Winston’s Environmental Law Update

The Supreme Court’s docket this term includes eight environmental cases, some of which have already been decided and some of which have not yet been argued. Below we provide a brief synopsis of these cases, which are expected to be decided by June 2021. We note that one of these cases (Biden v. Sierra Club) has been removed from the Court’s argument calendar following the change in Administration. 

In response to three separate decisions to remand by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), the EPA has issued a pre-publication draft of its amendments to the National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT). The proposed amendments revise 34 different emission limits for various subcategories of boilers and pollutants, 28 of which would become more stringent and six of which would become less stringent. Relying on the “co-benefits” of the rule in controlling ancillary emissions of particulate matter and sulfur dioxide, EPA estimates these amendments will cost the industry $21.5 million per year with estimated annual benefits of $95-$250 million. As we previously wrote, EPA has signaled its intent to move away from the practice of relying on co-benefits in rule development.

The Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps) case continues in the Ninth Circuit.

On May 11, 2020, the Montana federal district court issued an amended order in the Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps), narrowing the scope of its initial nationwide vacatur of Clean Water Act Section 404 Nationwide Permit 12 (NWP 12).

The energy industry across the country continues to watch the Montana district court case Northern Plains Resource Council v. U.S. Army Corps of Engineers (NPRC v. Corps), given the “nationwide” impact of the Montana court’s April 15^th order vacating Clean Water Act Nationwide Permit 12 (NWP 12).

On April 20, 2020, the Supreme Court of the United States issued its opinion in Atlantic Richfield Co. v. Christian, et al. allowing Montana landowners to pursue state law tort claims for damages within an EPA-managed Superfund site, but requiring EPA approval of any remedial work beyond the originally selected remedy.

On April 23, 2019, the Supreme Court of the United States issued its highly anticipated decision in County of Maui v. Hawaii Wildlife Fund. The case involves a challenge to the County of Maui’s discharge of treated wastewater into the ground via four wells, which effluent travels about half a mile through groundwater into the Pacific Ocean, without a Clean Water Act permit.

There are a number of noteworthy environmental cases on its agenda as the Supreme Court heads into the oral arguments for the spring session.

The growing debate following two parallel decisions over the Clean Water Act’s (CWA) applicability to groundwater discharges continued with further briefing as to whether the Supreme Court should grant pending petitions for review in those cases. In 2018, decisions by the Fourth and Ninth Circuits broadened the traditional reach of the CWA by finding discharges of pollutants traveling through groundwater which reach jurisdictional waters of the United States were regulated by the CWA.

On February 1, 2018, the Ninth Circuit Court of Appeals published its opinion in Hawai’i Wildlife Fund v. County of Maui, holding that in some cases, indirect discharges to navigable waters through groundwater require a National Pollutant Discharge Elimination System (NPDES) permit to avoid violation of the Clean Water Act. 

On January 5, 2018, U.S. Magistrate Judge Susan Paradise Baxter issued an opinion and order in the U.S. District Court for the Western District of Pennsylvania which sanctioned two attorneys from the Community Environmental Legal Defense Fund (CELDF) for advancing “discredited” community-rights based arguments to oppose the issuance of an injection well permit by the United States Environmental Protection Agency (USEPA).

Following the Supreme Court’s 2015 decision in Michigan v. EPA requiring EPA to consider costs before regulating utilities under Section 112 of the Clean Air Act, litigation regarding the several aspects of the Mercury and Air Toxics Standards (MATS) continues in the U.S. Court of Appeals for the D.C. Circuit.

On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in West Virginia v. EPA, the case challenging EPA’s Clean Power Plan. All ten of the active judges on the D.C. Circuit, except for Chief Judge Garland (who has been nominated to the Supreme Court), heard the case. 

On June 13, 2016, the Supreme Court of the United States denied an appeal from states and industry in Michigan v. EPA regarding the Mercury & Air Toxics Standards. 

On May 31, 2016, the Supreme Court of the United States unanimously held in Army Corps of Engineers v. Hawks Co. that approved jurisdictional determinations (JDs) issued by the U.S. Army Corps of Engineers (USACE) under the Clean Water Act (CWA) are final agency actions and, therefore, subject to judicial review under the Administrative Procedure Act (APA).

On May 16, 2016, the U.S. Court of Appeals for the D.C. Circuit on its own motion issued an order delaying oral argument in West Virginia v. EPA to September 27, 2016. Oral argument in the case, which challenges the Clean Power Plan, was previously scheduled for June 2, 2016. 

On March 18, 2016, a group of 20 states led by Michigan appealed the U.S. Court of Appeals for the D.C. Circuit’s decision to remand the Mercury and Air Toxics Standards to EPA without vacatur.

On March 3, 2016, Chief Justice Roberts denied, without comment, a request from a coalition of 20 states to stay implementation of the Mercury and Air Toxics Standards (MATS) which the D.C. Circuit remanded to EPA on December 15, 2015. 

On the evening of February 9, the Supreme Court of the United States issued a highly unusual ruling to grant a motion to stay implementation of EPA’s Clean Power Plan (CPP). The stay will remain in effect during the pendency of litigation in the U.S. Court of Appeals for the D.C. Circuit and on subsequent review by the Supreme Court, if a writ of certiorari is sought and granted. 

Following the United States Court of Appeals for the District of Columbia Circuit’s denial on January 21, 2016, of a request for an emergency stay of the final Clean Power Plan rules, an application for an emergency stay was filed with the Supreme Court of the United States was filed on January 26, 2016, by more than 28 States and state regulators, with West Virginia leading the charge.