Monthly Archives: March 2014

Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States

Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act.  After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation. … More

Coal Companies, Don’t Look Behind; EPA May Be Gaining on You

As the lawyers among our readers know, the denial of a certiorari petition does not establish precedent.  However, that doesn’t make it unimportant.  Yesterday, the Supreme Court denied cert. in Mingo Logan Coal Co. v. EPA.  The cert. denial leaves in place the decision by the D.C. Circuit Court of Appeals holding that EPA has authority retroactively to withdraw a site specification for a Clean Water Act § 404 permit issued by the Army Corps of Engineers. … More

2 and 1/2 Strikes and the NGOs May Be Out: EPA Refuses to Exercise Residual Designation Authority

Stormwater regulation is a thorny issue.  There is widespread agreement that nutrient run-off can be a significant problem, but little agreement on what to do about it, since stormwater infrastructure is normally managed by cash-strapped municipalities, but the most cost-effective approach will often not be to require thousands of individual properties owners to make large separate capital expenditures (though best management practices can certainly often provide significant benefit).

The NRDC,… More

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 smelt.  Delta SmeltThe “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.… More

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 Wind can take.  Their opponents certainly aren’t going away.  In fact,… More

The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited

The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.

The case concerned a mountaintop removal project by Leeco in Perry County,… More

Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties.  The decision may not break any new ground,… More

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 is also a useful reminder of the extent of deference to EPA in an ordinary case.… More

Sold-Out RGGI Auction Triggers Cost Containment Reserve (Which Sells Out, Too)

Last week’s auction of CO2 allowances by the Regional Greenhouse Gas Initiative (RGGI) was the 23rd in the program’s history, but the first auction under the new RGGI rules and reduced cap.  The new rules undoubtedly explain why the auction yielded the highest sales price in RGGI history — $4 per allowance.  Even more notable, it was the first auction where the clearing price was high enough to trigger the cost containment reserve (CCR). … More

NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference

Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s NSR provisions, EPA may bring an enforcement action if the operator does not “make projections according to the requirements for such projections contained in the regulations.”  At the same time, however,… More