•   The United States Court of Appeals for the Sixth Circuit held that the Environmental Protection Agency (EPA) was not arbitrary, capricious, or contrary to law in approving Kentucky’s antidegredation rules using a water-body-by-water-body approach (rather than a pollutant-by-pollutant approach) in identifying high quality waters under the Clean Water Act (CWA).   The Court also held that EPA’s approval of Kentucky’s exclusion of impaired waters from Tier II protection under the CWA was not arbitrary, capricious, or contrary to law.  According to the Court, the waters designated as impaired did not even have the minimum quality level necessary to support their designated uses, let alone a quality better than necessary to support aquatic-life-based uses, wildlife uses, and recreational uses, so as to require Tier II protection under the applicable regulation. The Court further held that EPA’s approval of Kentucky’s Tier II exemption for coal-mining discharges under the CWA was not in accordance with law.

•     The United States Court of Appeals for the Ninth Circuit held that it did not have jurisdiction to review the Army Corps of Engineers’ approved jurisdictional determination finding that a proposed residential property in Fairbanks, Alaska underlain by shallow permafrost contained wetlands subject to Clean Water Act (CWA) regulatory jurisdiction. According to the Court, although an approved jurisdictional determination was the Corps’ official, last word about its view of the status of the property, the Corps’ view did not impose an obligation, deny a right or fix some legal relationship. Accordingly, it was not final agency action within the meaning of the Administrative Procedure Act (APA), 5 U.S.C. § 704.

•     The United States Court of Appeals for the Ninth Circuit held that the computer modeling results used by the Environmental Protection Agency (EPA) in determining the safety of pesticide levels in food and water consumed by children constituted “reliable data” as required by the Food Quality Protection Act (FQPA).  The Court also held that EPA’s decision not to wait for the results of certain developmental neurotoxicity (DNT) studies  before establishing tolerances for certain pesticides was not arbitrary and capricious.  However, EPA’s failure to explain the connection between the toxicological data and the 3x margin of safety selected by the EPA in place of the 10x standard for children rendered the decision arbitrary and capricious.

•     The United States Court of Appeals for the Ninth Circuit held that Environmental Protection Agency (EPA) had no discretion to determine whether to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water runoff from the construction industry once it listed the construction industry as a point source category in a plan published pursuant to § 304(m). The Court held that once the EPA listed the construction industry as a point-source category, it was required to promulgate ELGs and NSPSs. The Court therefore affirmed the district court’s grant of summary judgment and the permanent injunction against the EPA.  The Court also held that the district court, rather than the Court of Appeals, had exclusive jurisdiction over the case and that the plaintiff environmental group had standing to bring the case.

•     The United States Court of Appeals for the Ninth Circuit held that Physicians Committee for Responsible Medicine and People for the Ethical Treatment of Animals (“Organizational Plaintiffs”) did not have associational standing to sue the Environmental Protection Agency (EPA) regarding regulation of pesticides in food.  The Court noted that individual plaintiff-appellants had failed to provide evidence showing a concrete and particularized economic injury because they had not provided any evidence of their actual expenditures on food.  Individual appellants’ evidence of a generalized concern about pesticide chemicals was also insufficient to show a concrete and particularized emotional harm that was actual or imminent.  The Court held that because the individual appellants failed to produce sufficient evidence of standing, the Organizational Plaintiffs did not have associational standing either.

•     The United States Court of Appeals for the Eleventh Circuit held that the Environmental Protection Agency’s (EPA) actions in refusing to object to issuance of a Title V operating permit that did not contain prevention of significant deterioration (PSD)-related limits or compliance schedules for two Georgia coal-fired power plants fell within bounds of its discretion. According to the Court, the agency-issued violation notice and civil complaint were merely initial steps in enforcement action and did not, by themselves, inevitably trigger under the Clean Air Act (CAA) EPA’s statutory duty to object.  The Court determined that the CAA was ambiguous when it came to defining type of demonstration required to trigger EPA’s duty to object to the issuance of a permit, and thus, the Court was willing to defer to a reasonable interpretation by EPA as to when the petitioner had sufficiently demonstrated noncompliance with PSD requirements. The fact that the EPA had initiated proceedings to resolve applicability of PSD requirements, without more, was insufficient to trigger EPA’s duty to object to the issuance of the permits, because EPA had discretion to reasonably conclude the applicability of PSD limits to those plants was still very much unresolved.  Thus, EPA did not act arbitrarily in declining to object to the permits.

•     The United States District Court for the Southern District of Alabama held that the process through which the Army Corps of Engineers (Corps) reached its Finding of No Significant Impact (FONSI) determination was not so badly out of step with pertinent statutory mandates to amount to an arbitrary and capricious exercise of authority.  The court found that the plaintiffs had failed to meet their heavy burden of showing that the Corps failed to take a hard look at the environmental impacts of the disputed Laguna Cove project in the six-year period that the permit application was pending before it. During that time, the Corps, other agencies, and the applicant itself substantially retooled and reshaped the proposed development to minimize its environmental impacts.  The court noted that the Corps issued two public notices, held a public hearing, and responded to the concerns of other agencies and the general public (including plaintiffs) by compelling significant modifications to the project to safeguard the environment. Moreover, it was entirely proper for the Corps to consult with and rely on the expertise and recommendations of agencies such as the United States Fish and Wildlife Service (regarding impacts on the Alabama Beach Mouse [ABA]) and the Alabama Department of Environmental Management (regarding impacts on water quality), both of which approved the project in its final form.

•     The United States District Court for the Northern District of California denied a motion to dismiss a claim challenging the Environmental Protection Agency’s (EPA) issuance of an Interim Reregistration Eligibility Decision (IRED) for chlorpyrifos, an organophosphate insecticide.  The United Farm Workers asked the court to declare that the EPA acted arbitrarily, capriciously, and contrary to law when it approved re-registration of chlorpyrifos for continued use in agricultural applications. The plaintiffs also sought injunctive relief ordering the EPA to make a new reregistration eligibility decision for chlorpyrifos.  In denying the motion to dismiss, the court held that the plaintiffs had properly brought their action pursuant to Section 3(c)(5) of the Federal Insecticide, Fungicide, & Rodenticide Act (FIFRA), which provides that “[t]he Administrator shall register a pesticide if the Administrator determines that . . . it will perform in its intended function without unreasonable adverse effects on the environment.” 7 U.S.C. § 136a (c)(5). 

 

 

 

 

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