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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 substantial environmental law rulings in the previous couple of days.

U.S. Fish and Wildlife Service v. Sierra Club, Inc..
On March 4, 2021, the court held that the deliberative process privilege of this Freedom of Information Act shields from reform in house draft political biological opinions which are both”predecisional” and deliberative. As stated by the court, the opinions, opining on the Endangered Species Act (ESA) effects on aquatic species of a proposed federal rule affecting cooling water intake structures–that had been promulgated in 2019–are exempt from disclosure because they do not signify a”final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary perspective, and the Services didn’t treat them like being the final or last word on the job’s desirability. Even the Sierra Club, invoking the FOIA, hunted many documents generated by the rulemaking proceeding, and obtained tens of thousands of webpages. On the other hand, the Service failed to launch the draft biological opinions which were created in relation to the ESA consultative process.
Significant SCOTUS Environmental Law Examples in April
April 26–Guam v. United States (a CERCLA case)

April 28–PennEast Pipeline Co. v. New Jersey ( a fresh pipeline case with overtones of imminent 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, where New Jersey searched the review of a last act of EPA that revised a Clean Air Act new source review coverage and recordkeeping principle in answer to a previous DC Circuit decision. The court held that New Jersey had standing to prosecute this action, but missing to the merits. The majority concluded that the bureau had participated in reasoned conclusion, consistent with the Administrative Procedure Act. 1 judge dissented, opining that New Jersey didn’t have standing .
The U.S. Court of Appeals for the Fourth Circuit — Mountain Valley Pipeline, LLC v. North Carolina Department of Environmental Quality
About March 11, 2021, the court chose the next natural gas pipeline case. The construction of the pipeline had been accepted 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 program for a Clean Water Act 401 empowerment, along with the pipeline sentenced this adverse decision to the Fourth Circuit. The court largely upheld the state agency’s actions, but remanded the decision to the bureau for additional explanation of its actions.
The U.S. Court of Appeals for the Fifth Circuit — Sierra Club vs. Department of the Interior
About March 10, 2021, the court denied a petition filed by the plaintiffs to review the order of the Department of Interior the ESA wouldn’t be violated by the construction of a natural gas pipeline in South Texas where ocelots, a species protected by the ESA which were proven to be present in this region, albeit rarely. The court held that the Service complied with the duties under the ESA, which adequate steps will be taken to mitigate any adverse effects. The court concluded,”At bottom, the Service believed all that it had to contemplate… except for what it had been specifically permitted to omit.”
The Southern District of Texas — Environment Texas Citizen Lobby, Inc. et al. v. ExxonMobil Corporation, et al..
On March 2, 2021, a federal district court in Houston issued its”Second Revised Findings of Fact and Conclusions of Law” within this Clean Air Act citizen suit case brought against Exxon’s Baytown refinery. So far, there were three separate rulings by the district court and 2 separate ruling by the Fifth Circuit. The case had been remanded to the district court at a ruling reported in 968 F. 3d 357 (2020) to allow the court to make additional findings regarding the”traceability” element of standing and the Act of God defense in Texas. In summary, the district court finds that Exxon is liable for over $14 million in penalties and not several hundred million dollars as originally alleged, which Exxon could not apply as an affirmative defense to a allegations that the Texas Act of God defense, triggered by a hurricane, because Exxon didn’t introduce evidence that Hurricane Ike wasn’t expected to affect the facility.
The defendant was convicted of knowingly charging businesses to dump dirt and debris onto lands nearby San Francisco Bay with no license ; however, those lands had been classified as”wetlands” and a”tributary” subject to regulation under the Clean Water Act. The panel majority reversed because the defendant should have been charged with illegally discharging”into oceans,” as required by the Act. Consequently, the presiding judge’s directions were flawed. The court also held that the revised 2020 CWA principles specifying waters of the U.S. were not to be accorded retroactive impact. (These rules reduced the regulatory scope of the program.) 1 quote on the panel dissented, asserting that the fees should have employed the word,”waters of the USA.” The panel as a whole appeared to agree that the rules are complicated, but not too complicated as to be unconstitutionally vague.
The Tenth Circuit Court of Appeals — State of Colorado v. U.S. EPA
Soon after EPA and the U.S. Army Corps of Engineers promulgated a revised definition of”waters of the U.S.” at April 2020, the State of Colorado asked for and obtained a preliminary injunction against those principles, remaining their date at 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 will not suffice to encourage the issuance of a preliminary injunction. The fate of these new rules will probably be fought out in innumerable federal district courts.
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