IPR works with a number of individuals as well as local, regional, and national organizations concerned about the effects of environmental pollution on their communities and about various threats to important local and regional natural resources. On their behalf, IPR has pursued litigation and administrative initiatives against government agencies and organizations designed to improve the quality of the area’s environment.
1. Chesapeake Chum
In January 2006, IPR began working with Captain Norman Bartlett to evaluate options for challenging the practice of chumming on the Chesapeake Bay in Maryland. Chumming involves the discharge of a slurry of ground fish and shellfish waste, fish oils, and/or other materials in order to attract game fish, such as striped bass. Captain Bartlett is concerned that chumming adversely affects water quality and fisheries in the Chesapeake Bay.
In Fall 2006, an IPR student conducted research on the impacts of chumming on water quality and fish populations and on the legal authority supporting a rule that would ban or limit the practice of chumming in the Chesapeake Bay. After concluding this research, the student drafted a rulemaking petition that was submitted to the Maryland Department of Environment. The rulemaking petition received coverage in various newspapers throughout the region. Maryland Department of Environment responded to the rulemaking petition by initiating a study on the impact of chumming on the health of the Bay across a number of indicators. IPR is currently awaiting the results of that study and Maryland Department of Environment’s decision on Captain Bartlett’s rulemaking petition.
2. MAGIC PIA Requests
In 2005, Maryland Alliance for Greenway Improvement and Conservation (MAGIC) contacted IPR to seek assistance in resolving several outstanding information requests that MAGIC submitted to the Maryland Department of Natural Resources (MDNR) in 2003 and 2004. MAGIC’s requests sought information about the management of and timber sales in four Maryland state forests to assess whether Maryland’s state forests and wildlife are being protected adequately.
After filing a complaint alleging violations of Maryland’s Public Information Act in April 2006, MDNR and IPR began negotiations regarding the outstanding information requests in Fall 2006. An IPR student helped conduct those negotiations and drafted the settlement agreement that resulted from the negotiations. The settlement agreement ensured that MAGIC would receive in a timely fashion all digital and paper copies not yet received.
3. Mattaponi Tribe – King William Reservoir
Since 1996, IPR has represented the Mattaponi Indian Tribe in its opposition to the construction of a large-scale reservoir located near its reservation in southeastern Virginia. The Tribe is formally recognized by the Commonwealth of Virginia and is one of the few remaining descendant tribes of a paramount chiefdom controlled by the great chief Powhatan, father of Pocahontas. The Mattaponi is one of eight state-recognized Tribes that signed a peace treaty (the “Treaty at Middle Plantation”) with representatives of the British Crown in 1677. Among other things, this Treaty created the Mattaponi Indian Reservation and preserved the Tribe’s rights to fish and gather on its ancestral lands. The Tribe’s reservation is on the banks of the Mattaponi River, three miles downstream from the reservoir’s proposed location.
In 1987, a group of cities and counties in Virginia’s lower peninsula formed a consortium called the Regional Raw Water Study Group (“RRWSG”) to plan for the region’s water supply needs through the year 2040. The RRWSG settled on plans to build a drinking water reservoir, which would use the Mattaponi River as its exclusive source for water withdrawals. The project would threaten more than two hundred and fifty Indian archeological sites, many of which are eligible for inclusion in the National Register of Historic Places, and would constitute the largest destruction of wetlands in Virginia since the passage of the Clean Water Act. Furthermore, because the Mattaponi people subsist on an annual shad harvest from the Mattaponi River, and the proposed intake pipe for the reservoir is located in the middle of prime shad spawning grounds, the Tribe is deeply concerned that the water withdrawal would impair its ability to continue its culturally and economically vital shad fishing.
The City of Newport News (“City”), on behalf of RRWSG, has obtained all state and federal permits necessary for the project.
a. State Litigation
For many years, the Tribe challenged the State Water Control Board’s (“Board”) decision to grant a Virginia Water Protection Permit (“VWP permit”) to the City in the Virginia state courts. In November 2005, the Virginia Supreme Court upheld the issuance of the permit, dismissed the Board as a party, and remanded the Tribe’s claims under the Treaty to proceed against the City as the permit-holder. The Tribe amended its original complaint to add claims that the City violated the Tribe’s rights under riparian law and the reserved tribal water rights doctrine. Additionally, the Tribe amended its complaint to join all local government members of the RRWSG as well as King William County, the reservoir’s host jurisdiction, as necessary parties. The Tribe reached an agreement with most of these local governments, who agreed to be bound by the outcome of the lawsuit in exchange for dismissal from the suit. The only parties that remained active in the case were the City of Newport News and King William County.
On August 18, 2006, the City moved to dismiss (via several demurrers and motions for summary judgment) the Tribe’s claims that the construction and operation of the reservoir would (1) violate its Treaty-protected right against encroachment of land within three miles of the
Mattaponi Indian Town, (2) its Treaty-protected right to fishing, and (3) its rights under the reserved tribal water rights doctrine.
Regarding the Tribe’s reserved water rights claims, the City asserted that the doctrine applied only to federally recognized Tribes in the West where water rights are governed by a system of prior-appropriation as opposed to riparian law, which is the governing system in the East. The City’s motion also asserted that the Tribe’s claim to rights to the land within three miles of the Tribe’s reservation would require that all landowners within the three-mile radius be joined as necessary parties. Rather than risk this possibility, the Tribe decided to nonsuit (voluntarily dismiss) all claims related to intrusion within the three-mile ring. An IPR staff attorney presented oral argument at the motions’ hearing before Judge Poston of the Circuit Court of the City of Norfolk on September 27, 2006.
On February 5, 2007, Virginia Circuit Court Judge Poston issued an opinion ruling on these motions. The Court held that there were triable issues of fact as to whether the Tribe’s Treaty rights extended to preventing interference with its fishing practices caused by development such as the reservoir, and allowed the Tribe’s remaining Treaty claim to go forward. Additionally, Judge Poston held that the Mattaponi could go forward to trial on its claim under the reserved tribal water rights doctrine. This holding that the principles behind the reserved tribal water rights doctrine would not preclude a non-recognized Tribe in the East from asserting such a claim was a groundbreaking ruling in a case of first impression and garnered significant attention.
On November 7, 2006 the Tribe filed a motion for summary judgment seeking declaratory relief on its claim that the King William Reservoir was per se illegal because it violated the prohibition under riparian law against transferring water from one river’s watershed for use in another. Also, on November 7, 2006, King William County filed a demurrer as to the Treaty claim, the riparian rights claim, and the reserved tribal water rights claim, asserting sovereign immunity from tort actions. Two IPR students worked on the summary judgment motion and reply and on the opposition to King William County’s demurrer. Additionally, several IPR students helped an IPR Staff Attorney prepare for oral argument on the inter-watershed transfer motion.
At the motion’s hearing on December 13, 2006, the Court denied (from the bench) the demurrer by the County and the Tribe’s motion for summary judgment on its inter-watershed transfer riparian claim, stating that there were too many factual issues for him to decide the inter-watershed transfer issue as a matter of law.
In the spring semester 2007, IPR students worked on discovery and preparation for trial, scheduled for June 18, 2005. Specifically, students read through the case files for relevant documents and drafted written responses to interrogatories and requests for the production of documents from the City. Additionally, the students drafted the Tribe’s requests for information and documents from the City of Newport News and King William County. The students also wrote letters corresponding with experts about their testimony and drafted summaries of the expert’s intended testimony for the defendants, as required by the rules of discovery.
On April 10, 2007, about two months before the trial was scheduled, the City of Newport News and the Mattaponi Indian Tribe entered into a settlement agreement to resolve the state case. The Tribe chose to settle because the state litigation, particularly as it approached trial, had become an increasing distraction for the Chief and Tribal Council and was a significant drain on the Tribe’s time and resources. The Tribe was also uneasy about risking an adverse decision on the Treaty claim, which would affect other Virginia tribes as well. In the settlement agreement, the City agreed to provide the Tribe with $650,000 and, in exchange, the Tribe agreed to dismiss the state law claims against the City and King William County. The agreement preserved the Tribe’s right to continue its lawsuit in federal court challenging the Clean Water Act permit (see below), to speak publicly about its opposition to the project, to participate in administrative hearings related to the project, and to pursue litigation in state court if the reservoir project changes significantly from the current proposal.
b. Federal Clean Water Act Section 404 Permit
The Tribe is currently involved in a lawsuit challenging the issuance of the King William Reservoir’s federal Clean Water Act permit, which is pending in the United States District Court for the District of Columbia. On November 8, 2006, the Tribe intervened as a plaintiff in a lawsuit filed a few months prior by three environmental groups. Two IPR students drafted the complaint and the motion to intervene.
The Tribe named the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“the Corps”) as defendants and alleged that the federal permit violates the Clean Water Act and the National Environmental Policy Act. The complaint asserted the citizen suit provision of the Clean Water Act (“CWA”) and the Administrative Procedure Act (“APA”) as alternate bases for the Court’s jurisdiction.
EPA and the Corps (collectively “the government”) moved to dismiss for lack of jurisdiction all of the Tribe’s claims against EPA and the Tribe’s claims against the Corps pursuant to the CWA citizen’s suit provision. (No one disputed that the Court had jurisdiction under the APA to review the Tribe’s claims against the Corps.) The government argued that the plain language of the citizen’s suit provision only allows suits against EPA for failure to perform mandatory duties; therefore, the government argued that the Court should dismiss the Corps because it is not mentioned in the statutory text and should dismiss the EPA because it did not have any mandatory duties here, as the Corps is the agency responsible for issuing permits under CWA Section 404. An IPR student drafted the opposition brief, using case law and statutory canons to argue that the purpose of the citizen’s suit provision was such that suits against the Corps ought to be allowed. Additionally, the Tribe asserted in its opposition that EPA could be held responsible for the Corps’ violations of the Clean Water Act because it had a duty to oversee the Corps’ actions.
An IPR Staff Attorney argued the Tribe’s opposition to the government’s motion at a hearing on May 7, 2007, after several practice moot courts before IPR students, faculty, and staff attorneys. On May 30, 2007, Judge Henry H. Kennedy, Jr. granted the dismissal of all claims
brought under the citizen’s suit provision, but allowed the case to go forward under the APA against both the Corps and the EPA. The Court held that it had jurisdiction to review claims that EPA acted arbitrarily and capriciously when it failed to invoke its authority to veto permits issued under the Clean Water Act. EPA filed a Motion for Reconsideration of this issue, which the Court subsequently denied. On July 26, the Tribe filed an amended complaint consistent with the Court’s ruling on the Motion to Dismiss. The parties are conferring to set a briefing schedule for the motions for summary judgment. The substantive briefing of the case will begin this fall.
c. State Administrative Proceedings
In the summer of 2006, the City of Newport News filed requests to extend the VWP permit expiration date by five years, from December 2007 until December 22, 2012. Chief Carl Custalow gave testimony urging the Board not to allow the extension and IPR filed written comments to supplement the testimony.
On September 12, 2006, the State Water Control Board denied the Permit extension request despite the DEQ staff recommending that the permit be extended. Subsequently, the City filed a request that the Board reconsider its decision. IPR filed a comment letter, which objected to the reconsideration request because no statute authorizes the Board to reconsider its decision outside of a formal hearing. On December 14, 2006, the Board reconsidered its prior decision and granted a modified version of the permit extension request. The Board extended the permit by three years and ordered that the City could not begin constructing the project during the three years of extension.
4. Mirant Potomac River Generating Station
Since the fall of 2005, IPR has represented Anacostia Riverkeeper, Patuxent Riverkeeper, and Potomac Riverkeeper (collectively, the Riverkeepers) in their efforts to close down the Mirant Corporation’s Potomac River Generating Station (PRGS), a coal-fired power plant in Old Town Alexandria on the shores of the Potomac River that has been a major source of pollution to the river and the city. IPR became involved when Department of Energy (DOE) issued an Emergency Order under section 202(c) of the Federal Power Act for Mirant to resume operation of the PRGS after shutting the plant down in response to a warning the operation of the PRGS was resulting in serious violations of the primary national ambient air quality standards (NAAQS).
DOE’s Emergency Order directed the PRGS to continue operating at a reduced level until DOE could make a more detailed finding regarding how much generation would be necessary to maintain electricity reliability for the central D.C. area. The Riverkeepers’ position is that continued emission of pollutants from the plant degrades the health of the Anacostia, Patuxent, and Potomac rivers, as well as the Chesapeake Bay.
On September 28, 2006, the Secretary of Energy extended the Emergency Order until December 1, 2006, finding that the circumstances that had led DOE to determine that an
emergency existed were still present in the central Washington, D.C. area. On November 22, 2006, DOE issued another extension of the Emergency Order, this time until February 1, 2007, in order to receive comments on its Special Environmental Analysis (SEA), which it issued on the same day. In its SEA, DOE analyzed various impacts of the Mirant plant’s operating before and after the Emergency Order, including the ways in which the plant has affected the air, water, rivers, and public health.
An IPR student prepared a comment letter, which was submitted on January 8, 2007. In the letter, we asked DOE to find that the PRGS would be unnecessary once two new 230kV transmission lines became operational (expected June 2007) and to allow the Emergency Order to expire on February 1, 2007. If DOE insists on extending the Order, however, we asked that it do so with mitigation measures and to keep the public informed about both anticipated and actual NAAQS exceedances at the PRGS.
On January 31, 2007, DOE issued an order extending the Emergency Order until July 1, 2007, but indicated that once the new transmission lines are in place, it would not extend the order any further. As promised, DOE allowed the Emergency Order to expire on July 1, 2007.
In May 2007, IPR became aware that the Virginia Air Pollution Control Board had noticed the renewal of Mirant’s Permit for the Control of sulfur dioxide (SO2) for public comment. On May 21, 2007, IPR filed comments on behalf of the Riverkeepers, again voicing their concerns about the plant’s continued operation on public health and water quality.
IPR continues to monitor for opportunities to challenge the PRGS’s continued operation.
5. Fish Processing Plant
Potomac Riverkeeper, Inc. (“PRK”) and West/Rhode Riverkeeper (“WRRK”) contacted IPR regarding concerns about a Virginia fish processing plant and its potential to harm the Chesapeake Bay and its already strained ecosystem. IPR has been investigating the plant’s compliance history and assessing the legal options available to both organizations.
IPR began its investigation by sending out Freedom of Information Act (“FOIA”) requests to Virginia Department of Environmental Quality (“VDEQ”) and EPA, requesting documents pertaining to the regulation of wastewater discharges at the processing plant. On February 21, 2007, an IPR student and staff attorney traveled to Richmond to review VDEQ’s documents and flagged the most relevant documents for copying and production. EPA responded to IPR’s FOIA request on March 9, 2007 and followed up with additional documents on May 7, 2007.
An IPR student read through the collected FOIA documents and pieced together a history of the plant’s operations and its discharges. The plant has had constant difficulty meeting the requirements of its wastewater permit issued by VDEQ. Since at least 2002, the plant has exceeded its discharge permit at least once every year. After each exceedance, VDEQ served the plant with a Notice of Violation that was ultimately settled through a consent order rather than
litigation. Though the terms of each consent order vary, all included a modest civil fine and most included a temporary waiver of particular effluent limitations. In a 2003 consent order, VDEQ modified the terms of the processing plant’s discharge permit by allowing sixty times the amount of cyanide as the original effluent limitations and increasing the annual limits for phosphorus and for nitrogen. The less stringent 2003 modifications were subsequently formalized in a new five-year permit issued on December 10, 2005. Despite these more forgiving standards, the facility continued to exceed its legal discharge limits. Most recently, VDEQ prosecuted the plant for violation of its ammonia standards in August and September of 2006. Again, VDEQ and the plant entered into a Consent Decree, requiring that the plant pay a fine of $12,600.
On May 25, 2007, IPR summarized its ongoing research of the project for PRK and WRRK in the form of an opinion letter. IPR recommended that Riverkeeper begin by filing comments on the most recent consent decree between the plant and VDEQ, which IPR submitted on June 14, 2007.
IPR continues to monitor the plant’s activities for opportunities to bring a legal challenge.
6. Potomac Riverkeeper
Since the summer of 2003, IPR has represented Potomac Riverkeeper, Inc. (PRK) in a dispute surrounding the operation of a skeet and trap shooting facility owned by the National Capital Skeet and Trap Club (the Club) and located in Seneca Creek State Park, near Great Seneca Creek (the Creek), a tributary of the Potomac River. Although the shooting facility has since ceased operation, lead shot from the facility has collected for more than fifty years in the Creek, in a wetland next to the Creek, and in the floodplain surrounding the Creek.
An ecological risk assessment of the area revealed high levels of lead concentrations in the surface water and soil. In order to instigate appropriate remediation measures, IPR commenced a civil action against the Club and MDNR’s Executive Secretary in the U.S. District Court for the District of Maryland, alleging violations of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA). Following cross-motions for summary judgment, the Court dismissed the CWA claim but allowed the RCRA claim to proceed to trial. Specifically, the Court held that triable issues of fact existed as to whether the continued washout of spent lead shot in the Creek’s floodplain violated RCRA’s open dumping provision and its imminent and substantial endangerment provision.
The parties have been actively involved in settlement negotiations since the issuance of the Court’s ruling. In the summer of 2006, U.S. District Court Judge William D. Quarles referred the case to a U.S. Magistrate Judge for a settlement conference. Pursuant to the Magistrate’s order, an IPR Staff Attorney prepared an ex parte letter outlining the facts PRK intended to prove at trial and evaluating the strengths and weaknesses of its case.
At the scheduled settlement conference on September 13, 2006, the parties were able to agree to a settlement in principle. MDNR agreed to remediate the Seneca Creek site through a two-step process. First, MDNR agreed to remove “hot spots” of accumulated lead shot from the contaminated area; the “hot spots” were to be determined by a mutual agreement of the parties during a site visit. Next, MDNR agreed to treat the site with a chemical compound that would coat and stabilize the lead particles that remained in the soil. Soil samples from the site must demonstrate levels of 5 mg/L or less lead when tested using the Toxicity Characteristic Leaching Procedure (TCLP). (5 mg/L TCLP is the EPA standard for what constitutes non-hazardous waste.) Additionally, under the settlement in principle, PRK preserves the right to go back to court later and assert that remediation to a “non-hazardous” level is not sufficient for a state park. Following the conference, the parties planned to work out the details in the coming months in order to finalize the agreement.
On April 12, 2007, an IPR student and staff attorney traveled to the Seneca Creek site to meet with representatives from PRK, our scientific expert, and representatives from MDNR to identify the “hot spots” that required physical removal. While deciding on what constitutes the area’s “hot spots” remained mostly uncontroversial, PRK and MDNR had considerable difficulty agreeing on the precise size and location of the proposed treatment area for the stabilization agent. The geographic scope was not clarified in the settlement in principle, and stated only that MDNR was responsible for remediating “the site.” PRK interpreted this as meaning MDNR is responsible for treating all contamination caused by the gun club and asserted that additional testing was needed in order to determine precisely how far the contamination extended. Unable to reach an agreement on these issues, the parties jointly requested to have another settlement conference before the magistrate.
During the conference on June 25, 2007, the parties were not able to agree on the geographic scope of the site or finalize the settlement agreement. However, MDNR agreed to alter its remediation proposal so that it would apply the chemical stabilization treatment to 9.7 acres, an increase from the originally proposed 7.6 acres. By not entering into a final settlement agreement regarding the geographic scope of the treatment area, PRK preserved the ability to sue to enforce its reading of the settlement in principle if it determines after the remediation efforts that hazardous areas remained in the Seneca Creek State Park.
The Maryland Board of Public Works approved the project on August 1, 2007 and the remediation will begin late August or early September.
7. Synergics Wind Energy
Since July 2004, IPR has represented D. Daniel Boone, Alice Eastman, the Maryland Alliance for Greenway Improvement and Conservation, and the Audubon Naturalist Society of the Mid-Atlantic States regarding the application of Synergics Wind Energy LLC to construct a 24-turbine, wind-powered electricity generation facility in Garrett County, Maryland. The group is concerned that constructing the wind farm will harm endangered and protected species, including birds and bats. Over Synergics’s opposition, IPR convinced the Maryland Public
Service Commission (PSC) Hearing Examiner to allow the group to participate in the application proceeding as intervenors, thereby granting them all the rights of parties to the proceeding.
IPR students and staff worked throughout 2004 and 2005 reviewing record evidence, developing evidence, preparing expert testimony, and preparing for an evidentiary hearing regarding the application in May 2005. Shortly before the hearing, Synergics submitted a short Supplemental Application, proposing a project with fewer, but larger turbines. After considering a motion written by an IPR student and oral argument presented by an IPR fellow, the PSC Hearing Examiner stayed the proceedings pending presentation of further supplemental information by Synergics. Synergics filed a Supplemental Application, which IPR and its retained experts reviewed, and an evidentiary hearing was held on the Supplemental Application in September 2005.
After reviewing the hearing transcripts and available evidence, an IPR student helped draft two post-hearing briefs, which were filed with the Hearing Examiner in late 2005. IPR argued that the available testimony and record evidence showed that the Hearing Examiner should either deny the application because the project could not be constructed or operated in accordance with applicable environmental laws or grant the application with conditions recommended by Maryland Department of Natural Resources and IPR’s clients.
In Fall 2006, the Hearing Examiner issued a proposed decision approving Synergics’s application with the conditions recommended by Maryland Department of Natural Resources. An IPR student reviewed the proposed decision and drafted a memorandum of appeal to the PSC of the proposed decision on behalf of Alice Eastman, D. Daniel Boone, and Maryland Alliance for Greenway Improvement. On behalf of all of IPR’s clients, an IPR student drafted an opposition to Synergics’s appeal of the proposed decision. IPR is currently awaiting the PSC’s decision.
1. Duke Energy Amici Brief
In Summer 2006, an IPR fellow prepared an amici curiae brief on behalf of the American Lung Association and other medical associations in the Supreme Court case Environmental Defense et al. v. Duke Energy Corporation. The case involved an appeal of the Fourth Circuit Court of Appeal’s narrow interpretation of what constitutes an “increase” of pollution for purposes of triggering the requirements of the Clean Air Act. The brief argued that the Fourth Circuit’s ruling would allow companies to refurbish old coal-fired power plants completely, resulting in substantial increases in annual pollution emissions, without requiring a permit for such modifications under the Clean Air Act. The brief argued that this result was antithetical to Congress’s goal to protect public health from the harms of increased air pollution. In April 2007, the Supreme Court unanimously concluded that the Fourth Circuit’s narrow interpretation was improper and vacated the Fourth Circuit’s decision.
2. Fine Particulate Matter Rulemaking Amici Brief
In December 2006, the American Lung Association brought suit against the Environmental Protection Agency in the United States Court of Appeals for the District of Columbia Circuit, claiming that the new national ambient air quality standard for fine particulate matter (soot) is not sufficiently protective of human health. Fine particulate matter is emitted by motor vehicles and is known to cause a number of adverse human health impacts.
In January 2007, IPR agreed to represent the American Thoracic Society and other medical associations in their efforts to promote a more protective standard for soot pollution by filing an amicus brief in the American Lung Association lawsuit. An IPR student contacted opposing counsel to obtain consent to file the amici brief and drafted the motion for leave to participate as amici, which was granted by the Court. IPR is currently waiting for the Court to establish a briefing schedule.
3. Intercounty Connector
In August 2006, Environmental Defense and Sierra Club requested IPR to represent them in litigation over the proposed Intercounty Connector (“ICC”), which is an eighteen mile, six lane toll road intended to link I-270 and I-95/US 1 within central and eastern Montgomery County and northwestern Prince George’s County. The ICC was first proposed in 1953 as part of an outer beltway for the metropolitan Washington region, which was later abandoned by planning officials throughout the region. Although various federal agencies condemned the proposed ICC as environmentally unsatisfactory, planning agencies nevertheless carried it forward for detailed study, and a decision approving the toll road was issued in mid-2006.
IPR represents Environmental Defense and Sierra Club in their efforts to stop the ICC. Air pollution from the proposed road into the region, which already exceeds national air quality standards for a variety of pollutants emitted by motor vehicles, is expected to increase the incidence of asthma, respiratory disease, cancer, and cardiovascular disease in the neighborhoods surrounding the proposed toll road.
An IPR student drafted portions of a thirty-eight count complaint that was filed in the United States District Court for the District of Columbia in December 2006. The complaint alleges violations of the Clean Air Act, Administrative Procedure Act, National Environmental Policy Act, Federal-Aid Highway Act, and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), by, inter alia, the Federal Highway Administration and the National Capital Region Transportation Planning Board. An IPR fellow presented an overview of the legal claims asserted in the complaint at a press conference attended by a variety of local and national media outlets.
The National Capital Region Transportation Planning Board and the Federal Highway Administration filed motions to dismiss the claims alleging violations of the national transportation planning objectives to “serve the mobility needs of people and freight and foster economic growth and development within and between States and urbanized areas, while
minimizing transportation-related fuel consumption and air pollution.” In opposing the motions, IPR students drafted successful motions seeking the right to conduct preliminary discovery relating to the status of the National Capital Region Transportation Planning Board as a federal agency. IPR students also worked on the briefs filed in opposition to the motions to dismiss. After the case was transferred to the District of Maryland to be consolidated with another matter challenging the proposed ICC and subjected to an expedited briefing schedule, IPR successfully negotiated Environmental Defense and Sierra Club’s right to re-assert their arguments in another proceeding not subject to the expedited briefing schedule.
After reviewing the 200,000 page administrative record and relying on the work of IPR students, an IPR fellow drafted and filed a motion for partial summary judgment on the National Environmental Policy Act, Federal-Aid Highway Act, and the Administrative Procedure Act claims in July 2007. Defendants filed their cross-motion for partial summary judgment and opposition to the motion in August 2007. IPR will file its reply and opposition to Defendants’ cross-motion in September 2007. Hearing on the motions will occur in October 2007, and an IPR fellow will argue the motions on behalf of Environmental Defense and Sierra Club.
4. NACAA: Aircraft Engine Emissions Rule
IPR represented the National Association of Clean Air Agencies (NACAA) in a challenge to an EPA rulemaking on aircraft engine emission standards. NACAA is a trade association that represents the interests of state and local air pollution control agencies.
Clean Air Act section 231 governs EPA regulation of aircraft engine emission. The EPA rule at issue was noticed for public comment on September 30, 2003 and finalized November 17, 2005. 70 Fed. Reg. 69664. The rule adopted NOx emission standards that are equivalent to the minimum international standards, which were approved by the International Civil Aviation Organization (ICAO) in 1999 and went into effect in December 2003. NACAA was disappointed with the rule because it would do little to reduce NOx emissions as most in-use engines already meet the current international standards. Additionally, NACAA was concerned that the rule’s failure to reduce NOx would present difficulties for states preparing to meet the National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter. In early 2006, IPR filed a petition for review in the D.C. Circuit.
An IPR Staff Attorney prepared the Opening Brief based on a memo written by an IPR student during the spring semester 2006. The Opening Brief, which was filed on July 28, 2006, focused on how EPA’s aircraft emissions regulation conflicted with the CAA’s statutory framework, designed to reduce air pollution and protect public health and welfare, and that the rule was arbitrary and capricious to the extent that EPA focused on irrelevant factors.
EPA’s Opposition Brief, filed on September 27, 2006, spent a considerable amount of time questioning NACAA’s standing in addition to its arguments that EPA had acted reasonably in issuing this rule and had not violated any mandates of the Clean Air Act. An IPR student researched and drafted the Reply Brief, which gave a considerable amount of attention to the standing issue. NACAA’s basis for associational standing was that its member agencies had
suffered a “managerial injury”; EPA’s failure to reduce NOx emissions made it more difficult for these agencies to devise and enforce state implementation plans (“SIPs”) that demonstrated the NAAQS for ozone and PM2.5 would be attained and/or maintained. EPA argued, however, that the aircraft engine emissions rule did not require the state and local agencies to do anything as regulators that they were not already required to do.
After many practice moot courts before IPR students, staff attorneys, and, faculty, an IPR staff attorney argued the case before the D.C. Circuit on March 15, 2007. The Court issued its opinion on June 1, 2007, holding unanimously that NACAA’s petition for review be denied. The Court did, however, hold that NACAA had standing to bring this lawsuit under relevant D.C. Circuit precedent and the U.S. Supreme Court’s holding in Massachusetts v. EPA.
5. Nationals Stadium
In Fall 2006, IPR began representing the Earth Conservation Corps (ECC) and its Anacostia RIVERKEEPER® program in their efforts to ensure that the new Washington Nationals baseball stadium, which is being built on contaminated land less than one block from the Anacostia River, is constructed and operated in a manner that does not adversely affect the quality of the River. IPR students drafted opinion letters advising ECC and its Anacostia RIVERKEEPER® of the possible legal options available to them regarding the site.
An IPR student prepared a number of information requests to various district agencies overseeing construction and operation of the stadium to help IPR and ECC learn more about the project and the characteristics of the site. The student reviewed the available information and drafted comments on the stadium’s proposed cleanup action plan, required by District of Columbia law. The District Department of the Environment agreed with IPR’s comments and demanded that the project proponent, the District of Columbia Sports and Entertainment Commission (DCSEC), respond directly to IPR’s comments and provide additional information to address IPR’s concerns. IPR is awaiting the District Department of Environment’s decision regarding the proposed cleanup action plan.
The proximity of the stadium to the Anacostia River means that the stadium will be constructed below the water table. With portions of the stadium structure below the water table, DCSEC will need to install a dewatering system to ensure the stadium’s structural integrity. DCSEC has proposed to treat the contaminated groundwater that will flow through the dewatering system onsite and discharge the groundwater into the storm sewer system, which flows directly into the Anacostia River without further treatment. To discharge this groundwater into the storm sewer system, the Clean Water Act requires DCSEC to obtain a discharge permit. IPR is currently waiting for DCSEC to apply for a discharge permit.
6. North Carolina v. TVA (American Lung Association / American Thoracic Society)
IPR represents the American Lung Association (ALA) and the American Thoracic Society (ATS) as amici curiae in support of the State of North Carolina in a lawsuit against the Tennessee Valley Authority (TVA). ALA and ATS are non-profit organizations that are active
in research, public education, and advocacy to reduce air pollution and its accompanying threats to lung health.
The State of North Carolina has brought a common law nuisance action against TVA, alleging that pollution from TVA’s coal-fired electric generating units in Tennessee, Alabama, and Kentucky were adversely affecting the health and welfare of North Carolina’s residents, negatively impacting the state’s natural resources, and depleting the state’s finances. The case is now on interlocutory appeal before the Court of Appeals for the 4th Circuit. The District Court for the Western District of North Carolina denied TVA’s motion to dismiss for lack of subject matter jurisdiction, rejecting TVA’s arguments that North Carolina’s claims were not justiciable.
An IPR student prepared a public health brief highlighting the damage that particulate matter and oxides of nitrogen can cause to humans. An IPR Staff Attorney prepared the accompanying Motion for Leave to File a Brief as Amicus Curiae, which the court granted on February 5, 2007.
The case has been scheduled for oral argument in Richmond in September.
