Environmental Civil Procedure Administrative Agency

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Sixth Circuit Will Not Rehear Venue Question in Clean Water Act Rule Dispute

On April 21, 2016 the United States Court of Appeals for the Sixth Circuit denied several petitions for rehearing en banc a Sixth Circuit panel decision that looked at which courts (federal district court or federal courts of...more

U.S. Fish and Wildlife Ordered to Reconsider Delisting of N. American Wolverine

The courts continue to be busy issuing significant Endangered Species Act (ESA) rulings. In the latest one, issued in early wolverineApril, the U.S. District Court for Montana, Missoula Division, in Defenders of Wildlife v....more

Petitioners’ Requests to the Court to Proceed with Review of Enlist Duo During Remand and to Retain Jurisdiction Are Denied

On March 28, 2016, a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit, Case Nos. 15-71207, et al. (consolidated) issued an order denying the Petitioners’ March 10, 2016, motion asking the court to...more

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more

CSAPR > BART: The Eighth Circuit Affirms Minnesota’s Regional Haze Plan

Environmental lawyers live for acronyms. Why is CSAPR > BART? Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards...more

EPA Issues Notice to Cancel Flubendiamide Registrations

On February 29, 2016, the U.S. Environmental Protection Agency (EPA) released a prepublication copy of a notice of intent to cancel all Bayer CropScience, LP and Nichino America, Inc. (BCS/NAI) flubendiamide products. The...more

NSR Enforcement Staggers On: A Split Decision in Missouri

Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power...more

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a...more

Litigating Environmental Whistleblower Claims Under OSHA Procedures

The federal government is allocating more time and resources to whistleblower programs. Now, more than ever, companies need to take steps to minimize exposure to whistleblower claims. When a whistleblower case is filed, it...more

Unlike Keith Richards, I Have Not Fallen Out Of A Tree

Last month, I went out on a limb and predicted that the D.C. Circuit Court of Appeals would not stay the CPP. Today, the Court vindicated my faith in judicial rationality and refused to grant a stay. In a brief order, the...more

Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial...

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen The Supreme Court of the United States (SCOTUS) agreed on Friday to review an important Clean Water Act (CWA) decision issued by the Eighth Circuit in Hawkes Co.,...more

U.S. Supreme Court Agrees to Decide Important Case Affecting Development in Wetlands

A critical part of the permitting process for many development projects is obtaining federal and state wetland permits. The key wetland authorization is usually a Section 404 permit from the U.S. Army Corps of Engineers...more

D.C. Circuit Denies EPA Motion for Summary Affirmance of District Court Order Dismissing ESA Complaint for New Pesticide

On December 7, 2015, in Case Nos. 14-1036 and 15-5168, the U.S. Court of Appeals for the D.C. Circuit issued an order denying the U.S. Environmental Protection Agency’s (EPA) motion for summary affirmance of an order issued...more

New Challenges for CEQA Review of Development Projects After California Supreme Court Invalidates Greenhouse Gas Analysis and...

In a 5-2 ruling that poses significant hurdles for developers addressing greenhouse gas (GHG) compliance and protected species mitigation under the California Environmental Quality Act (CEQA), the California Supreme Court...more

California Supreme Court Finds Newhall EIR Insufficient, But Partially Upholds Greenhouse Gas Analysis

On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. Cal. Dept. of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015). The decision is the first in a...more

Breaking: EPA Water Rule Blocked Nationwide By Sixth Circ.

The Sixth Circuit today stayed the effect of the Environmental Protection Agency’s new “Clean Water Rule” nationwide, while the Court of Appeals considers whether it has original jurisdiction to hear challenges to the...more

CT Law of the Land

Week of September 23 - Limits of relief possible for Intervenor under CGS 22a-19 - In Hunter Ridge LLC v. Planning & Zoning Commission Connecticut’s Supreme Court considered whether injunctive relief was available...more

Land Use Matters: Alston & Bird LLP, September 2015

The 1st District Court of Appeal invalidated the use of a statutory exemption applicable to the State Lands Commission’s (SLC) approval of a land exchange. The land exchange related to the 8 Washington Street Project, which...more

Federal Judge Grants Preliminary Injunction Blocking the Obama Administration’s New Clean Water Rule From Taking Effect

On August 27, 2015, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Clean Water Rule (the Final Rule). The Final Rule defines Waters of the United States...more

District Court Enjoins Federal Regulations Revising Scope of Clean Water Act Jurisdiction

North Dakota v. U.S. Environmental Protection Agency, No. 3:15-cv-00059 (D.N.D. Aug. 27, 2015) - A federal judge, Ralph R. Erickson, in North Dakota today granted several states’ request for a preliminary injunction to...more

WOTUS Litigation Update: Confusion Breeds Confusion

Perhaps it is poetic justice. The litigation over the final Waters of the United States (WOTUS) rule is as disjointed and confusing as the rule itself. Following a key court ruling yesterday, the WOTUS rule is now...more

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

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

30-year Eagle Take Permit Term Remanded on Procedural Grounds

On August 11, 2015, the United States District Court for the Northern District of California found that the U.S. Fish and Wildlife Service ("Service") had inappropriately relied on a categorical exclusion under the National...more

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