Monthly Archives: March 2015

Last week, District Judge Ralph Beistline allowed the summary judgment motion filed by the United States Forest Service, and dismissed citizen claims challenging the Forest Service decision to approve an logging project in an old growth area in the Tongass National Forest known as Big Thorne.  The case seems interesting because of the deference Judge Beistline showed to the Forest Service.  Reading between the lines of the record,… More

In Consolidated Coal Company v. Georgia Power Company,the Fourth Circuit recently applied the same four part test used by trial court(and blogged about here) to hold that the sale of a used product containing PCBs would not give rise to arranger liabiity under Section 107(a)(3) of CERCLA.  The appeals court reaffirmed the basic proposition that selling a used product that contains hazarous substances which eventually will be disposed is not sufficient to establish arranger liability:

Anytime an entity sells a product that contains a hazardous substance,… More

In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary.  “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide Permit 21, which allows certain surface coal mining activities without an individual permit, the Army Corps of Engineers informed the Court that it had significantly underestimated the acreage that would be affected by NWP 21. … More

I have long thought that the best argument for market-based approaches to climate change mitigation was the clunkiness of the alternative.  However much time EPA has spent trying to make the GHG regulations efficient, no one can say that EPA’s proposal is elegant.

Although it is at best a dim glimmer of hope on the horizon, it was nonetheless comforting to see Jerry Taylor of the Libertarian Niskanen Center make “The Conservative Case for a Carbon Tax.”  While I don’t agree with every aspect of his proposal,… More

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners.  Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them.  As the Court stated in EME Homer Generating:

with time travel yet to be discovered,… More

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and substantial endangerment language in RCRA’s citizen suit provision.  The decision covers a lot of ground, and is well worth reading (and, in fairness, Judge Marbley did reject some of plaintiffs’ claims).

The most significant holding was that DuPont’s emissions of perflourooctanoic acid,… More

Even assuming that the “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos defines waters of the United States subject to Clean Water Act jurisdiction, the question remains what establishes a significant nexus.  In a decision earlier this week, the 4th Circuit Court of Appeals provided some important guidance in answering this question.  The news is good for EPA and the Corps,… More

The Supreme Court today ruled that, when an agency revises its interpretive rules, it need not go through notice-and-comment rulemaking.  Although the decision, in Perez v. Mortgage Bankers Association, required the court to reverse a long-held line of D.C. Circuit cases, the decision was not difficult; it was, in fact, unanimous.  In short, the Administrative Procedure Act:

states that unless “notice or hearing is required by statute,” the Act’s notice-and-comment requirement “does not apply …… More

Fully five years ago, I noted that the cavalier treatment by government officials of FOIA requests made by opponents of government policy revealed a degree of self-righteousness that was both offensive and self-defeating – because it undermines support for the very policies that those officials were pursuing.

It now seems as though little has changed – except that now a federal judge has taken the time to put on record his dissatisfaction with how EPA responds to FOIA requests. … More

EPA has been working to craft a general permit for small Municipal Separate Storm Sewer Systems for quite some time.  The most recent draft permit, published last September, has received significant comment, most recently from the Massachusetts Department of Environmental Protection.  While emphasizing cooperation and appreciate for EPA’s efforts at collaboration, it is difficult to read MassDEP’s comments as anything other than as a sign of significant concern about overreach by EPA.… More