Last spring, Robby Sanoff complained in this space about the problem resulting from appellate courts’ refusal to give appropriate discretion to district judges in performing their gatekeeping function under Daubert. As Robby put it:
The difference between “shaky but admissible” and unreliable and inadmissible evidence would seem to be entirely in the eye of the beholder.
Robby will not be pleased by last’s week’s decision by the 11th Circuit Court of Appeals in United States v.… More
Last Friday, EPA reissued its draft NSPS addressing carbon emissions from new power plants. It’s not actually that different from the prior proposal, which would have required all new fossil-fuel plants to meet a 1,000 lbs CO2/MWh standard. The new proposal would require new large gas plants to meet the 1,000 lbs/MWh standard, but would relax the standard to 1,100 lbs/MWh for small gas plants and for coal plants. … More
Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay 
TMDL. As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are massive and the issues complicated, her review was not that difficult.
Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow.… More
On Tuesday, the American Council for an Energy Efficient Economy released its 2013 City Energy Efficiency Scorecard. This may not be big news, but I had to take the opportunity to lord it over my friends Rick Glick, who must be crushed that Portland finished in second, and Pam Giblin, who must be thrilled that Austin won the prize for the city farthest out ahead of its state government – what a shock there.… More
EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act. It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance. As I noted previously, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary,… More
Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod. Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.
CLF asserted two claims. First, it alleged that EPA wrongly classified certain sources,… More