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
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
On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline. 
It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day. From a legal point of view, however, I wouldn’t take that much comfort from the decision.
The basis for the stay was that the District Court did not make explicit findings on the need for an injunction. … More
I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States. I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day. 
First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline. … More
In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule. 
Now, a judge in Washington state has gone even further. Judge John Coughenour has vacated the rule.
The core of the new decision is the same as that in South Carolina. … More
Last week, the 10th Circuit Court of Appeals dismissed as prudentially unripe appeals of last year’s District Court decision striking down BLM’s 2015 fracking rule. 
The District Court ruled that BLM had no authority to issue the rule. At the time, I thought that the District Court was on shaky ground. So did BLM and various environmental groups. They appealed.
Now,… More
Yesterday, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury 
and Air Toxics Standards. The decision was not a surprise. As I noted earlier this fall, there is a definite trend towards refusing to vacate complex EPA rules. Where the rule is sufficiently complicated and EPA can tell any kind of credible story that maintaining a slightly tarnished rule is better than no rule at all,… More
In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary. “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide Permit 21, which allows certain surface coal mining activities without an individual permit, the Army Corps of Engineers informed the Court that it had significantly underestimated the acreage that would be affected by NWP 21. … More
I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line. Indeed, even four years after Bush left office, it was continuing to lose decisions. Now, we can say that the record has extended to five years. Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement,… More