Ongoing serious health problems suffered by residents in Libby, Montana, the site of a vermiculite ore mining and processing facility operated by W. R. Grace, prompted the United States to obtain an indictment against the company and seven of its executives (collectively Grace). Following the district court's dismissal of a portion of the original indictment,[1]the government's superseding criminal indictment charged Grace with one count of dual-object conspiracy based upon Grace's alleged actions to 1) knowingly release asbestos, a hazardous air pollutant, into the ambient air, thereby knowingly placing people in imminent danger of death or serious bodily injury,[2]and 2) defraud the United States by impairing, impeding, and frustrating government agency investigations and clean-up operations.[3]The indictment charged Grace with three counts of knowing endangerment under the Clean Air Act (CAA)[4]and four counts of obstruction of justice.[5]The Ninth Circuit reversed in part, affirmed in part, and remanded.

The district court entered six orders that led to this interlocutory appeal to the Ninth Circuit. These orders 1) dismissed as time-barred the knowing endangerment object of the conspiracy charge, 2) narrowed the government's use of evidence of asbestos releases to only those releases of "asbestos" as defined in the CAA's civil regulation, 3) denied the government's motion to exclude evidence on an affirmative defense, and
4) excluded significant portions of the government's evidence and expert testimony. Before remanding to the district court, the Ninth Circuit reversed the dismissal of the knowing endangerment conspiracy charge, allowed the broader definition of "asbestos" found in the criminal statute,[6]and issued a writ of mandamus directing the district court to disallow Grace's use of the affirmative defense. The court affirmed the exclusion of some evidence but allowed...

Plaintiffs Sierra Club and Sierra Nevada Forest Protection Campaign (Sierra Club) sued in federal district court alleging the United States Forest Service and the Department of Agriculture (USFS) violated the National Environmental Policy Act[1](NEPA) by promulgating a "categorical exclusion" (CE) for all fuel reduction projects less than 1,000 acres and all burn projects less than 4,500 acres (the "Fuels CE"). Sierra Club challenged the application of the Fuels CE to projects in the Eldorado and Lassen National Forests, and sought a nation-wide injunction against USFS use of the Fuels CE. The district court granted summary judgment for USFS, finding the agency was not required to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS), that Sierra Club had not demonstrated that USFS used irrational methodology, and that USFS had adequately demonstrated that no extraordinary circumstances existed that would trigger the requirement for an EA or EIS for the challenged Eldorado and Lassen National Forest Fuels CE projects. On appeal, the Ninth Circuit reviewed the district court's grant of summary judgment de novo, under the Administrative Procedure Act's[2](APA) "arbitrary and capricious" standard for agency action. Finding the agency's promulgation of the Fuels CE arbitrary and capricious, the Ninth Circuit reversed the district court's grant of summary judgment.

To comply with NEPA, federal agencies must prepare an EIS for all recommendations or major federal actions that "significantly affect[] the quality of the human environment[;]" however, an agency is not required to prepare an EA (a preliminary step to determine whether an EIS is warranted) or an EIS if the action to be taken falls under a categorical exclusion. A CE is "a category of actions which do not individually or cumulatively have a significant effect on the human environment[.]"[3]As...

The Northern Cheyenne Tribe (Tribe) and Native Action, an advocacy group, petitioned the Ninth Circuit for review of a partial injunction issued by the District Court for the District of Montana after finding the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) by failing to consider a "phased development" alternative when issuing a final Environmental Impact Statement (EIS) concerning coal bed methane (CBM) development in the Powder River Basin. The partial injunction permitted a "phased development" of CBM reserves while BLM prepared a supplemental EIS analyzing that alternative. The Ninth Circuit upheld the injunction as a proper exercise of the district court's equitable discretion.

The Powder River Basin (Basin) in Montana and Wyoming is the largest coal deposit in the United States and includes extensive CBM deposits. CBM, a natural gas generated by coal deposits, is trapped in coal seams by groundwater. Developers extract CBM by pumping the overlying groundwater into rivers to decrease pressure on the gas, thereby allowing the gas to percolate so it may be piped to surface for recompression and shipping. The CBM extraction process potentially causes at least three main environmental problems: aesthetic harm, water pollution, and lowering water tables below surface users' current well depths.

Although the surface of the Basin has long been utilized for farm and ranch activities, the federal government owns most of the subsurface mineral rights. BLM manages these mineral resources under resource management plans for the Powder River Resource Area. In 1994, BLM prepared an EIS analyzing development of oil and gas resources in the Basin. As a result of this EIS, amended the management plan to include limited development of CBM deposits. In 1997, BLM began leasing oil and gas resources, and the leaseholders' explorations revealed extensive CBM...

Friends of Pinto Creek and other environmental groups appealed a decision by the United States Environmental Protection Agency (EPA) to issue a National Pollutant Discharge Elimination System (NPDES) Permit under the Clean Water Act (CWA)[1]to Carlota Copper Company (Carlota). The Ninth Circuit held that EPA improperly issued Carlota's NPDES permit in violation of CWA regulations[2]and the National Environmental Policy Act (NEPA).[3]The Ninth Circuit thus vacated the permit and remanded to EPA for further proceedings.

Pinto Creek, a desert river sixty miles east of Phoenix, is home to a variety of fish, birds, and wildlife. Because historical mining activities in the region have contaminated Pinto Creek with copper, Pinto Creek is included on Arizona's list of impaired waters as a water quality limited stream due to nonattainment of water quality standards for dissolved copper. Carlota proposed to build and operate an open-pit copper mine and processing facility covering over 3,000 acres while extracting approximately 100 million tons of ore. As part of the operation, Carlota proposed constructing diversion channels for Pinto Creek to route the creek around the mine. Carlota also planned to construct groundwater cutoff walls that would block the flow of groundwater into the mine and encourage alluvial flow into the diversion channels.

Under NEPA, the United States Forest Service (USFS) prepared a Final Environmental Impact Statement (FEIS) for the project. The Army Corps of Engineers (Corps) prepared an Environmental Assessment (EA) addressing the physical construction of the diversion channels. Because both the diversion channels and groundwater cutoff wells would add copper and other pollutants to the Pinto Creek system, Carlota applied for a NPDES permit under section 402 of the CWA.[4]EPA first adopted USFS's FEIS and the Corps's EA and published a...