• 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).