Civil Procedure Environmental Energy & Utilities

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Court Rejects 30 Year Eagle Permit Rule on NEPA Grounds

On August 11, 2015, the US District Court for the Northern District of California remanded a US Fish & Wildlife Service’s (FWS) 2013 final rule that had extended the maximum duration of eagle take programmatic permits under...more

Ninth Circuit Finds ESA 60-Day Notice "Adequate" and Resurrects Challenge to Suction Dredge Mining Suit

On August 10, 2015, the U.S. Court of Appeals for the Ninth Circuit reversed a district court order dismissing an Endangered Species Act ("ESA") lawsuit on the grounds plaintiffs provided inadequate notice. Klamath-Siskiyou...more

15 States Seek Stay of Clean Power Plan Compliance Deadlines

Litigation over the Environmental Protection Agency’s (EPA) recently issued “Clean Power Plan” (CPP) has already begun. On August 13, 2015, 15 States (the “States”) filed an emergency petition in the United States Court of...more

California Drought Prompts Bout Among Regulators and Farmers

As the drought drags on and lawns grow brown across California, a battle is raging over the scope of the State Water Resources Control Board’s authority to restrict the diversion of water from rivers, lakes and...more

California Environmental Law & Policy Update - August 2015 #2

Environmental and Policy Focus - 15 states sue to block enforcement of Obama administration climate change rules: Bloomberg - Aug 13: Fifteen states led by coal-rich West Virginia – but not including California - asked...more

Court Invalidates 30-Year Permit Provisions of U.S. Fish and Wildlife Service’s Eagle Permit Rule on NEPA Grounds

As we discussed in a post from May 2014, the American Bird Conservancy (“ABC”) in 2014 filed a lawsuit challenging the U.S. Fish and Wildlife Service’s (“USFWS”) 2013 revisions to its eagle permit rule, alleging violations of...more

California Environmental Law & Policy Update - August 2015

Environmental and Policy Focus: Coastkeeper's suit against water agency dismissed - San Diego Union-Tribune - Jul 31: A San Diego superior court judge ruled against an environmental group on July 30, rejecting its...more

Michigan Court Finds Expert Testimony Not Necessary to Show Link Between Chemical Exposure and Injury

Issuing an opinion that could lower the bar for proving toxic tort causation, the Michigan Court of Appeals held that direct expert testimony may not be necessary to prove causation in a toxic tort case and that a plaintiff...more

District Court Limits Nuisance Claims Against Chemical Manufacturer in Elk River Spill

Finding only public interests at issue from contamination of public drinking water supplies, a West Virginia federal court dismissed a private nuisance claim, but not a public nuisance claim against a chemical manufacturer. ...more

The D.C. Circuit Sends EPA Back to the Drawing Board to Fix Its Transport Rule Emissions Budgets

The Clean Air Act’s good neighbor provision prohibits upwind states from emitting air pollutants in amounts that will “contribute significantly to nonattainment” of a national ambient air quality standard in a downwind state....more

EPA and the Army Corps Seeking to Consolidate Challenges to Recently Issued “Waters of the United States” Rule

Since the EPA and the Army Corps published the final rule defining “waters of the United States” on June 29, 2015, 72 plaintiffs have already filed ten separate complaints in eight federal district courts challenging the...more

Fate of Injection Wells in Historically Exempt Aquifers Comes Closer to Determination

A lawsuit seeking an immediate halt to oil and gas wastewater injection at 2,500 wells across California took a positive turn for energy producers last week as Superior Court Judge George C. Hernandez denied plaintiffs’...more

Foes of the NJDEP $225 Million Settlement with Exxon Mobil Must File “Friend of the Court” Briefs Today

After denying their motions to intervene last week (see our coverage here), Judge Hogan issued a Scheduling Order that sets today as the deadline for the eight environmental organizations and State Senator Lesniak (D-Union)...more

Two Strikes and Oklahoma’s Out (For Now): Another Challenge to the Clean Power Plan Is Rejected

On Friday, Judge Claire Eagan dismissed Oklahoma’s latest challenge to EPA’s Clean Power Plan. Yes, that plan. The one that hasn’t been promulgated yet....more

Too Little, Too Late: Judge Denies Environmental Groups’ Motion to Intervene in Chris Christie’s Exxon Mobil Settlement

A New Jersey state judge ruled on Monday that eight environmental groups and a New Jersey state senator cannot intervene to challenge the $225 million settlement with Exxon Mobil proposed by the New Jersey Department of...more

The 10th Circuit Affirms Colorado’s RPS; The Dormant Commerce Clause Remains Dormant

When Colorado enacted a referendum petition strengthening its renewable portfolio standard, the Energy and Environment Legal Institute sued, arguing that the RPS violates the dormant commerce clause, because it harms...more

Who Can Sue Polluters? New Texas Law HB 1794 Stirs Debate

A perspective on new Texas legislation HB 1794 by Gerald Pels one of the leaders of the Texas environmental legal community for over 30 years....more

Third Circuit Upholds Chesapeake Bay TMDL

On July 6, the Third U.S. Circuit Court of Appeals issued its ruling in the case of American Farm Bureau Federation v. EPA (No. 13-4079). The ruling, which affirmed an earlier district decision upholding the U.S....more

Supreme Court Ruling on EPA Mercury Rule: Utilities Wins the Battle, But Lose the War

The Clean Air Act requires EPA to regulate emissions of hazardous air pollutants from coal-fired power plants if the agency determines that such “regulation is appropriate and necessary” after studying the hazards the...more

MATS is Dead, Long Live MATS – the Michigan v. EPA Decision

On June 29th the Supreme Court issued a much-anticipated opinion on the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards (MATS). The decision faulted EPA for not considering the costs of the standards...more

The U.S. Supreme Court Holds EPA Must Consider Costs in Deciding to Regulate Power Plants

The U.S. Supreme Court’s June 29th decision in Michigan v. EPA, taken together with another significant CAA opinion from last term, Utility Air Regulatory Group v. EPA, demonstrates the Court’s proclivity for subjecting...more

Back to the Drawing Board: Supreme Court Sets Aside EPA Regulations On Mercury Emissions from Power Plants

The Supreme Court on Monday dealt a setback to the Environmental Protection Agency’s regulation limiting mercury and other toxic emissions from power plants – the “mercury rule.” In Michigan v. Environmental Protection...more

Oklahoma Holds Question of Whether Fracking Causes Earthquakes is for the Courts to Decide.

The issue of whether hydraulic fracturing or “fracking” causes earthquakes has first-party insurance implications because policies typically exclude damage from tremors attributable to man-made causes as opposed to purely...more

Supreme Court Strikes Down EPA’s Mercury and Air Toxics Standard

Delivering a sharp blow to President Obama’s efforts to regulate coal plants, the U.S. Supreme Court invalidated the Environmental Protection Agency’s (EPA’s) 2012 Mercury and Air Toxics Standards (MATS) rule, finding that...more

Supreme Court Halts Implementation of EPA Rule on Mercury Emissions from Electric Power Plants: The Practical Effects Are...

On Monday, the U.S. Supreme Court halted further implementation of a U.S. EPA’s regulation limiting mercury and other hazardous air toxic emissions from coal- and oil-fired electric power plants. In a 5-4 decision, the...more

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