Articles Tagged with EPA

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This is a brief report on new environmental law decisions, regulations and legislation.

THE U.S. SUPREME COURT

Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
On March 22, 2021, the Supreme Court rejected a petition to review a Presidential decision to invoke the Antiquities Act of 1906 to designate as a monument “an area of submerged land about the size of Connecticut” in the Atlantic Ocean. This action forbids all sorts of economic activity, which compelled the filing of litigation in the First Circuit challenging this designation. Chief Justice Roberts supported the Court’s denial of certiorari, but remarked that a stronger legal case may persuade the Court to review such liberal uses of the Antiquities Act.

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

THE U.S. SUPREME COURT

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.

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February saw the usual array of significant environmental decisions and federal regulatory notices.

THE FEDERAL COURTS

U.S. Court of Appeals for the District of Columbia

Luminant Generation v. EPA
The court will be grappling with a difficult venue case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses that were made part of the Texas State Implementation Plan (SIP) and which applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and were rejected. On the national stage, EPA has been involved in litigation over these affirmative defenses and recently excluded from a “SIP Call” the Texas program, which was carved out. This EPA decision is being challenged in the DC Circuit (see Case number 20-1115),with the State of Texas arguing as an intervenor that any issues involving Texas belong in the Fifth Circuit, and not in the DC Circuit because the Act allows regional issues to be decided in the regional federal courts.

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This is a brief review of recent significant environmental and administrative law rulings and developments. With the change in presidential administrations, the fate of at least some of the newly promulgated rules is uncertain.

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Climate21-logo-300x169This is a brief review of the recently released “Climate 21 Project” policy memo. It is the work of many former members of the Obama Administration who are deeply concerned about climate change and what steps the new administration can take in the first 100 days to confront a problem. Offering “actionable advice” rather than a policy agenda, the group recognizes that Congress must do its part by providing new statutory authorities within the early days of the new administration, and the President must be prepared to aggressively exercise the powers of his office. As the members of the Group see it, there are four interlocking crises facing the President: (a) the COVID-19 pandemic; (b) the economic devastation visited upon many people by the pandemic; (c) racial injustice; and (d) accelerating threats posed by climate change.

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This roundup of recent environmental and regulatory law rulings and rulemakings includes an EPA deadline extended, a NEPA exclusion and PSM application upheld, and an unsuccessful appeal to the federal officer removal doctrine.

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Some very interesting and fairly complex environmental law rulings have been released in the past few days.

U.S. Supreme Court—Trump, et al. v. Sierra Club, et al.

On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit.

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Our latest look at the judiciary is focused mainly on the federal appeals system, with a side of regulatory development thrown in for good measure.

The U.S. Court of Appeals for the Third Circuit—Baptiste et al. v. Bethlehem Landfill Company
In this case, decided on July 13, 2020, the plaintiffs, neighbors of the Bethlehem Landfill, claimed that the operations of the landfill seriously interfered with the enjoyment of their homes, and resulted in a loss in their property values because of noxious odors. The lawsuit was grounded in Pennsylvania common law torts—public nuisance, private nuisance and negligence. The landfill is located on 224 acres and receives tons of waste on a daily basis which, as it decomposes, generates extremely noxious odors that are allegedly unbearable. The plaintiffs have asked for $5 million in property damages and other relief. The landfill is subject to extensive regulation by the Pennsylvania Solid Waste Disposal Act, and the rules of the Pennsylvania Department of Environmental Protection. However, since the statute does not provide a private right of action, the plaintiffs have resorted to the state common law remedies. The lower court dismissed the lawsuit, a decision the Third Circuit has now reversed. The appeals court held that the complaint was well pleaded and the case should be tried. The court noted some environmental justice concerns, but did not rely on these factors. The case was remanded to the trial court.

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Last week (June 1-7, 2020), the federal appellate courts released several important rulings.

Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection
On June 3, 2020, the U.S. Court of Appeals decided the case involving the Atlantic Bridge LNG pipeline project which received FERC ‘s approval in July 2017. At issue is the proposed construction of a natural gas compression station in Weymouth, Mass. The MDEP granted the pipeline’s application and granted an air permit. Local opposition resulted in this appeal of the agency’s order. The plaintiffs argued that the DEP violated its own procedures in assessing whether an electric motor satisfied EPA’s BACT Clean Air Act requirements to control NOx emissions. The appeals court agreed that the DEP’s explanation of the cost factors was inadequate, vacated the air permit and remanded the matter to the agency for further proceedings.

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