Monthly Archives: December 2015

Supreme Court to Decide Whether a Corps Jurisdictional Determination Can be Appealed

By Max E. Bridges

On December 11, the U.S. Supreme Court granted certiorari to determine if a party can appeal a U.S. Army Corps of Engineers’ jurisdictional determination that a water feature is regulated under the Clean Water Act. United States Army Corps of Engineers v. Hawkes Co., Inc. et al., Docket No. 15-290. The Petition was filed by the Army Corps after the Eighth Circuit determined that a jurisdictional determination was final agency action and appealable. The Supreme Court’s decision will resolve a circuit split between the Eight and Fifth Circuits, and the issue is significant because prior to development landowners often obtain the Corps’ opinions as to whether a particular water feature is regulated under the Clean Water Act. If the Corps has jurisdiction, the landowner must obtain a permit (which takes considerable time and resources) or risk substantial enforcement penalties.

The Administrative Procedures Act allows judicial review of “final agency action for which there is no other adequate remedy in a court.” But the Corps has long maintained that its jurisdictional determination is not Continue reading Supreme Court to Decide Whether a Corps Jurisdictional Determination Can be Appealed

Max Bridges to present at the Kentucky Chamber’s 14th Annual Environmental Conference

Max Bridges, a member of Wyatt’s Natural Resources & Environmental Service Team, will be presenting at the Kentucky Chamber of Commerce‘s 14th Annual Environmental Conference on February 9-10 in Lexington.  Mr. Bridges will be speaking on the topic “Real Estate and Environmental Issues Selected Statutes and Predevelopment Planning.”  The presentation will focus on issues under the major environmental laws that impact real estate development including issues arising under the Clean Water Act, Endangered Species Act, Comprehensive Environmental Response, Compensation, and Liability (CERCLA), and other federal and state laws.  It will also address pre-development planning and how to avoid liabilities.

To view the full agenda, click here.

To register, click here.

D.C. Circuit Court Issues Order Remanding MATS Rule to EPA Without Vacatur

By Lesly A.R. Davis

On December 15, 2015, the United States Court of Appeals for the District of Columbia Circuit issued an Order that will  leave in place the United States Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards final rule while the agency works to issue final findings as ordered by the United States Supreme  Court.  In  White Stallion Energy Center, LLC, et al. v.  United States Environmental Protection Agency, et al.,  No. 12-1100 (Dec. 15, 2015), the D.C. Circuit directed  that the proceedings be remanded to the EPA without vacatur of the MATS final rule.  The D.C. Circuit  also noted that EPA has represented that it is on track to issue a final finding by April 15, 2016.

The MATS rule has  a very lengthy and controversial history.  On February 16, 2012, the EPA issued national emission standards for hazardous air pollutants (NESHAP) for coal and oil-fired electric generating  units (EGUs),  known as the Mercury and Air Toxics Standards (MATS).   The MATS rule finalized standards to reduce emissions of toxic air pollutants including mercury, arsenic and heavy metals.   EPA proposed to regulate these emissions under Section 112 of the Clean Air Act (CAA).   Industry, states and Continue reading D.C. Circuit Court Issues Order Remanding MATS Rule to EPA Without Vacatur

Sixth Circuit Rejects Clean Air Act Preemption Argument

By Max E. Bridges

gavelIn November, the Sixth Circuit Court of Appeals held that the Clean Air Act (CAA) does not preempt state common law tort claims.  It reached this conclusion in an action by property owners who allege that ethanol emissions from Diageo Americas Supply whiskey aging warehouses harm their property. Merrick v. Diageo Americas Supply, Inc., 14-6198, 2015 WL 6646818 (6th Cir. Nov. 2, 2015).  The plaintiffs, on behalf of a putative class, allege that the ethanol emissions combine with condensation to promote the growth of an unsightly and difficult to remove “whiskey fungus.” They filed a class action lawsuit in federal District Court alleging that under the Kentucky common law of negligence, trespass and nuisance, they are entitled to an injunction mandating that Diageo capture and control the emissions, and recover damages. Diageo sought to have the action dismissed, arguing that plaintiffs’ state law claims are preempted by the CAA because they “conflict with the Clean Air Act methods for regulating emissions and, therefore, that allowing such claims to proceed would frustrate the purposes and objective of the Act.” Id. at *4.  The District Court rejected this defense but certified the question to the Sixth Circuit Court of Appeals.

Writing for the three-judge panel of the Sixth Circuit, Judge Rogers affirmed the District Court’s decision to reject Diageo’s preemption defense: “The Clean Air Act’s text makes clear that the Act does not preempt such claims,” he wrote. Id. at *1. In addressing arguments that a Continue reading Sixth Circuit Rejects Clean Air Act Preemption Argument