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The Wehrum Memo Still Isn’t Final Agency Action

The D.C. Circuit Court of Appeals has denied the petition for rehearing in the “once in, always in” case. It was a one sentence order. Judge Rogers, who dissented from the original panel opinion, dissented from the denial....more

Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief

Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing. Given where we are, this is about as momentous a decision as I can imagine. I get the majority opinion....more

DOE Must Promulgate Energy Efficiency Standards Finalized By the Obama Administration

Last week, the 9th Circuit Court of Appeals affirmed a District Court ruling requiring the Department of Energy to publish in the Federal Register four rules finalized by the Obama administration, but not previously...more

The Other Shoe Drops on Upwind Ozone States

On Tuesday, the District of Columbia Court of Appeals vacated EPA’s “Close-Out Rule,” which basically concluded that upwind states contributing to exceedances of the National Ambient Air Quality Standard for ozone in downwind...more

Good Neighbors Delayed Are Good Neighbors Denied

Last Friday, the D.C. Circuit Court of Appeals ruled that EPA violated the Clean Air Act in failing to impose deadlines on upwind states violating the CAA’s Good Neighbor provisions. The Court concluded that, where downwind...more

BLM Loses Another Case Regarding Energy Development on Federal Lands

Earlier this week, the 10th Circuit Court of Appeals partially reversed a district court decision, and ordered the Bureau of Land Management to vacate the NEPA approvals and permits it had issued authorizing the drilling of a...more

Yes, Virginia, Selling a Building Known to Contain PCBs Can Constitute An Arrangement for Disposal

Some cases just make you wonder what people were thinking. I’m not even sure Donald Trump would have tried to get away with what Dico, Inc., tried to get away with. In 1994, EPA issued an administrative order, requiring...more

Can You Say “Pyrrhic Victory”?

In 2008, EPA issued an administrative order to Chantell and Michael Sackett, requiring them to remove what EPA had concluded was illegally placed fill on their property in Northern Idaho. Litigation followed, including a...more

When Is Property Damage From a Release “Expected or Intended”? Only After the Owner Learns of the Spill and Ignores It

Any good trial lawyer will tell you that the law is about telling stories. Once upon a time, Timothy and Stacy Creamer bought a house. Only after they closed did they realize that some strategically placed rugs were hiding...more

When Is A Regulatory Denial a Regulatory Taking? Not Very Often, At Least in Massachusetts

On Tuesday, the Massachusetts Appeals Court denied a regulatory takings claim brought by a plaintiff whose development plans for her property in Falmouth were denied by the Falmouth Conservation Commission. Plaintiff’s...more

Deadlines For Permit Issuance Are Double-Edged Swords

On January 25, 2019, the D.C. Circuit Court of Appeals ruled that applicants for licenses under the Federal Power Act may not reach private agreements with states to circumvent the FPA requirement that states act on water...more

A Leaking Settling Pond Is Not A Point Source

On Wednesday, September 12, 2018, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club’s citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash...more

Score One For Rational Regulation: The 2nd Circuit Rejects Environmental and Industry Challenges to EPA’s Cooling Water Intake...

On Monday, July 23, 2018, the 2nd Circuit Court of Appeals rejected all challenges to EPA’s cooling water intake structure rule. Notwithstanding the Court’s rejection of the industry challenges, it’s a big win for industry....more

The Constructive Submission Doctrine - Not Much of a Club Against States or EPA

Earlier last week, the 4th Circuit Court of Appeals reversed a District Court opinion and held that West Virginia had not “constructively submitted” no TMDLs for waters affected by ionic toxicity. (And, yes, that sentence is...more

EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of...more

Attacking Invasive Species Requires Serious Measures — A Judicial Opinion with Beatles Annotations

Everyone knows what a problem invasive species can be. Difficult problems require difficult solutions. In a recent case decided by the 1st Circuit Court of Appeals, the scope of the government’s authority to address one...more

How Wrong Does a District Court Have to Be to Abuse Its Discretion?

The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to...more

EPA Fails to Justify Its Use of Surrogates for Certain Hazardous Air Pollutants

July 18, 2017, the D.C. Circuit Court of Appeals remanded EPA’s MACT standards for PCBs, polycyclic organic matter, and hexachlorobenzene to EPA. Rather than setting specific MACT standards for these compounds, EPA regulated...more

Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down

On Tuesday, April 11, 2017, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations. The Court found that EPA had no statutory authority...more

Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

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...more

McDonalds Won’t Be Serving Utah Prairie Dog Burgers Any Time Soon

On Wednesday, the 10th Circuit Court of Appeals held that regulation of takes of the Utah prairie dog, a purely intrastate species, does not violate the Constitution. Reversing the decision below, the 10th Circuit joined all...more

The Conservative Case for Chevron Deference, Chapter 3 (Plus an Auer Bonus!)

The conservative cases in support of Chevron deference keep arriving. This week, the 9th Circuit Court of Appeals affirmed EPA’s federal implementation plan for compliance with its regional haze regulations by the Navajo...more

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT...more

I Hate Home Rule

Massachusetts is a Home Rule state (Commonwealth, actually, but that’s a separate issue). Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted. Our state Wetlands...more

No Deference to State Settlements Under CERCLA? No Problem!

I will confess that I do enjoy being correct. In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree. Various parties...more

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