• Mark Ryan

The Poison Pill

The Upper Missouri Water Keeper case below is an interesting one. The case involves two now consolidated lawsuits and a complex dance between EPA and Montana on approval of its WQS. You need to read the opinion to fully understand it. One thing is clear. The judge was not happy with EPA. "EPA failed to uphold its end of the bargain. EPA did not follow through with its assurance . . . EPA has failed to comply in good faith. . . " Four other cases below round out the last couple of weeks of court action under the CWA.

Upper Missouri Waterkeeper v. EPA, 2020 WL 6381950 (D. Mt. 2020) (on motion for summary judgement in case challenging EPA’s approval of Montana’s WQS, held that the court’s stay of the vacatur of the EPA approval was still in effect, and EPA had acted arbitrarily and capriciously in approving the state’s “poison pill” provision, which provided that the state’s stricter standards would be voided in favor of older, weaker standards in the event that the 20-year variance period of certain dischargers was not approved by EPA; court ordered EPA and the state to try again at approving state standards that meet CWA requirements)

Puget Soundkeeper Alliance v. APM Terminals Tacoma, 2020 WL 6445825 (W.D. Wash. 2020) (on motion for summary judgement in case alleging unauthorized stormwater discharges, held that discharges in question did not fall within the definition of industrial activity, and are therefore not subject to the requirements of the stormwater general permit)

Lewis v. United States, 2020 WL 6269931 (E.D. La. 2020) (denying motion for reconsideration in challenge to Corps JD where the court had earlier remanded the JD to the Corps for further development of the record, held that the court would not dictate what should be put in the record on remand; the imposed 60-day limit to issue an administrative record on remand is affirmed)

In re: Deepwater Horizon, ___ F. Supp. 3d ___, 2020 WL 6381138 (E.D. La. 2020) (dismissing claims by 115 Mexican residents under OPA for damages resulting from the 2010 Deepwater Horizon oil spill, held that plaintiffs failed to satisfy OPA’s requirements for foreign claimants because the North American Agreement on Environmental Cooperation does not authorize OPA claims and plaintiffs’ maritime claims are displaced by OPA)

Courtland Company, Inc. v. Union Carbide Corp., 2020 WL 6265080 (S.D. Va. 2020) (denying motion to file supplemental complaint to add CWA claim to existing CERCLA and RCRA claims associated with landfill leachate, held that plaintiff’s 60-day notice did not adequately describe stormwater discharges, whether the discharges were to WOTUS or what dates the discharges allegedly occurred)

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Sackett 9th Circuit Oral Argument

Remember Sackett? Yes, that Sackett. Well, it's still alive after all these years, at least until the the 9th Cir. rules. [Full disclosure, I worked on the Sackett case while at EPA.] Quick summary.

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