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A Big Pile of New Cases - Some of them Significant

A guy takes a vacation, and the courts start pumping out opinions. Here are the ten new decisions handed down by the courts in the last two weeks. The Second and Fourth Circuit decisions below are important. Read them.


Also important is the Cottonwood Envt’l Law Center below, which deals with groundwater discharges. I think we're going to see more of these post-Maui. It also shows how hard these cases are to bring. I litigated this issue a lot when I was at EPA, and the cases were never easy.


Southern Appalachian Mountain Stewards v. Red River Coal Co., ___ F.3d ___, 2021 WL 1182464 (4th Cir. 2021) (held that because CWA 402(k) shields a permit holder from liability when it complies with its permit, and the SMA savings clause requires that it not overrule the CWA, plaintiffs may not sue defendant for violating state water quality standards under the SMA where the mine is in compliance with its CWA permit, whose WQS are substantially the same as the state SMA standards)

National Audubon Society v. USACOE, ___ F.3d ___, 2021 WL 1152922 (4th Cir. 2021) (in challenge to Corps permit for jetty to prevent shore erosion, held that Corps properly considered economic costs and environmental benefits; the Corps reasonably computed economic costs over a 30-year time period; the Corps reasonably analyzed the alternatives; the Corps consideration of building the jetty as the LEDPA was not arbitrary and capricious)

Mountain Valley Pipeline, LLC v. N.C. Dept. of Envt’l Quality, ___ F.3d ___, 2021 WL 922110 (4th Cir. 2021) (in challenge to state’s denial of cert. to proposed pipeline, held that state did not exceed its authority in denying cert. based on a failure to meet WQS; the state provide rationale explanations about why it considered the absence of a permit for a connecting pipeline to be relevant to the denial of cert.; state adequately cited the relevant state statutory authorities; state failed to explain why it diverged from the recommendations of the hearings officer or why it chose the final path it did; remanded)

New York State Dept. of Envt’l Conserv. v. FERC, ___ F.3d ___, 2021 WL 10965358 (2d Cir. 2021) (in challenge to FERC order finding that state had waived cert. on proposed pipeline by failing to deny cert. within the statutorily-required one year, held that agreement between state and applicant to deem the application to be filed 36 days later than it was does not extend the one-year deadline; “[W]e conclude that Section 401’s bright-line rule also precludes the line-blurring arrangement under review in this case.”)

Black Warrior Riverkeeper, Inc. v. EPA, 2021 WL 927260 (N.D. Ala. 2021) (on motion for summary judgment in challenge to EPA’s approval of state delisting of two water bodies, held that EPA was not arbitrary and capricious in reviewing the delisting submissions and it properly considered the number of water quality samples to support the decision)

Friends of the Headwaters v. USACOE, 2021 WL 1061162 (D.C.D.C. 2021) (granting motion of pipeline company to intervene in challenge to Corps 404 permit for pipeline)

OVEC v. Lexington Coal Co., LLC, 2021 WL 1093631 (S.D.W.V. 2021) (on motion for summary judgment in case against coal mine for violating its permit limits, held that state’s prior enforcement actions did not preclude plaintiff’s case under 309(g) because the plaintiffs filed before the state and the state actions were not comparable to the CWA; the state’s enforcement order does not preclude because no penalty was involved; plaintiffs have standing; defendant violated its permit selenium limits; defendant violated 401 cert. conditions by discharging in excess of state narrative WQS related to ionic pollution)

Cottonwood Envt’l Law Center v. Edwards, 2021 WL 1102405 (D. Mt. 2021) (denying motion for preliminary injunction in case challenging discharges of nitrogen from ski area’s land application area to river via groundwater; held that plaintiffs provided sufficient notice of suit in 60-day notice; plaintiffs did not show a substantial likelihood of success on the merits when applying the 7-part Maui test to the complicated facts in this case)

Gifford v. Kampa, 2021 WL 1143507 (E.D. Ca. 2021) (dismissing pro se plaintiff’s CWA claims where he failed to allege any injury in fact and therefore lacked standing)

Public Employees for Envt’l Responsibility v. Bright, 2021 WL 1220928 (E.D. Tenn. 2021) (after bench trial in which plaintiffs challenged state DOT’s compliance with 401 cert. and 404 mitigation requirements, held that defendant met the mitigation requirement where it replaced a 0.9 acre loss with 1.01 acres of mitigation; defendant did not violate WQS by allowing mitigation in area with water pH that exceeded state standards because lower pH was naturally occurring and therefore exempt; plaintiffs’ challenge to the deed restriction on the mitigation was a collateral attack on the 401 cert. and was therefore brought in the wrong court)



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