Archive for May, 2014


The primary issue in City of Pomona v. SQM North America Corporation (2014) __F.3d__, involves a dispute over the reliability of expert evidence presented to a trial court and that trial court’s decision to exclude the expert’s opinion as unreliable. The litigation began with petitioner City of Pomona’s efforts to remediate its water supply of perchlorate contamination in order to comply with California drinking water standards.

The City hired the environmental consulting firm Wildermuth Environmental, Inc. to investigate perchlorate contamination. The firm’s expert, Dr. Sturchio, used a testing methodology known as “stable isotope analysis” to identify the potential sources of perchlorate contamination. Based on this testing, Dr. Sturchio concluded that the majority of perchlorate contamination in Pomona’s groundwater could be traced to the Atacama Desert in Chile.

Using Dr. Sturchio’s findings, the City of Pomona argued that the perchlorate contamination in its groundwater had the same distinctive isotopic properties as perchlorate imported from Chile by SQM North America Corporation (“SQMNA”) between 1927 and the 1950’s. The city initiated litigation against SQMNA to recover costs of investigating and remediating perchlorate contamination in the city’s groundwater supply.

During pre-trial proceedings, SQMNA filed a motion to exclude Dr. Sturchio’s report, arguing the expert testimony was unreliable and therefore inadmissible under the Federal Rules of Evidence, rule 702. Rule 702 admits expert opinion into evidence where: 1) the witness is sufficiently qualified as an expert; 2) the expert’s knowledge will help the trier of fact to understand evidence or a fact in issue; 3) the expert’s testimony is based upon sufficient facts or data; 4) the expert’s testimony is based on reliable principles and methods; and 5) the principles or methods have been reliably applied by the expert to the facts of the case.  Under the long established “Daubert rule,” a court’s inquiry into the admissibility of expert opinion under rule 702 is flexible. In evaluating the admissibility of expert testimony, the court is “a gatekeeper, not a fact finder.” In other words, the role of the court is not to decide whether the expert is right or wrong as a matter of law, but whether the testimony is reliable and will be helpful to the finder of fact.

In this case, the district court concluded that Dr. Sturchio’s procedures were not sufficiently reliable because they are not generally accepted in the scientific community. The court pointed to three factors in support of this conclusion. First, the quality assurance/quality control (“QA/QC”) parameters for stable isotope analysis were still being refined. Second, the EPA had not yet certified stable isotope analysis for organic or inorganic compounds. And third, the methodology employed by the expert was not subject to retesting. But the Ninth Circuit disagreed, finding the district court’s reasoning insufficient to justify exclusion of Dr. Sturchio’s testimony.

The appellate court explained that scientific methods are not necessarily unreliable simply where they are subject to “further testing and refinement.” In reaching this conclusion, the appellate court displayed a sophisticated understanding of the scientific method. The scientific method relies on observation and the collection of data. Theories are developed based on these observations and data sets. But new observations and data are continually gathered and may point to a need for refinement of previously accepted theories. In this fashion, scientific theories are credible not because they have been proven “correct,” but because they have not yet been proven false. And while this may seem like an unnecessary exercise in semantics, the distinction is important to a fundamental understanding of the scientific method. As the appellate court succinctly stated: “There are no certainties in science.” That an expert’s method is subject to further testing and refinement is insufficient to render that expert’s opinion unreliable and inadmissible.

The appellate court also rejected the notion that Dr. Sturchio’s methods were not reliable simply because they were not certified by the EPA. The standard for testing the reliability of an expert’s methods is whether some objective source shows the expert’s conclusions are based on a scientific method practiced by at least a minority of recognized experts in the field, not whether the methods have been certified by the EPA or another government agency. Dr. Sturchio employed a method for the stable isotope study of chlorine and oxygen in perchlorate present in groundwater. And this testing method was based on the 2011 publication Guidance Manual for Forensic Analysis of Perchlorate in Groundwater Using Chlorine and Oxygen Isotopic Analyses, which was reviewed by other laboratories and subject to inter-laboratory calibration.  Furthermore, other leading experts in the field have employed the same methodology. These factors indicate that the stable isotope analysis was reliable, despite a lack of EPA certification.

Next, the appellate court addressed whether the expert opinion met the requirement of rule 702 that the methodology be subject to retesting. The district court criticized Dr. Sturchio for not taking dual samples, thereby making it impossible for other laboratories to verify the conclusions using the same exact data-set. But the appellate court determined the trial court applied the standard admissibility incorrectly. Under Daubert, testability of expert opinion is described in the context of a hypothesis that is falsifiable. In this case, other laboratories have employed the same methods used to analyze Pomona’s groundwater. Moreover, there is a distinction between whether the methodology used by an expert is subject to retesting and whether that expert took field samples properly. SQMNA’s criticisms focused on Dr. Sturchio’s sampling procedures and his failure to take dual samples. While this criticism may go to the weight afforded to the expert opinion, criticizing the expert’s samples is insufficient to show the methodology employed to reach the ultimate scientific conclusion is unreliable and should be excluded from evidence.

Finally, the appellate court addressed an issue familiar to CEQA practitioners: the battle of the experts. At trial, an expert for SQMNA argued Dr. Sturchio’s reference database was too limited for him to reliably identify and comment on the potential sources of perchlorate contamination in the city’s water. Dr. Sturchio naturally disagreed and defended his methodology in reply. The trial court found the uncertainty raised by SQMNA’s expert a compelling reason to exclude Dr. Sturchio’s opinion, but the Ninth Circuit noted that Daubert does not require such certainty for admitting expert testimony. Experts often disagree, and it was an abuse of discretion for the trial court to side with SQMNA’s expert over the city’s expert.  Instead, it was the role of the trier of fact—here, the jury—to resolve the conflicting expert testimony. Dr. Sturchio’s expert opinion should have been admitted.

This case, while not a CEQA case, provides useful guidance for CEQA and NEPA practitioners, as the reliability of expert opinion can often be an issue in litigation challenging environmental review. It also serves as an important reminder that a battle between experts is insufficient to establish unreliability. The fact finder in CEQA cases is the lead agency approving the project. When approving a project, the lead agency ultimately exercises its judgment in deciding how much weight to assign expert opinion. So when reviewing work produced by experts, like environmental consultants, CEQA practitioners should note to what extent the record supports that expert’s credibility. A robust record can assist practitioners in defending their expert’s credibility from attacks by experts hired by opponents.

On May 1, 2014, the Orange County Superior Court ruled against petitioners in six related cases and upheld the EIR for the Cadiz Valley Water Conservation, Recovery, and Storage Project.  The court noted its concern over the designation of Santa Margarita Water District as the lead agency for the project under CEQA.  But it concluded that even if the County of San Bernardino would have been a more appropriate lead agency, these concerns did not provide sufficient grounds for the granting of any of the writs sought by petitioners Delaware Tetra and Center for Biological Diversity.

Cadiz, Inc., is a private corporation that owns approximately 34,000 acres in the Mojave Desert portion of eastern San Bernardino County.  A vast groundwater basin capable of holding an estimated 17-34 million acre feet (MAF) underlies the Cadiz property.  The groundwater recovery project would allow Cadiz to sell up to 2 MAF of water that would otherwise become saline and evaporate over the next 100 years.  The project involves pumping and delivering to water providers like the Santa Margarita Water District a total of 50,000 AF a year for 50 years. The participating water districts and water providers could also send their surplus surface water supplies to the Cadiz Valley Project to recharge the groundwater and store it until the water is needed in subsequent years.

Currently, six entities have signed purchase or option agreements with Cadiz: 1) Santa Margarita Water District, 2) Three Valleys Municipal Water District, 3) Suburban Water Systems, 4) Golden State Water Company, 5) Jurupa Community Services, and 6) California Water Service Company.  These entities will receive 80% of the project’s water supplies, while 20% is reserved for future use by water agencies in San Bernardino County.

The project drew CEQA challenges from both the private sector and environmental groups.  Petitioner Delaware Tetra Technologies owns a salt mining operation in the Cadiz and Fenner Valleys of San Bernardino County. The groundwater recovery project threatens the continued operation of the salt mine because it will reduce the flow of saline water that creates salt when it evaporates.

In other suits, petitioners Center for Biological Diversity (CBD) and other conservation groups asserted several CEQA claims, including concern over the potential environmental impacts on nearby springs in wilderness areas and the Mojave National Preserve.   They argue that the project would be growth-inducing because the Santa Margarita Water District will send the groundwater it purchases to support development in Orange County.  The Orange County Superior Court’s Ruling did not specify its rationale for rejecting petitioners’ CEQA arguments.  Instead, the court directed respondents Santa Margarita Water District and the County of San Bernardino to prepare proposed findings as to each petition reflecting that the court adopted the respondents’ arguments but noting that the court had some concerns regarding the lead agency designation.  Counsel for CBD has indicated that it will appeal the decision.

League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton (May 8, 2014) 14 C.D.O.S. 5102.

Plaintiffs League of Wilderness Defenders / Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council sought to enjoin logging in the Snow Basin project area, which covers 29,000 acres of the Whitman-Wallowa National Forest in northeast Oregon, on the theory that the U.S. Fish and Wildlife Service had violated NEPA and the federal Endangered Species Act (ESA).  The district court denied the preliminary injunction, holding that plaintiffs were not likely to succeed on any of their claims and that the balance of harms did not tip sharply in their favor.  But, on May 8, 2014, the Ninth Circuit Court of Appeals reversed in part and remanded, holding that plaintiffs had satisfied the Winter v. Natural Resources Defense Council test for preliminary injunctions.

Likelihood of Success on the Merits

The first prong of the preliminary injunction test asks whether there is a likelihood of success on the merits.  The Ninth Circuit found that plaintiffs were likely to succeed on the merits of one of their claims. The project’s Environmental Impact Statement (EIS) had reviewed the logging project’s potential environmental impacts on elk and their habitat, assuming that the US Forest Service’s Travel Management Plan, which regulated off-road motorized travel and reduced the number of roads within the forest, would be in place.  The plan, however, was subsequently withdrawn.  The court found that plaintiffs would likely prevail on their claim that the Forest Service must prepare a supplemental EIS to analyze the project’s impact on elk independent of the plan.  An accurate analysis based on up-to-date information, the court said, was key to informed public participation and proper functioning of NEPA.

Plaintiffs did not successfully show that they would be likely to prevail on their second claim that 130 acres of the project area warranted a cumulative impacts analysis.  The Ninth Circuit found that the Forest Service’s actions in that section were speculative and the environmental effects inchoate.  Nor did plaintiffs show any likelihood of success on their claim that the EIR should have analyzed the cumulative effects of stream temperatures on fish in the project region.  The court noted that the project would not impact stream temperatures, therefore any thermal stress on the fish was part of the project’s environmental baseline.  The court also rejected plaintiffs’ argument that the EIS’s reliance on aged studies was arbitrary and capricious, since no reliable evidence showed that the results of those studies were incorrect or that the status of bull trout in the project area had changed over time. Finally, the court upheld the agencies’ determination that bull trout were likely extirpated from the project area, finding that the agencies had conducted a reasonable reading of ambiguous evidence.

Likelihood of Irreparable Harm

The second prong of the preliminary injunction tests looks to the likelihood of irreparable harm absent issuance of the injunction.  The court noted that environmental harms can seldom be remedied by money damages and are often permanent or irreparable.  The logging of mature trees in particular cannot be remedied easily, if at all, as neither the planting of new seedlings nor the payment of money damages can fully repair such harm.  The court noted that it had upheld or granted injunctions in cases involving only smaller trees and in areas that had previously been logged.  There was sufficient likelihood of irreparable harm here, therefore, to support a preliminary injunction.

Balance of Equities

Having determined there was a likelihood of success on the merits and a likelihood of irreparable harm, the court then looked to whether the balance of equities tipped in plaintiffs’ favor.  The court took into account both economic and environmental interests, but concluded that the balance tipped in favor of the environmental harms since those would be permanent, whereas the economic setbacks would only be temporary.  The economic harm of the preliminary injunction would be the value of moving jobs and tax dollars to a future year — a harm the court considered “marginal.”

Interest to the Public

The final prong in the test for a preliminary injunction is whether the injunction is in the public interest.  The Forest Service argued that the public interest would be harmed by a preliminary injunction because the risk of local forest fires and insect infestation would not be reduced unless the logging occured as planned.  The court, however, cited evidence that fire suppression was expected to continue and be highly successful if no action were taken, with the possibility of periodic insect outbreaks.  Without evidence of an imminent threat, the agency could not say that the inability to mitigate such risks for a temporary period outweighed the public’s interest in maintaining elk habitat and mature trees in the forest.  The public’s economic interest, the court added, would not be completely foregone but merely delayed while the injunction was in place.

The Ninth Circuit remanded the case to the district court to issue the preliminary injunction.  The court expressly declined to comment on the appropriate scope of that injunction.

Environmental Protection Agency et al. v. EME Homer City Generation, L.P., et al. (2014) __U.S.__ (April 29, 2014, Case no. 12-1182)

Over the past several decades, Congress and the Environmental Protection Agency (EPA) have made several efforts to address the difficult challenge of curtailing air pollution emitted in upwind states, but causing harm in downwind states. Under the Clean Air Act, the EPA must establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect health. Once the EPA establishes a NAAQS, it must designate “nonattainment” areas—locations where pollution concentration exceeds the NAAQS. Within three years of any new or revised NAAQS, each state must submit a State Implementation Plan (SIP) to achieve the NAAQS. If the EPA determines a SIP is inadequate, it must prepare and adopt a Federal Implementation Plan (FIP). Among other things, the SIP must “contain adequate provisions … prohibiting … any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will … contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any … [NAAQS].” (42 U.S.C. § 7410 (a)(2)(D)(i).) This requirement is known as the “Good Neighbor Provision” of the Clean Air Act.

Many times over the past two decades, the EPA has attempted to delineate the Good Neighbor Provision’s scope by identifying under what circumstances an upwind state can be said to “contribute significantly” to nonattainment in downwind states. One such attempt is the EPA’s Cross-State Air Pollution Rule (Transport Rule), which aims to reduce mono-nitrogen oxides (NOx) and sulfur dioxide (SO2) emissions in 27 upwind states to achieve attainment of three NAAQS in downwind states. Under the Transport Rule, an upwind state “contribute[s] significantly” to downwind nonattainment if its exported pollution: (1) produces one percent or more of a NAAQS in at least one downwind state; and (2) could be eliminated cost-effectively, as determined by the EPA. Upwind states whose emissions meet both these criteria must eliminate their emissions. Based on complex modeling, the EPA also created an annual emission “budget” for each of the regulated upwind states, representing the total quantity of pollution an upwind state may produce in a given year under the Transport Rule. Having determined that each of the regulated upwind states’ SIPs was inadequate, the EPA also adopted FIPs concurrently with its adoption of the Transport Rule.

A group of state and local governments, joined by industry and labor groups, petitioned for review of the Transport Rule in the D.C. Circuit. The Court of Appeal vacated the rule in its entirety, holding that: (1) the EPA must give states a reasonable opportunity to allocate their emission budgets before issuing the FIPs; and (2) the EPA must not consider cost in determining whether an upwind state “contribute[s] significantly” to a downwind state’s nonattainment. In an opinion delivered by Justice Ginsburg, in which Justices Roberts, Kennedy, Breyer, Sotomayor, and Kagan joined, the Supreme Court reversed.

First, the Court held that the Clean Air Act does not require the EPA to give states a second chance to file a SIP after the EPA has quantified the state’s interstate pollution obligations. Although the state respondents in the case did not challenge EPA’s disapproval of any particular SIP, they argued that the EPA is nevertheless required to give upwind states an additional opportunity to promulgate adequate SIPs after the EPA has set the state’s emission budgets. The Court found that the Clean Air Act’s plain text does not support this argument. Rather, the Clean Air Act only requires that once the EPA disapproves of a SIP, the EPA must issue a FIP. Although the EPA had previously provided upwind states an opportunity to allocate emission budgets among their in-state sources, this did not mean that the EPA acted arbitrarily in declining to do so here.

Second, the Court held that EPA’s cost-effective allocation of emission reductions among upwind states is a permissible, workable, and equitable interpretation of the Good Neighbor Provision. The Court noted that the Good Neighbor Provision does not dictate a specific method of apportioning responsibility among the upwind contributors. In the absence of specific guidance, the EPA’s use of costs in the Transport Rule is an efficient and equitable solution to the allocation problem presented by the Good Neighbor Provision. Furthermore, contrary to the D.C. Circuit’s holding, the EPA must have leeway in fulfilling its mandate to maximize achievement of attainment in downwind states.

On May 1, 2014, the United States District Court for the Eastern District of California issued an order granting a joint motion for partial relief from judgment and dissolution of injunction in Sierra Club v. Tahoe Regional Planning Agency (E.D. Cal., Case No. CIV. 2:12-0044 WBS CKD). In doing so, the court granted relief from its prior order requiring the County of Placer and Tahoe Regional Planning Agency (TRPA) to recirculate the Environmental Impact Report-Environmental Impact Statement (EIR–EIS) for the Homewood Ski Area Master Plan.

The court found the parties met their burden under Federal Rule of Civil Procedure 60(b) to modify the court’s original order. Specifically, the court concluded that new economic information supported the EIR-EIS’ discussion of the financially viability of a smaller project. The court also considered a recent settlement between the plaintiffs and the developer, in which the developer agreed to trim the project by 13 units. The court stated that the county and TRPA would determine whether additional environmental review was necessary based on this new information. The court held that the proposed modifications to the project under the settlement and the new evidence regarding the feasibility of alternatives warranted dissolving the injunction.

The court’s decision allows the developer to move forward with the project, as modified by the settlement agreement.

RMM attorneys Whit Manley, Howard (Chip) Wilkins, and John Wheat represented the developer — Homewood Village Resorts, LLC and JMA Ventures, LLC — in the case.

On April 30, 2014, Sacramento Superior Court Judge Michael P. Kenny ruled in favor of the City of Folsom and denied a petition for writ of mandate challenging the City’s compliance with CEQA for its approval of a Lake Natoma trail improvement project.

The Lake Natoma Waterfront and Trail Access Enhancement Project would use State Proposition 50 funding to address impacts from the overuse of the recreation area between historic Folsom and the American River by enhancing existing pedestrian pathways to facilitate wheelchair access to the river trail system and mitigate existing erosion problems, creating new scenic rest areas, providing direct landing access for kayaks and small, non-motorized vessels, and removing non-native, invasive vegetation. Petitioner Save the American River Association argued that the project was inconsistent with regional recreation management plans and that the City failed to adequately analyze the aesthetic impacts of installing up to six lighted bollards on the edge of the project site. Judge Kenny rejected these arguments.

The court determined that the project was consistent with both the Folsom Lake State Recreation Area’s General Plan and the American River Parkway Plan with respect to the types and intensity of recreational uses that the project would facilitate. The court also found that there was no substantial evidence supporting a fair argument that the limited number of lighted bollards at the edge of the project near existing development could have a significant adverse effect on the environment. Therefore, the court upheld the City’s adopted mitigated negative declaration and its approval of the project.

RMM attorneys Sabrina Teller and John Wheat represented the City of Folsom in this case.