Monthly Archives: December 2014

EPA Releases FY 2014 Enforcement Results: Maybe Less Enforcement Is Good News

Last week, EPA released its report on Enforcement Annual Results in EPA Regions for Fiscal Year 2014.  As always, the report is worth reading, if only for the interactive map which shows where EPA has brought various kinds of cases.

Notwithstanding the traditional self-congratulatory tone of the report, the press coverage has almost uniformly focused on the year-to-year decrease in cases brought and dollars recovered. … More

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought $642,697,500) against ExxonMobil in a Clean Air Act citizens’ suit brought by Environment Texas and the Sierra Club concerning the ExxonMobil facility in Baytown, Texas. baytown-night-lights_supporting_image (1) The plaintiffs lost even though Judge Hittner did find a number of violations of the CAA. … More

Virginia Proposes Nutrient Trading Regulations: Established Concept, New Medium

This week, Virginia formally proposed Nutrient Trading Certification Regulations.  The program will establish a market in phosphorus and nitrogen removal credits.  Although the program is welcome news, it should be neither earthshattering nor controversial.  After all, as we noted more than two years ago, a study by the Chesapeake Bay Commission demonstrated that use of nutrient trading would substantially reduce the cost of  the Chesapeake Bay restoration project.… More

FERC Will Seek Supreme Court Review of the Decision Striking Down Order 745

Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745.  Whereas the United States had previously only indicated that it was considering filing a cert. petition, the latest filing clarifies that the United States has definitively decided to seek Supreme Court review.  On Monday, Chief Justice Roberts granted the extension.  The United States now has until January 15,… More

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a “source” under section 111(d) of the Clean Air Act.  It has also proposed a rule clarifying the definition of “waters of the United States” under the Clean Water Act.  Having dealt with gases and liquids, EPA has turned to solids (it’s a metaphor,… More

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.

WildEarth Guardians had sued EPA under section 304(a)(2) of the Clean Air Act, which authorizes suits against the Administrator for a failure “to perform any act or duty … which is not discretionary….”

What was the basis for the alleged nondiscretionary duty? … More

When Will My Leftover Turkey Power My Electric Car: A Post Thanksgiving Reflection on the Promise and Challenge of Food Waste Bans

Food is a big part of why Thanksgiving is my family’s favorite holiday.  Over the years, we have tried to eat sensibly and sustainably, and to waste less food. But on the Monday after Thanksgiving, I suspect we are not alone as we contemplate the wilted salad, the wan sweet potatoes, and the last of the now not-so-attractive leftover turkey.  Indeed, one recent study by NRDC estimated that Americans throw away 40% of their food.… More