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9th Circuit Rejects NEPA Challenges To Planned 1.9-Mile Underground Light Rail Extension Project in Downtown LA

On December 6, the U.S. Court of Appeals for the Ninth Circuit, in the case of Japanese Village, LLC v. Federal Transit Administration, et al., affirmed the district court’s grant of summary judgement to the government...more

The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, finding that the regulations were preempted by state and federal...more

Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain. However, that does not mean that MassDEP can simply take the easy way out. After rereading...more

District of New Hampshire Denies Remand Under CAFA’s Local Controversy Exception

On November 30th, in Brown v. Saint-Gobain Performance Plastics Corp., United States District Judge Joseph Laplante of the District of New Hampshire denied plaintiffs’ motion to remand two related class action lawsuits based...more

EPA Surrenders in the Regional Haze Dispute With Texas

As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA...more

Environmental Groups Sue Federal Agencies Again in Unending Legal Battle Over Offshore Oil Development

On November 11, 2016, the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper jointly filed suit against several federal agencies including the Bureau of Ocean Energy Management and the Bureau of Safety and...more

Court Judgment Demands More from the UK Government to Tackle Air Pollution

The UK will need to revisit its strategy to improve air quality following a recent court judgment determining that the Government’s existing plans are insufficient. With air pollution reportedly responsible for 9,500...more

FERC Dismisses Electric Cooperatives’ Maryland Community Solar Program PURPA Case as Premature

On November 15, 2016, the Federal Energy Regulatory Commission (FERC) issued an order dismissing a petition for declaratory filed by two Maryland electric cooperatives requesting a FERC finding that regulations governing...more

DEP Is Trying to Implement Kain. How Are They Doing?

When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in...more

Appellate Court Rejected EIR That Found Insignificant Traffic Impacts, Despite Consistency With Infill-Promoting General Plan...

The Court of Appeal of the State of California, Third Appellate District, overturned an Environmental Impact Report (EIR) prepared under the California Environmental Quality Act (CEQA). The appellate court rejected the EIR's...more

Evaluating a Project’s “Exacerbation” on Existing Environmental Hazards

Substantial Evidence Proving “Exacerbation” Required, California Appellate Court Says - A significant decision interpreting the scope of the California Supreme Court’s ruling in California Building Industry Association...more

Court Awards $206 Million to Alta Wind Projects in Section 1603 Grant Litigation; Smaller Award to Biomass Facility

The US Court of Federal Claims awarded damages of more than $206 million to Plaintiffs/applicants in a case with respect to the cash grant under Section 1603 of the American Recovery and Reinvestment Act of 2009 (Public Law...more

Spoliator Alert! Discarding Your Pipes, Sumps and Slabs Can Cost You

The New Jersey Appellate Court recently upheld a spoliation claim against a plaintiff company that sued prior owners for violations of New Jersey’s Spill Compensation and Control Act and common law claims of nuisance and...more

TX Court of Appeals Reaffirms That “Preponderance of the Evidence ” Test Can Be Applied To TCEQ Orders Issued Under The TSWDA

On April 8, 2016, the Texas Court of Appeals, Third District, at Austin, issued an important decision interpreting the standard of review that applies to the judicial review of certain administrative enforcement orders issued...more

U.S. Army Corps of Engineers Issues Regulatory Guidance Letter on Approved Jurisdictional Determinations

Seyfarth Synopsis: The U.S. Army Corps of Engineers (USACE) has just issued a Regulatory Guidance Letter which provides to property owners (including developers) the right of appeal USACE Approved Jurisdictional...more

9th Circuit Upholds Lake Tahoe Regional Development Plan Update

Affirming the district court, the U.S. Court of Appeals for the Ninth Circuit rejected claims that the environmental impact statement (EIS) adopted by the Tahoe Regional Planning Agency supporting the Regional Plan Update...more

The Army Corps Is Nicer Than I Am

After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home. The statute...more

Railcars as Point Sources

According to an October 25, 2016 ruling by the District Court for the Western District of Washington, a railcar carrying coal may be a “point source” for pollution under the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq.,...more

ICYMI: Energy & Environmental News Round-up

Oil & Gas - New Oil and Gas Emission Control Guidelines Posted - On Thursday, October 20, 2016, EPA published emission control techniques guidelines for the oil and gas industry regarding reducing smog-forming...more

Use of long-term climate projections for bearded seal listing not necessarily a bellwether for Endangered Species Act decisions

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a...more

EPA Must Consider Regulatory Impacts on Coal/Utility Industry Jobs and Plant Closure

On October 17, 2016, the U.S. District Court for the Northern District of West Virginia granted summary judgment to Murray Energy Corporation and its subsidiary coal companies, including UtahAmerican Energy, Inc. The decision...more

9th Cir. Upholds ESA Listing of Pacific Bearded Seals on the Basis of Climate Projections

On October 24, the U.S. Court of Appeals for the Ninth Circuit reversed the district court and upheld the determination of the National Marine Fisheries Service (NMFS). The NMFS concluded that two distinct population species...more

Federal Court Decision Finding EPA has a Non-Discretionary Duty to Evaluate Employment Impacts under the Clean Air Act May Have...

An October 2016 federal court decision confirmed that, as a matter of law, the Environmental Protection Agency (EPA) has a non-discretionary duty to undertake an ongoing evaluation of job losses that may result from...more

WV District Court: EPA Has A Non-discretionary Duty Under The CAA To Evaluate Economic Losses Resulting From Government Action

On October 17, the U.S. District Court for the Northern District of West Virginia coalgranted summary judgment to Murray Energy Corporation, which sued the Environmental Protection Agency (EPA) seeking declaratory and...more

Wolverine Status Review Reinitiated

The distinct population segment of the North American wolverine (Gulo gulf luscus) has had a long and difficult history with the Endangered Species Act (ESA). However, things appeared to be changing in 2013, when, after...more

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