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A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

The federal courts have issued a few significant environmental law rulings in the past couple of days.

On March 4, 2021, the court held that the deliberative process privilege of the Freedom of Information Act protects from reform in house draft governmental biological opinions which are equally”predecisional” and deliberative. As stated by the court, the opinions, opining about the Endangered Species Act (ESA) effects on aquatic species of some proposed federal rule affecting cooling water intake structures–that had been promulgated in 2019–are exempt from disclosure because they do not reflect a”final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary perspective, along with the Services did not deal with them as being the final or last word on the job’s desirability. The Sierra Club, invoking the FOIA, sought many records created by the rulemaking proceedings, and received tens of thousands of webpages. On the other hand, the Service declined to release the draft biological opinions which were created in connection with the ESA consultative process.
Major SCOTUS Environmental Law Examples in April

April 28–PennEast Pipeline Co. v. New Jersey ( a new pipeline instance with overtones of impending domain authority)
FEDERAL COURTS
The U.S. District Court for the District of Columbia — State of New Jersey v. EPA
On March 5, 2021, the DC Circuit decided this case, in which New Jersey sought the review of a last activity of EPA which revised a Clean Air Act new source review reporting and recordkeeping rule in answer to an earlier DC Circuit decision. The court held that New Jersey had standing to prosecute the action, but lost to the merits. The majority reasoned that the bureau had engaged in reasoned conclusion, consistent with the Administrative Procedure Act. 1 judge dissented, opining that New Jersey did not have standing .
The U.S. Court of Appeals for the Fourth Circuit — Mountain Valley Pipeline, LLC v. North Carolina Department of Environmental Quality
On March 11, 2021, the court decided a second natural gas pipeline instance. The construction of the pipeline had been approved by FERC, on condition that the other flaws detected by the Fourth Circuit in four earlier opinions, were adjusted. The state DEQ denied that the pipeline’s application for a Clean Water Act 401 authorization, along with the pipeline appealed this adverse decision to the Fourth Circuit. The court largely upheld the state agency’s action, but remanded the decision back to this bureau for further explanation of its action.
The U.S. Court of Appeals for the Fifth Circuit — Sierra Club vs. Department of the Interior
On March 10, 2021, the court denied a request filed by the plaintiffs to review an order of the Department of Interior the ESA wouldn’t be offended by the construction of a natural gas pipeline from South Texas where ocelots, a species protected by the ESA which have been known to be present in this area, albeit rarely. The court held that the Service complied with the duties under the ESA, and that adequate measures will be taken to mitigate any negative effects. The court reasoned,”In the beginning, the Service considered all that it was required to contemplate… except for what it had been specifically permitted to omit.”
So far, there have been three separate rulings by the district court along with 2 different judgment by the Fifth Circuit. The case had been remanded to the district court in a judgment reported in 968 F. 3d 357 (2020) to enable the court to make additional findings as to this”traceability” element of the Act of God defense in Texas. In summary, the district court discovers that Exxon is liable for more than 14 million in fines and not several hundred million dollars as initially alleged, and that Exxon couldn’t use as an affirmative defense to some allegations that the Texas Act of God defense, triggered by a hurricane, because Exxon didn’t present evidence that Hurricane Ike was not anticipated to influence the centre.
The Ninth Circuit Court of Appeals — United States v. James Philip Lucero
On March 4, 2021 reversed the defendant’s criminal conviction under the Clean Water Act, and ordered the defendant has been given a new trial. The suspect had been convicted of intentionally charging organizations to dump debris and dirt onto lands nearby San Francisco Bay with no permitnonetheless, these lands were categorized as”wetlands” and a”tributary” subject to regulation under the Clean Water Act. The board majority reversed because the defendant must have been charged with illegally discharging”into oceans,” as demanded by the Act. Thus, the presiding judge’s instructions were flawed. The court also held that the revised 2020 CWA principles defining waters of the U.S. weren’t to be accorded retroactive effect. (These rules reduced the regulatory scope of this program) 1 quote on the panel dissented, arguing that the charges must have used the word,”waters of the USA.” The board as a whole seemed to agree that the rules are complicated, but not so complicated as to be unconstitutionally vague.
The Tenth Circuit Court of Appeals — State of Colorado v. U.S. EPA
Soon following EPA and the U.S. Army Corps of Engineers uttered a revised definition of”waters of the U.S.” in April 2020, the State of Colorado asked for and received a preliminary injunction against these principles, remaining their effective date in Colorado. On March 2, 2021, that the Tenth Circuit reversed this decision, holding that Colorado failed to show it would be”irrevocably” harmed absent an injunction. Speculative evidence of harm won’t suffice to support the issuance of a preliminary injunction. The destiny of the new rules will likely be fought in innumerable federal district courts.
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