision is not subject to administrative review.

Press coverage of the development can be read in the Denver Post, here.

Sixth Circuit Affirms Dismissal of NEPA Suit Against TVA for Lack of Standing

In Friends of Tims Ford v. the Tennessee Valley Authority, (6th Cir., No. 08-5706, November 6, 2009), the Sixth Circuit today affirmed the dismissal of a suit brought by a group of concerned citizens living near the Tim's Ford reservoir in central Tennessee. The Friends of Tim's Ford (FTF) group objected to a plan by the TVA to transfer land surrounding the reservoir to private developers for permanent residential development, and allow the construction of additional piers, docks, and a marina on the reservoir. The group alleged a variety of procedural failures under the National Environmental Protection Act (NEPA), as well as the TVA Act (the organic act that gave rise to the quasi-governmental authority).

Roadless Rule Being Litigated . . . Again

Briefs were filed in the U.S. Court of Appeals for the Tenth Circuit yesterday in favor of the Roadless Area Conservation Rule (Roadless Rule), which bans new roads in national forests. Again.

The rule, which was issued in 2001 at the end of the Clinton Administration, has been the subject of nearly endless litigation ever since. In separate proceedings in the Ninth Circuit, environmentalists sued to overturn a Bush Administration reversal of the rule, via the so-called State Petitions Rule, which sought to give states authority over whether National Forests in their own states should remain roadless. Last August, in California v. USDA, the Ninth Circuit ruled that (1) it was unreasonable for the Forest Service to use a categorical exemption to exclude the State Petitions Rule from NEPA review, (2) it was arbitrary and capricious for it to find no significant impact under the ESA, and (3) the district court had been correct to reinstate the Roadless Rule. (As that case was argued prior to the end of the Bush Administration, DOJ supported the State Petitions Rule and opposed the reinstatement of the Roadless Rule.)

Meanwhile, the state of Wyoming challenged the Roadless Rule in federal district court in Wyoming--and won. In a 2008 decision, the U.S. District Court for the District of Wyoming ruled (for the second time) that the Roadless Rule violated NEPA as well as the Wilderness Act. This time, the Obama DOJ joined environmentalists and is arguing that the district court's decision should be overturned.

A brief AP article on the filing can be read here. And a colorful High Country News article on the judge in Wyoming who keeps overturning the Roadless Rule, as well as the endless litigation it has been subjected to, can be read here.

Suit Filed to Stop Nuclear Expansion in Georgia

Yesterday, lawyers and students at the Emory University Turner Environmental Law Clinic filed suit in the DC Circuit on behalf of a coalition of environmental groups to reverse a federal Nuclear Regulatory Commission (NRC) decision from earlier this year. The NRC granted Georgia Power, a subsidiary of Southern Company, an early site permit (ESP) to build new reactors at its Plant Vogtle facility near Atlanta. The petition contends that: "the NRC violated the Atomic Energy Act, 42 U.S.C. § 201 1 et seq., the National Environmental Policy Act [(NEPA)], 42 U.S.C. § 4321 et seq., the Administrative Procedure Act, 52 U.S.C. § 701 et seq.," and their implementing regulations. Petitioners seek review and reversal of the permit(s) issued for the site, as well as an injunction, presumably against any construction that may commence as a result of the permits.

The coalition includes the Center for a Sustainable Coast, Savannah Riverkeeper, Southern Alliance for Clean Energy (SACE) (a former client of mine), Georgia Women’s Action for New Directions (WAND), and the Blue Ridge Environmental Defense League.

The joint press release can be read here. And the complaint here.

Georgia Power and Southern Company are heavily coal-dependent, conservative on energy issues and extremely powerful, and will be formidable foes. Their websites, like those of other power companies these days, highlight their interest in energy efficiency and other forms of sustainable energy. But they enjoy an unusual amount of political and market power in their home states based on longstanding monopoly production of (fossil fuel fired) power, and are interested in keeping it that way. That means advocating projects such as nuclear expansion, "clean" coal gasification (with dubious environmental benefit), and carbon sequestration (the risks surrounding which it seeks to have industry indemnified from, as a way to keep coal viable if federal GHG regulation materializes), and resisting state- or federal-level energy efficiency or renewable energy portfolio standards. They have also opposed rigorous cap-and trade legislation--in part through lobbying groups like the American Coalition for Clean Coal Electricity. And, in a development that caused a huge brouhaha in Georgia last year (that you can read about here), they pushed a "construction work in progress" (CWIP) bill through the Georgia Legislature that means they will be paid for new power plants even while they are being built. This shifts all of the risks that expensive projects they undertake--such as, um, building nuclear reactors--might not be completed/economically viable in the end because of rising fuel prices, federal climate legislation, or community opposition onto the shoulders of Georgia ratepayers.

Coverage of the suit from the Augusta Chronicle can be seen here.