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Climate Change Litigation Strategy: Swing For the Fences or Hit Singles?

Those seeking to address climate change through litigation have taken two different paths. Some cases, probably best represented by Juliana v. United States, have plaintiffs who are swinging for the fences. These are...more

Coming Soon To a Massachusetts Facility Near You: More Citizen Enforcement?

Earlier this week, the Massachusetts Executive Office of Environmental Affairs went live with two new web sites intended to increase the public availability of information concerning regulated entities in Massachusetts. The...more

How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought

In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA...more

The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal...

The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to...more

3/18/2014  /  Environmental Claims , Mining , NEPA

More Than Five Years Later, the Bush Administration Is Still Losing Environmental Cases

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. ...more

The States Lose Another NSR (and NSPS) Enforcement Case: I Think I Detect A Trend

As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals. The latest governmental defeat...more

Cooperative Federalism is “Messy and Cumbersome” — EPA’s Chesapeake Bay TMDL is Upheld

Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay TMDL. As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are...more

Standing Matters, TMDL Version

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...more

Section 126 of the Clean Air Act and Cooperative Federalism: EPA May Cooperate with the Downwind State Rather than the Upwind...

On Friday, in GenOn REMA v. EPA, the 3rd Circuit Court of Appeals ruled that, in response to a petition from a downwind state under § 126 of the Clean Air Act, EPA may issue a rule imposing emission limits on a source in the...more

The Seventh Circuit Cuts the Gordian Knot of NSR Interpretation: Preconstruction Review Cannot Lead to Continuing Violations

Last week, in United States v. Midwest Generation, the 7th Circuit Court of Appeals affirmed dismissal of EPA’s NSR enforcement action against Commonwealth Edison. Commonwealth Edison was the prior owner of the plants at...more

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