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
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
By Max E. Bridges
Late Thursday, a federal judge in North Dakota blocked the EPA’s Clean Water Rule, set to go into effect today, that would expand federal jurisdiction under the Clean Water Act. U.S. District Judge Ralph Erikson of North Dakota issued a preliminary injunction finding that the 13 states suing to block the rule are likely to succeed on their claim because “(1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule, and (2) it appears likely the EPA failed to comply with the Administrative Procedure Act requirements when promulgating the Rule.” Judge Erikson found that the states have demonstrated irreparable harm because the “States will lose their sovereignty Continue reading Federal Judge Blocks Clean Water Rule in 13 States