The U.S. Environmental Protection Agency (EPA) has issued a Draft Guidance Memorandum following the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund. 139 S.Ct. 1164 (2019). This Guidance Memo attempts to give regulators and source owners additional clarity as to when the functional equivalent test should be applied. County of…
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The United States Court of Appeals for the Seventh Circuit will soon have the opportunity to apply the U.S. Supreme Court’s recent County of Maui v. Hawaii Wildlife Fund ruling to a long-running dispute between an environmental group and the owner of a coal-fired power plant. 140 S.Ct. 1462 (2020). The case is Prairie Rivers Network v. Dynegy…
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The United States District Court for the D.C. Circuit has denied an environmental advocacy group’s motion to reconsider the Court’s 2018 ruling giving Environmental Protection Agency’s (EPA) discretion as to how to establish a new “total maximum daily load” (“TMDL”) for trash in the Anacostia River. Plaintiff Natural Resources Defense Council (“NRDC”) argued little progress…
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The U.S. Court of Appeals for the Third Circuit has ruled a potentially responsible party’s (PRP) settlement with New Jersey resolving its state-law liability in connection with contamination at a municipal landfill did not protect it from third-party lawsuits seeking contribution toward expenditures made by EPA on the same site. New Jersey Department of Environmental…
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The U.S. District Court for the Northern District of California has dismissed a Clean Air Act (CAA) complaint asserting EPA must reassess risks of hazardous pollution sources whenever it requires technological upgrades for them. Citizens for Pennsylvania’s Future et al. v. Wheeler, No. 19-cv-2004, 2020 WL 3481425 (N.D. Cal. June 26, 2020). In a matter…
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The 9th Circuit U.S. Court of Appeals has affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold. The decision reverses the lower court’s dismissal of the claims and opens the door for more litigation. In re Volkswagen “Clean Diesel” Mktg., Sales…
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On April 23, 2020, the United States Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, No. 18-260, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source, but are conveyed to navigable waters by a nonpoint source, such as groundwater. The Court found…
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The United States Court of Appeals for the D.C. Circuit has ruled EPA acted improperly when it suspended restrictions on the use of hydrofluorocarbons (HFCs) to replace ozone-depleting substances (ODSs). Natural Resources Defense Council v. Wheeler, No. 18:1172 (D.C. Cir. April 2020). EPA did this without going through notice-and-comment procedures, which is what the Natural…
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The United States Court of Appeals for the Fourth Circuit has affirmed a District Court order remanding to state court a suit filed by the City of Baltimore seeking to hold oil companies accountable for climate change. In 2018, the Mayor and City Council of Baltimore filed suit against major oil companies in state court. The…
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On January 23, 2020, the EPA and the U.S. Army Corps of Engineers released the Navigable Waters Protection Rule (NWPR) which redefines “waters of the United States” (WOTUS). This new rule adopts a more limited definition of WOTUS that are subject to the Clean Water Act. The NWPR defines WOTUS to include only four categories…
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