Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit

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The DC Circuit denied petitions for review of the EPA's 2015 revisions to the primary and secondary national ambient air quality standards for ozone, except with respect to the secondary ozone standard. The court held that petitioners' arguments, that the primary ozone standard is too lenient because it occasionally permits ozone levels to exceed 0.07 ppm and will allegedly tolerate adverse health effects, lacked merit. However, in regard to the secondary ozone standard, the court held that the EPA has not explained its decision to set a target level of protection against tree growth loss based on a three year average of cumulative, single-year ozone exposures, nor has it justified its decision not to specify any level of air quality requisite to protect against visible leaf injury. Furthermore, the EPA also impermissibly allowed sources that had completed applications for preconstruction permits before the 2015 Rule was adopted to demonstrate compliance with the previous national ambient air quality standards rather than the new, more stringent primary and secondary standards. Accordingly, the court granted those portions of the petition, vacated the grandfathering provision, and remanded for reconsideration. View "Murray Energy Corp. v. EPA" on Justia Law

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Petitioners challenged the Wehrum Memo, which declares that the plain language of section 112 of the Clean Air Act compels the conclusion that a source of toxic emissions classified as "major" can reclassify to an "area source," and thereby ease its regulatory burden, at any time after it limits its potential to emit to below the major source threshold. The DC Circuit held that the Wehrum Memo was not final agency action and therefore dismissed the petitions for lack of subject matter jurisdiction under the Act. The court emphasized that, when assessing the nature of an agency action (including whether it is final), courts should resist the temptation to define the action by comparing it to superficially similar actions in the caselaw. The court held, instead, that courts should take as their NorthStar the unique constellation of statutes and regulations that govern the action at issue. The court also emphasized that, although all legislative rules are final, not all final rules are legislative, and the finality analysis is therefore distinct from the test for whether an agency action is a legislative rule. View "California Communities Against Toxics v. EPA" on Justia Law

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The DC Circuit denied petitions for review challenging the Commission's orders permitting Transcontinental Gas to move forward with a pipeline expansion called the Atlantic Sunrise Project. The court held that the administrative record foreclosed the Homeowners' and Environmental Associations' three arguments under the National Environmental Policy Act (NEPA); the Commission's market-need determination did not violate the Natural Gas Act; and circuit precedent foreclosed the Environmental Associations' and Homeowners' argument that the Commission's authorization for construction to go forward while their rehearing petitions were still pending—and thus before the Commission's decision was final and judicially reviewable—denied them due process. View "Allegheny Defense Project v. FERC" on Justia Law

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The DC Circuit denied a petition for review challenging the EPA's February 2018 decision not to issue financial responsibility requirements for the hardrock mining industry. The court deferred to the EPA's interpretation that it should set financial responsibility regulations based on financial risks, not risks to health and the environment, because the use of "risk" in section 9608(b) in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), in the general mandate and amount clauses, was ambiguous and the EPA's interpretation was reasonable. Furthermore, nothing in section 9608(b) mandates the EPA to promulgate financial responsibility requirements for the hardrock mining industry, authorizing the EPA to decline to do so. The court also held that the EPA's financial risk analysis and economic analysis were neither arbitrary nor capricious. Finally, under Circuit and Supreme Court precedent, the court held that the EPA's Final Action not to adopt financial responsibility requirements for the hardrock mining industry constitutes a logical outgrowth of the Proposed Rule. View "Idaho Conservation League v. Wheeler" on Justia Law

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Petitioners challenged EPA's promulgation of a final rule that treated material transferred from a waste generator to a third-party reclaimer as legitimately recycled, rather than "discarded" and subject to Subtitle C regulation, if several conditions were met (the Transfer-Based Exclusion). The DC Circuit denied the petition for review and held that the Transfer-Based Exclusion was not arbitrary or capricious. The court held that EPA did not act contrary to the Resource Conservation and Recovery Act of 1976 (RCRA) in adopting the Transfer-Based Exclusion because hazardous secondary materials are not necessarily "discarded" each time they are transferred from a generator to a reclaimer along with payment. The court also held that EPA has provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem RCRA addresses where they meet conditions EPA concluded were adequate for safe transfer and legitimate recycling. View "California Communities Against Toxics v. EPA" on Justia Law

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Because the Energy Independence and Security Act of 2007 contains a citation to nowhere, the EPA issued a document setting forth its interpretation of the periodic-review provision of renewable fuel requirements and explaining why it believes it has complied. Valero petitioned for review of the EPA's document. The DC Circuit dismissed Valero's petition based on lack of jurisdiction, because the EPA document did not constitute final agency action. View "Valero Energy Corp. v. EPA" on Justia Law

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Sierra Club filed a petition for the Administrator of the EPA to object to a renewal of an operating permit under Title V of the Clean Air Act issued by the State of Utah for the Hunter Power Plant. After the Administrator denied the petition for objection without examining the merits of Sierra Club's claim, Sierra Club sought vacatur and remand. The DC Circuit held that venue was not proper in this court, because the order denying the petition or objection was neither a nationally applicable regulation nor determined by the Administrator to have nationwide scope or effect. Accordingly, the court dismissed the petition for review under section 307(b)(1) of the Clean Air Act. View "Sierra Club v. EPA" on Justia Law

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Petitioners sought review of FERC's decision authorizing the construction and operation of a new natural gas compression facility in Davidson County. The DC Circuit denied the petition and held that FERC did not violate the National Environmental Policy Act (NEPA) by failing to adequately assess alternatives to the proposed action. In this case, the environmental assessment reflected that the Commission considered twelve alternatives and evaluated each with respect to eighteen different environmental factors. Despite the court's misgivings regarding the Commission's decidedly less-than-dogged efforts to obtain the information it says it would need to determine that downstream greenhouse gas emissions qualify as a reasonably foreseeable indirect effect of the project, the court held that petitioners failed to raise this record-development issue in the proceedings before the Commission. Accordingly, the court lacked jurisdiction to decide whether the Commission acted arbitrarily or capriciously and violated NEPA by failing to further develop the record in this case. View "Birckhead v. FERC" on Justia Law

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After the DC Circuit held that the Corps violated the National Environmental Policy Act (NEPA) when it issued a permit to the Dominion to construct the Surry-Skiffes Creek-Whealton project and vacated the permit, the Corps and Dominion sought panel rehearing solely on the issue of remedy. Neither petitioner bothered to advise the court that construction on the project had been completed and the transmission lines electrified the week before the court issued its opinion. The court remanded the case to the district court to consider whether vacatur remains the appropriate remedy, including whether petitioners have forfeited or are judicially estopped from now opposing vacatur. View "National Parks Conservation Assoc. v. Semonite" on Justia Law

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Sierra Club challenged the EPA's adoption of a final rule modifying its regulations for air monitoring networks. The DC Circuit held that Sierra Club was barred from seeking review of the claimed legal requirement that monitoring plans be assessed under the same procedures as state implemented plans (SIPS) because the new rule and EPA's preamble did no more than echo a prior EPA regulation; Sierra Club lacked standing to attack the sampling frequency changes; and Sierra Club failed to make a showing that the asserted non-response on quality assurance issues manifested any failure to consider factors relevant to the changes. Accordingly, the court dismissed Sierra Club's first two claims and denied the third. View "Sierra Club v. EPA" on Justia Law