Earlier this week, the Supreme Court accepted cert. in Lopez Bright Enterprises v. Raimondo, which presents a straightforward challenge to the continuing viability of Chevron. The question presented was: 
Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.… More
The recent decision by the 8th Circuit that the Coyote Creek Mining Company 
did not require a major source permit under the Clean Air Act is both fascinating and important. The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit. Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”
The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue. … More
According to Bloomberg Environment (subscription required), EPA’s Clean Air Science Advisory Committee cannot reach agreement whether to recommend that the NAAQS for PM2.5 be lowered. 
Even after two years, I guess I had not realized the extent to which the scientists relied on by this administration are willing to ignore what used to be generally known as the “scientific consensus.”
The decision last week in City of Taunton v. EPA did not break any new ground, but it is certainly a reminder of just how much of an uphill battle it is to challenge an NPDES permit.
The City of Taunton challenged EPA’s decision to include a numeric limit for nitrogen in Taunton’s renewed permit. The Court rejected all of Taunton’s challenges in a tone that,… More
I’ve posted a lot over the years about the role of EPA’s Science Advisory Board in judicial review of agency decisions. The short version is that, on scientific questions, EPA’s going to be on thin ice if its regulatory decisions are inconsistent with SAB advice. Recently, I’ve speculated on the level of deference that EPA will get on scientific issues if it starts to ignore scientific consensus. … More
Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of U.S. coal production. 
The decision is just the latest in a series of cases making clear that courts will not approve new – or renewed – energy production that does not appropriately address the impacts of a project on climate change.… More
Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate. 
I think that the result is both correct and unsurprising.
However, one part of the opinion – a recitation of black-letter law – caught my eye. In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.” No surprise there. … More
In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.
Last Friday, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis. The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming,… More
Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the discharge under section 404 of the Clean Water Act. Now, Judge Amy Berman Jackson of the District Court for the District of Columbia has ruled that EPA properly exercised that authority with respect to the Spruce No.… More
The Massachusetts Endangered Species Act, or MESA, is similar in some respects to the federal ESA, but is definitely its own kettle of (endangered) fish. Indeed, after the decision by the Supreme Judicial Court yesterday in Pepin v. Division of Fisheries and Wildlife, one could almost say that MESA is a blank slate, authorizing DFW to write any regulations it chooses that might arguably benefit species that are endangered,… More
On Monday, in City of Arlington v. FCC, the Supreme Court made clear that agency interpretations of ambiguous statutes are entitled to deference even where they involve questions relating to the scope of an agency’s authority or jurisdiction. Greenwire seems to think that this is a big deal and even speculated today that City of Arlington may have altered the decision in a case challenging EPA’s determination that it does not have authority under TSCA to regulate lead ammunition.… More
Last week, in Styrene Information and Research Center v. Sebelius, Judge Reggie Walton of the District Court for the District of Columbia rejected challenges to the decision by HHS Secretary Kathleen Sebelius to list styrene as “reasonably anticipated” to be a carcinogen. The case does not really break any new ground, but is a solidly written summary of several recurring issues in administrative law relating to review of agency decisions.… More