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Congratulations to the Sierra Club and Joro Walker and John Pace for their hard work on this case. Ban Law Office was happy to assist amicus, Utah Physicians for a Healthy Environment, in this case. Some analysis of the decision below. Also a favorable decision in the companion case Kennon v. Air Quality Board. James Kennon should receive massive credit as well since he handled a very complicated case pro se!! This was not an easy case for a lawyer and he presented his argument admirably in front of the justices.
Critical to the maintenance of National Air Quality Standards or NAAQS is the prevention of significant deterioration (PSD). In order to prevent PSD new sources are required to go through new source review. An application for a new source permit must show that the owner will construct the facility that utilizes the best available control technology (BACT). The applicant must undergo best available control technology review, and must utilize BACT unless its not achievable due to energy, envtl. or fiscal impacts. Also the applicant must perform a BACT analysis that analyzes pollution from the proposed facility and other pollution sources in the area to ensure they won’t cumulatively violate air qulaity standards or NAAQS. There is a ceiling on the total concentration of certain pollutants in the atmosphere. PSD increments allow or set a limitation on the amount of deterioration over time depending on what class the area is in…..basically class I areas allow the smallest amount of deterioration and includes National Park or wilderness areas.
Sierra Club challenged the Approval Order by DAQ through a Request for Agency Action alleging violation of the Federal Clean Air Act CAA, Utah Air Conservation Act, and portions of the Utah Administrative Code. Sierra Club’s issues were that the division failed to evaluate the emission of CO2 and other greenhouse gases in its Best Available Control Technology (BACT) analysis that the Division improperly excluded integrated gasification combined cycle technology as an available control technology, that the emission limits set as part of the BACT review were in error, that the Division wrongfully adopted significant impact levels policy for determining the cumulative impact of a new source on Class I areas, and the Division failed to adequately complete a Class I increment analysis for SO2.
A series of Summary Judgment motions were filed with the Board and Sierra Club lost several of these motions, but an evidentiary hearing was held on whether the BACT analysis was flawed based on consideration of the Integrated Gas Combined Cycle technology. After this hearing Sierra Club lost on all the issues. The standard of review was relatively favorable to Sierra Club, the S. Ct. holding they were reviewing the Division’s decision for “correctness” and granted little to no deference to the agency’s determination. The first issue addressed was whether the PSD federal rule, located in the C.F.R., was incorporated into the State Rule. Here the Court held the rule had not been incorporated since the rule appears to only apply in Utah to tribal lands. They also failed to hold that the state rule was not as stringent as the federal rule as the CAA requires.
There were 2 regulations that related to BACT including a 2005 and 2006 rule where the latter required analysis of all “air contaminants” and the former analysis was required for all “pollutants subject to regulation”. The Court held that the Division did not commit an error through application of the 2005 rule. The next issue carries great importance due to the U.S. Supreme Court’s ruling in Mass v. EPA since they held recently in 2007 that greenhouse gases such as CO2 could be regulated under the CAA. Raising the issue in this case whether the BACT analysis should include consideration of CO2. This Court pounced on the fact that although CO2 could be regulated currently there are no National Ambient Air Quality Standards (NAAQS) for it. Its unclear in other words what it means to be “regulated” under the CAA. The Court in this case adopted an interpretation of the Wyoming DEQ where a state agency would need to “regulate greenhouse gases…without the scientific and policy resources available to EPA and the US Congress”. In the end the Utah Supreme Court seemed concerned about the problems presented by CO2, but they did not want to “preempt ongoing Congressional and EPA efforts to formulate a CO2 emissions policy” by instituting an emission limitation as part of BACT review was reasonable. Longleaf Energy Assocs., LLC v. Friends of the Chattahoochee, Inc. 681 S.E. 2d 203, 207 (GA. Ct. App. 2009).
Turning to the issue where Sierra Club succeeded was whether consideration of Integrated Gasification Combined Cycle (IGCC) was required the Court held that it was based on the plain language of the Utah Administrative Code. Power Plant proponents pointed out that IGCC is a power generation technology as opposed to a emission control technology, however this fact did not exclude consideration of this technology from BACT review, IGCC can still act as an emission control technology, and can reduce the emission of criteria pollutants. The Court was attempting to balance the goal of BACT, which is to encourage use of new technologies without overburdening applicants through a complete redesign of proposed power plants that rely on advanced technologies that were never considered. In this case, since IGCC is a coal technology as opposed to say a wind generation technology it was required to consider this technology. They also rejected the proponents claims that IGCC is not an “available” technology since even though its relatively rare there are still 2 IGCC plants in the U.S., 14 worldwide, and more IGCC plants are being proposed in the U.S.
The next issue surrounding the nitrogen oxide pollutant where Sierra Club argued that the emission standard was not sufficiently stringent since other plants have achieved lower NO emission limitations. The Court agreed that there was insufficient evidence that the limitation in this case was the maximum reduction possible. In the end the Court upheld the Board’s decision in some parts but REVERSED AND REMANDED and ordered a new review so that the AO must encompass the most current control technology and must assign a reasonable deadline for the construction of the Company’s facility. The company must also conduct a new BACT analysis that considers IGCC.
Many Veterans logically believe that on their claim the date of entitlement should go back to the date that the problem first arose. Unfortunately the applicable VA law on this point isn’t as favorable to the Veteran as one would hope. General rule is that effective date is the date the VA receives the claim or the date that entitlement arose whichever is later. 38 U.S.C. 5110a. It is that whichever is later language that prevents back payment going back to the date the problem first arose.
For a reopened claim the effective date is the date the VA receives the reopened claim (as opposed to the original claim) or the date that entitlement to the benefit arose whichever is later. Sears v. Principi, 349 F. 3d 1326 (Fed Cir. 2003). Date entitlement arose: is the initial date on which it appears the claimant satisfied all of the substantive criteria for entitlement to the benefit as determined from a review of all the evidence included in the record when VA approved the claim. Is usually the date the claim was first submitted. McGrath v. Gober.
Many times the date entitlement arose is the date the vet was discharged from service, but many times could be long after discharged since an injury could be latent. Note for PTSD the date of entitlement is often the date that the Vet was actually diagnosed with PTSD although it could be earlier if the diagnosis states that he/she first started suffering earlier. To receive the earliest effective date so that the effective date is from the original claim you must file and prevail on a claim for revision of the final decision on the original claim for clear and unmistakable error, but this is tough, and is a whole other topic. The lesson here should be that the Veteran should apply for benefits as soon as possible and then perhaps more important never give up on that claim so that you don’t have to reopen later. The law is especially favorable to claimants who apply for benefits within 1 year of discharge since if this is done the entitlement date is the day following the day of discharge. Unfortunately many claimants don’t experience their service related problems so soon after discharge since often there is a long latency period.
In a rare 100-0 vote tally funding for Veteran’s Health Care would be increased by 9% over last year’s funding. The House approved a similar measure and so a final bill will soon be produced for President Obama. The costs of health care for Veterans has increased due to both aging Veterans and based on continued military conflicts in the middle east that includes traumatic physical injuries as well as chronic mental impairments such as PTSD. The Department of Veterans Affairs estimates that 419,000 veterans of Iraq and Afghanistan will be covered by VA health care by next year — a 61 percent increase over 2008 levels — at a cost of $2.1 billion. A future appropriation was added to the bill so that Veteran’s health care will have consistent funding in the future.
A coalition of National and Utah environmental groups including SUWA, NRDC, and Sierra Club filed a petition against the proposed Coal Hollow Strip mine that would be located just west of Bryce National Park. The petition will follow a state process and was filed with the state agency Utah Division of Oil, Gas, and Mining. Obviously, there is worry that such a blight should not be located so close to a national treasure, but there are concerns the mine could foul air, water, and cultural resources in the area. The permit allows for mining of 2 million tons of coal per year for approximately three years. The permit was approved shortly after a meeting between the mine developer—Alton Coal Development—and Utah Governor Gary Herbert. Mining operations will require up to 300 coal truck trips per day traveling 110 miles oneway from Alton to Cedar City, which could result in one truck leaving the site every seven minutes. The coal-haul route would run through several small towns along State Highway 89, including Panguitch, a town recently placed on the National Register of Historic Places.
There is legitimate concern here that such a project would not only impact area towns and Bryce National Park due to the fact that the Park receives over 1.5 million visitors every year. Unfortunately, this project is actually just a small portion of a much larger proposal to strip mine an even greater area that would create one large contiguous strip mine area that would amount to around 46 million tons of coal to be mined over 15 years. This according to SUWA attorney Steve Bloch.
The event located at the multipurpose building just east of the Wahlen VA Medical Center on 500 Foothill Dr. provides all kinds of social services for homeless veterans. We’ve also provided some information on other social services available for Veterans including a support group at the Sorenson Unity Center on the west side of SLC and other resources for Veterans in Utah.
A judge in Nevada’s seventh Judicial District overturned Nevada State Water Engineer Tracy Taylor’s decision approving large water diversions from Cave, Delmar, and Dry Lake Valleys. These diversions to Las Vegas would have been parlayed with Spring and Snake Valley, which of course is located mostly in Utah, but is fed primarily by Nevada snowmelt. “The State Engineer’s decision was arbitrary, oppressive and a manifest abuse of discretion,” says the ruling, however the ruling will surely be appealed to the Nevada Supreme Court. The reason this ruling is so critical is because without this water the plan to divert snake and spring valley would become economically infeasible since predicted costs are well in the many billions of dollars. The Nevada Judge picked up on the fact that the science supporting the diversions at the levels proposed is suspect. This is certainly a positive development in the struggle to fight this ill conceived proposal, but since an appeal is likely we’ll have to stay tuned to see what ultimately happens.
The Great Basin Water Network in a recent public records request reveals that Utah’s position on the Vegas water grab changed when Nevada threatened to derail attempts to construct a Lake Powell pipeline to Washington County, Utah. Although it seems Utah initially insisted that the Snake Valley aquifer be split 50-50 this position changed upon the threat from Nevada. Utah Department of Natural Resources Director, Mike Styler, clearly has been inconsistent in how he presents the agreement to the public vs. how he felt about the split in private. It would seem Nevada was successful in arm twisting to the extent that Styler would attempt to persuade Utahns that it was a good deal for them. At this point, Styler seems to have done a 180 and now concedes that its a bad deal for Utah, and that in fact he was happy to see all the comments from Utahns that criticized the deal.
A 2006 memo states that Nevada threatened to take the matter to Congress to change the 2004 law requiring an agreement between the two states since they were dissatisfied with the pace of negotiations. Letters from 2007 indicate that Utah was hesitant to rely on a 50-50 agreement based on the USGS estimate for available aquifer water, which the federal agency said was only 67 percent reliable, and included water used by the plants that now keep Snake Valley soil from blowing straight to the Wasatch Front. At this point it doesn’t seem the state could sell this agreement to Utahns with a straight face. If the agreement were signed by Herbert it would prove that this agreement is about nothing but money and quid pro quo.
Most Veterans probably wouldn’t believe it but the VA is actually supposed to be your friend when applying for disability benefits. This is in theory. The VA has the “duty to assist” in terms of helping Veterans develop their claims. The duty to assist requires VA to fully develop the claim for increase so VA must make “reasonable efforts” to assist the vet in locating the evidence. This help includes a medical examination so that the current level of disability can be evaluated. VA “has a duty to fully and sympathetically develop a veteran’s claim to its optimum”. The VA must determine all potential claims raised by the evidence applying all relevant laws and regulations. The evidence in the claims file may lead to the conclusion that a claim benefit Y is raised by the evidence. Also, a claim that was never rendered or became final occurs when “the time for appealing a decision did not run where the sec failed to provide the Veteran with information or material critical to the appellate process”. The appeal period will be tolled when the VA has failed to notify claimant of claim denial, mail claimant a copy of the board decision, provide notice of appeal rights, or issue a statement of the case. If a veteran receives treatment at VA for a service connected problem that treatment (such as hospitalization) can constitute a new claim for increased ratings. VA is charged with the knowledge to know whats going on.
The new car sharing program in SLC is off to a pretty good start with 400 participants and efforts to increase this number could make a dent in taking more cars off the road. Wanted to pass along information about the cost savings of participation. These savings are quite substantial. The locations will increase over time, but right now they are centrally located downtown and the university. The procedures to use the cars couldn’t be any easier since you can use the web to reserve, check in with a card, and check out with card as well. Also right now there is no enrollment fee. The program uses the toyota prius at .59 cents a mile, ford escape at .69 cents, ford focus and toyota yaris at .49 cents. The cost is typically capped at $10.00 per use even going up to 185 miles in a single usage.
Former Sen. Max Cleland (D., Ga.) has written a new book “Heart of a Patriot” about the importance of getting medical and/or mental health treatment for Veterans who need it. Senator Cleland himself lost his legs and one arm during the Vietnam War and had in fact returned to Walter Reed Medical Center to get treatment some 30 years after the fact. The book emphasizes the fact that one of the primary obstacles to treatment is that soldiers are reluctant to get help since as soldiers they are programmed to be tough and to not ask for help. Cleland is also bothered by the fact that soldiers are sent for so many tours overseas that its inevitable that the psychological effect of these repeated tours is pushing soldiers to the brink mentally.
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