Administrative Law, Civil Procedure, Environmental Law

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

by Seth Jaffe | Foley Hoag LLP - Environmental Law on 4/30/2013

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the...more

Do We Really Have A Section 404 Permit?

by Scott Broadwell | Davis Wright Tremaine LLP on 4/25/2013

The United States Court of Appeals for the District of Columbia Circuit issued an opinion on April 23 in Mingo Logan Coal Co. v. United States Environmental Protection Agency upholding the Environmental Protection Agency’s...more

Supreme Court Willing to Reconsider Deference to Administrative Agencies

by Stephen Miller, Jeffrey Monhait | Cozen O'Connor on 4/24/2013

Most of the federal government's authority is exercised, on a day-to-day basis, through its administrative agencies. Central to the efficiency of those agencies — such as it is — is the judiciary's substantial deference to...more

Federal Court Denies Joint Motion For Consent Decree Regarding The Marbled Murrelet

by Ashley Remillard | Nossaman LLP on 4/15/2013

In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat...more

Justices Question Agency Deference Doctrine

by BuckleySandler LLP on 3/29/2013

On March 20, an environmental case before the Supreme Court spurred two opinions from three Justices that question the continuing vitality of the agency deference doctrine known as Auer deference. Decker v. Nw. Envtl. Defense...more

U.S. District Court Holds U.S. Fish And Wildlife Service's Decision To Delay Revisions To Critical Habitat Is Not Judicially...

by Erik Beck | Nossaman LLP on 3/28/2013

The U.S. Fish and Wildlife Service (Service) prevailed on March 19th in a suit brought by the Sierra Club challenging a decision by the Service to delay revision of the critical habitat designation for the leatherback sea...more

U.S. District Court Denies Motion To Limit ESA Claims To Administrative Record

by Katrina Diaz | Nossaman LLP on 3/11/2013

In Conservation Congress v. U.S. Forest Service, No. CIV. 2:12-02416 (E.D. Cal. Feb. 26, 2013), the United States District Court for the Eastern District of California denied a motion brought by the U.S. Forest Service and...more

Washington State District Court Holds Claims Brought Under Citizen Suit Provision Of The Endangered Species Act Are Not Limited To...

by Ashley Remillard | Nossaman LLP on 2/6/2013

In Northwest Coalition for Alternatives to Pesticides v. U.S. Environmental Protection Agency, 2013 U.S. Dist. LEXIS 11955, *1 (Jan. 28, 2013), the United States District Court for the Western District of Washington held that...more

D.C. Circuit Rejects Challenge To Controversial ESA Settlement

by Ben Rubin | Nossaman LLP on 1/14/2013

On January 4, 2012, the United States Court of Appeals for the District of Columbia held that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two...more

California Environmental Law and Policy Update - January 10, 2013

by David D. Cooke, Emily L. Murray, Sandi L. Nichols | Allen Matkins Leck Gamble Mallory & Natsis... on 1/11/2013

In This Issue: Environmental and Policy Focus - Supreme Court rejects Ninth Circuit ruling on County of L.A. storm water discharges; Federal judge halts major Lake Tahoe ski resort expansion; Lawsuit seeks to stop Rose...more

Recent Cases Show How CEQA’s Applicability And Substantive EIR Requirements Are Determined By Meaningful Agency Discretion

by Arthur F. Coon | Miller Starr Regalia on 1/8/2013

It is a fundamental precept of CEQA that it applies only to the discretionary approval of a project. If an agency has no discretion to deny or shape the project to address environmental concerns, CEQA review would be a...more

California Appellate Court Restricts Use Of CESA Delisting Petitions

by Paul Weiland | Nossaman LLP on 1/3/2013

In Central Coast Forest Assoc. v. California Fish and Game Commission, the California Court of Appeal, Third Appellate District held that a petition to delist the endangered coho salmon (Oncorhynchus kisutch) under the...more

Seven States File Notice of Intent To Sue USEPA Over Methane Emission Standards

by Sanja Muranovic | BakerHostetler on 12/31/2012

On December 11, 2012, a group of seven states led by New York Attorney General Eric T. Schneidermann notified the U.S. Environmental Protection Agency (EPA) of their intent to sue the agency....more

Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties;...

by Arthur F. Coon | Miller Starr Regalia on 12/17/2012

The Respondent City of Berkeley and Real Parties (Kapors) filed their joint Reply Brief on the Merits in the California Supreme Court in a much-watched categorical exemption case, Berkeley Hillside Preservation, et al. v....more

Federal District Court Dismisses Lawsuit Alleging San Francisco Harmed Endangered Species at Sharp Park

by Paul Weiland | Nossaman LLP on 12/10/2012

In an order issued on December 6, 2012, the United States District Court for the Northern District of California dismissed a lawsuit brought by Wild Equity and other plaintiffs alleging violations of the Endangered Species...more

Winning the Superfund Remedy Fight in Court: Don’t Count On It

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 11/30/2012

Remedy decisions are almost always won or lost at the agency level. Once the ROD issues, a PRP’s chance of having the selected remedy overturned in court is slim to none – a point that was driven home in a recent decision in...more

Yuba County Water Agency Gives 60-Day Notice of Intent to Sue Federal Government Under Endangered Species Act

by Kronick, Moskovitz, Tiedemann & Girard on 11/8/2012

The Yuba County Water Agency ("YCWA") today delivered a 60-day notice of intent to sue to the National Marine Fisheries Service ("NMFS"), also known as NOAA Fisheries, and the U.S. Army Corps of Engineers ("Corps"). The...more

How Much Uncertainty Does CEQA Allow? Court Upholds EIR's Practical Approach for Evaluating Uncertain Cumulative Impacts, but...

by Perkins Coie on 11/6/2012

In Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve. The court upheld the...more

EIR Satisfies CEQA Despite Minor Deficiencies and Inaccuracies Where Environmental Review Process Not Prejudiced, Third District...

by Miller Starr Regalia on 11/5/2012

A unanimous Third District panel upheld SiskiyouCounty’s EIR for Roseburg Forest Products Co.’s (Roseburg) electricity cogeneration project involving expansion of its existing wood veneer manufacturing facility. (Mount Shasta...more

New Decision Limits Last-Minute Submissions for CEQA Hearings

by Carr, McClellan, Ingersoll, Thompson & Horn -... on 11/5/2012

All of us involved in land use and planning matters are familiar with the tactic of project opponents to file last-minute submissions with new factual allegations. These “hit pieces” are filed after the staff report is in,...more

Further Confirmation Notice of Exemption Filed Before Project Approval is Void

by Sheppard Mullin Richter & Hampton LLP on 10/31/2012

Coalition for Clean Air v. City of Visalia (Oct. 4, 2012, No. F062983M)- The partially published opinion in Coalition for Clean Air v. City of Visalia brightened the line regarding when a California Environmental Quality...more

Judge Dismisses Attorney General’s “Fracking” Suit Over the Delaware River Basin

by Cullen and Dykman LLP on 10/16/2012

U.S. District Judge Nicholas G. Garaufis recently dismissed a lawsuit brought by New York Attorney General Eric T. Schneiderman against the Delaware River Basin Commission (“DRBC”), EPA, and other federal agencies seeking to...more

Homer City – Has the D.C. Circuit Signaled an Alternate Approach to Judicial Review of Agency Regulations?

by K&L Gates LLP on 10/11/2012

The D.C. Circuit’s August 21, 2012 decision in Homer City raised significant questions about judicial review of agency rulemaking challenges. This alert is the second part of a two-part series on this topic. Part I...more

More Evidence That the Government No Longer Automatically Wins Superfund Cases: New Jersey Requires Proof of a Nexus Between a...

by Foley Hoag LLP - Environmental Law on 10/4/2012

As I have previously noted, government attorneys’ traditional approach to litigating Superfund cases has been to announce that they represent the government and that they therefore win. There was hope, following the Supreme...more

Prematurely Filed Notice Of Exemption Does Not Trigger 35-Day Limitations Period In CEQA Actions

by Kronick, Moskovitz, Tiedemann & Girard on 10/2/2012

A court of appeal recently concluded that a notice of exemption filed before a project is actually approved is invalid and does not trigger the 35-day limitations period in which to bring a California Environmental Quality...more

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Administrative Law › Civil Procedure › Environmental Law