Articles Posted in Environmental

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On May 12, 2015, the U.S. District Court for the District of Columbia partially granted a request for a preliminary injunction against the enforcement on new Interior Department rules which are intended, under the Department’s reading of the Lacey Act, 18 U.S.C. Section 42, to prohibit the interstate transportation of listed “injurious species”; the species in this matter are the Reticulated Python and the Green Anaconda. These species are raised and sold in commerce, but if they escape, they can become dangerous predators. The case is United States Association of Reptile Keepers, Inc., v. Jewell. Although the case make be about snakes, it serves as a reminder that a public agency is not permitted to exceed its authority when promulgating rules.
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On April 29, 2015, the United States Supreme Court issued another unanimous ruling holding that the right to judicial review is a fundamental tenet of administrative law. The case is Mach Mining, LLC, v. Equal Employment Opportunity Commission, and involves the right to challenge the conciliation proceedings of the EEOC in employment discrimination matters. Reversing the U.S. Court of Appeals for the Seventh Circuit, the Court ruled that “the strong presumption favoring judicial review of administrative action” applies to the informal conciliation procedures used by the Commission in attempting to resolve these disputes, and accordingly rejected the holding of the appeals court that the statutory directive in Title VII of the Civil Rights Act of 1964 to attempt conciliation is not subject to judicial review. The Supreme Court concluded its opinion by stating that, “Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts’ authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims”.
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On May 15, 2015, the Court of Appeals for the District of Columbia Circuit again ruled that the National Association of Home Builders lacked representational standing to challenge a “preliminary, internal determination” made by EPA and the US Army Corps of Engineers in 2008 that two stretches of the Santa Cruz River in Southern Arizona are traditional navigable waters. The case is National Association of Homebuilders, et al., v. EPA.
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On April 24, 2015, the United States Court of Appeals for the District of Columbia Circuit decided the case of Delta Construction Company, et. al. v EPA, denying petitions requesting the court’s review of rules jointly issued by EPA and the National Highway Traffic Safety Administration regulating greenhouse gas emissions and mandating fuel economy rules affecting cars and trucks (the court describes these two rules as “the Car Rule” and the “Truck Rule”). In 2012, the Court of Appeals upheld the “Car Rule” in Coalition for Responsible Regulation, Inc., v. EPA, 684 F. 3d 102, reversed in part by the Supreme Court in Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
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In late November of 2014, as part of President Obama’s comprehensive Climate Action Plan to create American jobs, develop domestic clean energy resources and cut carbon pollution, Secretary of the Interior Sally Jewell, then Massachusetts Governor Deval Patrick and Bureau of Ocean Energy Management (BOEM) Acting Director Walter Cruickshank announced that more than 742,000 acres offshore Massachusetts would be offered for commercial wind energy development in a January 29, 2015, competitive lease sale. On January 29, 2015, the BOEM held the competitive lease auction, which reportedly lasted two rounds, and RES America Developments, Inc. was the winner of Lease Area OCS-A 0500 (approximately 187,523 acres) and Offshore MW LLC was the winner of Lease Area OCS-A 0501 (approximately 166,886 acres). Lease OCS-A 0502 (248,015 acres) and Lease OCS-A 0503 (140,554 acres) did not receive bids. BOEM signed the commercial wind energy leases on March 23, 2015, and the Commercial Lease OCS-A 0500 and Commercial Lease OCS-A 0501 will go into effect on April 1, 2015.
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The Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities was signed by EPA Administrator, Gina McCarthy, on December 19, 2014 and a pre-publication copy of the Final Rule was released several weeks ago, but the Final Rule is only now appearing in the Federal Register at 80 F.R. 21302, with an effective date of October 14, 2015. The EPA summarized the Final Rule as providing a comprehensive set of requirements for the safe disposal of coal combustion residuals (CCRs), commonly known as coal ash, from coal-fired power plants. It is purportedly the culmination of extensive study on the effects of coal ash on the environment and public health. The Final Rule establishes technical requirements for CCR landfills and surface impoundments under subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation’s primary law for regulating solid waste. The Final Rule makes a number of changes from the proposed rule, including providing greater clarity on technical requirements in response to questions received during the comment period on the proposed rule. The EPA states that any major enforcement of these new rules will primarily be the responsibility of the states and through RCRA’s citizen suit authority. The Federal Register version of the Final Rule is almost 200 pages.

Additional Source: Redline Version of the Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities

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On April 10, 2015, the U.S. Court of Appeals for the Eighth Circuit, in a very important ruling, held that the U.S. Army Corps of Engineers’ Jurisdictional Determination (“JD”) that the property under review was a wetland that constitutes “waters of the United States” and thereby subject to the permitting and enforcement authority of the Corps, can be reviewed by the federal courts on an immediate basis. The case is Hawkes Co., Inc. v. US Army Corps of Engineers. The Court of Appeal’s approach was influenced by the Supreme Court’s approach in Sackett v. EPA, 132 S. Ct. 1367 (2012)., and the Eighth Circuit held that this JD was indeed a final agency action subject to judicial review, particularly when the choices confronting a property owner who wishes to develop his property are so unappealing.

The Court of Appealst reviewed a long list of federal administrative actions whose serious consequences triggered judicial review, and took issue with the Fifth Circuit’s recent in Belle Co., L.L.C., v. US Army Corps of Engineers, 761 F. 3d 383 (2014). There’s now a conflict in the circuits, and an appeal to the Supreme Court may be in the offing.

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The U.S. District Court for the District of Columbia has denied a request for a preliminary injunction to stop the U.S. Department of Transportation from granting necessary permits to begin the reconstruction and repair of the Virginia Avenue Tunnel, a tunnel which for 111 years has facilitated rail transportation through and under the Capitol Hill neighborhood of Washington, DC. The case is Committee of 100 on the Federal City v. Anthony Foxx, Secretary of the US Department of Transportation, and it was decided on April 7, 2015.
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Following two adverse rulings by the DC Circuit, issued in 2014 and reported at Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) and Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014), EPA has removed two exclusions from the list of regulatory exclusions located at 40 C.F.R. Section 261.4(a). This action was made effective on April 8, 2015.
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Federal district courts are often confronted with the issue of whether “Narrative Water Quality Standards” are incorporated into National Pollutant Discharge Elimination System (NPDES)permits and enforceable as permit conditions as they preside over citizen suits filed under the Clean Water Act (CWA). Two District Court’s recently weighed in on this issue.
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