Monthly Archives: February 2023

May A Court Take Judicial Notice of Gravity?

Earlier this month, United States District Court Judge Stephen Wilson held that NL Industries was not liable under CERCLA for air emissions of lead because such emissions did not constitute “disposal” within the meaning of CERCLA.  I’m going to give Judge Wilson a pass, both because there was an arguably binding 9th Circuit precedent and because of CERCLA’s general incomprehensibility. 

However, whether one blames Judge Wilson or the 9th Circuit panel in Pakootas v.… More

Another NEPA Obstacle To Coal Mining

Last week, Judge Donald Malloy vacated the Environmental Assessment for the Bull Mountains Mine No. 1 in central Montana.  Judge Malloy had already vacated the EA once; when the 9th Circuit affirmed Judge Malloy’s decision that the EA violated NEPA, it remanded the case for new findings as to whether vacatur would be appropriate. 

The default rule is that when agency action has been struck down,… More

Does Environmental Review of Projects Needed for a Net-Zero Economy Lead to a Death By a Thousand Cuts?

Earlier this week, the decision in Bartell Ranch v. McCullough generally supported the Bureau of Land Management’s review under NEPA and related statutes of a lithium mine near Thacker Pass, Nevada.  If approved, Thacker Pass would be the largest lithium mine in the United States.  The decision and the entire review of the mine are important, given how controversial large mining projects can be and how important lithium and other minerals are to building a zero-emission economy.… More