THE U.S. SUPREME COURT
City and County of San Francisco v. EPA (March 4, 2025)
In the first major environmental decision by the Court in the 2024 Term, the Court’s analysis of the Clean Water Act concluded that there was no provision in the Act supporting the imposition by EPA of an ambiguous water quality standard. Indeed, the majority lamented the absence of any concrete plan to achieve compliance. In addition, the Act’s “permit shield,” that deems a permittee to be in compliance with the law if it is adhering to the terms of its permit, could be imperiled by this new standard. (Interestingly, the opinion does not mention the recent revocation of the Chevron doctrine, which placed many agency determinations beyond the reach of the reviewing courts.) There were four dissenters, led by Justice Barrett, who was persuaded that a receiving water quality determination permit condition was consistent with the Court’s review of the CWA.
The city of San Francisco owns and operates a complex wastewater treatment facility that is subject to a municipal Clean Water Act NPDES permit issued by EPA. However, the latest permit renewal contains new provisions that make the permittee “responsible for the quality of the body of water into which the permittee discharges pollutants.” The Supreme Court, holds that this new requirement is not authorized by the text of the Act. Moreover, even if a permittee “punctiliously” follows every requirement of the permit, if the quality of the receiving water falls below the applicable standard—which the permit does not set forth in any particularity—the Court suggests that the city could be heavily penalized for such a transgression even though it was never obligated by the permit to take any specific steps other than those it undertook.
Alabama et al v California, et al. (March 10, 2025)
The Court rejected the request of several states that the Court exercise its original jurisdiction to hear their complaints made against other states that were utilizing state tort laws to sue energy companies in their local courts for various climate change transgressions. Justice Thomas, joined by Justice Alito, observed that the Court all too quickly dismisses the use of its original jurisdiction to settle disputes between the states, and that the use of state courts to affect national energy policy is unwise.
ExxonMobil Corporation v. Environment Texas Citizens Lobby (March 11, 2025)
On March 11, 2025, Exxon Mobil Corporation filed a petition for certiorari seeking the Court’s review of a Fifth Circuit en banc decision in a prolonged and hard-fought Clean Air Act Citizen Suit controversy.
FEDERAL COURTS OF APPEAL
The Fourth Circuit
State of Maryland v. 3M Company (March 7, 2025)
In a 2-to-1 decision, the court held that 3M Company’s invocation of the “federal officer removal statute” warrants further review by the trial court in a PFAS lawsuit filed against 3M by the State of Maryland. The majority was persuaded that 3M’s argument that it produced the foam retardment product for the U.S. military needs to be weighed by the trial court.
The Fifth Circuit
Texas, et al v. Environmental Protection Agency, et al. (March 25, 2025)
In 2015, EPA revised its “ozone standard,” an action which triggered the states’ obligations under the Clean Air Act to modify their State Implementation Plans (SIPs) to implement these changes. Many states did so and submitted their revised SIPs to EPA for the agency’s review and approval. EPA rejected several plans, and the states filed lawsuits contesting EPA’s action in eight different federal appellate courts. The Tenth Circuit agreed with EPA that any review of the EPA’s action disproving the SIPS can only be decided by the U.S. Court of Appeals for the DC Circuit. However, the Fifth Circuit held that such actions reflect local conditions and interests and are not a nationwide issue. Accordingly, the Fifth Circuit ruled that venue for the Texas (and Louisiana and Mississippi) SIP challenges were properly heard in the Fifth Circuit. On the merits, the court held that while Texas has some flexibility to interpret the Clean Air Act to advance its position, the Clean Air Act requires EPA to make its own analysis, and insofar as it disagrees with the arguments made by Texas (and Louisiana), the court upholds EPA. The Mississippi SIP’s disapproval by EPA was set aside and vacated as being arbitrary and capricious. The Circuit conflict over the proper venue may be settled by to the Supreme Court.
Inclusive Louisiana et al. v. St James Parish, et al. (April 9, 2025)
The plaintiffs, described by the court as “two faith and community-based organizations,” joined by a church located in St James Parish, brought seven claims for violations of their constitutional and statutory civil rights. They claim that for many years, the Parish authorities discriminated against them by “directing that hazardous facility development be confined to majority-Black district, and their residents have borne the environmental burdens associated with such development.” Indeed, the Parish has granted “every single request by corporations to locate their heavy industrial facilities in majority-Black districts, and even Black churches have suffered discrimination at the hands of the Parish authorities.” However, the federal district trial court dismissed, with prejudice, each and every claim. Briefly, the lower court ruled that the plaintiffs lacked standing to pursue these clams, and that the relevant state statute of limitations had expired, further warranting dismissal. The Fifth Circuit reversed the lower court, and presumably, this case will be tried. Since many actions by the Parish authorities were alleged to be racially discriminatory, the statute of limitations defense was rejected. Local zoning decisions affecting the plaintiffs can also create standing. (Many Louisiana coastal communities have filed lawsuits, usually in state courts against energy companies to obtain financial recovery for their damages.)
AT&T Corporation v. Federal Communications Commission (April 17, 2025)
The court held that AT&T was entitled to a jury trial to review an enforcement order issued by EPA against AT&T in the amount of $57 million. The agency’s enforcement office investigated AT&T, and determined this fine was appropriate. To obtain a judicial review of this administrative action, EPA was first forced to pay the fine before advancing to the court. These facts made an impression on the court, which concluded that AT&T was entitled to exercise its constitutional rights under the Seventh Amendment. The Supreme Court’s decision in Jarkesy, countenancing the availability of Seventh Amendment trials in federal administrative actions, had its origins in the Fifth Circuit.
The Ninth Circuit
Litekyan v. United States Air Force (February 6, 2025)
In a 2-1 ruling on this important RCRA permitting case, the court reversed the lower court’s dismissal of a complaint that the Air Forces’ proposed renewal of a RCRA permit authorizing the disposal of unexploded ordnance at Tarague Beach in Guam was violative of NEPA because no NEPA environmental impact statements were prepared by the Air Force in connection with its latest RCRA permit renewal application. For many years, the Air Force has been managing the disposal of hazardous waste generated by ordinance activities carried on at this facility in Guam, where the Guam EPA is the permitting authority. On appeal, the Air Force asserted that there was no “final action” here because the Guam EPA had not reviewed or made any determination regarding the permit application.
Accordingly, the Air Force asserted that there was no “find act” to review because the Guam EPA had made the decision regarding the new permit application. However, in the view of the majority, the decision to submit a renewal application and the details of the operation, reflected the commitment of the agency (i.e., the Air Force), which also determined its legal obligations, and it was therefore engaged in a “final agency action” which triggered the judicial review provisions of the Administrative Procedure Act (APA). There was a strong dissent, arguing that there can be no final action triggering APA review if the permit renewal application has not been granted or denied. The dissent stressed the point that a perfunctory action, such as preparing and filing for a permit renewal is not enough on its own to qualify as “final agency action.” Also, “taken to its logical conclusion,” the majority’s novel and broad theory would subject almost every operational action to judicial review.” A petition seeking a rehearing has been filed by the Air Force.
The Eleventh Circuit
Daniels v. Executive Director of the Florida Fish and Wildlife Conservation Commission (FWC) (February 6, 2025)
Daniels is a commercial fisherman, and his fishing vessels were operating in waters constituting the Exclusive Economic Zone (EEZ). In April 2020, he captained his father’s Floridaregistered fishing vessel into the Gulf of Mexico EEZ in pursuit of Florida pompano, a fish that is protected by the state of Florida. Officers of the Florida FWC were patrolling federal waters when they witnessed Daniels catching pompano with gillnets in federal waters. He was arrested and cited for harvesting pompano in violation of state law. Daniels challenged the application of these state rules in Federal waters, arguing that the state rules were preempted by federal law, and various Constitutional infirmities. The trial court dismissed this claim and the constitutional claims. On appeal, the Eleventh Circuit affirmed, holding that the relevant federal statute, the MagnusonStevens Fishery Conservation Act, does not preempt the state’s role in protecting the Florida pompano.
Okeelanta Corporation, et al. v. U.S. Army Corps of Engineers, et al. (ACOE) (May 25, 2025)
The Eleventh Circuit remanded a Clean Water Act NPDES challenge to the trial court because it did not have jurisdiction at this time because no “final action” by the permitting authority—the U.S. Army Corps of Engineers—had been made. The case is The plaintiffs filed this action under the Administrative Procedure Act with respect to an ACOE permit application that affects the Comprehensive Everglades Restoration Act. The Corps argued that that the plaintiffs had failed to demonstrate their standing to contest this action because the Corps had yet to make a final decision as required by the APA. After conducting a searching review of a complex and comprehensive administrative record, the court agreed that the plaintiffs had not demonstrated they have standing. The case was remanded to the U.S. District Court for the Southern District of Florida.
STATE CASES
Texas Supreme Court
Save Our Springs Alliance v. TCEQ (April 11, 2025)
The court issued a unanimous ruling interpreting the Texas Water Code and the TCEQ’s permitting rules and procedures. The Save Our Springs Alliance (SOS) joined other opponents to the TCEQ’s decision to grant a wastewater permit to the city of Dripping Springs, Texas. The permit allows the fast-growing city to discharge large quantities of treated wastewater into Onion Creek. The permit was opposed by local environmental groups which argued that this discharge would degrade the water quality of Onion Creek, based on numeric changes to individual water parameters. The agency’s position was that its “antidegradation” rules allowed the TCEQ to assess the water quality of Onion Creek “as a whole,” and it had the discretion to do so.
SOS contended that “predictive modeling” demonstrated that dissolved oxygen levels in Onion Creek would be reduced significantly, while the TCEQ argued that it adhered to the rules as written. The executive director of the TCEQ granted the permit, which was then reviewed in a contested administrative hearing before an administrative law judge. In addition, a settlement agreement with the city of Dripping Springs led to additional conditions being attached to the permit. All of the opposing parties, except SOS, withdrew from the case, and the Texas Supreme Court then released its unanimous ruling. This is an important case which interprets the Texas Water Code, the implementation of the Code by the TCEQ’s rules, and the actions taken by EPA in its routine supervision of state agency permitting.
REGULATORY NOTES
- On March 13, 2025, the Federal Energy Regulatory Commission (FERC) published a Federal Register notice that it was withdrawing an earlier determination that “miscellaneous gas products” qualify as “covered products” under the Energy Policy and Conservation Act, and accordingly, will not be subject to the energy conservation standards that apply to many products in household use. (See 90 FR)
- On March 17, 2025, the S. Coast Guard amended its regulations to change the name of the Gulf of Mexico to the “Gulf of America,” effective March 17, 2025. The Coast Guard rules that are published at 33 CFR and 45 CFR will be affected. (See 90 FR 12235.)
- On March 12, 2025, the new EPA administration announced that the agency will begin administrative proceedings to review and revise at least 31 EPA rules that may be imposing excessive costs on American business. On March 19, 2025, the Council on Environmental Quality (CEQ) published a Federal Register notice announcing the removal of the agency’s NEPA rules from the Code of Federal Regulations. (See 90 FR)
- In early April 2025, the senate Environment & Pacific Works Committee began work on bipartisan effort to that to “streamline” the superfund remedial cleanup program prices. The committee is concerned about prolonged delays resulting from the administration of the CERCLA cleanup program, and statutory changes may be required.
- Public Law 117-58, The Infrastructure Investment and Jobs Act, reinstated the Superfund Chemical Taxes, effective on July 1, 2022.These are federal excise taxes imposed on a host of chemical substances to generate funds for Superfund cleanups. The most recent Federal Register notices published by the IRS appeared on May 6, 2025, at page 19245. Three additional substances may be added to the existing list. Also, note that the Department of Energy has published in the May 16, 2025, edition of the Federal Register several notices of proposed rulemaking regarding the department’s decision to rescind many special Energy Conservation rules that apply to household appliances.
The Congressional Review Act
The House of Representatives has exercised its authority under the Congressional Review Act (see Chapter 8 of Title 5 of the United States Code) to pass three House Joint Resolutions to disapprove the decisions of EPA to grant a waiver of preemption to the California Air Resources Board pursuant to Section 209 of the Clean Air Act. The Congressional action to reject the EPA waivers are recorded in House Joint Resolutions 87, 88 and 89. These new EPA rules related to various motor vehicle “zero emissions” and other new requirements codified by CARB that would conflict with the federal government’s authority to regulate such emissions under the Clean Air Act.
The CRA process requires the agreement of both the House and Senate, and then the approval by the President. These measures will be forwarded to the Senate for its consideration. The EPA Administrator stated that the waiver decisions are not “rules,” and are not therefore subject to the Congressional Review Act. This has also been the view of the Government Accountability Office (GAO), but the impact of the Supreme Court’s decision in the “Chevron deference and Loper Bright Enterprises v. Raimondo cases is unclear at this time.