• Mark Ryan

Final Court Opinions for 2020?

Here are four new cases sneaking their way in as the 2020 door swings shut. The Delaware Riverkeeper case is an important one. Several challenges have been brought against EPA's controversial new 401 cert. rule. (See my Oct. 12, Aug. 27, July 21 and July 15 blogposts for more on this topic.) EPA attempted to have the case dismissed on ripeness grounds, but the court wasn't buying it. As I've written in the past, this rule has some serious problems, foremost of which it is inconsistent with applicable SCOTUS precedent. Note that eight states and three trade groups intervened in the case. I would not be surprised if the Biden administration stops defending the rule as it aims for a remand. Expect the API and pipeline trade groups, which are the prime beneficiaries of this new rule, to continue the fight.

Also, note the the 11th Cir. caught its mistake in the Coleman case. They vacated and reissued the opinion. See my Dec. 17 blogpost.

Delaware Riverkeeper Network v. EPA, 2020 WL 7488962 (E.D. Pa. 2020) (denying motion to dismiss on ripeness grounds in case challenging new 401 cert. regs., held that plaintiffs had standing to bring challenge where they demonstrated they would be harmed by implantation of new regulation; no factual development is required to challenge the rule now because plaintiff’s case is a facial challenge to the rule based on the administrative record; court granted motion to intervene by numerous states and three trade groups)

D&B Boat Rentals, Inc. v. United States, 2020 WL 7495552 (E.D. La. 2020) (on motion for summary judgment in cost recovery action related to oil spill, held that government was not entitled to deference in its interpretation of ambiguous cost recovery regulations where the government’s explanation conflicts with the plain language of the regulation; the NPFC could not determine that the response costs were consistent with the NCP where there was no federal on-scene coordinator present as required by 33 C.F.R. § 136.205; remanded)

United States v. Coleman, 2020 WL 7490247 (11th Cir. 2020) (unpublished) (remanding criminal plea agreement in case where defendant intentionally dumped 3,000 gallons of diesel fuel onto ground that entered creek via a storm drain and eventually a TNW; held that the government failed to establish a significant nexus between the creek and the TNW; “The record does not provide the assurance that the fuel on the ground went into water that significantly affected the chemical, physical, and biological integrity of the Ochlacknee River.”)

Charleston Waterkeeper v. Frontier Logistics, L.P., 2020 WL 7335408 (D. S.C. 2020) (denying motion to stay discovery subpoena against third party pending appeal in case alleging discharges of plastic pellets without a permit, held that plaintiffs had shown a likelihood of success on the merits and other factors weighed against staying discovery)

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