A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege


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The federal courts have issued some significant environmental law rulings in the past few days.


U.S. Fish and Wildlife Service v. Sierra Club, Inc.
On March 4, 2021, the court held that the deliberative process privilege of the Freedom of Information Act shields from disclosure in-house draft governmental biological opinions that are both “predecisional” and deliberative. According to the court, these opinions, opining on the Endangered Species Act (ESA) effects on aquatic species of a proposed federal rule affecting cooling water intake structures—which was promulgated in 2019—are exempt from disclosure because they do not reflect a “final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary view, and the Services did not treat them as being the final or last word on the project’s desirability. The Sierra Club, invoking the FOIA, sought many records generated by the rulemaking proceeding, and received thousands of pages. However, the Service declined to release the draft biological opinions that were created in connection with the ESA consultative process.

Important SCOTUS Environmental Law Cases in April

  • April 26—Guam v. United States (a CERCLA case)
  • April 27—HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association ( an administrative law case)
  • April 28—PennEast Pipeline Co. v. New Jersey ( a new pipeline case with overtones of imminent domain authority)


The U.S. District Court for the District of Columbia – State of New Jersey v. EPA
On March 5, 2021, the DC Circuit decided this case, in which New Jersey sought the review of a final action of EPA which revised a Clean Air Act new source review reporting and recordkeeping rule in response to an earlier DC Circuit decision. The court held that New Jersey had standing to prosecute this action, but lost on the merits. The majority concluded that the agency had engaged in reasoned decision-making, consistent with the Administrative Procedure Act. One judge dissented, opining that New Jersey did not have standing here.

The U.S. Court of Appeals for the Fourth Circuit – Mountain Valley Pipeline, LLC v. North Carolina Department of Environmental Quality
On March 11, 2021, the court decided another natural gas pipeline case. The construction of the pipeline was approved by FERC, on condition that the other flaws detected by the Fourth Circuit in four earlier opinions, were corrected. The state DEQ denied the pipeline’s application for a Clean Water Act 401 authorization, and the pipeline appealed this adverse decision to the Fourth Circuit. The court largely upheld the state agency’s action, but remanded the decision back to the agency for additional explanation of its action.

The U.S. Court of Appeals for the Fifth Circuit – Sierra Club vs. Department of the Interior
On March 10, 2021, the court denied a petition filed by the plaintiffs to review an order of the Department of Interior that the ESA would not be violated by the construction of a natural gas pipeline in South Texas where ocelots, a species protected by the ESA that have been known to be present in this area, albeit infrequently. The court held that the Service complied with its duties under the ESA, and that adequate steps will be taken to mitigate any adverse consequences. The court concluded, “At bottom, the Service considered all that it was required to consider … except for what it was specifically allowed to omit.”

The Southern District of Texas – Environment Texas Citizen Lobby, Inc. et al. v. ExxonMobil Corporation, et al.
On March 2, 2021, a federal district court in Houston issued its “Second Revised Findings of Fact and Conclusions of Law” in this long-running Clean Air Act citizen suit case brought against Exxon’s Baytown refinery. So far, there have been three separate rulings by the district court and two separate ruling by the Fifth Circuit. The case was remanded to the district court in a ruling reported at 968 F. 3d 357 (2020) to allow the court to make additional findings as to the “traceability” element of standing and the Act of God defense in Texas. In brief, the district court finds that Exxon is liable for more than $14 million in penalties and not several hundred million dollars as originally alleged, and that Exxon could not use as an affirmative defense to some allegations the Texas Act of God defense, triggered by a hurricane, because Exxon did not present evidence that Hurricane Ike was not anticipated to affect the facility.

The Ninth Circuit Court of Appeals – United States v. James Philip Lucero
On March 4, 2021 reversed the defendant’s criminal conviction under the Clean Water Act, and ordered that the defendant be given a new trial. The defendant was convicted of knowingly charging companies to dump dirt and debris onto lands near San Francisco Bay without a permit; however, these lands had been classified as “wetlands” and a ”tributary” subject to regulation under the Clean Water Act. The panel majority reversed because the defendant should have been charged with illegally discharging “into waters,” as required by the Act. Therefore, the presiding judge’s instructions were flawed. The court also held that the revised 2020 CWA rules defining waters of the U.S. were not to be accorded retroactive impact. (These new rules reduced the regulatory scope of the program.) One judge on the panel dissented, arguing that the charges should have used the term, “waters of the United States.” The panel as a whole seemed to agree the rules are complex, but not so complex as to be unconstitutionally vague.

The Tenth Circuit Court of Appeals – State of Colorado v. U.S. EPA
Soon after EPA and the U.S. Army Corps of Engineers promulgated a revised definition of “waters of the U.S.” in April 2020, the State of Colorado asked for and received a preliminary injunction against these rules, staying their effective date in Colorado. On March 2, 2021, the Tenth Circuit reversed that decision, holding that Colorado failed to show it would be “irrevocably” harmed absent an injunction. Speculative evidence of harm will not suffice to support the issuance of a preliminary injunction. The fate of these new rules will likely be fought out in innumerable federal district courts.


A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

A Court-Side Seat: Coal-Fired Limitations, the Search for a Venue Climate Change and New Agency Rules that May or May Not Stick Around

Environmental Law – The Year in Review