Articles Posted in Environmental Law

by
Sierra Club petitioned for review of EPA's determination that EPA satisfied its responsibilities under 42 U.S.C. 7412(c)(6) to establish "maximum achievable control technology" (MACT) standards for emissions of certain hazardous air pollutants (HAPs). The DC Circuit held that the petition was timely and EPA did not adequately respond to petitioners' comments raising the issues concerning the use of surrogacy in the administrative proceedings. Accordingly, the court denied EPA's motion to dismiss and ordered the matter remanded to EPA for further proceedings. View "Sierra Club v. EPA" on Justia Law

by
Environmental and Industry Petitioners challenged the EPA's promulgation of a final rule, pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k, governing when certain hazardous materials qualify as "discarded" and are thus subject to the agency's regulatory authority. The D.C. Circuit upheld Factor 3; vacated Factor 4 insofar as it applied to all hazardous secondary materials via 40 C.F.R. 261.2(g); vacated the Verified Recycler Exclusion except for its emergency preparedness provisions and its expanded containment requirement; and reinstated the Transfer-Based Exclusion. Consequently, the removal of the Transfer-Based Exclusion's bar on spent catalysts was vacated, subject to such arguments as the parties may raise supporting a different outcome. View "American Petroleum Institute v. EPA" on Justia Law

Posted in: Environmental Law

by
Petitioners challenged the EPA's decision to stay implementation of portions of a final rule concerning methane and other greenhouse gas emissions. The DC Circuit held that, although absent a stay, it would have no authority to review the agency's decision to grant reconsideration, because EPA chose to impose a stay suspending the rule's compliance deadlines, the court must review its reconsideration decision to determine whether the stay was authorized under section 307(d)(7)(B) of the Clean Air Act (CAA), 42 U.S.C. 7607(d)(7)(B). The court also held that the 90-day stay was unauthorized by section 307(d)(7)(B) and was thus unreasonable. View "Clean Air Council v. Pruitt" on Justia Law

by
Conservation Groups filed a complaint in the district court under the citizen suit provision of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., and a petition for review in the DC Circuit pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. The court granted the Conservation Groups' petition, holding that FIFRA grants the court of appeals exclusive jurisdiction to review an ESA claim that is "inextricably intertwined" with a challenge to a pesticide registration order. Accordingly, the court remanded for further proceedings. View "Center for Biological Diversity v. EPA" on Justia Law

by
Millennium petitioned to compel the New York State Department of Environmental Conservation to act on Millennium's application for a water-quality certificate. The DC Circuit dismissed the petition for review, holding that, even if the Department has unlawfully delayed acting on Millennium's application, its inaction would operate as a waiver, enabling Millennium to bypass the Department and proceed to obtain approval from FERC. The court explained that the Department's delay caused Millennium no cognizable injury and thus Millennium lacked standing to proceed with its petition. View "Millennium Pipeline Co. v. Seggos" on Justia Law

by
Environmental groups requested records from the EPA that the agency had previously obtained from power plants under Section 308 of the Clean Water Act, 33 U.S.C. 1318(a), (b). The records requested are exempt from disclosure under Exemption 4 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4), but seemingly must be disclosed under Section 308. At issue was what statute prevailed. The DC Circuit held that the Administrative Procedure Act (APA), 5 U.S.C. 559, directly addressed the issue. Section 559 provides that FOIA exemptions apply unless a later statute expressly supersedes or modifies those exemptions. In this case, section 308 is the later statute. Because section 308 does not expressly supersede Exemption 4, EPA impermissibly invoked Exemption 4 to deny the FOIA requests. Accordingly, the court affirmed the judgment. View "Environmental Integrity Project v. EPA" on Justia Law

by
Riverkeeper petitioned for review of FERC's Certificate of Public Convenience and Necessity conditionally approving the Leidy Project. The DC Circuit denied the petition and held that it had jurisdiction to consider Riverkeeper's challenge to the Certificate Order on the ground that FERC violated the sequencing requirement of the Clean Water Act (CWA) by issuing its Certificate Order before Pennsylvania issued its section 401 certification; the sequencing requirement of section 401 was not triggered because the Commission's conditional approval of the Leidy Project construction did not authorize any activity which might result in a discharge in navigable waters; the court need not decide whether the letter orders impermissibly approved activity that might have resulted in a discharge before Pennsylvania issued its section 401 certification; FERC did not violate the National Environmental Policy Act (NEPA) by misclassifying wetlands; even if FERC technically erred in some of its classifications, Riverkeeper has not shown any prejudice; and FERC's NEPA review of the Leidy Project's proposed gas flow velocities appeared to be fully informed and well-considered. View "Delaware Riverkeeper Network v. FERC" on Justia Law

by
Petitioners challenged the Commissions' determinations following compliance filings by the regional transmission organization for New England's electric grid. The court concluded that the Transmission Owners have standing to bring their challenges, but concluded that the Commission's orders were not inconsistent with its past decisions; the Commission did not apply the wrong legal standard for measuring whether the Mobile-Sierra presumption had been overcome; and the Commission's determination was in accord with the evidence before it. In regard to State Petitioner's challenges, the court concluded that, in light of the clarifications made by the Commission, there is no inconsistency with Order No. 1000. The court also concluded that the Commission did not exceed its bounds of authority under the Federal Power Act (FPA), 16 U.S.C. 824(a). Accordingly, the court denied the petitions for review. View "Emera Maine v. FERC" on Justia Law

by
The Services issued a Final Rule in 2012 designating 9.5 million acres of federal forest lands in California, Oregon, and Washington as critical habitat for the northern spotted owl. The Council filed suit challenging the legality of the critical habitat designation. The court concluded, in light of its decision in Mountain States Legal Foundation v. Glickman, that the Council had standing to challenge the designation because it has demonstrated a substantial probability that the critical habitat designation will cause a decrease in the supply of timber from the designated forest lands, that Council members obtain their timber from those forest lands, and that Council members will suffer economic harm as a result of the decrease in the timber supply from those forest lands. Accordingly, the court reversed the district court's decision stating otherwise and remanded for further proceedings. View "Carpenters Industrial Council v. Zinke" on Justia Law

by
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9603, and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11004, require parties to notify authorities when large quantities of hazardous materials are released into the environment. In 2008, the EPA issued a final rule that generally exempts farms from CERCLA and EPCRA reporting requirements for air released from animal waste. The EPA reasoned that the reports were unnecessary because, in most cases, federal response was impractical and unlikely. The court concluded that petitioners have informational standing and proceeded to the merits. The court granted the petition for review and vacated the Final Rule, concluding that the EPA's action cannot be justified either as a reasonable interpretation of any statutory ambiguity or implementation of a de minimis exception. The Pork Producers' challenge was moot and the court dismissed their petition. View "Waterkeeper Alliance v. EPA" on Justia Law