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Superfund Reform, Part 2: Giving Credit Where Credit Is Due

Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decision for big Superfund sites. Now, he’s followed up with a memorandum announcing...more

Scott Pruitt Just Solved All of the Problems with Superfund. Not.

Last week, EPA Administrator Pruitt issued a memorandum requiring that all Superfund remedies estimated to cost at least $50 million be approved by the Administrator. I’m not optimistic that this will cure, or even...more

5/17/2017  /  CERCLA , EPA , Hazardous Substances , Superfund

Will There Be a Trial on Climate Change Public Trust Claims? It’s Looking that Way.

Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust obligation it owes to US citizens to protect the atmosphere from climate...more

Not “Too Big to Fail.” Too Big to Comply.

Last year, the 5th Circuit Court of Appeals vacated the decision by District Judge David Hittner not to impose any penalties on ExxonMobil for violations alleged in a Clean Air Act citizens’ suit concerning ExxonMobil’s...more

Perhaps It Should Be Renamed the “Really, Really, Endangered Species Act”

Last Friday, the 9th Circuit Court of Appeals affirmed a District Court decision ruling that the Fish & Wildlife Service decision that listing of the whitebark pine as endangered or threatened was “warranted, but precluded”...more

State Sovereignty, Meet the Supremacy Clause

Earlier this week, the 10th Circuit Court of Appeals reversed a District Court decision and vacated an injunction which had prevented the U.S. Fish & Wildlife Service from reintroducing the Mexican gray wolf onto certain...more

South Florida — The Front Lines of Climate Change?

Two related items about climate change resilience and adaptation caught my eye this week. First, the American Academy of Actuaries issued a report on “The National Flood Insurance Program: Challenges and Solutions.” Those...more

It’s Wise to Make Certain that Contracts Properly Allocate Future Environmental Compliance Costs

Last week, the 6th Circuit Court of Appeals ruled that AEP, which entered into a consent decree requiring it to install certain pollution controls at its Rockport 1 and 2 power plants, could not force the owner of those...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

Exxon Case Against AGs Transferred to New York: Judge Kinkeade Fires a Parting Shot

On Wednesday, Judge Ed Kinkeade ordered that Exxon Mobil’s suit against NY Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey be transferred to the Southern District of New York.  The AGs must...more

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and...more

Promulgation of TMDLs Does Not Create a Non-Discretionary Duty to Require NPDES Permits

When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued. CLF alleged that EPA violated a non-discretionary duty when...more

Wind Powers Texas. What Does That Say About the Future of Coal?

According to Bloomberg BNA (subscription required), last week, for the first time ever, more than 50% of the load in the Electric Reliability Council of Texas service area was supplied by wind power. This is the state that...more

Court Orders EPA to Promulgate Air Toxics Standards: A Taste of What’s to Come?

On March 22, 2017, federal Judge Christopher Cooper ordered EPA to promulgate emissions standards for 13 sources of hazardous air pollutants by June 30, 2020. EPA admitted that it missed statutory deadlines to do so; the...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

Has EPA Region I Lost Its Treasured Independence?

Earlier this month, Trump transition team member David Schnare sent a memorandum to EPA Assistant Administrators and Regional Administrators. The one-paragraph memo directs AAs and RAs...more

If a Climate Change Report Falls in the White House, Does Anyone Hear It?

This week, the National Academy of Sciences Committee tasked with reviewing the Climate Science Special Report, issued by the Obama administration, basically blessed it. They had some comments, but I’ve been through the NAS...more

Investors Don’t Think That Climate Change Is A Hoax: Black Rock Is Losing Its Patience

Black Rock, which manages more than $5 trillion in assets, has released a statement on how it “engages with climate risk.” The statement has three main elements. ...more

3/14/2017  /  BlackRock , Climate Change , Investors

The Conservative Case for Chevron Deference: Chapter 2

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...more

The Executive Order on the WOTUS Rule: Will It Really Reduce Regulatory Uncertainty?

March 2nd, 2017, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act. It’s a curious order, for a...more

The Wages of Trespass Is A Big, Fat, Penalty

Last year, I blogged about the 9th Circuit decision in United States v. Estate of E. Wayne Hage, in which the Court reversed a District Court decision rejecting United States claims that Hage had trespassed on federal lands...more

Managing Water Releases From Dams to Protect Fish: A Tale of Good Legislation and Bad Engineering

Earlier this week, the 9th Circuit found that the Bureau of Reclamation had authority under 1955 legislation to order additional releases of water to the Trinity River from the Lewiston Dam beyond the amount designated in an...more

EPA Has a Nondiscretionary Duty to Review West Virginia’s Failure to Submit TMDLs

Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity. Ionic toxicity is a consequence of...more

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