Justia Environmental Law Opinion Summaries

In 2011, the Environmental Protection Agency (“EPA”) issued its “final determination to regulate perchlorate in drinking water” under the Safe Drinking Water Act. Drinking Water: Regulatory Determination on Perchlorate. That determination started a clock under the Safe Drinking Water Act requiring EPA to propose regulations within twenty-four months and promulgate regulations within eighteen months of the proposal. But EPA never promulgated perchlorate regulations. Instead, nine years later, the agency purported to withdraw its regulatory determination. Natural Resources Defense Council (“NRDC”) petitioned for review of this action, arguing that EPA lacks the authority to withdraw a regulatory determination under the Act and that, even if EPA possesses such authority, it acted arbitrarily and capriciously by doing so. EPA, joined by Intervenor American Water Works Association, defends its action.   The DC Circuit granted NRDC’s petition, vacated EPA’s withdrawal of its regulatory determination, and remand to the agency for further proceedings. The court held the Safe Drinking Water Act does not permit EPA to withdraw a regulatory determination. The court explained that first, and most fundamentally, EPA’s interpretation of what Congress intended in the statute cannot overcome the statute’s directive that the agency “shall” regulate. And second, the history EPA cites is not inconsistent with the court’s interpretation. The 1996 amendments undoubtedly gave the agency more discretion in determining which contaminants to consider for regulation and whether to regulate them in the first instance. But they also balanced that discretion with a mandatory scheme requiring EPA to regulate after it determines to do so. View "NRDC v. Michael Regan" on Justia Law

Petitioner Midwest Ozone Group (MOG), an association of companies, trade organizations, and individual entities maintaining a collective interest in air quality petitioned for review of the Environmental Protection Agency’s (EPA) final action, entitled the Revised Cross-State Air Pollution Update Rule (Revised Rule) for the 2008 Ozone National Ambient Air Quality Standards (NAAQS), which EPA promulgated in response to this Court’s remand in Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019) In the Revised Rule, EPA addresses its failure to balance emissions obligations in accordance with 2008 ozone NAAQS and its prescribed date of attainment. On appeal, MOG contends that the Revised Rule is arbitrary and capricious and that EPA failed to conduct a legally and technically appropriate assessment as required by the Good Neighbor Provision of the Clean Air Act (CAA).   The DC Circuit denied the petition and held that the Revised Rule is an appropriate exercise of EPA’s statutory authority under the “Good Neighbor Provision.” The court explained that EPA appears to have chosen analytical techniques rationally connected to the Revised Rule and appropriately explained its use of the linear interpolation and subsequent methods for establishing the Revised Rule. In addition, EPA’s methodology did also incorporate photochemical modeling, MOG’s preferred technique, as the “foundation for its projections” and “merely layered an additional mathematical function, linear interpolation” over the original projected data to generate 2021 ozone concentrations. Further, MOG has not established that EPA’s linear interpolation method is oversimplified or that the agency has produced unreasonable results. View "Midwest Ozone Group v. EPA" on Justia Law

Before registering a pesticide, EPA must consult with the statutorily specified agencies that have expertise on risks to species’ survival. But for decades, the EPA skipped that step when it registered pesticides, including those at issue in this case. After the EPA went ahead and approved the five registrations, the Conservation Groups petitioned the D.C. Circuit court to invalidate them. The parties then jointly requested that the court hold the petitions in abeyance to allow for settlement negotiations.The parties arrived at the terms of a settlement allowing the registrations to stand if EPA fulfills core ESA obligations by agreed deadlines. As a condition of their settlement agreement’s binding effect, the parties then jointly moved for an Order returning the cases to abeyance until the specified deadlines to afford EPA time to comply with the parties’ settlement terms.The D.C. Circuit agreed with the Order of Consent and held in the case in abeyance. However, the court dismisses as moot the challenge to the registration of cuprous iodide based on the parties’ report that EPA has complied to their satisfaction with the proposed settlement regarding that pesticide ingredient. View "Center for Biological Diversity v. EPA" on Justia Law

The Environmental Protection Agency registered a new pesticide without first determining, as required by the Endangered Species Act, whether it would have an adverse effect on endangered species. Then, five years ago, the DC Circuit Court ordered EPA to fulfill that statutory obligation. Notwithstanding Congress’s mandate and the court’s order, EPA has failed to make the required determination. The Center for Biological Diversity and the Center for Food Safety sought the only legal relief left that would force the EPA to comply with the statute: a writ of mandamus.   The DC Circuit granted the writ. The court explained that the mandamus petition, in this case, arises from relatively unique circumstances that implicate two distinct sources of mandamus jurisdiction under the All Writs Act: the court’s power to compel unreasonably delayed agency activity and its power to require compliance with our previously issued orders. Further, weighing in favor mandamus is the potential threat cyantraniliprole poses to endangered species. Moreover, the court explained that whether EPA’s internal deadline demonstrates that it is acting in good faith is beside the point. The court need not find bad faith to find unreasonable delay. Thus, the court ordered the EPA to its previous order with an order consistent with the ESA by September 2023. EPA is directed to submit status updates every 60 days between now and September 2023. The court explained that should EPA fail to meet its September deadline, Petitioners are free to renew their motion for vacatur of cyantraniliprole’s registration order. View "In re: Center for Biological Diversity, et al." on Justia Law

In 1997, EPA adopted stricter NAAQS for ozone. National Ambient Air Quality Standards for Ozone. The agency later adopted an implementation rule that, among other things, construed the Act’s anti-backsliding provision to apply not only when EPA relaxes a NAAQS but also when it strengthens one. The EPA reasoned that if Congress desired to maintain existing controls when a NAAQS is relaxed, Congress also must have intended to maintain such controls when a NAAQS is strengthened. The D.C. Circuit previously sustained the EPA’s interpretation.The Sierra Club challenged the EPA’s decisions to lift antibacksliding requirements in Houston and Dallas. The EPA responded that the proper and exclusive venue for the Sierra Club’s challenge is the Fifth Circuit. Thus, the D.C. Circuit transferred the case to the Fifth Circuit. View "Sierra Club v. EPA" on Justia Law

The Federal Communications Commission approved a request by Space Exploration Holdings, LLC to fly its satellites at a lower altitude.The D.C. Circuit rejected the merits of a competitor's claim that the FCC did not adequately consider the risk of signal interference. The D.C. Circuit also declined to review a claim brought by another competitor and an environmental group because the competitor's asserted injury did not fall within the zone of interests protected by the NEPA and the environmental group lacked standing. View "Viasat, Inc. v. FCC" on Justia Law

Chevron U.S.A. Inc. intends to decommission two oil platforms located off the coast of California. The activity of those platforms is generally subject to the Clean Air Act. Chevron asked the Environmental Protection Agency for guidance on whether, as the process of decommissioning the two oil platforms moves forward, the platforms will cease to qualify as regulated sources under the Clean Air Act. EPA responded in a letter to Chevron. Unsatisfied with the views set out in EPA’s letter, Chevron now seeks judicial review of EPA’s response.The DC Circuit dismissed Chevron’s petition for review. The court wrote that it does not reach the merits of Chevron’s petition for review. In the circumstances of this case, the Clean Air Act’s venue provision allows for judicial review in this court only if EPA’s challenged action is “nationally applicable,” as opposed to “locally or regionally applicable.” 42 U.S.C. Section 7607(b)(1). The court concluded that EPA’s response letter is locally or regionally applicable, and that venue over Chevron’s challenge lies exclusively in the United States Court of Appeals for the Ninth Circuit. View "Chevron U.S.A. Inc. v. EPA" on Justia Law

In implementing an Omnibus Amendment that establishes industry-funded monitoring programs in New England fishery management plans, the National Marine Fisheries Service (Service) promulgated a rule that required industry to fund at-sea monitoring programs. A group of commercial herring fishing companies contend that the statute does not specify that industry may be required to bear such costs and that the process by which the Service approved the Omnibus Amendment and promulgated the Final Rule was improper.On appeal, Appellants’ challenge to the Final Rule presents the question how clearly Congress must state an agency’s authority to adopt a course of action. The DC Circuit affirmed the district court’s grant of summary judgment to the Service based on its reasonable interpretation of its authority and its adoption of the Amendment and the Rule through a process that afforded the requisite notice and opportunity to comment. The court explained that when an agency establishes regulatory requirements, regulated parties generally bear the costs of complying with them.Here, the Act’s national standards for fishery management plans direct the Service to “minimize costs” of conservation and management measures and to minimize adverse economic impacts” of such measures on fishing communities. Those statutory admonitions to reduce costs seem to presume that the Service may impose some costs, as “minimize” does not mean eliminate entirely. View "Loper Bright Enterprises, Inc v. Gina Raimondo" on Justia Law

Many amateur racers have believed that the Clean Air Act permits them to modify the emissions systems of ordinary cars they convert into race cars. According to them, the converted cars are no longer designed for highway use and thus are not “motor vehicles.” But in 2015, the Environmental Protection Agency proposed a rule with language to the contrary. Further, under the new definition, even if an individual removes certain safety features from a motor vehicle, it remains a motor vehicle unless the “absence of [those safety features] would prevent operation on highways. Petitioner, The Racing Enthusiasts and Suppliers Coalition, petition for review of an Environmental Protection Agency (EPA) rule that Petitioners’ claim curtailed the practices of amateur racers and the businesses that make and sell them car parts.   The DC Circuit dismissed the petition for review finding that the court does not have jurisdiction because Petitioner lacks standing for most of its claims and because the remaining claim does not challenge a final agency action. The court explained that the Coalition lacks standing to challenge the EPA’s seven cosmetic amendments regarding the competition exemption for nonroad engines and equipment like snowmobiles and tractors. Further, the court held that the Coalition also has not shown that it has standing to challenge the EPA’s update to the regulatory definition of "motor vehicle". Moreover, the court explained that the Coalition has not met its burden to show that its member was injured by the EPA’s updated regulatory definition of "motor vehicle." View "Racing Enthusiasts and Suppliers Coalition v. EPA" on Justia Law

The Oglala Sioux Tribe and its nonprofit association Aligning for Responsible Mining seek a review of the Nuclear Regulatory Commission’s decision to grant Powertech (USA), Inc., a source material license to extract uranium from ore beds in South Dakota. The Tribe maintains that the Commission failed to meet its obligations under the National Environmental Policy Act and the National Historic Preservation Act.   The DC Circuit denied the Tribe’s petition because the Commission adequately complied with the relevant statutory and regulatory requirements. The court explained that the Tribe failed to demonstrate any NEPA deficiencies that require setting aside the Commission’s decisions.   First, the Tribe argues the agency did not adequately consult with the Tribe. The Tribe’s refusal to participate in the 2013 Survey and its challenges to the opportunity the Tribe was, in fact, afforded. The Commission satisfied its consultation obligations under the NHPA. Second, the Tribe maintains the agency impermissibly failed to survey the Dewey-Burdock area for the Tribe’s historic properties. NHPA regulations permit an agency to conduct a survey as part of its efforts to identify historic properties, but agencies are free to use a survey or some other method to gather information. Finally, the Tribe suggests the agency impermissibly postponed identifying historic properties until after Powertech had begun operations. NHPA regulations, however, expressly contemplate this approach. View "Oglala Sioux Tribe v. NRC" on Justia Law