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Much ado is being made of recent amendments to the Clean Air Act (CAA) contained in the Biden administration’s budget reconciliation law passed in mid-August, commonly referred to as the Inflation Reduction Act (IRA). And with good reason, as the law includes the most significant changes to the CAA since 1990, and the new sections formally define greenhouse gases (GHGs) as an “air pollutant,” consistent with the Supreme Court’s 2007 decision in Massachusetts v. EPA.

However, the IRA amendments to the CAA do not in fact make significant substantive changes in law. Legally speaking, they can’t, given that the IRA is merely a reconciliation bill through which Congress may only assign funding. More to the point, none of the IRA amendments to the CAA address in any way the limitations the Supreme Court recently placed on EPA’s authority to adopt climate change regulation in West Virginia v. EPA, notwithstanding some characterizations to the contrary.…

Continue Reading Clean Air Act Amendments Minimally Impact EPA’s Authority to Pass Climate Change Regulation

On the last day of what was already an historic term, the Supreme Court issued another significant decision impacting EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions and address climate change. As EPA embarks on a third attempt at a rule targeting CO2 emissions from existing power plants that will pass legal muster, the question now is how the Court’s decision will affect that new rule.
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Continue Reading West Virginia v. EPA: The Supreme Court Speaks Again on Climate

To help reboot after the holiday break, here is a list of air topics we expect to make news in 2022 with a short discussion of why each one may be important to you.
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Continue Reading Welcome Back! These Are the Air Topics That Will Make News in 2022

The U.S. Supreme Court has elected to hear a legal dispute over the scope of the authority granted to the Environmental Protection Agency (EPA) under the Clean Air Act to regulate greenhouse gas (GHG) emissions from existing power plants. In orders issued October 29, the Court granted certiorari to four petitioners — West Virginia, North Dakota, the North American Coal Corporation, and Westmoreland Mining Holdings LLC — seeking reversal of a September 2020 D.C. Circuit Court of Appeals decision striking down the Affordable Clean Energy (ACE) rule.
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Continue Reading Supreme Court Will Hear Controversy Over EPA Regulation of Greenhouse Gases from Existing Power Plants

The U.S. Supreme Court issued its opinion in the consolidated cases U.S. Forest Service v. Cowpasture River Preservation Assn. (Case No. 18-1584) and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Assn. (Case No. 18-1587) addressing the U.S. Forest Service’s authority to issue authorization for the Atlantic Coast Pipeline to cross beneath the Appalachian Trail. Reversing the Fourth Circuit’s December 2018 decision, the Court held that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way on lands within the George Washington National Forest owned by the Forest Service over which the Trail crosses.
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Continue Reading U.S. Supreme Court Reverses Fourth Circuit, Holds U.S. Forest Service Has Authority to Grant Right-of-Way Beneath Appalachian Trail

On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by Chief Justice John Roberts, turns on a plain-text interpretation of the definition of “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Over a dissent by Justice Neil Gorsuch joined by Justice Clarence Thomas, the Court found that the affected landowners are potentially responsible parties and, therefore, restricted from challenging EPA-approved remediation plans.
Continue Reading Atlantic Richfield v. Christian Limits Property Owner Claims for Restoration Damages at Superfund Sites

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and subject to much litigation.

In a 6-3 split, with Justice Breyer delivering the opinion of the Court, the Court rejected the Ninth Circuit’s “fairly traceable” test for determining when discharges from point sources to groundwater that reach surface waters are subject to Clean Water Act (CWA) permitting, instead laying out a narrower test focusing on whether a discharge to groundwater is the “functional equivalent of a direct discharge.”  The CWA defines point sources as any “discrete conveyance . . . from which pollutants are or may be discharged,” including pipes, channels, and wells. The Court found middle ground on the issue, citing to EPA’s long history of permitting pollution discharges from point sources that reached navigable waters only after traveling through groundwater and to several factors that should be considered on a case-by-case basis.
Continue Reading Supreme Court Issues New “Functional Equivalent” Test for Clean Water Act Permitting Coverage of Discharges to Groundwater

On Monday, January 27, the United States Supreme Court issued a notice granting both Florida and Georgia 45 days to respond to a special master recommendation recently issued by New Mexico-based federal Tenth Circuit Judge Paul Kelly, as well as time to address each other’s arguments in subsequent legal briefs.

The notice sets the stage for the justices to potentially hear the case later this spring or more likely, according to Court observers, in their next term that begins in October, 2020. The Court could also decide the 7-year-old case, Florida v. Georgia, without further oral arguments depending on the parties’ submissions. Florida sought to limit Georgia’s water usage in the Apalachicola-Chattahoochee-Flint river basin, where the Chattahoochee River transects Alabama and Georgia, the Flint River flows through rich South Georgia farmland, and the combined flows into the Apalachicola River ultimately reaches Apalachicola Bay and the Gulf of Mexico. The headwaters of the basin within Lake Lanier serve as the main source of drinking water for a majority of metro Atlanta and irrigates farms in southwest Georgia, providing an economic impact to Georgia estimated to be $13.8 billion.…

Continue Reading Supreme Court Sets Stage for Next Water Wars Showdown