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Cape Wind Project Suffers Another Blow: Is This The Knock-Out?
The U.S. Court of Appeals for the District of Columbia Circuit on July 5 issued a ruling that the federal government violated the Endangered Species Act and the Administrative Procedure Act in approving the long-running, oft-litigated Cape Wind offshore wind project proposed to be built off the Massachusetts coast. Senior Judge Randolph, writing for an unanimous panel, confirmed the District Court’s rejections of a number of the claims advanced by Plaintiffs (who included the Public Employees for Environmental Responsibility, the Town of Barnstable, and the Alliance to Protect Nantucket Sound), but reversed the District Court on two key points.
The proposed Cape Wind project, which has been the subject of voluminous news coverage and many court cases for well over a decade, sought to construct 130 3.6 MW turbines in shallow waters near Nantucket. Challenges have included scenic impacts; Native American concerns that the project would will block their sunrise views across the sound, disturb ancestral burial grounds, and perhaps disturb cultural relics; and issuance of submerged land leases required by the project. Financial hurdles seemed to put the project into a death spiral two years ago, but quietly the project developers have continued legal fights to defend the permits and approvals previously issued. They have largely been successful—until this month.
Early on, biologists with the U.S. Fish and Wildlife Service (“FWS”) had recommended that the wind turbines be shut off during limited periods of highest risk to two birds listed under the Endangered Species Act-- the piping plover and roseate tern. However, the FWS ultimately rejected that conservation measure on the grounds that it would impair the financial feasibility of the project. The Court of Appeals held that the FWS’s action was arbitrary and capricious. The Court further held that the project cannot proceed without compliance with the Migratory Bird Treaty Act and without further analysis of environmental impacts pursuant to the National Environmental Policy Act.
In conclusion, the Court stated: “We reverse the district court’s judgment that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act, and we vacate both statements.” A copy of the ruling is here.
The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services—such as water filtration, pollination, flood control, and groundwater recharge—rather than commodities—such as crops, timber, and mineral resources. Because many of these services exhibit qualities similar to public goods, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene in ecology, economics, and other disciplines bearing on environmental and natural resources management.
The policy world quickly picked up on the ecosystem services idea as well. In 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, in which it explicitly tied ecosystem services to human prosperity.
By contrast, uptake in law has been slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into achieving “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). This and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated. But a more coherent federal ecosystem services policy appears on the horizon.
ACOEL Fellows should watch the Memorandum’s implementation over the next year closely. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final months of the Obama Administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative.
On December 2, 2014 the United States District Court for the Eastern District of Arkansas enjoined the Small Business Administration (SBA) and the Farm Service Agency (FSA) (together the “Agencies”) from making any payments on their loan guaranties to Farm Credit Services of Western Arkansas (Bank), pending the Agencies’ compliance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The Bank had loaned nearly $5 million to C&H Hog Farms, Inc. (C&H) in 2012 for the construction of a confined animal feeding operation (CAFO), collateralized by a guaranty from the United States.
The court’s decision paves the way for potential alteration of the collateral agreement terms, over two years after the non-party Bank had closed and funded the loan. Such court action could jeopardize the farm loan guaranty program.
In its decision the court found that the SBA failed to conduct any environmental review of its loan guaranty or to consider the impact of that loan on the endangered Gray Bat that resides in an area near the CAFO, and that the FSA’s environmental impact and endangered species reviews were inadequate; the Agencies’ actions thereby violated both NEPA and ESA. The court’s injunction precludes the Agencies from making any payment on their loan guaranties to the Bank until they have complied with their obligations under NEPA and ESA, giving them a year to do so.
In August of 2012, and as provided under state regulation, C&H received a General No Discharge Permit (Permit) from the Arkansas Department of Environmental Quality (ADEQ) that addresses the management of manure, litter, and process wastewater generated from the CAFO. The Permit authorizes up to 6503 swine, at a location along a creek that discharges to the Buffalo National River, the nation’s first national river.
Upon completion of FSA’s review process and issuance of a Finding of No Significant Impact in August 2012, C&H obtained an initial construction loan of $3.6 million, 75% of which was guaranteed by SBA. C&H later received a $1.3 million loan, with 90% of that loan guaranteed by FSA. Both loan guaranties were required by the Bank. The loans were funded, construction was completed, CAFO operations commenced, and C&H has been making timely loan payments.
In August of 2013 the Buffalo River Watershed Alliance and several other organizations sued the Agencies, alleging that the CAFO permit contemplated at least occasional discharges of waste into surface waters that could pollute the Buffalo National River, and that the Agencies had violated NEPA, ESA, and certain other federal requirements. The plaintiffs requested that the loan guaranties be enjoined, pending a further environmental review. On December 2, 2014 an injunction was issued. C&H and the Bank were not parties to the litigation.
The significance of this decision is not the finding of a NEPA or ESA violation. What is surprising, and noteworthy, is the Court’s conclusion that such agency action was sufficiently related to a loan arrangement between two entities that were not party to the suit, leading to possible rewriting of that loan two or more years after it was negotiated and closed, and the funds dispersed.
The court concluded there was a sufficient causation nexus because “[w]ithout the guaranties, there would’ve been no loans. Without the loans, no farm.” In addition, the Court concluded that requiring further NEPA and ESA review would in fact redress the plaintiffs’ injuries for the loans already made since the Agencies have an “ongoing role in monitoring any conditions placed on their guaranties,” thereby suggesting that further restrictions could well be placed on C&H’s operation of the CAFO.
The Agencies have now agreed to undertake the additional review within the mandated 12 month time period. That review may result in no additional restrictions, or in restrictions that C&H can carry out without difficulty. With C&H being current on its loan payments, this decision may ultimately have no practical impact on C&H or its Bank. However, the “oh my” scenario is equally possible, because the court’s decision has no limits on the scope of additional restrictions that may be imposed.
As noted by the court, “[t]he federal agencies, through guaranty conditions, have control over C&H’s case-relevant behavior” and “it’s likely that more environmental review will change how C&H operates its farm.” If C&H is unable to meet those restrictions, resulting in a loan default, the Bank will lack the guaranty it required to fund the loan in the first place. Thus, the court has authorized the guarantor to re-write the terms if its guaranty, post hoc, to the severe detriment of the non-party Bank.
With a six year statute of limitations on filing a NEPA claim, what farm loan guaranty is safe from being altered or eliminated as a result of judicial action? Will Old MacDonald be prohibited from obtaining next year’s crop loan until the Agencies complete an EIS, a process that will take a year to complete and likely cause him to miss the planting season?
And what about other endangered species that could implicate the validity of other farm loan guaranties? EPA’s proposed habitat designation for two newly listed endangered mussels will encompass over 40% of the area of the state of Arkansas, impacting one third of all property owners in the state, most of which are farmers.
In addition, the broader implications of this decision on security interests cannot be overlooked. There were no parties in the litigation to argue that relieving the United States from its debt/collateral obligation would unfairly reward the Agencies for their failure to comply with NEPA and ESA. The Agencies certainly did not advance that argument. In fact, the injunction is what the Agencies requested, the court noting that its “Order will follow generally the terms [of the injunction] suggested by [the Agencies].” The Court even ordered the Agencies to “modify or void the loan guaranties as they deem appropriate in light of their revised and supplemented NEPA and ESA analysis.” The impact upon the agricultural loan program is clear, since these loans are routinely traded as federally insured securities.
The Arkansas Farm Bureau has succinctly identified the potential implications of this decision: “[The opinion] probably just made it a whole lot harder for the next guy who’s trying to get a farm loan, regardless of where they are.” You can take that to the bank—or not!
Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments. He fashioned legal arguments and remedies where others saw none. His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.
David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains. He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England. He had a mature concept of the ethics of nature long before he began to practice environmental law.
His early cases were defensive. He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River. Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law. The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act. The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced. When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).
When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century. The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army. The Army’s West Point Military Academy overlooks the River and Storm King.
David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard. David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida. He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him.
David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970). Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge. Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants. He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires. David Sive saved the beaches, parks and marinas of the Hudson shore.
Public interest litigation to safeguard the environment was born in these cases. Public outrage about pollution and degradation of nature was widespread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive was prominent among participants. His essential argument was that “environmental law” needed to exist.
On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY). This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment.
David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression. In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law. From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes.
David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice. He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts. To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI). With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.
This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report. The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed. New legal theories and remedial initiatives will be needed that do not exist today. The wisdom of ecologist Aldo Leopold can inform the next generation. Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India. The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.
In recent years, several courts have addressed the issue of what standard a plaintiff must meet to successfully challenge agency action on the ground that it was improperly predetermined in violation of the National Environmental Policy Act (NEPA). Because federal agencies conducting major federal action subject to the requirements of NEPA frequently have a preferred alternative in mind when conducting environmental review, legal challenges based on claims that the agency improperly predetermined the outcome of its NEPA analysis are common. When an agency action is successfully challenged for improper failure to prepare an Environmental Impact Statement (EIS) and the agency reaches the same result upon completion of an EIS, plaintiffs may raise a claim of improper predetermination, contending that the result is essentially a foregone conclusion.
The Ninth Circuit adopted a similarly stringent standard. Metcalf v. Daley. In Metcalf, the court found improper predetermination where the agency signed two written agreements binding them to support the proposal under consideration before preparing an Environmental Assessment and Finding of No Significant Impact. The Ninth Circuit held that the agencies had violated NEPA by making an “irreversible and irretrievable commitment of resources” prior to completing the environmental review.
In Forest Guardians, the Tenth Circuit also addressed the question of what evidence should be considered by a court in evaluating whether an agency has improperly predetermined its outcome in violation of NEPA. The court concluded that review of evidence outside the environmental review itself is proper where there is a claim of predetermination. In reaching this conclusion, the Court expressly rejected the dicta of the Fourth Circuit in National Audubon Society v. Department of the Navy, stating that a reviewing court “should generally restrict its inquiry to the objective adequacy of the EIS . . . [and] should not conduct far flung investigations into the subjective intent of the agency.” The Fourth Circuit reasoned that “[w]here an agency has merely engaged in post hoc rationalizations, there will be evidence of this in its failure to comprehensively investigate the environmental impact of its actions and acknowledge their consequences.” Because such evidence was absent, the Fourth Circuit affirmed the district court’s conclusion that the Navy had failed to undertake the hard look at environmental consequences that NEPA requires.
In light of these decisions, plaintiffs alleging that an agency has improperly predetermined the outcome of its environmental review in violation of NEPA face an uphill battle in establishing liability. The imposition of such a stringent burden is well supported by the language of the Council for Environmental Quality regulations implementing NEPA, see 40 C.F.R. § 1502.14(e), as well as by Supreme Court precedent holding that there must be a strong showing of bad faith or improper behavior before inquiry into the mental processes of administrative decision makers may be made. Citizens to Preserve Overton Park, Inc. v. Volpe.
The U.S. Supreme Court petitioners are challenging a nationwide injunction against Roundup Ready alfalfa that prevents its use and sale until the government performs an EIS. On February 13, 2007, the District Court held that the Animal and Plant Health Inspection Service’s (APHIS) environmental assessment was inadequate because it failed to explain why the possibility of cross-pollination of conventional and organic alfalfa with Roundup Ready alfalfa was not itself a “significant harmful impact” on the environment. On this basis, the court ordered APHIS to prepare a full EIS. The decision to require an EIS was not challenged on appeal, but APHIS, Monsanto (who owns the intellectual property rights to Roundup Ready alfalfa), Forage Genetics (the exclusive developer of Roundup Ready alfalfa) and three alfalfa growers appealed the court’s order which stopped the commercial use of Roundup Ready alfalfa until the EIS was prepared. The appellants argued the injunction was too broad, the district had effectively exempted the NEPA plaintiffs from showing irreparable harm to obtain the injunctive relief (only requiring the “possibility” of harm), and that the injunctive relief had been granted without an evidentiary hearing although there were genuinely disputed issues of fact and an evidentiary hearing had been requested.
The petitioners argue the Ninth Circuit misapplied the recent Supreme Court decision in Winter v. NRDC, 129 S.Ct. 365 (2008),which held a district court may not enter an injunction for a National Environmental Policy Act (NEPA) violation broader than necessary to prevent a likelihood of “irreparable harm” pending the government’s preparation of an EIS. Following this reasoning, petitioners argue the Ninth Circuit’s concern over the mere possibility of cross-pollination cannot be reconciled with Winter’s holding that irreparable harm must be likely. Petitioners also argue the Ninth Circuit erred in upholding an injunction sought to remedy a NEPA violation without first conducting an evidentiary hearing on genuinely disputed facts.
The issue of cross-pollination has become an increasingly important topic for the world of GE crops. According to the cert petition, cross-pollination can occur only if two fields produce flowers simultaneously and pollen is transferred between them. However, debates regarding isolation zones and whether farmers should fence-in or fence-out have not been resolved and are intensifying. The Roundup Ready alfalfa has been genetically engineered to be resistant to Roundup, a broad-spectrum agricultural herbicide that controls nearly every weed species in alfalfa crops.
The Northern District of California, the same district court that decided the alfalfa case, ruled on September 21 that the government failed to require an EIS on GE Roundup Ready sugar beets. Center for Food Safety v. Vilsack, No. C 08-00484 (N.D. Cal. 2009). The plaintiffs sued after APHIS decided to unconditionally deregulate the sugar beets and allow them into U.S. agriculture. Over 95% of the U.S. sugar beet crop is now engineered to resist herbicide, so the effect of the District Court’s ruling could be extensive.
Once again, the District Court expressed its concern about the possibility of cross-pollination. Although APHIS, after conducting an environmental assessment, determined the likelihood of cross-pollination to organic fields is “unlikely,” the District Court found the “potential elimination of farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat non-genetically engineered food” does have a “significant effect” on the environment because of the long distances pollen can travel by wind. The Court held APHIS did not demonstrate a “hard look” at this issue as required by NEPA.
The District Court planned a case management conference on October 30 to determine the remedies phase of the case. In addition to the original parties, other growers, sugar processors and seed companies like Monsanto were expected to be allowed to take part in the remedy phase. The results of the case management conference have not yet been published.
The Department of Agriculture will have a lot to tackle in the upcoming months when creating new policies for GE crops, which are widely used throughout the country. The NY Times reported 95% of sugar beets, 90% of soy and cotton crops, and 85% of the corn crop utilize GE seeds. Whether the agency creates rules that compliment or correct the recent court rulings will be an important question, especially for farmers with sugar beets or alfalfa in their fields.
The October 8, 2009, New York Times article is available here.
On January 3, 2008, a federal judge for the U.S. District Court for the Central District of California imposed substantial restrictions on the U.S. Navy’s use of mid-frequency active (MFA) sonar in waters off the California coastline. Although details of the restrictions and their immediate impact on the Navy can readily be discerned by reviewing the judge's order, the reverberations of this order may have a much broader impact that could further enhance the role of environmental lawyers.
Until recently, few might have predicted the success of an environmental challenge to military operations -- especially given our country's current military operations abroad. The California court's much-anticipated order is the latest word in an ongoing debate over MFA sonar operations in potentially close proximity to marine mammals, an activity decried by environmental groups and vigorously defended by the Navy. The U.S. military has generally been able to defend questionable practices by emphasizing the overall importance of those practices to national security. As the Supreme Court noted twenty years ago, "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."
 Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988).
In March 2007, the National Resources Defense Council (NRDC) and several other environmental groups filed suit in the U.S. District Court for the Central District of California against both the U.S. Navy and the National Marine Fisheries Service (NMFS), seeking to enjoin sonar operations scheduled between February 2007 and January 2009 as part of fourteen training exercises in the Southern California Operating Area (SOCAL). The Navy defended its operations by emphasizing their importance to national security, an argument it has made with considerable success in the past, but this time the court found the national security argument less compelling than the competing concern about MFA sonar's impact on the marine environment. The court based its decision on the following findings.
Because the Plaintiffs presented evidence sufficient to raise substantial questions about whether the proposed activities would have a significant impact, they demonstrated a probability of success on their claims that the Navy had committed several NEPA violations. First, although the Navy prepared an Environmental Assessment (EA) prior to commencing its naval exercises in the SOCAL, the court disagreed with the Navy's subsequent decision to issue a Finding of No Significant Impact (FONSI). Based on the court's review of facts available to the Navy, the court agreed with Plaintiffs that the proposed sonar operations would likely have a significant impact, triggering NEPA's requirement that an Environmental Impact Statement (EIS) be prepared. Alternatively, because the court considered the Navy's self-imposed mitigation measures to be inadequate and incapable of preventing the significant impact anticipated, the Navy had no basis for issuing the FONSI. Second, the court found that "[the Navy's] EA failed to consider reasonable alternatives or cumulative impacts." The court noted that the Navy disregarded mitigation measures recommended by the California Coastal Commission (CCC), the state agency that administers California's Coastal Management Plan (CCMP), and it also elected not to implement more restrictive mitigation measures previously used by the Navy and its allies in similar training exercises that employed MFA sonar. Although the Navy's EA did conclude that the proposed activities "would not have any significant contribution to the cumulative effects on marine mammals," the court held that, absent detailed and quantifiable information supporting that conclusion, the statement was merely aspirational and lacked the substantive analysis traditionally required by the Ninth Circuit.
When a federal agency's proposed activity will "affect any coastal use or resource," the CZMA requires the federal agency to submit a Consistency Determination (CD) to the applicable state agency. In its analysis of the Navy's alleged violations of the CZMA, the court identified two deficiencies in the CD that the Navy submitted to the CCC. First, the Navy neglected to mention that it intended to conduct sonar operations. The Navy defended the omission by arguing that the sonar operations would not have an effect on the coastal zone. Just as the court disagreed with the Navy's determination that its sonar operations would not have a significant impact on the marine environment, so too did the court disagree with the Navy's similar conclusion that MFA sonar would not affect the coastal zone. Second, the CD did not incorporate mitigation measures that the CCC required pursuant to the CCMP. The CZMA required the Navy to ensure that its sonar operations were "consistent to the maximum extent practicable with the enforceable policies of [the CCMP]," and the Navy failed to satisfy its burden of proving the inapplicability of the mitigation measures required by the CCC.
In support of its finding that the proposed MFA sonar operations would create a possibility of irreparable harm to the environment, the court relied not only on evidence provided by Plaintiffs but also cited a Navy study that "conclude[d] that the SOCAL exercises . . . [would] cause widespread harm to nearly thirty species of marine mammals, including five species of endangered whales, and [might] cause permanent injury and death."
that the balance of hardships tip[ped] in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweigh[ed] the harm that Defendants would incur . . . if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.
Based on the findings above, the court issued a preliminary injunction of potentially indefinite duration on August 7, 2007, because it would have prohibited all MFA sonar use "until the Navy adopt[ed] mitigation measures that would substantially lessen the likelihood of serious injury and death to marine life."
On August 31, 2007, the Ninth Circuit stayed the district court's sweeping injunction, pending an appeal by the Navy. On November 13th, the Ninth Circuit adopted the district court’s findings and vacated the stay, but it remanded the matter, chastising the district court for having imposed such an overly broad preliminary injunction. The Ninth Circuit instructed the district court to narrow the scope of the injunction by using its findings to craft mitigation measures uniquely tailored to fit the Navy’s MFA sonar operations in the SOCAL.
1. 12 Nautical Mile Coastal Exclusion Zone. "The Navy shall maintain a 12 nautical mile exclusion zone from the California coastline at all times." Although Plaintiffs sought to enjoin MFA sonar operation within twenty-five miles of the California coastline, the court, though agreeing with Plaintiffs that a twenty-five mile exclusion zone would ensure maximum protection of marine habitat, deemed the zone unduly burdensome to the Navy. The court noted that the Navy had previously operated under a twelve mile exclusion zone and that such a zone struck the best balance between protection of marine habitat and the Navy's need to train "to detect submarines in the very bathymetry in which submarines are likely to hide."
2. 2200 Yard MFA Sonar Shutdown. "The Navy shall cease use of MFA sonar . . . when marine mammals are spotted within 2200 yards . . . ." Designed only to prevent the most damaging consequences of exposure to MFA sonar, the court concluded that a 2200 yard zone of protection for marine mammals imposed a minimal burden on the Navy.
3. Monitoring. For sixty minutes prior to conducting MFA sonar operations, the Navy "shall monitor for the presence of marine mammals," using lookouts on vessels and one dedicated aircraft to monitor the entire operating area. If a marine mammal is spotted, the Navy must suspend sonar operations until it establishes the requisite 2200 yard buffer. Once sonar operations have begun, the Navy must continue visual monitoring efforts by posting two National Oceanic and Atmospheric Administration (NOAA)- and NMFS-trained lookouts in addition to using one dedicated aircraft, and Navy vessels must also listen for the presence of marine mammals using passive acoustic monitoring.
4. Helicopter Dipping Sonar. Helicopters must monitor the area for ten minutes prior to employing active dipping sonar and, after spotting a marine mammal within 2200 yards of the helicopter, must cease active dipping sonar operations until reestablishing the 2200 yard safety zone.
5. Surface Ducting Conditions. "[W]hen surface ducting conditions are detected . . . in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water . . . the Navy shall power down sonar by 6dB" to minimize the sonar's greater intensity and range.
6. Choke Points and the Catalina Basin. "[T]he Navy [shall] refrain from employing MFA sonar in the Catalina Basin," an area located between the Santa Catalina and San Clemente islands that provides habitat to a large population of marine mammals.
7. Continue National Defense Exemption (NDE) II Mitigation Measures. Since 2002, the Navy has worked with NOAA and NMFS to ensure the compliance of its operations with all federal laws, and it has adopted various mitigation measures to achieve that goal of compliance. The district court explained that its mitigation measures were to be implemented in addition to those measures either already adopted or currently under review by the Navy pursuant to its ongoing collaboration with NOAA and NMFS.
On Tuesday, January 15, 2008, President Bush signed an exemption authorizing the Navy's continued use of MFA sonar in its SOCAL exercises. In the exemption, the President stated that the sonar exercises "[we]re in the paramount interest of the United States" and that compliance with the mitigation measures would "undermine the Navy's ability to conduct realistic training exercises that [we]re necessary to ensure the combat effectiveness of carrier and expeditionary strike groups." The exemption "claim[s] that the Navy [is] exempt from the [CZMA] and . . . [NEPA]," and it formed the basis of the Navy’s appeal to the Ninth Circuit late on Tuesday night. The Ninth Circuit remanded the case to the district court on Wednesday, and on Thursday, January 17th, the district court responded by temporarily lifting the requirements that the Navy maintain a 2200 yard zone of protection for marine mammals and that it power down its sonar during surface ducting conditions. More developments are expected within the next several days.
NRDC v. Winter is not likely to be an isolated event in the history of environmental law. At a minimum, the California court's January 3rd order represents an historic victory for environmental groups and a staggering blow to the U.S. military; however, the broader implications of this order will be the ones worth watching. The White House’s recent involvement in the case has ignited the controversy and captured the media’s attention, setting the stage for a dramatic showdown between proponents of national security and advocates of environmental protection.
Though merely conjectural at this point, it seems plausible that NRDC v. Winter might spawn an explosion of environmental litigation, giving rise to an even greater abundance of work for environmental lawyers. The case may give environmentalists renewed confidence to challenge the environmental records of their most formidable adversaries. At the same time, it may also make many regulated entities more conscious of their own environmental vulnerability and prompt them to begin seeking the best legal representation available. By prevailing against the U.S. Navy, the NRDC and its fellow plaintiffs have not only inspired other environmental groups around the country, but they have also issued a stern warning to the entire regulated community that no organization is immune from liability in this new era of heightened environmental awareness.
Jim Farrell is an associate in the law firm of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, and a member of the firm’s environmental law practice group. Mr. Farrell graduated from the U.S. Naval Academy in 1999 and served for five years as a naval officer prior to attending law school. He received his JD from the University of Mississippi School of Law in 2007. In the summer of 2006, Mr. Farrell served as a law clerk in the U.S. EPA’s Office of Enforcement and Compliance Assurance.
Butler, Snow, O'Mara, Stevens & Cannada, PLLC, is a full-service law firm with more than 150 attorneys representing regional and national clients from offices in Jackson, Miss., on the Mississippi Gulf Coast, Memphis, Tenn. and Bethlehem, Penn. For more information, visit www.butlersnow.com.
 Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 8 (C.D. Cal. Jan. 3, 2008) (order issuing preliminary injunction).
 Id.at 11 (quoting 15 C.F.R. § 930.32(a)(1)).
 Id.at 10-11 (quoting 16 U.S.C. § 1456(c)(1)).
 See Natural Res. Def. Council v. Winter, 502 F.3d 859 (9th Cir. 2008).
 See Natural Res. Def. Council v. Winter, 508 F.3d 885 (9th Cir. 2008).
 Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 14 (C.D. Cal. Jan. 3, 2008) (order issuing preliminary injunction).
 Activists Vow to Push Fight Against Navy Sonar, http://www.msnbc.com/id/22683062 (last visited Jan. 21, 2008).
 Daniel Hinerfield & Hamlet Paoletti, Sonar Case Remanded to District Court, http://www.nrdc.org/media/2008/080116c.asp (last visited Jan. 21, 2008).
 See Natural Res. Def. Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, slip op. at 2 (C.D. Cal. Jan. 17, 2008) (order for temporary partial stay and setting briefing schedule).


• Each party is afforded the opportunity to view the recording before it is offered into evidence. Tex. Fam. Code § 104.002.
The court may, on the motion of a party to the proceeding, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court, the finder of fact, and the parties to the proceeding. Tex. Fam. Code § 104.003(a).
Only an attorney for each party, an attorney ad litem for the child or other person whose presence would contribute to the welfare and well-being of the child, and persons necessary to operate the equipment may be present in the room with the child during the child’s testimony. Tex. Fam. Code § 104.003(b).
Only the attorneys for the parties may question the child. Tex. Fam. Code § 104.003(c).
The persons operating the equipment shall be placed in a manner that prevents the child from seeing or hearing them. Tex. Fam. Code § 104.003(d).
• Each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom. Tex. Fam. Code § 104.003(e).
If in a suit a child 12 years of age or younger is alleged to have been abused, the court may, on the motion of a party to the proceeding, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the parties. Tex. Fam. Code § 104.004(a).
The procedures that apply to prerecorded videotaped testimony of a child [see Tex. Fam. Code § 104.003] apply to the remote broadcast testimony of a child. Tex. Fam. Code § 104.004(b).
If the testimony of a child is taken as provided by Tex. Fam. Code Chapter 104, the child may not be compelled to testify in court during the proceeding. Tex. Fam. Code § 104.005(a).
The court may allow the testimony of a child of any age to be taken in any manner provided by Tex. Fam. Code Chapter 104 if the child, because of a medical condition, is incapable of testifying in open court. Tex. Fam. Code § 104.005(b).
• The court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child. Tex. Fam. Code § 104.006.


Do you have wages or bonuses that were earned by employees or independent contractors but have not been paid to them after year-end? If you answered yes, you need to be aware of Internal Revenue Code Section 409A. §409A applies to compensation workers earn in one year but is not paid until a future year. It is referred to as non-qualified deferred compensation.
Service providers (employees or independent contractors) could see a 20 percent penalty tax if they have non-qualified deferred compensation that fails to meet the requirements of §409A.
Deferral of compensation occurs when an employee earns wages in a year; however, according to the terms of a compensation plan, the payment will be made to the individual in a later year.
For example, on December 31, 2015, Employer A awards a bonus to Employee B, which is expected to be paid on May 1, 2016. Assuming Employee B has a legally binding right to the payment on December 31, 2015, this bonus will be considered “deferred compensation” under §409A rules.
Non-qualified deferred compensation plans are subject to the rules in §409A unless an exception applies. The §409A rules were designed to prevent an employer from being able to accelerate payments under a deferred compensation plan. The rules impose an additional penalty tax and immediate inclusion in income to the employee/service provider if the §409A rules are violated.
Surprisingly to most employees, tax penalties for §409A violations are imposed on the employee and not on the employer. The employer will have reporting and withholding obligations they are required to meet.
In general, a deferral of compensation does not occur if the payment is required and is actually made to a worker on or before the 15th day of the third month following the end of the worker’s tax year or the employer’s tax year, whichever is later, in which the compensation has been earned (“short-term” deferral).
On November 30, 2015, Employer A awards a bonus to Employee B and on such date, Employee B has a legally binding right to the bonus. Employer A has a taxable year ending November 30, 2015. The bonus plan does not provide for a payment date or a deferred payment. If the bonus is paid on or before March 15, 2016 (2½ months after the employee’s year-end), it meets the short-term deferral exception and will not be subject to the requirements under §409A.
Assume all facts are the same as Example 1 except Employer A has a taxable year ending August 31, 2016. The bonus will meet the short-term deferral exception if paid on or before November 15, 2016 (2½ months after the employer’s tax year).
The employer is in financial hardship and would go bankrupt if making such a payment, and the payment is made as soon as administratively practicable or when the employer’s financial position improves.
Acceleration restrictions: The plan may not permit the acceleration of the time or schedule of any payment under the plan.
Election restrictions: In general, the initial election to defer compensation as well as the time and form of distributions must be made before the beginning of the tax year in which the services are performed.
Written plan requirements: The plan must be in writing.
An employer must report deferred compensation, which is includible in gross income under §409A on Forms 1099 or W-2.
For an employee, amounts includible in gross income are supplemental wages for income tax withholding purposes. The employer is not required to withhold the 20 percent penalty under §409A; therefore, the employee should be aware that estimated tax payments may be required to cover the 20 percent penalty.
For non-employees, amounts includible in gross income are reported as non-employee compensation on Form 1099-MISC. The independent contractor should be aware that additional estimated tax payments may be required to cover the penalty assessed by §409A.


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These boxes have several uses for consumers, some of which are perfectly legal and some which skirt around the fringes of copyright law. This is not the first time a new technology has been alleged to violate copyright law, nor will it be the last.
In her view, the allegations in this particular instance were strong enough to support a prima facie case of copyright infringement and the injunction order. The matter will proceed to trial at a later date to resolve the various copyright and related issues.
pre-loaded set-top boxes represent an existential threat to [their] line of business as piracy is one of the top causes for declining subscriptions for television services in Canada and leads to annual decreases in revenue.
2.4(1) For the purposes of communication to the public by telecommunication, […] (b) a person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject-matter to the public.
The Court found that this statutory defence was not available to the Defendants. They had, said the Court, deliberately encouraged consumers to use the set-top boxes to circumvent the broadcasters’ subscription-based services. They had promoted their set-top boxes to consumers as a means to cancel their cable subscriptions (using slogans such as “Original Cable Killer”), and had also offered tutorials on how to use the pre-loaded apps to obtain “free” programming. The Court said that these activities “went above and beyond” selling a simple piece of hardware, and instead related to the content of the copyright-protected programming. This constituted prima facie infringement.
The Court also agreed with the broadcasters that inducing and authorizing consumers to infringe copyright was an additional serious issue to be tried.
The Court’s order not only enjoins the five named retailers from continuing to configure, market and sell the pre-loaded set-top boxes; it allows the broadcasters to serve the order on other retailers who are engaged in the same activities.
*Thanks to Smart & Biggar for making the link to the decision available online.
The following is a timeline of broadcast reproduction copyright developments, leading to yesterday’s Supreme Court of Canada decision in CBC v. SODRAC.
1980’s: SODRAC, a copyright collective society managing (largely French-language) music reproduction rights, licences the reproduction of musical works in its repertoire to television producers.
1990: Bishop v. Stevens  2 S.C.R. 467 – The Supreme Court determines that “ephemeral” copies made by a TV broadcaster engage the reproduction right under the Copyright Act. Making copies of musical works to facilitate a broadcast, and actually broadcasting musical works, engage two different rights. Each of those rights may be licensed and paid for separately. Following this decision, SODRAC begins to distinguish between synchronization licences and copies made for other purposes.
1992: CBC and SODRAC negotiate a licence agreement for all copies made by CBC – synchronization and any other copies – for radio and TV. According to SODRAC, this is the first general reproduction rights agreement with a radio and television broadcaster in North America.
1990’s: CBC and other broadcasters begin to make greater use of digital systems to prepare programming for broadcast, gradually replacing older analog systems.
November 2012: Copyright Board SODRAC-CBC Arbitration Decision – The Board confirms that broadcast-incidental copies are reproductions under the Act, and do not benefit from a statutory exception. The Board finds that there are “clear benefits [to CBC] from copy-dependant technologies”, and SODRAC is entitled to remuneration that reflects those benefits.
November 2012: The Copyright Modernization Act – a broad set of amendments intended to better reflect copyright in the context of modern technologies – enter into force. Among other things, the “ephemeral exception” for broadcast copies is amended and expanded in part.
December 2012: Entertainment Software Association v. SOCAN  2 S.C.R. 231 – In one of the 2012 “pentalogy” of copyright cases, the Supreme Court determines that the Copyright Board was incorrect to apply a separate “communication” tariff – over and above the reproduction right payment – to downloads of musical works for video games. The principle of technological neutrality requires that the Copyright Act apply equally between traditional and more technologically advanced media.
January 2013: Copyright Board Interim SODRAC-CBC Arbitration Decision – The Board extends the 2008-2012 licence on an interim basis pending its final determination of terms to 2016. The Board rejects CBC’s argument that the Copyright Modernization Act amendments provide a statutory exception for its broadcast-incidental copies.
March 2014: CBC v. SODRAC Federal Court of Appeal,  1 F.C.R. 509. The Federal Court of Appeal rejects the broadcasters’ argument that the Supreme Court’s decision in ESA has overtaken Bishop v. Stevens. Broadcast copies are reproductions under the Act. The Court states, however, that it is “difficult to know how one is to approach technological neutrality post-ESA”, and finds that Bishop v. Stevens determines the outcome unless Bishop is “overturned or disavowed by the Supreme Court”.
November 2015: CBC v. SODRAC Supreme Court 2015 SCC 57. In a 7-2 split decision, Justice Rothstein, for a majority of the Supreme Court, confirms that broadcast-incidental (or “ephemeral”) copies that facilitate broadcasting are reproductions under the Copyright Act. The bulk of the decision then focuses on valuation of the reproduction right. The majority finds that the Board failed to take the principles of technological neutrality and balance into consideration when setting the fees for the copies.
The majority expressly responds to the Court of Appeal’s call for guidance on how to approach technological neutrality. Pursuant to ESA, if there is no practical difference in the value to a user as between its old and new technologies, then there should be no difference in valuing the right. The Copyright Board should compare the value derived by the user from the use of the reproduction, considering older and newer technologies. In the present case, if CBC derives greater value from using broadcast-incidental copies in digital technology than it did with its old analog technology, then the copright owner has become entitled to greater royalties for the copies.
The majority recalls that in Théberge, the Court established that copyright law maintains a balance between the rights of copyright owners and users, and that it would be as inefficient to overcompensate artists as it would be self-defeating to undercompensate them. Relevant factors in valuation include the user’s risk and investment in using new technologies, and how making reproductions contributes to value to the user. In this case, the user’s risk and investment were high, and the value of the reproductions to the user were low. The matter of valuation is sent back to the Copyright Board for reconsideration.
Justice Abella writes a vigorous dissent, agreed to in part by Justice Karakatsanis. The dissent takes issue with the majority’s approach to the principle of technological neutrality, which effectively ties copyright owner compensation to users’ actions that are irrelevant to the rights, and focuses on the value that new technologies create for the user. The dissent distinguishes “media neutrality” (focused on the medium of expression) from “functional equivalence” (focused on what the technology actually does), stating that functionally, broadcast-incidental copies are simply part of the core activity of broadcasting. Just as the Court confirmed in ESA, “technological neutrality operates to prevent imposing additional, gratuitous fees on the user simply for the use of more efficient technologies” […] “SODRAC is not entitled to be compensated for how efficiently CBC uses technology to achieve its broadcast”. The Board’s decision to impose fees for broadcast-incidental copies is unreasonable.
Economic Action Plan 2015 proposes to amend the Copyright Act so that the term of protection of performances and sound recordings is extended from 50 years to 70 years following the date of the release of the sound recordings.
The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings. While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years.
Economic Action Plan 2015 proposes to amend the Copyright Act to extend the term of protection of sound recordings and performances from 50 to 70 years following the first release of the sound recording. This will ensure that performers and record labels are fairly compensated for the use of their music for an additional 20 years.
The copyright proposal is surprising not only for its inclusion in a budget document, but also for its appearance so soon after the government heralded its delivery of the Copyright Modernization Act. The 2012 Act was intended to balance and modernize Canada’s entire copyright regime, and was enacted following lengthy and detailed consultations with representatives of all affected stakeholders.
A critical element of the Copyright Modernization Act is the requirement that Parliament revisit the Copyright Act every five years. This will serve as a reminder to current and future Parliaments and governments of the important role that modern and updated copyright laws play in our economy.
Indeed, section 92 of the Copyright Act calls for a statutory review of the Act every five years by a committee of the Senate, House of Commons, or both. Section 92 does not preclude amendments between those statutory reviews. However, the government and stakeholders alike have all recognized that copyright calls for balance. Achieving that balance calls for careful review and input from all stakeholders.
A further 20 years of protection and fees for sound recordings has been welcomed by the music industry in Canada. But will this proposed budgetary measure have the effect of making a real difference for the Canadian economy? And on the copyright side, will it “strike the right balance between the needs of creators and users”?
The Government of Canada has promised to balance the budget. As the copyright term extension proposal moves forward, we look forward to further discussion on balanced copyright.

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