The D.C. Circuit today largely upheld EPA’s 2015 revisions to the National Ambient Air Quality Standard for ozone. I’m not much of a prognosticator, but I pretty much called this one years ago. The Court was never going to require EPA to consider costs in setting the NAAQS – not a surprise, given that the Supreme Court concluded in Whitman v.… More
Monthly Archives: August 2019
Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review. Like Judge Rogers, I dissent.
The majority makes much of its effort to clarify this “byzantine” area of the law. My take is that,… More
Earlier this week, Judge Christopher Cooper of the District Court for the District of the Columbia, struck down EPA’s approval of Total Maximum Daily Loads established by the District of Columbia for the Anacostia and Potomac Rivers. Why?
Because the District’s TMDLs did not conform to the plain meaning of the words “Maximum” or “Daily.” The decision is lengthy and complicated, because the statutory framework is complicated. … More
The Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have released final rules amending significant parts of the regulations implementing the Endangered Species Act.
How big an impact will the changes have? Well, there’s no doubt that the supporters of the regulations hope that they will be substantial and the opponents are worried that they will be substantial,… More
Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act. The regulations are long-overdue and, notwithstanding the source, some of the changes are appropriate. Nonetheless, the key element of the revisions is the provision that would preclude state and tribal agencies from considering issues other than those related to the water quality impacts of discharge being permitted – and to include that provision,… More
Those seeking to address climate change through litigation have taken two different paths. Some cases, probably best represented by Juliana v. United States, have plaintiffs who are swinging for the fences. These are stereotypical examples of impact litigation; the plaintiffs are hoping to change the world. Other cases involve plaintiffs who are just hoping – for now, at least – to hit a few singles. … More