• Mark Ryan

Four New Cases

The courts have been busy this past week. We're continuing to see lots of pipeline litigation. It will be interesting to see if the Biden administration's new pivot toward fighting climate change will have an effect on how many Corps permits are issued to these projects.

Shrimpers and Fishermen of the RGV v. USACOE, 2021 WL 911171 (5th Cir. 2021) (unpublished) (placing petition challenging 404 permit for gas pipeline in abeyance where the Corps has suspended the permit in question and is reconsidering it; because the permit is no longer final, there is no final agency action to consider and the proposed changes to the permit may address many of the challenges noted by petitioners)

United States v. U.S. Steel, 2021 WL 860941 (N.D. Ind. 2021) (on motion to dismiss in case where citizens group stayed its litigation against steel mill and then moved to intervene in EPA’s enforcement action, held that citizens intervention is supposed to supplement, not supplant government’s case and plaintiffs allegations are inconsistent with their role as intervenors; as intervenors, citizens are limited to raising claims up which the government can seek relief; plaintiffs must assert their claims under 309 and not 505(b)(1))

Yellowstone to Uintas Connection v. Bolling, 2021 WLK 861705 (D. Idaho 2021) (denying motion to dismiss in pipeline challenge case, held that the NGA does not preempt plaintiff’s challenge to NWP12 where the NWP did not go through ESA consultation)

Riverkeeper, Inc. v. TCI of NY, LLC, 2021 WL 860578 (N.D.N.Y. 2021) (denying motion to dismiss in industrial stormwater case, held that defendant’s allegations of lack of Rule 11 good faith in making allegations of continuing unlawful discharges were more appropriate for summary judgment than a motion to dismiss, where all of the allegations in the complaint are deemed true; stormwater is per se a pollutant under the Act; the state’s subsequent issuance of a GP and finding that there were no violations does not render plaintiff’s case moot; plaintiff’s 60-day notice letter adequately detailed the alleged violations that defendants failed to comply with the GP or to implement the SWPPP)

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