Almost 50 years ago, Christopher Stone published “Should Trees Have Standing,” suggesting that the natural world should be given legal rights to ensure its protection for future generations. It is not, I say with my usual gift for understatement, an idea that has taken widespread hold in legal systems in the United States. It has had broad philosophical influence, however, and attempts are made periodically to implement Stone’s idea. … More
Tag Archives: standing
On Monday, District Judge Haywood Gilliam imposed a schedule on EPA for review of state plans under EPA’s 2016 rule for emissions from municipal solid waste landfills. The ruling is notable for two reasons.
Because EPA did not dispute that it had missed certain deadlines, its first line of defense wasn’t that it complied with the statute; it was that the states challenging EPA’s delay did not have standing. … More
Yesterday, Judge Paul Diamond dismissed climate litigation brought by the Clean Air Council and two minor plaintiffs. Like the Juliana case in Oregon, the plaintiffs argued that the government had violated the their rights by failing to take robust action against climate change. Here are some of the failures that Judge Diamond identified in the complaint.
On Wednesday, EPA lost yet another regulatory delay case. After the Obama EPA promulgated rules updating requirements concerning certification and use of “restricted use pesticides” in January 2017, the Trump EPA purported to delay the rule’s implementation date five separate times. According to the Court, EPA provided no notice and opportunity to comment on four of those occasions; once, they provided a four-day (yes, four) comment period.… More
Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility. The opinion is both interesting and pleasurably concise – a rare combination!
Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit. Importantly, he also found that CLF stated that there is:
substantial risk”… More
A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?
Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.
In an interesting, but not really difficult, decision on Tuesday, the D.C. Circuit Court of Appeals found that the National Association of Home Builders did not have standing to challenge a consent decree pursuant to which the Fish and Wildlife Service agreed to a schedule for moving 251 species from “warranted-but-precluded” status under the ESA to either warranted or unwarranted. The FWS, short of resources to make final listing decisions under the ESA,… More
On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought $642,697,500) against ExxonMobil in a Clean Air Act citizens’ suit brought by Environment Texas and the Sierra Club concerning the ExxonMobil facility in Baytown, Texas. The plaintiffs lost even though Judge Hittner did find a number of violations of the CAA. … More
I have previously noted that standing is a double-edged sword. Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court. However, as the D.C. Circuit Court of Appeals demonstrated yesterday, the regulated community is sometimes hoist on its own collective petard.
Last week, the 9th Circuit Court of Appeals affirmed EPA’s approval of Nevada’s State Implementation Plan for regional haze against a challenge by WildEarth Guardians. The decision isn’t earthshaking. However, because it found that WildEarth Guardians did not have standing to challenge EPA’s reasonable further progress determination for measuring visibility improvements, but did have standing to challenge EPA’s determination regarding the Best Available Retrofit Technology for the Reid Gardner Generating Station in northeast Nevada,… More
Citizens Are Not Harmed By the Concept of Pollution Trading: A Challenge to the Chesapeake Bay TMDL Is Dismissed
On December 13, the District Court for the District of Columbia dismissed plaintiffs’ challenge in Food and Water Watch v. EPA to the Chesapeake Bay TMDL’s discussion of pollution trading and offsets. As I had previously noted, the TMDL itself already survived judicial challenge.
In this case, plaintiffs alleged that they would be harmed by trading of effluent discharge rights,… More
Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod. Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.
CLF asserted two claims. First, it alleged that EPA wrongly classified certain sources,… More
I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the Recommended Final Decision by Presiding Officer Timothy Jones, rejecting challenges by the Conservation Law Foundation to the air permit issued to the project by MassDEP. For practitioners, the case is important, but a decidedly mixed bag.… More
Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard.
After EPA and the Army Corps of Engineers issued a determination that two reaches of the Santa Cruz River constitute “traditional navigable waters” under the Clean Water Act,… More
Yesterday, the Supreme Court announced its decision in American Electric Power v. Connecticut, holding that EPA’s authority to regulate greenhouse gases under the Clean Air Act displaced federal common law nuisance claims. I have always thought that the displacement argument was correct, so the decision is not really a surprise (and the 8-0 decision and crisp opinion only confirm that view). The decision is nonetheless important and,… More