Environmental & Toxic Tort Section 
Recent Case Law Update 
(2012 WL 3570721 (C.A.D.C.):

On August 21, 2012, the United States Court of Appeals for the D.C. Circuit vacated EPA's Cross-State Air Pollution Rule (CSAPR or "Transport Rule") and the associated Transport Rule Federal Implementation Plans (FIP) and remanded the rulemaking to the agency.  In a 2-1 vote, the Court ordered the entire rule vacated and directed the agency to promulgate a rule that, unlike CSAPR, is constitutional.  Until that time, CAIR remains in place (The Clean Air Interstate Rule. See 70 Fed. Reg. 25,162 (May 12, 2005).

The Court found that EPA exceeded its authority in two ways when promulgating CSAPR. First, under the "good neighbor" provision, EPA had the authority to require upwind states to reduce their own significant contributions to downwind states' nonattainment.  However, the Transport Rule could require upwind states to reduce emissions by more than their own significant contribution to downwind states. The Clean Air Act (CAA) does not authorize EPA to require such massive additional reductions.

Second, it is the states, not EPA, that are initially granted the right to implement the reductions required by EPA under the good neighbor provision.    However, the Transport Rule quantified the states' good neighbor obligations and simultaneously set forth EPA-crafted FIPs to implement those obligations, thereby removing the states' initial opportunity to implement required reductions.  This departed from EPA's prior consistent approach to implementing the good neighbor provision and violated the text of the CAA.

USACE released an updated National Wetland Plant List to replace the FWS 1988 National List of Plant Species that Occur in Wetlands.  This provides a critical resource in wetland vegetation determinations for Section 404 of CWA and Wetland Conservation provisions of the food Security Act. 

On the Horizon:
The Supreme Court of the United States will be tackling two Clean Water Act issues this term: (1) whether run-off from logging roads is industrial stormwater under the Clean Water Act, and (2) whether transfer of water from one portion of a river through a concrete channel or other engineered improvement creates a "discharge" from an "outfall" under the Clean Water Act.    A brief description of the issues and links to the pleadings can be found here (http://www.scotusblog.com/case-files/cases/decker-v-northwest-environmental-defense-center/) and here (http://www.scotusblog.com/case-files/cases/los-angeles-county-flood-control-district-v-national-resources-defense-council/).

October 24, 2012: The 4th Circuit Court of Appeals will hear oral arguments in Dow AgroSciences et al. v. National Marine Fisheries Service (NMFS) et al., to determine how much deference federal agencies should be granted when they assess environmental risks to endangered species.



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