Category Archives: Citizen Suits

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit

Stormwater pollution has become an increasingly important problem.  Part of the difficulty in solving it is that it’s not obvious who should be responsible.  Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces?  Often, the answer given by EPA […]

Dispatches From the “Sue and Settle” Front: Trade Groups Do Not Have Standing to Challenge Settlements Regarding ESA Listing Procedures

Last week, a federal court, for the fourth time, found that property owners’ groups do not have standing to challenge a settlement between the administration and conservation groups under which the administration agreed to make listing decisions under the Endangered Species Act on more the 250 candidate species by 2016.  Judge Emmet Sullivan, who entered […]

How Powerful is the Endangered Species Act? Just Ask the Delta Smelt

The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats.  Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta […]

The Song Remains the Same: Cape Wind Wins Another Case and the Opponents Declare Victory

Late last week, in Public Employees for Environmental Responsibility v. Beaudreu, Judge Reggie Walton gave Cape Wind and its federal co-defendants an almost across the board victory in a series of challenges by Cape Wind opponents to a variety of environmental decisions made by federal agencies.  We’ll see how many more of these victories Cape […]

Opacity Still Matters: Court of Appeals Affirms EPA’s NSPS for Particulate Matter

Last week, in Utility Air Regulatory Group v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s 2012 New Source Performance Standards for particulate matter emissions from fossil-fuel-fired steam electric generating units.  The opinion is largely a plain vanilla administrative law decision, but does provide some useful guidance on the appeal of CAA regulations.  It […]

More Than Five Years Later, the Bush Administration Is Still Losing Environmental Cases

I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line.  Indeed, even four years after Bush left office, it was continuing to lose decisions.  Now, we can say that the record has extended to five years.  Last week, in National Parks Conservation Association v. […]

The States Lose Another NSR (and NSPS) Enforcement Case: I Think I Detect A Trend

As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals.  The latest governmental defeat came late last week, in Pennsylvania v. Allegheny Energy, when Chief Judge Conti granted judgment for the defendants on claims alleging both […]

BOEM Gives a Lesson on How Not To Survive NEPA Review

Last week, the Ninth Circuit Court of Appeals agreed with the plaintiffs that the Environmental Impact Statement issued by the Bureau of Ocean Energy Management to support oil and gas leasing in the Chukchi Sea was flawed.  Although the decision was split and the Ninth Circuit’s track record on appeal is less than perfect, I […]

The Devil You Know? Which is Better, EPA Enforcement or Citizen Enforcement?

Last month, I noted that shrinking EPA budgets would lead to greater focus on citizen enforcement.  This week, an article in Law360 concerning EPA’s draft 2014-2018 strategic plan has driven that message home.  While talking about increased use of technology to monitor compliance more efficiently – all well and good and certainly for real – […]

Cape Cod TMDL Litigation; CLF Is Still In There Swinging

In September, I noted that Judge Mark Wolf had dismissed CLF’s law suit challenging EPA’s approval of the TMDLs for the Cape Cod embayments, ruling that CLF did not have standing.  CLF, as is its wont, is not going gentle into that good night.  It is still raging, raging, at EPA’s decision.  More to the […]

EPA’s Latest Public-Private Partnership? Enforcement

As the EPA budget continues to get squeezed by the ongoing sequester and a GOP-controlled House that is, shall we say, less than sympathetic to EPA’s mission, it is not surprising that EPA would try to shift more of the enforcement burden to citizen groups.  According to a report in Greenwire yesterday, that is precisely […]

Cooperative Federalism is “Messy and Cumbersome” — EPA’s Chesapeake Bay TMDL is Upheld

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 […]

Standing Matters, TMDL Version

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, […]

Which Is Worse? EPA Oversight or Citizen Oversight?

Everyone who represents PRPs in Superfund settlements has his or her own horror stories regarding the scope of EPA’s oversight cost claims.  We all know that oversight costs can end up as an appreciable percentage of total site costs.  We’ve all cringed to go to meetings with EPA and see not just multiple EPA employees […]

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP without complying with the procedural requirements of the Federal […]

EPA Loses Another PSD Case: The Clean Air Act is “Extraordinarily Rigid”

In Sierra Club v. EPA, issued today, The Court of Appeals for the District of Columbia rejected EPA’s rules governing “significant impact levels” and “significant monitoring concentrations” for determining PSD permitting requirements for new sources of PM2.5.  Both the SIL and SMC provisions provided important exemptions from the PSD permitting regime. The Court ruled that […]

EPA Formally Withdraws Numeric Turbidity Standards from Its Stormwater Rule for Construction and Development Sites

Daily Environment Report announced yesterday that EPA notified BNA that, late last year, EPA reached a settlement with the Utility Water Act Group and the National Association of Home Builders resolving litigation over EPA’s rule imposing effluent limitations on the “Construction and Development Point Source Category” and over its Construction General Permit. The most contentious […]

Dog Bites Man: Supreme Court Edition

In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within […]

More Than Four Years Later, the Bush EPA Is Still Losing Court Decisions

On Friday, the Court  of Appeals for the District of Columbia Circuit rejected EPA’s approach to implementation of the PM2.5 NAAQS.  The fine particulate NAAQS was first published in 1997, and EPA issued implementation rules in 2007 and 2008.  Those rules specified that EPA Subpart 1 of Part D of title I of the CAA […]

Is CERCLA More Reasonable Than the Common Law? Only in California, I Hope

In Burlington Northern, the Supreme Court made clear that, in order to impose liability on a defendant as an “arranger” under Superfund for the sale of a product, the plaintiff must demonstrate that the defendant must have entered into the sale of [the product] with the intention that at least a portion of the product […]

Yawn: EPA Promulgates New Fine Particulate Standard

On Friday, EPA announced promulgation of its revised fine particulate, or PM2.5, NAAQS.  Why am I yawning?  Let me count the ways: 1.         Because, in 2009, the District of Columbia Court of Appeals rejected EPA’s prior effort to keep the PM2.5 standard at 15 ug/m3. 2.         Because, as I have previously noted, the Court of […]

Clean Air Grab Bag

There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items. First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for […]

Two Wins in a Week for EPA on NAAQS: The DC Circuit Upholds EPA’s New SO2 Standard

On Wednesday, I discussed the DC Circuit’s decision affirming EPA’s revised NAAQS for NOx. Today, the DC Circuit upheld EPA’s revised SO2 standard. The tenor of today’s decision, written by David Sentelle, another Reagan appointee (the NOx decision was written by Douglas Ginsburg), is fairly similar to that in the NOx decision. Here’s the short […]

No Early Appeal on the New Mexico Public Trust Climate Case

For those of you following the public trust climate litigation in New Mexico, Judge Sarah Singleton has now issued a written decision denying the state’s motion to dismiss the case. There is no discussion of the issues, but it did seem worth noting that Judge Singleton also denied the state’s request for immediate interlocutory appeal (though […]

Public Trust Climate Litigation: On Life Support, But Still Breathing For Now

Last month, Judge Robert Wilkins dismissed the federal public trust climate change law suit, Alec L. v. Jackson. Judge Wilkins ruled on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, such public trust doctrine had been displaced by the […]

EPA Proposes Revisions to the PM 2.5 NAAQS: How Much Will It Matter?

Last Thursday, in response to a court order, EPA finally proposed revisions to the national ambient air quality standard for PM2.5. The most significant part of the rule is EPA’s proposal to lower the primary annual standard from 15 ug/m3 to a range of from 12 ug/m3 to 13 ug/m3. At a certain level, the proposal […]

EPA’s Enforcement Authority after Sackett: Same Old, Same Old

After the oral argument Sackett v. EPA presaged where the decision was coming down, I raised the question whether EPA would try to persuade district courts that nothing really had changed. On occasion, I call them correctly. According to E&E News, Mark Pollins, director of EPA’s Water Enforcement Division, in commenting on Sackett, said What’s available after […]

EPA Defends the Biomass Deferral Rule — It Feels More Like Rube Goldberg Every Day

On Tuesday, EPA filed its brief in support of its rule deferring regulation of GHG emissions from biomass facilities until 2014. I have two immediate reactions. The first is that, as a policy matter, the deferral was absolutely the right thing to do. The science remains complex and not fully understood. Any regulations promulgated now are likely to […]

Wondering About the Status of EPA’s CCR Rule? So Are 11 Environmental Groups

I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued. As most readers know, EPA published two […]

EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep?

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts. The […]

RCRA Citizen Suits Are Still Constitutional

2012 is shaping up to be the Year of the Commerce Clause. Not only is the Commerce Clause at the center of the Supreme Court ‘s impending review of the Affordable Care Act later this spring; it is also at the heart of a statement made by a federal district judge in Voggenthaler v. Maryland […]

CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging […]

This Just In: EPA’s Utility MACT Rule Will Not Cause the Lights to Go Out.

As readers of this blog know, the impact of EPA air rules, including in particular the Utility MACT rule, on the reliability of the nation’s electric grid has been the subject of much speculation. Last week, the Congressional Research Service weighed in, with the exciting headline: EPA’s Utility MACT: Will the Lights Go Out?” Of course, notwithstanding the sexy […]

Will Slow But Steady Win the Race? Cape Wind Clears One More Hurdle

The Massachusetts Supreme Judicial Court today affirmed the decision by the Department of Public Utilities to approve the power purchase agreement, or PPA, between Cape Wind and National Grid. (Full disclosure: Foley Hoag represented the Department of Energy Resources in support of the contract before the DPU.) The decision doesn’t mean that Cape Wind will now get built. Given […]

Strike Two Against the NAHB: They Lose Another Standing Battle

Last week, I noted that the D.C. Court of Appeals had found that the National Association of Home Builders did not have standing to challenge a determination by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River are traditional navigable waters. On Friday, in National Association of Home Builders v. […]

Sauce For the Goose? Home Builders Lose a Standing Battle

Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard. After EPA and the Army Corps of Engineers issued […]

Dog Bites Man: Environmental Impact Edition

Earlier this week, Greenwire noted a Los Angeles Times story reporting that businesses are using the California Environmental Quality Act – California’s version of NEPA – as a tool of economic competition, trying to kill or delay projects for economic reasons. Much like Claude Rains, I am shocked, shocked, to find that there is strategic litigation […]

Go Ahead and Destroy the Environment; NEPA Won’t Stop You

It is, as the lawyers say, black letter law that the National Environmental Policy Act, or NEPA, is a procedural statute, which provides no substantive protection to the environment. It merely requires the appropriate level of assessment of the potential environmental consequences of federal action. Whether the action should be taken is outside NEPA’s purview. Rarely, however, […]

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already […]

EPA Loses a PSD Enforcement Case — Big Time

EPA may have had problems in court in recent years defending its regulations, but it has generally fared much better in its enforcement cases. Earlier this week, however, EPA suffered what will be, if it is affirmed, a devastating defeat in its PSD/NSR enforcement initiative. In United States v. EME Homer City Generation, Judge Terrence McVerry concluded […]

Yet More Citizen Suits on the Way? EPA Again Upgrades the ECHO Data Base

As some of our clients know all too well, I am spending much time these days defending citizen suits. As federal and state agency budgets get slashed, we’re only going to see more such suits, unless a Tea Party-controlled Congress amends the relevant statutes to cut back on citizen suit provisions.  In a move that will […]

One More Ozone Post: Who Will Act First, EPA or the Courts?

Following EPA’s decision last week to scrap its reconsideration of the 2008 ozone National Ambient Air Quality Standard, the parties to the litigation challenging the 2008 standard are back in court. This week, EPA submitted a brief to the Court of Appeals, which was pretty much a six-page version of Roseanne Roseannadanna’s “Never mind.” After telling the […]

EPA Delays Issuance of Stormwater Rule for Construction Sites

Late last week, Greenwire reported that EPA is delaying its proposed construction general permit, or CGP, for stormwater. The delay is certainly a victory for the real estate industry, which has been fighting hard to delay the rule and, in particular, its numeric turbidity limit. The industry had complained about the data on which the standard was […]

MEPA Case Law: A Lose-Lose Proposition

Yesterday, the SJC issued its eagerly awaited decision in Ten Persons of the Commonwealth v. Fellsway Development. I think that the SJC probably got it right. It says something about MEPA jurisprudence, however, that the decision is good for neither citizen plaintiffs nor for developers. I’d suggest that the legislature go back to the drawing board, but it […]

The Shrinking of Environmental Liability

Environmental liability has always been a dish best served in as many slices as possible. Hence, CERCLA jurisprudence in its first two decades was characterized by a judicial willingness to entertain ever more creative theories to extend environmental liability to new classes of parties, such as a developer who unknowingly moved contaminated soil (Tanglewood East) […]

EPA Is Required to Make An Endangerment Finding Concerning Airplane Engines

Last week, in Center for Biological Diversity v. EPA, Judge Henry Kennedy reminded us that, in thinking about whether the existing Clean Air Act requires EPA to address climate change, the actual words of the statute matter. The scope of the climate problem does not obviate the need to parse individual provisions of the CAA and […]

Judicial Restraint in NEPA Cases: How Many Judges Allow “Unwise” Agency Action?

This week, in Webster v. USDA, Judge John Bailey of the Northern District of West Virginia rejected a challenge to the Environmental Impact Statement filed for a USDA flood control project. The decision is not particularly startling and does not break new ground, but it does serve as a reminder just how limited judicial review under […]

Conventional Pollution Is Still Where It’s At: EPA Releases the Power Plant MACT Rule

If anyone had any doubts about the significance of the conventional pollutant regulations that EPA would be rolling out, even in the absence of a full cap-and-trade program for GHG, Wednesday’s release of EPA’s revised power plant MACT proposal should go a long way towards eliminating those doubts. As most readers know, the rule replaces the […]

What Does It Take to “Displace” Federal Common Law? The States Have Their Say

Last month, in discussing the Administration’s brief in the American Electric Power case, I praised the nuanced and persuasive approach that the Administration took in seeking reversal of the 2nd Circuit opinion allowing the states’ public nuisance climate litigation to go forward. The states seeking to prosecute the law suit have now filed

While the GOP Attacks EPA, Coal Remains Under Siege

While EPA remains under attack by the GOP-majority House, that doesn’t mean that coal is off the hook. To the contrary, coal remains under attack itself. A number of recent stories demonstrate the multi-pronged effort by those who want to reduce or eliminate use of coal. For example, the Environmental Integrity Project and two Texas-based NGOs just filed […]

Deja Vu All Over Again: Time For Another Rant About Guidance

As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is […]

This Administration Does Nuance: The US Files Its Brief in the American Electric Power Case

This week, the United States filed its brief in American Electric Power v. Connecticut. The brief is a nicely nuanced and persuasive argument for dismissal of plaintiffs’ public nuisance claims against five large power generators. The brief is nuanced in that it acknowledges that plaintiffs have Article III standing – allowing the Court to avoid reaching a […]

EPA Delivers an Early Christmas Present to Electricity Generators and Refiners — New Source Performance Standards for GHGs

Today, EPA announced settlements of litigation with states and environmental groups which will require EPA to promulgate New Source Performance Standards for greenhouse gas emissions from electric generating units and refineries. EPA will thus give those of us who practice in this area an opportunity to decide which program we find more cumbersome and ill-suited to […]

Carbon Policy When There Is No Carbon Policy

As a follow-up to last week’s post, if you want a handy-dandy rundown of what U.S. carbon policy looks like in the absence of comprehensive federal legislation, take a look at the presentation I gave last week to the Harvard Electricity Policy Group, which summarizes federal, regional, and state regulatory efforts – many of which […]

Which Take Longer in Massachusetts, Permit Renewals or Permit Appeals?

An adjudicatory hearing decision issued by MassDEP in September just came to my attention. The decision in the case, In the Matter of Town of Plymouth, is worth reading for those of you interested in the emerging issues related to concerns over nutrients and how nutrient discharges will be regulated in groundwater or surface water discharge […]

What Are Citizen Groups Afraid Of? The Ninth Circuit Affirms Delegation of NPDES Authority to Alaska, Notwithstanding Alaska’s Fee-Shifting Provision

Almost all – 46 – states have delegated programs under the Clean Water Act. One criterion that EPA must determine has been satisfied before approving delegation is that the state has the ability to "abate violations of the permit … including civil and criminal penalties and other ways and means of enforcement." EPA’s regulations provide that […]

Dog Bites Man: NEPA Reviews Are Getting More Complex

Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” […]

You Want to Preclude a Citizens’ Suit? Pick Your Poison

When clients are threatened with citizen suits – and particularly when the threatened litigation involves a matter where EPA or a state regulatory agency is heavily involved, the clients always want to know why they can’t somehow get rid of the citizen suit, given that EPA is on the case. The answer is that they can […]

Is EPA Treading On Thin Ice With Its Climate Change Regulations?

On a day when ClimateWire reported that thousands of walruses are stuck on land because their usual summer home – sea ice – has disappeared, I’m beginning to wonder whether EPA’s stationary source GHG rules are similarly at risk. It may not be difficult for EPA to brush off a fairly over the top letter from […]

More on TMDLs, or Too Much Darn Litigation

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs. Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards […]

There Is a Statute of Limitations For Challenging Permits In Massachusetts (Or, We’re Crazy Here, But Not That Crazy)

Those who operate industrial facilities or do development in Massachusetts often know far more than they would like about Chapter 214, § 7A, the environmental citizens’ suit provision of the Massachusetts General Laws. Chapter 214, § 7A, eliminates plaintiffs’ usual obligation to demonstrate standing and simply gives 10 citizens the right to sue to prevent or eliminate […]

Renewable Energy In Massachusetts: Is The Answer Finally Blowin’ In The Wind?

It has long been understood that Massachusetts that the Commonwealth cannot meet its renewable energy goals with solar power alone. Solar is great, but really ratcheting up the percentage of energy supplied by renewable sources is going to take a big commitment to wind. In fact, Governor Patrick announced a goal of 2,000 MW of wind on- […]

The Supreme Court Really Means It: Injunctions Are Not Automatic Under NEPA

Yesterday, the Supreme Court issued its decision in Monsanto v. Geertson Seed Farms, the big NEPA case before the Court this term. The District Court had struck down the decision by the Animal and Plant Health Inspection Service to completely deregulate roundup ready alfalfa (RRA). That decision was not actually under appeal. The appeal concerned only the scope […]

Due Process? We Don’t Need No Stinkin’ Due Process.

Last Friday, the Court of Appeals for the 5th Circuit issued an order – boggling the minds of lawyers and non-lawyers alike – dismissing the plaintiffs’ appeal in Comer v. Murphy Oil, one of the climate change nuisance cases. As the order and dissents make clear, it’s quite a set of circumstances. The District Court […]

Time to See if the Suit Fits: EPA Releases the Tailoring Rule

First Kerry-Lieberman, then the Tailoring Rule – a busy week for climate change. Senator Kerry certainly did not miss the coincidence. He called the release of the Tailoring Rule the “last call” for federal legislation. I’ve noted before the leverage that EPA regulation would provide, but this is the most explicit I’ve seen one of the sponsors on […]

Not So Fast with Renewed NSR Enforcement: Power Plants Win a Routine Maintenance Case

Last week, Judge Thomas Varlan handed the power plant sector a major win in the NSR enforcement arena, ruling that economizer and superheater replacement projects in 1988 at the TVA Bull Run plant were routine maintenance not subject to NSR/PSD regulations. Judge Varlan ruled for the TVA notwithstanding that: The projects cost millions of dollars (but […]

PSD Review is a Pre-construction Requirement Not Subject to a Continuing Violation Theory

Last week, Judge John Darrah handed the government a defeat in a PSD/NSR enforcement action, when he ruled that the requirement to obtain permits under the PSD program prior to making major modifications was solely a pre-construction obligation and did not constitute a continuing violation.  United States v. Midwest Generation was one of the recent […]

Stop the Presses: Trespass Is Not a Petitioning Activity

Massachusetts has an “anti-SLAPP” statute (as do 26 other states at this point, apparently). The law protects “petitioning”, by precluding litigation targeting petitioning, providing an early motion to dismiss, and awarding attorneys’ fees to defendants where a court finds that the defendants were indeed engaged in petitioning activity. Yesterday, the Massachusetts Appeals Court struck a blow […]

Trouble for Climate Change Public Nuisance Litigation?

To date, the only circuit courts that have reviewed public nuisance claims related to climate change, the Second Circuit, in American Electric Power, and the Fifth Circuit, in Comer v. Murphy Oil, have ruled that such suits can proceed. However, last week the Court of Appeals for the Fifth Circuit decided to hear Comer v. Murphy […]

One Small Step For EPA Greenhouse Gas Regulation?

Yesterday, EPA Administrator Jackson issued a letter to Senator Jay Rockefeller responding to certain questions regarding EPA regulation of GHGs under existing Clean Air Act authority, including promulgation of the so-called “Tailoring Rule”, describing how stationary source regulation under the existing PSD program would be phased-in once GHGs are subject to regulation. Here are the highlights: […]

More Suits Filed on EPA’s Endangerment Finding

The grand total is 16 separate challenges to EPA’s endangerment finding, according to Greenwire. I’m not one of those lawyers who regularly bash the legal profession. I still recall my law school professor, Henry Hansmann, stating that the role of lawyers is in fact to be transaction-cost minimizers, and I think that that is largely true. That being […]

Dog Bites Man, February 12 Edition: Law Suit Filed to Challenge Endangerment Filing

Earlier this week, the Southeastern Legal Foundation filed a petition for review of the EPA Endangerment Finding with the District of Columbia Court of Appeals. It’s not really surprising that someone filed suit, but the list of plaintiffs is interesting – though more for who is not on it than who is. There is not a single […]

The SJC Gets MEPA Wrong Yet Again

I have never been a fan of specialized courts, but I have to admit that the Massachusetts Supreme Judicial Court’s MEPA jurisprudence is strong evidence for the other side. It’s almost hard to describe how badly the SJC has mangled MEPA. The most recent example is yesterday’s decision in Town of Canton v. Commissioner of the Massachusetts […]

Coming Soon to a Vista Near You: Clearer Air; More Expensive Compliance

On Wednesday, EPA released a proposal to reduce the primary National Ambient Air Quality Standard for ground-level ozone from the 0.075 ppm standard set by the Bush administration in 2008 to a range of from 0.060-0.070 ppm. EPA also proposed to set a secondary standard intended to protect sensitive ecological areas, such as forests and parks. […]

EPA Issues Construction Stormwater Rule — First National Standards With Numeric Limits

Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will […]

GHG Nuisance Claims? Yes? No? Maybe?

Two more decisions were released last week concerning whether nuisance claims could be brought with respect to harm alleged to have resulted from private conduct contributing to climate change. First, in Village of Kivalina v. ExxonMobil Corporation, the District Court dismissed nuisance claims. Second, in Comer v. Murphy Oil, the Fifth Circuit Court of Appeals reversed a […]

Another Bullet Aimed at Coal; Another Argument For Multi-pollutant and Multi-media regulation

On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly […]

Imminent and Substantial Endangerment Under RCRA — I Know It When I See It

Justice Potter Stewart famously said, with respect to obscenity, that “I know it when I see it.” I fear that the test for what constitutes an imminent and substantial endangerment under RCRA is no clearer than Justice Stewart’s subjective test regarding obscenity. This week, in a decision that is good news for RCRA defendants, Judge Illlston, […]

Is it Good News or Bad? MassDEP Wins an Adjudicatory Hearing Appeal

Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach […]

Massachusetts Limits The Standing of Businesses to Challenge Permits Issued to Competitors

In an important decision yesterday, the Massachusetts Supreme Judicial Court ruled that the operator facility participating in the renewable portfolio standard program did not have standing to challenge a state decision authorizing other facilities to participate in the RPS program. The decision may have broad implications regarding when businesses may challenge the issuance of permits or […]

Stormwater Discharges From Construction Activity: What Next From EPA?

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough. EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that […]

Is CO2 a Regulated Pollutant Under the Clean Air Act? Not Yet, At Least in Georgia

Earlier this week, the Georgia Court of Appeals reversed a decision of the Superior Court in Georgia that would have required Longleaf Energy Associates, developer of a coal-fired power plant, to perform a BACT analysis of CO2 emissions control technologies in order to obtain an air quality permit for construction of the plant. The case is […]

Injunctive Relief under the CAA; United States v. Cinergy

Last week, Judge Larry McKinney issued an order requiring to shut down three coal-fired generating units at its Wabash Station facility by no later than September 30, 2009. The decision actually struck me as a thoughtful analysis of injunctive relief issues in a situation where a violation of NSR regulations had already been proven. Although the decision […]

The House Climate Bill: More Details on Federal Cap and Trade

As we mentioned yesterday, the discussion draft of the Waxman-Markey “American Clean Energy and Security Act of 2009” which was released on Tuesday is notable both for what it includes and the significant portions it leaves to be decided at a later date. In summary, the bill contains four titles: a “clean energy” title, which […]

Greenhouse Gas Endangerment Finding Out Soon: Will Regulations Be Far Behind?

Greenwire reported yesterday that EPA plans to issue its endangerment finding on emissions of greenhouses gases, in response to Massachusetts v. EPA, by the end of April. Greenwire also released EPA’s internal presentation regarding its recommendation to the Administrator. Although EPA’s anticipated decision is not a surprise, it is still noteworthy. Among the highlights: The finding will […]

When Must Suits Be Brought Under MEPA; Too Late May Indeed Be Too Early

In December, I posted about the decision in Canton v. Paiewonsky, in which Judge Fabricant held that a party seeking to challenge the certificate of the Secretary of Energy and Environmental Affairs approving an Environmental Impact Report must do so within 30 days of issuance of the first permit for a project – even if […]

Today’s Forecast: More Climate-related Litigation on the Horizon

We posted recently about the revival of EPA’s NSR enforcement program. Now, yet another shoe has dropped. The Center for Biological Diversity has announced the creation of the Climate Law Institute, the purpose of which is to use citizen law suits under existing laws to advance regulations intended to address climate change. The press release states that the […]

Imminent and Substantial Endangerment Under RCRA: Not Everything Qualifies

Attorneys who have litigated citizen suits under RCRA have often wondered if there is any possible risk that would not qualify as an “imminent and substantial endangerment,” thus subjecting the person who “contributed” to such endangerment to liability under RCRA. In Scotchtown Holdings v. Town of Goshen, the District Court for the Southern District of […]