I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions. ...more
When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over...more
Last week there were two court decisions on cases in which groups of citizens are seeking court orders requiring the government to act on climate change. The biggest news was that the Supreme Court denied the stay requested...more
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
On November 27, 2017, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:
“discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract...more
On June 23, 2017, the Supreme Court issued an important regulatory takings case, refining the test to be used to determine what is the appropriate unit of property to use to assess the impact of a regulation. It’s an...more
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final agency action subject...more
On February 9, 2016, the Supreme Court stayed EPA’s Clean Power Plan rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this...more
The Supreme Court today affirmed FERC’s Order No. 745, which required that demand response resources be treated the same as generation resources when participating in wholesale electricity markets. I’m feeling vindicated,...more
On December 15, 2015, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury and Air Toxics Standards. The decision was not a surprise. As I noted earlier this fall, there is a definitely trend towards refusing...more
Determining when a person has “arranged” for the disposal of a hazardous substance has long been difficult. The Supreme Court brought some clarity to the issue in Burlington Northern, when it said that...more
Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units. The Supplemental Finding was...more
On October 9, 2015, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule. The case is so weird, in so many ways, that I don’t even think I can count...more
In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the...more
10/8/2015
/ Administrative Procedure Act ,
CERCLA ,
Clean Air Act ,
Clean Water Act ,
Deprivation of Property ,
Due Process ,
Enforcement Actions ,
Environmental Protection Agency (EPA) ,
Penalties ,
Sackett ,
SCOTUS
The short answer is, yes, though the majority is more wrong.
In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word...more
The Supreme Court today ruled that, when an agency revises its interpretive rules, it need not go through notice-and-comment rulemaking. Although the decision, in Perez v. Mortgage Bankers Association, required the court to...more
Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745. Whereas the United States had previously only indicated that it was considering filing a cert....more
Early last month, we noted that the decision in Luminant v. EPA suggested that the reach of the Supreme Court decision in Sackett is not unlimited. The Court of Appeals for the 5th Circuit agrees. In Belle Company v. Corps of...more
After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would...more
The Supreme Court affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have...more
6/25/2014
/ BACT ,
Clean Air Act ,
Climate Change ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Permits ,
Power Plants ,
SCOTUS ,
Title V ,
Utilities Sector ,
Utility Air Regulatory Group v EPA
The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents,...more
As the Supreme Court gets ready to consider the validity of EPA’s Cross-State Air Pollution Rule, some of the Northeastern and Mid-Atlantic states are taking another tack to address at least part of the air pollution...more
On Wednesday, in Bell v. Cheswick Generating Station, the 3rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn’s Cheswick Generating Station....more
The Supreme Court ruled today, in Koontz v. St. Johns River Water Management District, that a property owner who is denied a land use permit on the ground that he refused to pay money to compensate for the harm to be caused...more
6/26/2013
/ Dolan v City of Tigard ,
Fifth Amendment ,
Koontz v St John's River Water Management ,
Land Developers ,
Loss Mitigation ,
Nexus ,
Nollan v California Coastal Commission ,
Permits ,
Rough Proportionality Test ,
SCOTUS ,
Takings Clause
On June 24, 2013, the Supreme Court granted certiorari in EPA v. EME Homer City, the challenge to EPA’s Cross-State Air Pollution Rule, or CSAPR. The Court of Appeals for the District of Columbia had struck down the rule,...more