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NGOs Again Fail to Establish that EPA Has a Non-Discretionary Duty Under the CWA Stormwater Regulations

Last month, the 1st Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA had a non-discretionary duty to require persons owner property where stormwater runoff contributes to an exceedance of...more

The 9th Circuit Weighs In — Discharges to Groundwater Are Subject to the Clean Water Act

As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute. Now the 9th Circuit has weighed in, finding that point discharges to groundwater are...more

EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of...more

1/30/2018  /  Appeals , Auer Deference , Citizen Suits , EPA , NPDES , TMDL

The Supreme Court Sends WOTUS Rule Challenges to the District Courts — It’s Good to Be King

On January 22,2018, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent. ...more

Does EPA Have a Non-discretionary Duty To Make a Statute Work?

If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency. That was...more

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

EPA Administrator Scott Pruitt issued a Directive prohibiting the practice of “sue and settle.” He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.” They are two...more

10/17/2017  /  Citizen Suits , EPA

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

State Programs to Encourage Zero-Emitting Generation are Really, Really, Constitutional

Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New...more

EPA Does Not Have a Non-Discretionary Duty to Assess the Impact of Clean Air Regulations on Employment

On June 29, 2017, the Court of Appeals for the 4th Circuit reversed a District Court decision and rejected the lawsuit by Murray Energy which argued that EPA had a non-discretionary duty under § 321(a) of the Clean Air Act...more

Will There Be a Trial on Climate Change Public Trust Claims? It’s Looking that Way.

Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust obligation it owes to US citizens to protect the atmosphere from climate...more

Perhaps It Should Be Renamed the “Really, Really, Endangered Species Act”

Last Friday, the 9th Circuit Court of Appeals affirmed a District Court decision ruling that the Fish & Wildlife Service decision that listing of the whitebark pine as endangered or threatened was “warranted, but precluded”...more

Citizen Suits Remain a Potent Weapon

Although citizen groups have suffered some defeats in Clean Air Act cases in the NSR/PSD context recently, a decision last week in a different kind of CAA case is a reminder of just how powerful a weapon citizen suits can be,...more

EPA’s EJSCREEN: Making Citizen Environmental Suits Just a Little Bit Easier

I have previously noted that EPA, perhaps recognizing that an unfriendly Congress will lead to budgetary constraints on government enforcement, has been trying to facilitate citizen enforcement efforts. EPA’s latest move on...more

6/16/2015  /  Citizen Suits , EPA

NEPA Review — Still the Land of Deference

Last week, District Judge Ralph Beistline allowed the summary judgment motion filed by the United States Forest Service, and dismissed citizen claims challenging the Forest Service decision to approve an logging project in an...more

RCRA Still Poses Some Interpretive Problems (To Put It Gently)

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and...more

3/24/2015  /  Citizen Suits , DuPont , RCRA

RCRA Is a Mess

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and...more

3/18/2015  /  Citizen Suits , DuPont , RCRA

No Competitors In My Backyard?

In Paradise Lost, John Milton wrote that “easy is the descent into Hell, for it is paved with good intentions.” A modern environmental lawyer might say that the road to waste, inefficiency, and obstruction is paved with good...more

An Analysis of the Problems at the MBTA: Is This the Origin of “Sue-and-Settle”?

On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and...more

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought...more

Yes, Virginia, It Is Possible To Win A Fee Award Against An Environmental NGO

Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean...more

The Devil You Know? Which is Better, EPA Enforcement or Citizen Enforcement?

Last month, I noted that shrinking EPA budgets would lead to greater focus on citizen enforcement. This week, an article in Law360 concerning EPA’s draft 2014-2018 strategic plan has driven that message home. While talking...more

11/29/2013  /  Citizen Suits , Enforcement , EPA

Which Is Worse? EPA Oversight or Citizen Oversight?

Everyone who represents PRPs in Superfund settlements has his or her own horror stories regarding the scope of EPA’s oversight cost claims. We all know that oversight costs can end up as an appreciable percentage of total...more

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