•    In In re Guam Waterworks Authority, NPDES Permit Nos. GU0020141 & Gu0020087, NPDES Appeal Nos. 09-15 & 09-16 (EAB, November 16, 2011), under Section 301(h) of the Clean Water Act (CWA), the USEPA may waive secondary treatment requirements for wastewater plants that discharge into marine waters if the applicant for the waiver satisfies certain requirements. EPA Region 9 declined to reissue a Section 301(h) waiver to the petitioner, and the Environmental Appeals Board concluded that the Board’s decision was well-founded. The petitioner had not satisfied the statutory requirements for a waiver. The Board explained that it is the responsibility of the applicant for a waiver’s responsibility, not the responsibility of the EPA Region, to ensure that the Region has all the necessary information to support the application for a waiver.

•     In NRDC v. EPA, No. 10–1105 (D.C. Circuit, October 28, 2011), in 2010, the EPA issued a rule regarding when certain transportation projects will be deemed to delay attainment with national ambient air quality standards and hence will be deemed to not be in conformity with the Clean Air Act (CAA). The EPA Rule embodied the idea that a project delays attainment only if its implementation postpones attainment beyond the date by which it would have been achieved without the project. The D.C. Circuit held that EPA’s Rule was not arbitrary or capricious or otherwise contrary to law. The D.C. Circuit rejected the petitioner’s positions as inconsistent with the statutory language.

•     In United States v. Donovan, No. 10–4295 (3rd Circuit, October 31, 2011), in this enforcement action, the United States sought to compel a landowner to remove fill material he had placed in wetlands without the requisite Clean Water Act (CWA) permit. The sole question on appeal was whether the wetlands fell within the jurisdictional scope of the CWA. The Third Circuit joined the First and Eighth Circuits in holding that wetlands are subject to the Clean Water Act if they meet either the plurality test in Rapanos or the Justice Kennedy concurrence test in Rapanos. The Third Circuit then held that the wetlands in question met both tests.

•     In Wildearth Guardians v. Public Service Company of Colorado, Civil Action No. 09–cv–01862–RBJ–MEH (D. Colorado, November 16, 2011), in this Clean Air Act (CAA) citizen suit, a key technical expert for the plaintiff filed his initial report before the defendant produced certain documents. The expert then produced a supplemental report based on these documents. The Court granted the plaintiff’s motion to file the supplemental report over the opposition of the defendant. Supplementation of the report was deemed permissible because of the lack of prejudice to the defendant or evidence of bad faith on the part of the plaintiff. The Court rejected the defendant’s claim that the supplemental report contained “new opinions,” explaining that expert opinions based on discovery produced after the initial report should not necessarily be considered “new opinions.” 

•     In Sierra Club v. United States Army Corps of Engineers, No. 4:10CV4017 (W.D. Arkansas, November 16, 2011), in a suit challenging the United States Army Corps of Engineers’ issuance of a permit for the filling of wetlands in connection with a power plant project, the Court concluded that the plaintiff had standing and that the suit was not moot. The Court found that the affidavits submitted by the plaintiff were sufficient to establish standing. The defendant argued that the project was virtually complete, with only a tiny area of wetland yet to be filled, and hence the suit was moot. The Court concluded that the case was not moot, explaining that the environmental importance of the remaining wetland area was not established and the record suggested uncorrected irregularities in the Corps’ permitting process.

•     In United States v. Roberts, No. 3:09–cv–00812 (M.D. Tennessee, November 7, 2011), in this Clean Water Act (CWA) enforcement action concerning a landowner’s construction of a dam without a Section 404 permit, the Court concluded that there was a genuine issue of disputed fact as to whether the landowner’s actions fell within the normal farming operations or farm ponds exemptions to the CWA’s permit requirements. The Court therefore denied summary judgment to the United States on this issue. The Court, however, granted the United States summary judgment regarding the landowner’s affirmative defense of entrapment. The Court explained that this defense is inapplicable in civil actions.

•     In Council For Endangered Species Act Reliability v. Jackson, No. CV–10–8254–SMM (D. Arizona, November 23, 2011), in a prior order, the Court had found that it had jurisdiction over this suit because the suit was an Endangered Species Act citizen suit, and district courts have original jurisdiction over such suits. After the defendants moved for reconsideration, the Court decided that it lacked jurisdiction because the suit in essence was a challenge to the legal adequacy of an EPA review of a pesticide pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Courts of Appeals have exclusive original jurisdiction over such challenges. The Court based its decision on a review of Ninth Circuit precedents.

•     In FMC Corporation v. EPA, Civil Action No. 07–02277 (RMU) (D. District of Columbia, November 21, 2011), this suit involved the legal question of whether the EPA bears the burden of persuasion in a proceeding to cancel a pesticide registration. After voluntarily cancelling its agricultural use registrations for the substance carbofuran, the plaintiff moved to voluntarily to dismiss its suit without prejudice. EPA asked the Court to rule on its pending summary judgment motion rather than dismissing the suit. EPA argued that the plaintiff was engaging in forum shopping and planning to bring a similar suit regarding it non-agricultural-use registrations for carbofuran in a more favorable court. The Court, however, found dismissal to be appropriate, because the dismissal would not prejudice EPA. The Court explained that fear of future litigation does not constitute legal prejudice under Federal Rule of Civil Procedure 41(a)(2).

•     In United States v. Arch Coal, Inc., Civil Action No. 2:11–0133 (S.D. West Virginia, November 7, 2011), this case involved both a public enforcement action and a citizen suit regarding the discharge of selenium in violation of a Clean Water Act (CWA) permits. The Court concluded that the proposed decree was fair and reasonable, and hence approved it. The Court explained that the decree was the result of exhaustive, arms-length negotiations that included federal and state regulators and citizen groups. The decree called for extensive injunctive relief as well as a civil penalty, and the decree had already produced improvements in selenium treatment. The Court also explained that its entry of the decree mooted the citizen suit claims.

•           In In re Oil Spill By The Oil Rig “Deepwater Horizon” In The Gulf Of Mexico, On April 20, 2010, MDL No. 2179, Nos. 10–4182, 10–4183, 10–3059, 11–516 (E.D. Louisiana, November 14, 2011), in a federal preemption decision with potentially far-reaching implications, the Court overseeing the multi-district litigation regarding the Deepwater Horizon spill held that state statutory and common law claims brought by two States were preempted by federal statutes. The Court based its decision on the U.S. Supreme Court’s decision in International Paper v. Oullette, which addressed the interplay of the Clean Water Act (CWA) and state common law in the context of interstate water pollution. The Court found Oullette to be instructive even though that case did not address pollution emanating from federal waters and also did not address the Oil Pollution Act. The Court opined that the federal statutes provided oil companies an adequate incentive to avoid spilling oil into state waters

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