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The following cases are archived by topic area.
Pending Legal Cases
Archived Legal Cases
On June 13, 2006, the Second Circuit Court of Appeals issued a
decision in Catskill Mountains Chapter of Trout Unlimited v. New
York City. The court upheld its decision that New York City's water
transfer is subject to NPDES permitting under the Clean Water Act.
The decision may complicate EPA's recent effort to clarify that a
mere transfer of water does not require an NPDES permit. The case
was appealed to the Supreme Court, where cert was denied on February
26, 2007.
On October 11, 2005, the United States Supreme Court granted
certiorari in S.D. Warren Co. v. Maine Department of Environmental
Protection. This case presents the issue of whether the mere flow of
water passing through an existing hydroelectric project constitutes a
"discharge" requiring state water quality certification under Section
401 of the Clean Water Act. Oral arguments occurred on February 21,
2005.
On May 15, 2006, the Supreme Court ruled unanimously ruled against
S.D. Warren, confirming that states have broad authority to regulate
dams under Section 401 of the Clean Water Act. The nine justices
rejected arguments that the mere flow of water through a hydro project
is not a "discharge" that would require state certification.
Justice Souter wrote that the dictionary's definition of "discharge"
meaning "flowing or issuing out" is appropriate for interpretation of
the CWA. He found that just because no pollutants are added to the
water, it cannot be said that the river is unchanged because dams can
cause "changes in the movement, flow, and circulation of a river."
On another note, the Supreme Court specifically stated that the
ruling has no impact on section 402 of the CWA (point-source permits).
The court stated that section 401 and 402 are not interchangeable, as
they serve different purposes and use different language to service
those purposes.
Links to Case Documents
On April 13, 2004, California Sportfishing Protection Alliance
et. al filed a petition asking FERC to initiate formal consultation
with NOAA Fisheries pursuant to section 7(a)(2) of the ESA with
respect to the impact of operation of the DeSabla-Centerville Water
Supply Project No. 803 on spring-run Chinook salmon. The plaintiffs
argue that because portions of the project license reserved FERC's
authority to impose new operating conditions on the project, section
7(a)(2) of the ESA requires FERC to initiate formal consultation
with NOAA Fisheries. FERC found that such a position "improperly
blurs the distinction between the Commission's discretion to act and
the actual exercise of that discretion, thus ignoring the statutory
requirement that ESA consultation be premised on a federal agency's
action." The petitioners brought the issue to the Ninth Circuit
Court of Appeals on May 18, 2005, asking the court to force FERC to
initiate formal ESA consultation on the operation of the DeSabla
Centerville Project. Oral arguments were April 5, 2006. On December
12, 2006, the Ninth Circuit Court of Appeals denied the plaintiff's
petition, stating that there is no ongoing government action within
the meaning of the ESA and that the agency is not required to
initiate separate consultation. The court held that the "ESA
imposes no duty to consult about activities conducted by [the
licensee] pursuant to a previously issued, valid license."
On January 25, 2007, plaintiffs filed a petition for panel rehearing
and for rehearing en banc. Amici curiae briefs in support of the
plaintiffs were filed by the Center for Biological Diversity and the
Sierra Club. On March 12, 2007, the Ninth Circuit denied the
petition for panel rehearing, the petition for rehearing en banc and the
motion to file amici curiae briefs.
On February 16th, the Ninth Circuit Court of Appeals issued a
decision in Oregon Natural Resources Council v. Allen. The case arose
from a challenge to a Biological Opinion and Incidental Take Statement
issued for timber harvests on federally-managed lands in the Pacific
Northwest. The court found that an incidental take statement was no
longer valid after the U.S. Fish and Wildlife Service partially withdrew
the biological opinion that authorized it. The case makes important
clarifications about the legal relationship between biological opinions
and incidental take statements. The decision could have significant
implications for entities that depend on incidental take statements to
protect them from "take" liability under section 9 of the Endangered
Species Act. For more information,
click here.
Pacific Legal Foundation filed a lawsuit in 2004 on behalf of a
coalition of plaintiffs. The suit challenged NOAA Fisheries'
decision to list species of West Coast steelhead as "threatened"
under the Endangered Species Act. Specifically, the suit argued that
NOAA Fisheries should have considered resident rainbow trout, which
are related to steelhead but spend their lives in freshwater, in
their listing decision. The lawsuit was on hold as it awaited NOAA
Fisheries' hatchery listing policy. Following changes in the
policy and the final listing decision, plaintiffs agreed to a
stipulation dismissing the case on January 31, 2006.
On December 16, 2005, American Rivers, Friends of the River, Idaho
Rivers United, American Whitewater, Trout Unlimited, and Upper
Chattahoochee Riverkeeper Fund filed for declaratory and injunctive
relief against the Departments of Agriculture, Commerce, and Interior.
They seek to "enjoin and set aside" the hydropower license regulations
published on November 17, 2005. The challenge was filed in the Western
District of Washington. The plaintiffs claim EPAct 2005 did not
authorize the retroactive application of the regulations and that the
interim final rule process violated the Administrative Procedures Act.
The case is pending and is expected to by decided by September 12, 2006.
On October 3, 2006, a federal judge ruled that the federal resources
agencies did not violate the notice and comment requirements of the APA
when they adopted rules authorized under EPAct 2005. The US District
court judge said the rules adopted by the agencies qualify for the APA's
exemption from notice and comment requirements because they are
"procedural and interpretative" in nature, not "substantive." American
Rivers said the rules were substantive for a number of reasons, such as
their failure to specify which party in a trial-type hearing has the
burden of proof. However, Administrative judges had already ruled twice
that the petitioner has the burden of proof. The judge added that the
rules "do not result in an impermissible retroactive application of the
EPAct" merely because it "upsets expectations based in prior law."
On January 8, 2007, a Department of Interior Administrative Law Judge
ruled that many of the conditions that Interior's Bureau of Indian
Affairs (BIA) seeks to impose on Avista's Post Falls Hydroelectric
Project are factually unfounded. Avista is only the second hydroelectric
licensee to complete the new trial-type hearing process created by the
Energy Policy Act of 2005. Prior to that law, hydroelectric licensees
had almost no opportunity to challenge the factual bases of an agency's
mandatory conditions.
On June 10, 2003, the U.S. Court of Appeals for the D.C. Circuit
issued a decision in City of Tacoma, et al. v. FERC, delivering a
victory to the hydroelectric industry after a six-year effort to
implement changes in the FERC annual charges program. On June 28, 2006,
FERC issued final rulings on the FY 1998-2001 annual charges (refunding
licensees between 95-99%). The broader order, which covers the 1998-2004
period, disallows an average of 86% of the charges and allows only $16
million from a total of $112 million in total reported other federal
agency (OFA) costs. The assessments for unbilled years 2002-2004 were
issued in July, 2006 and included a reduction in OFA charges.
The D.C. Circuit Court of appeals ruled on August 25, 2006 that
FERC needs to reexamine the license it issued for Tacoma's Cushman
Project eight years ago. Specifically, the court said that FERC
should have included terms and conditions recommended by the
Interior Department to protect the Skokomish Indian Tribe. The court
also ruled that FERC has the power to not issue a license or
condition a project so heavily that it becomes uneconomic for the
project owner, who must then sell or decommission it.
Conference report language accompanying the 2006 Energy and Water
appropriations bill approved by Congress and signed November 19, 2005 by
the President prohibits the Bonneville Power Administration (BPA) from
funding further activity of the Fish Passage Center (FPC). The FPC has
gathered and stored data regarding fish passage through the federal
Columbia/Snake hydro system and provided analysis of that data under the
Northwest Power and Conservation Council's (NPCC) fish and wildlife
program since 1984. On January 26, 2006, BPA announced it would transfer
the duties of the FPC to two other entities - the Pacific States Marine
Fisheries Commission and Battelle Northwest. The next day, environmental
and sport fishing groups filed a petition with the Ninth Circuit Court
of Appeals requesting that the FPC be kept in tact.
Oral arguments occurred September 12, 2006 in Portland, Oregon. On
January 24, 2007, the appeals court ordered BPA to "continue its
existing contractual arrangements to fund and support" the Fish Passage
Center. The panel said the decision was made without proper legal
rationale. The judges said the committee language does not carry the
weight of law or override BPA's obligations under the Northwest Power
Act. They held that BPA's decision was arbitrary, capricious, and
contrary to law. The court also said the funding decision went contrary
to the Administrative Procedures Act. Bonneville stood by its decision making process and
rationale.
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