Monday, July 13, 2009

Natural Resources Defense Council v. U.S. EPA

Jul 10: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-1045, consolidated with 06-1046, 06-1047, 06-1214, 07-1311. As explained by the Appeals Court, in 1997, the EPA revised the National Ambient Air Quality Standard (NAAQS) for ozone from a 1-hour standard to an 8-hour standard. These consolidated petitions for review challenge aspects of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Phase 2, 70 Fed. Reg. 71,612 (2005) (Phase 2 Rule), and Phase 2 of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Notice of Reconsideration, 72 Fed. Reg. 31,727 (2007) (Reconsideration Notice).

The Appeals Court ruled, "We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate. We further hold the EPA arbitrarily
eliminated one safeguard and violated the anti-backsliding provision of the Act insofar as it eliminated another from its regulations governing review of new sources of pollution. We therefore grant the petitions with respect to those aspects of the Phase 2 Rule.

"In view of our decision in North Carolina v. EPA, 531 F.3d 896 (2008) [
See WIMS 7/14/08, & 1/5/09], in which we granted a petition for review of the Clean Air Interstate Rule (CAIR), we defer consideration of the Phase 2 Rule and Reconsideration Notice insofar as they relate to the CAIR program. We deny the petitions in all other respects."

Earthjustice filed the suit, representing the Natural Resources Defense Council (NRDC). The states of New Jersey, New York and Connecticut also joined in part of the challenge. In a release, NRDC said, "The U.S. Court of Appeals for the D.C. Circuit found the Environmental Protection Agency rules illegally let plants buy rights to pollute -- sometimes from plants hundreds of miles away -- instead of installing modern emission controls. The court also invalidated parts of the rule that weakened pollution limits for major new or expanded factories and power plants in cities with unhealthful air."

David Baron, Earthjustice attorney said, “Rejecting these waivers is a breath of fresh air to millions of Americans living in cities that violate clean air standards. The EPA rule let power plants pump uncontrolled air pollution into regions that already had dangerous smog levels. We said that violated the law, and the court agreed.”

NRDC indicated that the case grew out of an air pollution trading program aimed at reducing pollution that travels between states. The EPA rule overturned created loopholes by allowing power plants in already polluted communities to avoid installing controls by buying pollution credits from another plant that could be hundreds of miles away. Earthjustice argued that the waiver violated the Clean Air Act. Twenty-two states are members of this interstate program, and most of them contain areas that are already very polluted, officially known as “non-attainment areas.” These include cities like Chicago, Pittsburgh, Baltimore, New York and Philadelphia.

Access the complete opinion (
click here). Access a release from NRDC (click here).

Greater Yellowstone Coalition v. Kimball

Jul 10: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-8083. Petitioners-Appellants Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, and Wyoming Outdoor Council (collectively GYC) sent a letter to the United States Forest Service (Forest Service”) and the United States Bureau of Land Management (BLM) requesting the agencies to undertake environmental analyses of Wyoming elk feedgrounds located on Federal land. In the letter, GYC alleged the environmental analyses were required pursuant to the National Environmental Policy Act (NEPA).

Unsatisfied with the agencies’ response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various Federal permitting regulations in connection with the feedgrounds’ authorizations. In addition to seeking review of the agencies’ actions, GYC requested injunctive relief requiring the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed the decision and the Appeals Court vacated the portions of the district court order that have become moot and affirmed the other portions.

The Appeals Court ruled further, "GYC’s claims as to the six feedgrounds included in the July 2008 environmental analysis are moot. We therefore vacate the portions of the district court opinion addressing those feedgrounds." Additionally, ". . .we conclude BLM’s actions with regard to the four Wyoming feedgrounds in question were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and affirm the district court’s denial of GYC’s request to compel BLM to undertake environmental analyses of these feedgrounds."

Access the complete opinion (
click here).