• Mark Ryan

The Fourth Circuit Stays an NWP 12 for a Pipeline and Three Other New Cases

The 4th Cir. decision below on NWP 12 is an important one involving construction of a gas pipeline. The Waste Action Project case is an interesting one, and perhaps a pyrrhic victory for plaintiffs. In that case, plaintiffs challenged EPA's January 19, 2017 approval of a no-discharge zone in Puget Sound. (It's not just the Trump administration that does last-minute rulemakings.) After four years of litigation, the court remanded the case for EPA to reevaluate in 90 days. That will happen under the Biden administration unless EPA can turn it around in a month (with the Holidays in the middle). I suspect they'll try, but given the complexity of the factual analysis and everything else EPA is trying to get out the door, that might be too heavy of lift.

Sierra Club v. USACOE, ___ F.3d ___, 2020 WL 7039300 (4th Cir. 2020) (on motions to stay NWP 12 in pipeline construction case, held that petitioners are likely to succeed on the merits; Corps impermissibly incorporated into NWP 12 a modified permit condition from the state; petitioners are not likely to succeed in their challenges to the issuance of the 2017 NWP 12 because the court lacks jurisdiction to entertain such challenges)

United States v. NVR, Inc., 2020 WL 7237927 (D. N.J. 2020) (on motion to terminate consent decree in construction stormwater case, held that defendant’s violations of the decree in the early stages were not enough to warrant extending the decree where defendant had paid stipulated penalties and was in compliance for the 18 months of the decree)

Waste Action Project v. Buckley Recycle Center, 2020 WL 7043597 (W.D. Wash. 2020) (granting motion to reopen the consent decree in case where defendant failed to comply with several requirements of the decree and continued to violate the CWA; denied county’s motion to intervene where county’s permits were being violated; attorney fees awarded to plaintiffs and the county)

American Waterways Operators v. Wheeler, 2020 WL 7024195 (D.C. D.C. 2020) (on motion for summary judgment in case challenging EPA’s conclusion that the state of Washington appropriately designated Puget Sound as a no-discharge zone (NDZ) for purposes of marine sanitation devices, EPA was arbitrary and capricious in finding that there were adequate pump-out stations and sewage treatment facilities to allow an NDZ; EPA should have considered the costs of the NDZ in its evaluation of the “reasonable availability” of pump-out stations; EPA did not have an independent duty to verify the state’s certificate of need for an NDZ; remanded without vacatur for 90-day reassessment by EPA)

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