DC Circuit: American Rivers, et al v. FERC, et al

Association's members' desire to observe the diversity of the river is sufficient injury for standing.  Future deterioration is redressible.

A claim that omits to specifically challenge certain regulations can be read to challenge them, given the context, the motion to consolidate, and the discussion of issues; additionally, no prejudice.

Agency opinion arbitrarily disregarded the degree to which degraded baseline conditions imperiled existing species.

A perfunctory provision authorizing subsequent reconsideration if the fishing take exceeded 100% of a given species was an unlawfully vague trigger point.

Agency hard look didn't sufficiently consider present and cumulative harms.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8CE28752AC62F25A852582C200528B2B/$file/16-1195.pdf

DC Circuit: Sierra Club, et al v. EPA, et al

Agency finding that it was established that a certain emission was not a carcinogen was not based on substantial evidence, as the agency merely searched the literature for proof that it was carcinogenic.

Agency use without a safety margin of a "low confidence" metric beneath comparable state regulations presents an issue for trial.

Petitioners were not required to demonstrate that any given adjustment of the data was unreasonable; the agency needed to explain its rationale for the adjustments.

Agency discretion in setting pollution levels for each category can't be given to the manufacturer by defining several levels for each category; the statute requires the agency to set the levels.

Agency use of a synthetic area source to set the allowable levels for the category wasn't contrary to statute, as the source is within the category as defined.

As industry didn't sufficiently explain why some sources performed surprisingly well, agency's exclusion of some sources wasn't arbitrary or capricious.

Substantial evidence for agency finding that coming innovations will allow industry to meet standard without raw material substitutions.

Tile-making organization does not have sufficient Article III standing to intervene in judicial review of smokestack rulemaking absent some showing that its members will be harmed by the pending rule.

https://www.cadc.uscourts.gov/internet/opinions.nsf/B42E4D7405452F66852582C200525ACE/$file/15-1487.pdf

Fifth Circuit: Atchafalaya Basinkeeper, et al v. U.S. Army Corps

Agency's mitigation analysis was sufficient, as the project did not have a significant environmental impact.  Use of external mitigation credits was sufficiently explained within the agency's decisionmaking process.  Corps recitation of potential cumulative impacts sufficed to establish consideration of cumulative impact.

http://www.ca5.uscourts.gov/opinions/pub/18/18-30257-CV0.pdf

Ninth Circuit: Fleshman v. Volkswagen AG

Statute grants absolute right of intervention only to citizens who are barred from filing their own suit to enforce the law due tot he government's attempt to enforce that specific law.

As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.

The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf

Fourth Circuit: Ohio Valley Environmental v. Scott Pruitt

Plaintiffs have sufficient Article III standing to challenge EPA action affecting a state's rivers when they can establish concrete and particular harms arising from some subset of the rivers.

State's lack of filing is insufficiently clear and ambiguous to trigger the constructive submission of a refusal to file -- the question of agency obligation is therefore one for trial.

http://www.ca4.uscourts.gov/opinions/171430.P.pdf

DC Circuit: Western Organization v. Ryan Zinke

No legal duty to conduct a further environmental review of the federal government's coal regulation scheme, as the adoption of the plan in 1985 was the major federal action that triggered the obligation of environmental review.

https://www.cadc.uscourts.gov/internet/opinions.nsf/FCE27F0BA64C40A1852582B100518555/$file/15-5294-1736645.pdf

National Environmental Development Association's Clean Air Project v. EPA

As the statute unambiguously refers to regional inconsistencies from the delegation of the Administrator's powers, and moreover, implementing judicially-created inconsistencies is a reasonable resolution of the (un)ambiguity, no error in agency's inconsistent remedies implemented in response to bifurcated judicial review.

https://www.cadc.uscourts.gov/internet/opinions.nsf/C030B5F7DB87A8DB852582A600521E70/$file/16-1344-1734993.pdf

Seventh Circuit: Highway J Citizens Group UA v. TRAN

Deference to implicit agency view that road renovation project falls within NEPA exclusion, since agency approved the program.


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-05/C:17-1036:J:Easterbrook:aut:T:fnOp:N:2165825:S:0

First Circuit: Paolino v. JF Realty, LLC

FRCP, Environmental, Fees


No abuse of discretion in court's refusal to allow revised late-filed expert testimony, as it was duplicative of other testimony, and the equitable reason for the delay had a procedural remedy.

Judgement was not against the weight of the evidence, as the only proof of pollution was from a mingled source and there are other remedial efforts in place to effect the purposes of the statute.

Award of fees under statute upheld, as suit was filed after defts had remedied the harm.
 
Paolino v. JF Realty, LLC

Ninth Circuit: NATURAL RES. DEFENSE COUNCIL V. PENNY PRITZKER

Environment, Administrative


Agency determination of de minimis impact did not vitiate statutary requirement that rulemaking be of  the least practicible adverse impact.

Data-poor areas are not excepted from the requirement by the best-information rule.

Speculative long-term measures do not meet burden of implementing the least-practicible-impact standard.


NATURAL RES. DEFENSE COUNCIL V. PENNY PRITZKER

Fifth Circuit: State of Texas, et al v. EPA, et al

Environment, Injunctions, Statutory Construction, Administrative


Statute's conferral of jurisdiction for review is distinct from the section indicating correct venue. 

Statute does not permit agency administrator to unilaterally remove action to DC Circuit upon determination of nationwide scope.

Final rule is a locally/regionally applicable standard, given state variances, agency findings.

Statute did not compel state to perform source-specific analysis. 

Timetable extends beyond jurisidiction under rule.

Strong likelihood that viability of power grid insufficiently considered.

Irreparable harms, given that recovery of costs could not be made in the course of business, threats to power grid.

Ready interest to affordable electricity outweighs reduction in haze.

Texas and Oklahoma plans stayed in their entirety.

Concurrence -- Long-term projects can be begun within timeframes of limited jurisdiction. 

DC Circuit: EarthReports, Inc. v. FERC

Environment, Administrative


Agency environmental review that did not consider the net increase in international exports of natural gas after the expansion of the facility was not arbitrary or capricious, as the agency would have to subsequently authorize the increase in exports.

General carbon cost metric is insufficiently standard.

General challenges to shipping activity either outside scope or sufficiently accounted for.


EarthReports, Inc. v. FERC

Ninth Circuit: CALIFORNIA SEA URCHIN COMM'N V. MICHAEL BEAN

Environmental, Administrative, Statute of Limitations.


The APA time limit to challenge the ending of a specific agency program runs from the order terminating the program, not the order holding that the agency has the authority to terminate the program.  An earlier challenge would be theoretical.


CALIFORNIA SEA URCHIN COMM'N V. MICHAEL BEAN

Fourth Circuit: Ohio Valley Environmental Coalition v. United States Army Corps

Environmental, Administrative


Where statute requires that the Corps of Engineers conduct an environmental review based on the mining project's effects upon US waters, the review is properly limited to the effects on US waters, and need not be expanded to consider other public health questions.


Ohio Valley Environmental Coalition v. United States Army Corps

DC Circuit: Public Employees v. Abigail Hopper

Environment, Administrative

Agency took an insufficient hard look in preparation of environmental impact statement, given geologist's testimony.

Deference to Coast Guard on the scope of navigation safety terms statute requires to be included in the contract.

Agency's refusal to consider economic impact statement offered by environmental interest group was arbitrary/capricious.


Public Employees v. Abigail Hopper

Sixth Circuit: Sierra Club v. United States Forest Serv.

Environment, Administrative

No error in categorical exclusion from environmental review, since, inter alia, the present company is substantially the same as the one earlier granted a permit, and increased flow through the pipeline is not a material change in the original grant, which was for an easement of a certain width.


Sierra Club v. United States Forest Serv.

Fifth Circuit: Markle Interests, L.L.C. v. U.S. Fish and Wildlife

Environment

Loss of property value confers sufficient Article III standing.

Agency finding that land was essential for conservation of a species did not have to establish that the species was present there.

No specific methodology of economic impact assessment is compelled by statute.

Sufficient interstate commerce when considered in the aggregate.

No impact statement required, as there is no change to be made in the physical environment.

 Dissent: Not a suitable habitat for the species.


Markle Interests, L.L.C. v. U.S. Fish and Wildlife

DC Circuit: Sierra Club, et al v. FERC

Standing, Environment

Member living under a mile away gives associational standing to challenge increased constuction and output at natural gas port, given construction plans.

Environmental analysis was a substantial part of the export strategy, so not moot.

Intervening causation defeats challenge to export strategy by challenging port expansion.

Foreseeable and proximte effects on national markets required for cumulative analysis.

Shift in metrics not raised in agency proceedings


Sierra Club, et al v. FERC

DC Circuit: Sierra Club v. FERC

Standing, Environment

Organization meets causation and redressibility requirements for associational standing in challenge to an increase in natural gas production levels due to member who fishes in the area, given the presumptive increase in tanker traffic.

On merits, claim that increasing production at this port will lead to exports, causing domestic harms is flawed, because it relies on an intervening act - a decision to increase exports.

Agency hard look did not have to take a hard look at other projects occurring outside the jurisdiction which might have had a cumulative effect.


Sierra Club v. FERC

Ninth Circuit: Idaho Conservation League v. BPA

Kozinski, Environment, Administrative Law

Agency dam management decision to revert to flexible winter water level does not require an environmental review under the statute, as the temporary shift to fixed-level didn't require one.


Idaho Conservation League v. BPA