Dredging of Delaware River Allowed to Begin ... Will It be Completed?

Posted on March 24, 2010 by Robert Whetzel

On March 1, 2010, the Army Corps of Engineers began to dredge a section of the Delaware River to deepen the shipping channel that services ports as far north as Philadelphia and Camden. While not a remarkable event as yearly maintenance dredging occurs, the dredging of the River to a lower depth was preceded by more than twenty years of debate, administrative actions and litigation surrounding the need to deepen the channel. Yet, even as the dredging takes place, the fight continues, as the Governor of New Jersey has pledged to oppose the channel deepening on economic and environmental grounds.


Delaware Sues to Enjoin the Corps


Litigation surrounding the dredging ensued earlier this year in the United States District Court for the District of Delaware after the Corps decided to proceed with the deepening project despite not having received all state permits and approvals to do so. Before proceeding, the Corps found that Delaware had refused to provide one such permit in a timely and responsible manner, thereby interfering with its authority to maintain navigation as directed by Congress, and concluded that its actions would conform to the applicable State Implementation Plans, pending the purchase of emission reduction credits.


The State of Delaware Department of Natural Resources and Environmental Control (“DNREC”) sought to enjoin the Corps from proceeding with the deepening project until the Corps demonstrated its compliance with all applicable state and federal requirements, alleging violations of the Clean Water Act, Clean Air Act, Coastal Zone Management Act and the state regulatory regimes associated with these statutes.
 

The District Court Decision


The District Court analyzed DNREC’s preliminary injunction motion under the Winter v. Natural Resources Defense Council, Inc., --U.S.--, 129 S. Ct. 365, 172 L.Ed. 2d 249 (2008), standard of (i) likelihood of success on the merits, (ii) likelihood of irreparable harm, (iii) balancing of the equities and (iv) the public interest. For likelihood of success on the merits, the court analyzed each alleged violation within the strictures of the Administrative Procedures Act.


DNREC first alleged that, under Section 313(a) of the Clean Water Act, the Corps’ sovereign immunity with respect to the project had been explicitly waived, subjecting it to the State’s regulatory process by which it must obtain the necessary permit prior to commencing construction. The court found that the Section 404(t) more limited waiver specifically governing discharge of dredged mater governed the Corps’ activities for the project. This meant that the Corps would be subject to the State’s administrative requirements so long as its authority to maintain navigation remained unimpaired. The Corps, however, had already made a finding that DNREC’s delay impaired its authority, and the court held that this finding, which was afforded great deference, was not arbitrary or capricious.


Addressing the Clean Air Act allegations, the court analyzed the sufficiency of the Corps determination that the project conformed to the applicable SIPs, focusing on the Corps’ choice to purchase ERCs as a mitigation measure to demonstrate conformity. The court found that absent from the conformity determination was an enforceable measure to obtain the ERCs. Without a specific source for and amount of ERCs, the record did not support that the Corps made a rational determination of conformity.


DNREC next argued that the Corps failed to certify to its “satisfaction” that the project was consistent with the Delaware Coastal Management Program as required under the Coastal Zone Management Act. While DNREC had initially concurred with the Corps consistency determination, it claimed that substantial changes to the project mandated that the Corps engage in a supplementary consistency determination. The court found that DNREC’s “satisfaction” was not required, and that the Corps could proceed with a project so long as it concluded that its project was “fully consistent” with the State’s management plan. For any interim changes after an initial consistency determination, the Corps was required to identify if any substantially different effects resulted therefrom, and the Corps had not identified any such results.


On the issue of irreparable injury, DNREC asserted two potential harms: (1) allowing the Corps to bypass the state regulatory process would run afoul of Delaware’s sovereign authority, and (2) that the Corps’ activities would result in harm to the environment. As to the first assertion, the court found that the federal supremacy principles apparent in the CWA, CAA and CZMA require that state law yield in certain statutorily defined circumstances, and that a federal agency’s employment of such a circumstance could not result in harm relevant to the Winter inquiry. For harm to the environment, while the court recognized that injury to the environment constitutes irreparable harm, such harm must be substantiated and the court found that DNREC had failed to do so. The court found “especially telling” that DNREC could not provide any physical evidence tending to show an injury, and that the Corps had proffered the only technical studies that were before the court.


Economic vs. Environmental Interests

In balancing of the equities and the public interest, the court weighed the interests of “nation’s environmental preservation efforts” versus the continued economic vitality of the Delaware River ports and found them equally compelling. The court then looked to Congress’ determination, as evidenced by its funding decisions, that it was in the public interest to proceed with the project.


Partial Injunction As to Future Phases – Wait and See


Ultimately, the court found that DNREC had not carried its burden that the project should be enjoined and denied DNREC’s motion as to the first phase of the project. However, since the initial project stage would last through December 2010, and DNREC represented that an administrative review of the project would be concluded within a year, the court granted the motion as to the rest of the project. In doing so, however, the court went to great lengths to clarify that it was not suggesting that the project would not be completed. Rather, the court observed that further administrative review would be a means to accomplish the project without causing environmental harm, not a means to stop the project all together.


Following the district court’s decision, the U.S. Court of Appeals for the Third Circuit denied a motion by five environmental groups to block the ruling, finding that the groups had "failed to meet the standards for an injunction or stay pending appeal."

Whooping Cranes and Texas Water Rights - A Fight's A Brewing

Posted on March 18, 2010 by Paul Seals

There is a fight brewing over the management of water resources in Texas. In a lawsuit that raises significant water rights implications, The Aransas Project (“TAP”), a non-profit corporation and an alliance of citizens, organizations, businesses and governmental entities, filed suit on March 10 in Corpus Christi against the Texas Commission on Environmental Quality (“TCEQ”) alleging that the state agency’s actions have harmed and threaten future harm to Whooping Cranes, the species that has pre-eminently exemplified and symbolized the wildlife conservation movement at the heart of the Endangered Species Act. According to the petition, 23 Whooping Cranes died at or adjacent to the Aransas National Wildlife Refuge (“ANWR”) in Texas over the winter of 2008-2009. After reviewing the allegations and the relief requests, one may wonder if this is a lawsuit to protect Whooping Cranes or is it part of a strategy to control the continued population growth and economic development in Texas through the control of water resources.


The Last Wild Flock


The Aransas-Wood Buffalo Whooping Crane flock winters at the ANWR along the Texas coast, northeast of Corpus Christi, and breeds in Canada’s Wood Buffalo National Park in the summer. It is the only natural wild flock remaining in the world. After decades of government protection in this country and in Canada, the flock has increased from 16 birds in the early 1940s to 270 in the spring of 2008. ANWR is located at or near the bays that are fed by freshwater flows of the Guadalupe and San Antonio Rivers into San Antonio Bay.
 

Is Permitted Freshwater Use the Problem?


TAP alleges that a critical reason for the Whooping Crane deaths was the lack of sufficient freshwater inflows, which adversely impact the Whooping Crane habitat by reducing the abundance of blue crabs and wolfberries, primary food sources, as well as the availability of drinkable water. These impacts are alleged to result in actual harm to the Whooping Cranes by significantly impairing their essential behavior and feeding patterns in violation of the Endangered Species Act.


TAP alleges that the TCEQ’s water rights regulations and practices constitute a prohibited taking in violation of Section 9 of the Endangered Species Act. TAP is seeking to enjoin the TCEQ from approving or processing new or pending water rights permits, to order the TCEQ to develop an approved Habitat Conservation Plan, to appoint a special master and to maintain court supervision and oversight in order to ensure sufficient freshwater flows into the Whooping Crane habitat.


Is There Another Agenda Here?


Reviewing the relief requested, TAP has targeted major water development projects previously announced in the Guadalupe River basin. In the petition, TAP has identified the water rights application of Guadalupe-Blanco River Authority to divert flood flows as well as the Authority’s contract to supply water from an existing water rights permit to Exelon Corporation for a new nuclear power plant. In addition, TAP is requesting, as part of the Habitat Conservation Plan, that existing water rights be reduced. Through this litigation, TAP has the potential to place future water resource development and existing water rights under the oversight of a special master and the federal judiciary.


A Complex Issue


Is the Whooping Crane being used to usurp Texas water rights? All parties and all Texans agree that the Whooping Crane should be protected. Will TAP be able to demonstrate the relationship of freshwater inflows and harm to the Whooping Crane? That nexus is in dispute. The Guadalupe-Blanco River Authority and the San Antonio River Authority commissioned a multi-year study to evaluate the relationship between freshwater inflows feeding San Antonio Bay and the health of Whooping Crane population at ANWR. The San Antonio Guadalupe Estuarine System Report concluded that the environmental factors that impact the Whooping Crane’s habitat are complex and not a simple correlation to freshwater flows and salinity.


TAP estimates that as of February 2010, the Whooping Crane flock numbers 263, down from an all-time high of 270 in the spring of 2008. Is this really about the Whooping Crane? If this strategy is successful, will it be used in other river basins with other endangered species?

To cite a well-worn Texas adage: “Whiskey is for drinking, water is for fighting!”

Effective Blogging Tips

Posted on March 10, 2010 by Rachael Bunday

Add Commentary: Many of our blog pieces appear to be articles.  Although informative, by posting them sans the author's thoughts, the known is merely being restated...they're merely restating something already known. As bloggers, you want to take a stance and either add to the conversation or generate one. Ultimately this will keep readers coming back to your blog and hopefully leave comments.

 

In blogging, you want to provide as much first-hand information as possible to your readers. By linking to a first-hand source, a news wire or an article--it only strengthens the credibility of your commentary because you're allowing readers to read the details themselves.

 

This will keep your blog content fresh and also help keep post length short.

 

Shorten your paragraphs: Writing for blogs is different then writing for anything else. You don't want to scare away readers by inundating them with such large loads of text at once. They'll likely skim the first few sentences at best.

 

Each paragraph should consist of 2-3 sentences.

 

Shorten your posts: Just as you want to keep paragraph length pretty short, you want to do the same with your posts in general. When it comes to blogs, people anticipate short entries.

 

It's excellent that you have a lot to say, however try to synthesize a bit. Each post should roughly have no more than 10 little paragraphs.

 

This makes it easier on the eyes and less daunting for readers to read. Sometimes you can use the spacing to your advantage when you want to emphasize a point/idea/quote. I would also use a bit more space between paragraphs, just so it's clear there's a break.

 

Bold text: Wwithin the posts there is little to no use of bold text. In lengthier posts, this is crucial for reader retention.

 

In blogging, bolded text is most effective when used in any of the following ways:

  • Highlight key ideas: use this sparingly, however if you want a key phrase/word/idea to stand out, bold it!
  • Highlight the thesis: this makes it immediately obvious to readers what the author's thoughts are on the subject.
  • Pose a question: This is a great way to encourage reader feedback! Since the goal of blogging is to generate a conversation between the author and the readers, posing a question can be extremely effective , it gives them an easy subject to focus on.

 

Overall textual devices are invaluable tools to help readers get through reading on a computer and get a feel for what you're writing about. People's eyes need a break, therefore use little devices such as bolding and spacing to your advantage.

 

Linking: Anytime you refer to anything/everything that has a website, link to it! This allows your readers to read about something first-hand without you having to explain every little detail.

 

  • Give links a title, don't just paste in the direct URLs, it looks sloppy.
  • Paraphrase or only use a snippet of a quote and then link to the rest of the article/quote/story/case...this will minimize long post lengths.
  •  Anytime you refer to a website/network (anything and everything as mentioned above) link to it. This helps with trackbacks, Search Engine Optimization and build credibility among readers.

 

When linking, bold the name of the company/publication, link to the article.

 

Whenever you can, attribute where you're getting info/text from. Because the writing is in 3rd person, it's obvious that this was from another source. This may disgruntle or confuse readers and somehow affect how they perceive your credibility. Because you only have a reader's attention for a split-second, little attributions are key.

 

It's best to show the readers what you're talking about with links, it backs-up whatever the author is talking about and ultimately builds your credibility. This allows you to refer to many things and depending on the background knowledge of your readers, they can select which things to click on and find more out.

 

--->Also, as long as you link throughout your post, a source list at the end of each post is not required. In fact, this deters readers because it looks like an essay.

 

Esoteric language: Remember, you're trying to attract potential clients who may not know much about the law. Therefore, they may be easily intimidated by "legal speak."

 

Therefore in posts like, "Kansas Agency Denies..." which are incredibly informative--may come across like it's a post from lawyers for lawyers. Just as mentioned in the bit about adding commentary, you want to generate a conversation and have them returning to your blog.

 

Or in the article, "Is Massachusetts Showing..."
'The closest that any statutes come to the promise of a comprehensive environmental statute is the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370(f)' <---------this will confuse and deter the average joe.

 

Therefore you want to write with language that's easily understandable.

 

For a webinar on the Art of Effective Blogging created by Lex Blog, please visit this link.

Nanotechnology - Health and Risk Management Concerns

Posted on March 9, 2010 by Michael Rodburg

In June last year insurance giant Zurich issued a report of the work of its Emerging Risks Group study begun in 2006. The report stated that the risks with the greatest potential to affect Zurich and its customers are those associated with nanotechnology.

Similarly, an alphabet soup of regulators—foreign and domestic—is wrestling with largely unknown and largely theoretical risks. The human health and environmental alarms have been sounded by numerous commentators, without yet meaningful, documented empirical observation or controlled studies of human health and safety issues or environmental concerns. Regulation in a factual vacuum is potentially counterproductive and can stifle one of the 21st century’s most promising new technologies. But no one wants “another asbestos” or to have stood by silent in the spring while nanobots consume an ecosystem. This blog will skim the surface of an increasingly deeper and broader pond.

What is Nanotechnology?

Nanotechnology involves the manipulation of matter at the near atomic or nanometer scale--a nanometer is one billionth of a meter; a standard sheet of paper is 100,000 nanometers thick. Materials composed of or including devices and systems with components at the nanometer scale represent fundamentally new molecular organizations with highly different and potentially unpredictable properties and functions compared to their macromolecular cousins. The technology has found uses in a wide variety of commercial products including wound dressings, pregnancy tests, toothpastes, lubricants, paints, nonstick coatings, tennis racquets, air filters and many other products. In each of these products, the nano scale materials exhibit dramatically different characteristics than would be true of those materials at normal scale.  For example, gold is an excellent conductor of heat and electricity but simply reflects ordinary light. Properly structured gold nano particles absorb light and can actually convert light into heat (which, in turn, can be used for cutting purposes in thermal scalpels).  Nano sized particles of titanium dioxide provide UV protection while remaining transparent. Nano scale materials in thin films applied to eyeglasses, computer displays and cameras make them water repellant, anti-reflective or give them other useful physical characteristics.

 

Potential Health Issues

The primary human health concern for the extremely small size of nano materials is that they may be introduced into and affect the body in ways completely different than their bulkier macro cousins. See, e.g., Special Report, Nanotechnology: Benefits vs Toxic Risks, Functional Foods And Nutraceuticals (Feb. 2007) ("nanosized particles were found to traverse through lung tissue in unexpected ways, gaining access to blood and lymphatic systems"). 

The potential for different human health related characteristics such as enhanced adhesion, reactivity and absorption means that current methodologies for risk assessment simply are not applicable and safety data drawn from non-nano counterpart materials may be irrelevant.  See, Fischer Nanotechnology -- Scientific and Regulatory Challenges, 19 Villanova Envt. L. J. 315 (2008). For example, when inhaled, nano particles are deposited more efficiently and deeply into the respiratory tract than non-nano materials, and these nano materials may evade human body defense mechanisms that trap larger particles. In addition, nano materials themselves have sometimes been the subject of problematic animal studies. See Lynn, Size Matters: Regulating Nanotechnology 31 Harv. Envtl. L. Rev. 349 (2007).

Moreover, ordinary risk management tools may also simply “not work” in the presence of nano materials. For example, the use of facial masks designed for non-nano aerosols may not be effective for nano sized particles.

Nanotechnology concerns have been heightened by an article published in the European Respiratory Journal in which researchers reported that seven (7) young women suffered permanent lung damage following months of unprotected exposures to fumes and smoke containing nano particles in spray painting operations in China. The researchers concluded that the patients' illnesses appeared to be a "nanomaterial -- related disease.” While the results of this study have been questioned, the legitimacy of concerns with respect to high level environmental exposures to these materials remains. 

Regulatory Focus

An intense regulatory focus on developing an appropriate scientific basis for ensuring that nano materials do not present unreasonable human health concerns is underway. See e.g., Dept. of Health and Human Services, Approaches To Safe Nanotechnology - Managing The Health And Safety Concerns Associated With Engineered Nanomaterials (March 2009).  Giving further impetus to these concerns is the fact that there is a high concentration of nanotechnology applications in pharmaceutical, food and cosmetics applications, industry segments with direct and immediate human interactions. Every agency with jurisdiction over human and environmental health and safety has found or certainly will find reason to explore regulation. The USEPA has begun to issue rules about handling of and exposure to nano forms of alumina, silica and silver; the California Department of Toxic Substances is considering controls on carbon nanotubes. We can expect initiatives over time from the FDA and OSHA.

Insurance Company Reaction

For its part, the insurance industry has focused on product liability concerns. Insurance industry studies have expressed significant reservations about liability issues associated with nano materials. See Lloyd's of London Emerging Risks Team Report, Nanotechnology - Recent Developments, Risks and Opportunities (2007).  Indeed, one insurance carrier (Continental Western Insurance Group) has gone so far as to impose nano-technology exclusions in their standard CGL policies - notwithstanding the fact that no such claims have yet been presented. 

Conclusion

It is clear that nanotechnology offers tremendous scientific and commercial opportunities in the future. These opportunities, however, are likely to be accompanied by health and safety based product liability and environmental risks, and those risks need to be taken into account in the development and exploitation of these products.

This blog is based in part on a more expansive article: Michael Dore, Nanotechnology - Evaluate The Products Liability Risks, 198 N.J.L.J. 866 (December 14, 2009)

When a Discharge Isn't

Posted on March 8, 2010 by Brian Rosenthal

For all environmental lawyers and especially for business advisors and bankruptcy lawyers, a very important case was decided by the 7th Circuit Court of Appeals in fall 2009. The case concerns the effect of a bankruptcy discharge from a 1986 bankruptcy filing versus an affirmative Resource Conservation and Recovery Act (“RCRA”) clean-up injunction. The question is whether the injunction is a discharged claim in bankruptcy. The Court of Appeals concludes a mandatory injunction to perform clean-up does not equate to an equitable remedy giving rise upon breach to a right to payment, which is the covered equitable remedy subject to discharge.

 

Here, the formerly bankrupt company’s reorganization left it no choice but to have this particular clean-up conducted by a third party at an estimated cost of $150,000,000. The Court found, however, the clean-up order did not result in a right to payment because RCRA does not allow either a demand for clean-up costs or any monetary relief. 

 

Finding that all equitable orders will inevitably require the ordered party to spend money to comply, the Court concludes discharges are limited to matters where the claim gives rise to a right to payment.  Such situations arise where an equitable decree can not be executed and results in a right to seek money damages and not merely those that impose a cost on the defendant.  

 

This case reaches a conclusion contrary to a 6th Circuit case and is distinguishable from the landmark Supreme Court ruling in Ohio v. Kovacs.  In Kovacs a receiver was appointed to take possession of the debtor’s assets so it could obtain money to pay for an ordered clean-up, and the Supreme Court found the receiver, therefore, was seeking money rather than an order that the debtor clean up the contaminated site. 

 

The holding in this 7th Circuit case is certainly one that will likely reverberate around the country for years to come. United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

Supreme Court Gets Back to Basics in Declining to Hear Three Environmental Cases

Posted on March 2, 2010 by Eva Fromm O''Brien

The United States Supreme Court recently declined to hear three relatively high-profile environmental cases: Croplife America v. Baykeeper (a permitting clash between FIFRA and CWA); Texas Water Development Board v. Department of Interior (weighing the designation of a nature refuge under NEPA versus economic development); and Rose Acre Farms Inc. v. United States (regulatory taking claim as a result of agency action). After a 2008-2009 term where the Court seemed to take aim at the environmentalist cause, the Court may have put some wind back in the environmentalist’s sails by declining to consider these three separate industry challenges to federal environmental regulations.

 

 

EPA Rulemaking for CWA & FIFRA Permitting

 

 

In Croplife America v. Baykeeper, the Court decided not to review the Sixth Circuit’s year-old ruling in National Cotton Council v. EPA requiring farmers to secure Clean Water Act permits for the use of pesticides already permitted under FIFRA.  EPA had claimed that FIFRA approval incorporated compliance with the Clean Water Act, however, the Sixth Circuit ruled that the government was obligated to ensure that farmers using pesticides were subject to both regulations. The decision had been stayed until April 2011 while EPA reviews and revises its NPDES permitting process to comply with the ruling.

 

 

Two different groups—one representing environmental interest groups and the other representing industry interest groups—opposed the EPA’s new permitting rule as exceeding the EPA’s interpretive authority, and argued that it would create redundant bureaucracy and hamper agricultural production by forcing farmers to decide between not applying pesticides and risking legal and enforcement actions for discharging without a permit.

 

Environmental Conservation versus Future Development

 

Another case denied review was Texas Water Development Board v. DOI, which weighed prospective future development against environmental conservation.  The Supreme Court’s decision will disrupt any future plans by Dallas-area officials to build the proposed Lake Fastrill reservoir along the Neches River.

 

 

In Texas Water Development Board, the Fifth Circuit Court had unanimously upheld a lower court’s decision that the Fish and Wildlife Service did not violate the NEPA by designating 25,000 acres of east Texas wetlands as the Neches River National Wildlife Refuge. In opposing the designation, local governments asserted they would likely need to build the reservoir by 2050 in order to accommodate increased water demand. However, the Fifth Circuit found that this project may never take place or may occur at a different site. Importantly, the “effects of establishing the refuge, and thus precluding the reservoir, are highly speculative and cannot be shown to be the proximate cause of future water shortages in Dallas.” 

 

 

Regulatory Taking Claims for Enforcement of Regulations

 

 

Finally, the Court declined to review Rose Acre Farms Inc. v. United States, a suit brought by an egg farm against the federal government for damages after a crack-down on potential salmonella contamination. Following an outbreak that was traced back to the farm, the USDA destroyed some of the farm’s eggs and required the company to sell others on the less-lucrative market for liquid, pasteurized eggs.

 

 

Rose Acre sued to recoup lost revenue, arguing that the government response constituted a “regulatory taking” under the Fifth Amendment. The Court of Federal Claims awarded Rose Acre $5.4 million in damages, but that award was overturned by the U.S. Court of Appeals for the Federal Circuit.  In its petition for review, Rose Acre Farms argued that the government responded to contamination fears in a way that focused the economic impact “narrowly and devastatingly, upon egg producers generally and Rose Acre specifically.”

 

 

The Supreme Court’s decision to pass on the case leaves the Federal Circuit’s decision as the precedent for future takings cases involving federal agencies. As such, the government may have less to fear from regulatory takings claims when enforcing its public health and environmental regulations.

 

 

Declining to hear these cases, while generally viewed as favorable to environmentalists, may be reconciled with the Court’s overall trends in environmental cases over the past several terms. None of these declined cases originated in the Ninth Circuit, a jurisdiction that seems to garner heightened scrutiny from the Supreme Court, as the Court has repeatedly reined the Ninth Circuit’s high-profile, often pro-environment decisions.  The Court has shown that it will look to the plain language of an underlying statute and its overall structure in trying to interpret Congress’ intent. More importantly, when there is room for interpretation, the Court has emphasized giving deference to agency expertise and decision-making. Thus, the question is not whether the Court may be pro- or anti-environment in a given term—it is simply whether it is abiding by its core principles and themes.