Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule. In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers moved to remand the rule to the agencies, since they had already announced an intent to revisit the definition of WOTUS. However, for reasons that I have never understood, the agencies sought remand without vacatur,… More
Monthly Archives: August 2021
The 8th Circuit Court of Appeals has largely affirmed a District Court order finding that Ameren Missouri violated the NSR provisions of the Clean Air Act in making major modifications to its Rush Island facility. The Appeals Court did reject the District Court’s requirement that Ameren Missouri make improvements at its nearby Labadie facility that was not in violation of the CAA.
I have three thoughts about the decision.… More
The Sacketts Got Their Day in Court on the Merits; Another Lesson in Being Careful What You Wish For
Last week, in what may or may not be the last round in the ongoing efforts by Michael and Chantell Sackett to build a house on wetlands in Idaho, the 9th Circuit Court of Appeals found that:
EPA reasonably determined that the Sacketts’ property contains wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA and the relevant regulations.… More
Most people other than Andrew Wheeler and the Trump Administration Clean Air Science Advisory Committee know that exposure even to low levels of PM2.5 causes increased morbidity and mortality. And now comes evidence that exposure to PM2.5 may adversely impact cognitive capacity as well. If the evidence is correct, then the externalities created by activities that release PM2.5 are likely much more significant than we had realized,… More
The IPCC has released its Sixth Assessment Report on the physical science basis of climate change. I would say that it makes sobering reading, except any sane person’s immediate response to AR6 would be to go out and have any number of stiff drinks. Here are a number of the lowlights:
It is unequivocal that human influence has warmed the atmosphere, ocean and land.… More
Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits. The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.
May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?” Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?” If not,… More
On August 3, the District of Columbia Court of Appeals held that FERC could not avoid use of the social cost of carbon in assessing the impacts of natural gas projects by arguing that “there is no universally accepted methodology.” Given the growing recognition of the significant role FERC is going to have in combatting climate change, it’s an important decision.
FERC acknowledged that construction and operation of the projects under review would “contribute incrementally to future climate change impacts.” However,… More