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The Fourth Circuit issued a published opinion in two argued cases today. The result in each case was to vacate and remand a decision out of the Eastern District of Virginia. That may be all that the decisions have in common, however. The first decision left the central issue open for resolution on remand after articulating the legal test for the district court to apply, while the second decision resolved the central issue while seemingly adopting a newly constrictive test.

In Oberg v. Kentucky Higher Education Student Loan Corporation, the court addressed whether corporations organized by Kentucky, Pennsylvania, Vermont and Arkansas were “persons” subject to suit under the False Claims Act, or instead “state agencies” not subject to suit under the False Claims Act as interpreted in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787-88 (2000). The appeals court held that the district court applied the wrong legal test in deciding that the corporations were not subject to suit. The Fourth Circuit vacated and remanded for district court application of the test developed under the test that is also used for the “arm of the state” prong of sovereign immunity analysis. Judge Motz wrote the opinion for the court, in which Chief Judge Traxler and Judge Keenan joined.

In Friends of Back Bay v. U.S. Army Corps of Engineers, the court held that the Army Corps of Engineers improperly issued a permit without completing an EIS under NEPA. Among other things, the court near the end of its opinion aligned the Fourth Circuit with the Second Circuit in stating that “the policy goals underlying NEPA are best served if agencies err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.” I am not a NEPA expert, but the appellate court’s application of the various EIS factors and its adoption of the Second Circuit’s “substantial possibility” test seemed somewhat casual. Judge King wrote the opinion for the court, in which Judge Gregory and Judge Floyd joined.

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Last Friday, the Fourth Circuit dismissed as non-justiciable the appeal of a judgment in a challenge to potential improvements to specific sections of I-81. Judge Wilkinson wrote the opinion for the Court in Shenandoah Valley Network v. Capkawhich was joined in by Judge King and Judge Keenan. The I-81 improvement project will take place in two tiers. This litigation arose at the end of Tier 1, before Tier 2 had run its course. The nub of the dispute was the extent to which decisions made at Tier 1 would foreclose consideration of alternatives at Tier 2. The court concluded that the appellants were mistaken about the extent of foreclosure at Tier 2. The court was satisfied that, once the parties’ positions were clear, there was no actual dispute giving rise to a case or controversy. Accordingly, dismissal was warranted: “Because such [an actual] dispute is lacking here–and because we cannot issue an advisory opinion–we have no authority to adjudicate this suit.” The court also cashed out its justiciability conclusion in standing terms: There was no injury or threat of imminent injury.

One interesting feature of the decision comes in a footnote at the end, in which the court notes that it would not order vacatur of the district court’s judgment: “The gist of the district court’s ruling is that the review process should be allowed to move beyond Tier 1 to Tier 2. Because vacatur is an equitable remedy, U.S. Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513 U.S. 18, 29 (1994), and because the balance of factors reveals no good reason to vacate the district court’s ruling, we decline to do so.” This reasoning, and the court’s careful phrasing of the justiciability problem (i.e., “there remains nothing to dispute” and “no justiciable controversy lingers”) suggests that the justiciability problem was not a pure standing issue, but some combination of mootness (of claims about Tier 1) and ripeness (of claims about Tier 2) .

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