Monthly Archives: August 2013

More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold

As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification.  These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.… More

The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing

Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing.  On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed.  Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.… More

The Third Circuit Reinstates Nuisance Claims Against Cheswick Generating: Bad Idea

On Wednesday, in Bell v. Cheswick Generating Station, the 3rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn’s Cheswick Generating Station.  (Full disclosure – this firm represents GenOn, now NRG, in various matters, though not this litigation.)  The District court had ruled that the claims were preempted by the Clean Air Act’s comprehensive regulatory scheme. … More

Integrated Assessment Models of the Social Cost of Carbon: False Precision Is More False Than Precise

For those who both believe in the reality of climate change and dream of a day when Congress might get past gridlock and address the issue, the critical question is how to price carbon emissions to reflect the external costs that the use of carbon imposes on society:  the “social cost of carbon”, or SCC.  Recently, attention has focused on efforts to develop “Integrated Assessment Models.”  The point of the IAMs is to integrate the scientific analysis of the changing climate with the economic costs that would result from varying degrees of climate change.… More

The Atomic Energy Act Preempts Vermont’s Efforts To Close Vermont Yankee: Sometimes, Legislative Intent Is Just Too Clear To Ignore

Last week, in Entergy v. Shumlin, the 2nd Circuit Court of Appeals largely struck down Vermont’s efforts to close Vermont Yankee.  Although three separate Vermont statutes were at issue, and Entergy made both preemption and dormant Commerce Clause arguments, the essence of the case was simply that Vermont sought to require explicit legislative approval for Vermont Yankee’s continued operation.  Dismissing various proffered rationales for Vermont’s scheme,… More

More on the Permit Shield Defense: A Permittee Is — Gasp — Entitled to Rely on Regulations and Permits Issued by Delegated State Agencies

Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge.  Now we see the flip side.  In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges,… More

What Is the Burden In Proving a Violation of a Stormwater Permit? If It Walks Like a Stormwater Discharge …

Those of us who do NPDES work know that enforcement, including citizen enforcement, against industrial point sources can often be all to straightforward.  The plaintiff marches into court with a pile of the defendant’s discharge monitoring reports and the liability phase may be over quickly.  Stormwater cases are different, as last week’s 9th Circuit decision in NRDC v. County of Los Angeles demonstrates.

The case had a number of twists and turns,… More

The Seventh Circuit Still Wrong: Bernstein v. Bankert

Late last year I blogged on the dubious decision by the Seventh Circuit in Bernstein v. Blankert which held that a settling CERCLA party did not resolve its liability to the government until it had performed all of its obligations under the Consent Decree.  While that decision enabled the settling party to get around a statute of limitations problem in bringing a claim against the real polluting party, … More

Making Economic Arguments to Reduce GHG Releases: Senator Markey Releases a Report on Methane Leaks From Gas Distribution Lines

Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.”  Instead, we were told to focus on “growing the clean energy economy.”  The push to frame the climate debate in economic terms continues.  This week, Senator Markey released a report asserting that, in Massachusetts alone in 2011, 69 billion cubic feet of natural gas was released from gas distribution lines. … More