According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are final agency subject to judicial review. The reach of Sackett expands a bit more.
As we noted after the 8th Circuit decision in Hawkes,… More
Last month, we wrote about MassDEP’s trichloroethylene (TCE) site reevaluation initiative. MassDEP has begun the process of screening sites previously closed under the MCP to look for sites where TCE might exceed the new groundwater concentration standard of 5 μg/L. At yesterday’s meeting of the Waste Site Cleanup Advisory Committee, MassDEP provided an update on this initiative.
MassDEP has not yet begun contacting owners of closed sites. … More
Environmental lawyers live for acronyms. Why is CSAPR > BART? Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards attaining EPA’s regional haze goals than would application of best available retrofit technologies to those sources that would otherwise be subject to BART. On Monday, the 8th Circuit agreed that EPA’s decision that the Transport Rule is better than BART was not arbitrary or capricious.… More
The law is full of fine distinctions. Today’s example? A divided 10th Circuit panel affirmed dismissal of the Sierra Club’s citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OG&E’s Muskogee plant 
because the Sierra Club did not sue within five years of the commencement of construction – even though Sierra Club did sue within five years of the completion of construction.… More
I know it may surprise some litigators, but occasionally the allegations in a complaint do matter. In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill located in Dayton, Ohio, 
against alleged former owners. The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA. … More
On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, 
which was listed as threatened in 2008. The case is largely a straightforward application of accepted Endangered Species Act principles, but does make a few important points.
As the 9th Circuit pointed out, the district court’s logic was flawed. … More
At least since the Standells’ Dirty Water in 1966, cleaning up the Charles River has been on the mind of Bostonians (and Cantabrigians and those farther upriver). Notwithstanding significant recent progress, there remains work to do. The questions are, as always, how much and who pays? Is this largely a municipal infrastructure problem? Is it just a matter of better implementation of some simple best management practices? … More