Last month, Judge John Hunderaker held that the Endangered Species Act requires EPA to consult with the Fish and Wildlife Service and the National Marine Fisheries Service before issuing recommended water quality criteria. He also vacated EPA’s 2016 chronic freshwater criterion for cadmium. The case is potentially important for a number of reasons. 
First, it’s a thorough analysis of standing in cases where the plaintiffs claim a procedural injury – here,… More
On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources. EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be. … More
On Tuesday, EPA filed its brief in support of its rule deferring regulation of GHG emissions from biomass facilities until 2014. I have two immediate reactions.
The first is that, as a policy matter, the deferral was absolutely the right thing to do. The science remains complex and not fully understood. Any regulations promulgated now are likely to be revised at some point. That kind of regulatory uncertainty is not any way to run an agency.… More
Last week, in Center for Biological Diversity v. EPA, Judge Henry Kennedy reminded us that, in thinking about whether the existing Clean Air Act requires EPA to address climate change, the actual words of the statute matter. The scope of the climate problem does not obviate the need to parse individual provisions of the CAA and Massachusetts v. EPA did not resolve all issues. … More