The most noteworthy decisions this month are the following:
• In In re Peabody Western Coal Company, Permit Number NN-OP-09-010 (EAB, January 25, 2013), the petitioner argued that a Clean Air Act (CAA) permit modification by the Navajo Nation Environmental Protection Agency was invalid because the CAA did not authorize the EPA to delegate permitting authority to an Indian Tribe. In denying the petition, the EAB first explained that the petitioner had not made this argument during the public comment period, as it was required to do in order to preserve the issue for purposes of a petition. Moreover, a petition to the Board was not the appropriate venue in which to test whether EPA regulations allowing permitting delegations were consistent with the CAA. There were no compelling circumstances that would justify review of the petitioner’s claim that EPA exceeded the scope of its authority under the CAA.
• In Sierra Club v. EPA, No. 10–1413 (D.C. Circuit, January 22, 2013), the EPA promulgated a rule that allowed for a de minimis exception to otherwise applicable requirements for continuous preconstruction monitoring of emissions for a period prior to the review of a permit application. The exception, according to EPA, would apply in areas where the ambient concentration of pollutants was not close to exceeding the national ambient air quality standards. The D.C. Circuit agreed with the petitioner that the Clean Air Act (CAA) authorized no de minimis exception to the monitoring requirements. The Act was unambiguously rigid in this respect. Moreover, EPA’s rationale for the exception was unpersuasive because in the absence of monitoring and the review of monitoring data, there would be no way for EPA or the public to know that an area in fact had air quality that would continue to meet applicable standards even after the additional pollutant load from planned construction projects. The D.C. Circuit thus vacated and remanded the portion of the rule establishing a de minimis exception to the requirement of preconstruction monitoring.
• In Honeywell International, Inc. v. EPA, Nos. 10–1347, 10–1350, 10–1348, 10–1349. (D.C. Circuit, January 22, 2013), the petitioners challenged the treatment of certain transfers of allowances of the air pollutant HCFC-22 made by their competitors in 2008 as permanent. The D.C. Circuit found that the petitioners had standing and that their petition was timely. However, the D.C. Circuit declined to address the merits of whether the transfers at issue should be deemed permanent because a prior panel of the D.C. Circuit had answered that question in the affirmative in Arkema Inc. v. EPA, 618 F.3d 1 (D.C.Cir.2010). A panel of the D.C. Circuit has no authority to overrule the final decision of a prior panel. Thus, the petition was denied.
• In AVX Corporation v. United States, No. 11-1697 (4th Cir. February 7. 2013), Judge Diaz, writing for the Fourth Circuit Court of Appeals, affirmed a finding that the government was not responsible for proximate site causation. The government’s expert testimony was properly included, though he was not expert in the particular TCE contamination. The lower court performed an exhaustive analysis and concluded that the government’s waste had not migrated to the site.
• In Western Wood Preservers Institute v. McHugh, Civil Action No. 12–1253 (ESH) (D. District of Columbia, February 27, 2013), trade associations challenged modifications by the United States Army Corps of Engineers to nationwide permits. The modifications prohibited certain treated wood products from being discharged into waters of the United States. The Court held that the plaintiffs lacked Article III standing because they had not shown that particular members of their organizations would be adversely affected economically by the modifications. Plaintiffs also lacked prudential standing to challenge the Corps’ alleged noncompliance with the National Environmental Policy Act (NEPA) because their organizations were not based near the affected waters and the plaintiffs’ economic concerns fell outside NEPA’s zone of interests.
• In Tennessee Gas Pipeline Co. v. Delaware Riverkeeper Network, No. 3:13–CV–46 (M.D. Pennsylvania, February 5, 2013), the Court held that the federal Natural Gas Act provides that a state environmental agency’s Clean Water Act (CWA) permits for a pipeline project must be be reviewed by the United States Court of Appeals. Because the United States Court of Appeals has the exclusive right of review, the permits could not be appealed to a state environmental hearing board and construction could not be stayed pending an appeal to that board. Continuing pipeline construction was in the public interests given the economic importance of the project and the speculative nature of the harms the defendants claimed would result from the project. The Court thus granted the emergency preliminary injunction sought by the plaintiff pipeline company.
• In Sierra Club v. Energy Future Holdings Corp., No. W–12–CV–108 (W. D. Texas, February 6, 2013), in this Clean Air Act (CAA) citizen suit regarding a power plant’s alleged non-compliance with opacity limits, the Court denied the motion to dismiss in its entirety. The Court held that the plaintiff was not required to identify specific injured members in order to establish standing as a facial matter. Nor did the Court find merit in the contention that the suit was an impermissible collateral challenge to the CAA operating permit. The suit was not rendered moot by changes in Texas law, because those changes were not approved by the EPA and hence lacked legal effect.
• In United States v. Tonawanda Coke Corp. and Mark Kamholz, No. 10–CR–219S (W.D. New York, February 22, 2013), in this criminal prosecution under the Clean Air Act (CAA), the government and defendants disagreed as to whether the defendants should be allowed to offer testimony regarding an entrapment-by-estoppel defense. The Court explained that the defense is established when a defendant can show that it reasonably and sincerely believed its conduct had been authorized, even if there was no actual authorization. The defendants had pointed to disclosures of conditions at the facility that they made to regulators that provided a sufficient ground for their developing and arguing the defense at trial. The Court prohibited testimony at trial regarding the meaning of the environmental law and legal requirements at issue, although the Court allowed testimony concerning the regulatory process, how permitting works, and other related concepts in order to educate, orient, and provide context for the jury.
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