Sierra Club, Inc. v Bostik

Sierra sued challenging an Army Corps of Engineers national permit authorizing utility lines when small amounts of damage to wetlands occur. The panel, one member concurring, affirmed. The majority held that Sierra had waived its arguments about the need to evaluate the risks of oil spills by failing to raise it at the comment stage and the issue was not so obvious as to require analysis as oil pipeline safety was the responsibility of a different agency. It held that while issuing the national permit was a major federal activity triggering the need for environmental impact analysis, issuing letters which verify the permit applied was not and thus there was no need to analyze a pipeline being built using the permit instead of obtaining hundreds of smaller ones. The majority held the permit complied with the Clean Water Act as the pipeline here affected far less wetlands than the thousands of individual crossings would have and thus there was minimal impact and deferring analysis to when unforeseen projects take place is a reasonable interpretation of the Act as forecasting uses under a national permit is always educated guesswork. One member of the majority added a concurrence suggesting the case was prudentially moot as the pipeline is already built. One judge concurred arguing that the risk of oil spills was obvious and eth Corps should have done analysis of the impact of spills and other impacts beyond debris and fill activities, but, since no one raised the issue at comment stage, the issue was waived and the permit must be upheld.

Peterella v Brownback

Peterella and other parents sued Brownback and other state officials arguing that Kansas school financing system, including caps on local taxation, violated the federal constitution. The district court ruled heightened scrutiny did not apply, denied Peterella’s motion for summary judgement, denied a preliminary injunction and dismissed the case in part. The panel affirmed. It held it had jurisdiction over the injunction issue as an interlocutory order subject to review and the dismissal issue as resolution of the inunction issue also resolved the dismissal issue. It also held the case was not moot as the new Kansas funding law still capped local taxation. The panel affirmed the denial of preliminary injunction as the caps do not restrict speech even if spending on education is speech as people can donate to school districts and the caps do not discriminate on wealth as the caps apply to all districts  and equitable funding is an rational goal; the caps do not violate associational rights as there is no federal constitutional right to hold an initiative to raise school taxes; the caps do not violate any fundamental rights as states are allowed to fund education as they see fit, parents do not have a fundamental right to set school funding policy, and do not dilute parental voting rights nor were they imposed to arbitrarily punish the parents as they are part of a scheme to equalize educational opportunity for all Kansas schoolchildren which is a rational approach.

Tri-State Generation and Transmission Association, Inc. v New Mexico Public Regulation Commission (Kit Carson electrical Cooperative, Inc.  proposed intervener)

Tri-State sued Commission challenging Commission’s jurisdiction over Tri-state’s wholesale electricity rates. Kit moved to intervene which the district court denied. The panel affirmed. It held Kit had no right to intervene as Commission had the same objectives as Kit and there is o evidence that commission will not vigorously defend its jurisdiction. It affirmed the denial of permissive intervention as Commission can adequately represent Kit’s interests and the district court’s ruling that discovery would be burdensome was not arbitrary.