• Mark Ryan

Three Interesting New CWA Cases and a FACA Case

After a bit of a lull in issuing new CWA decisions, the courts in the last week issued three new opinions addressing NPDES permit, oil spill contingency plans and 404 permits. The Exxonmobil case is a interesting one. The court stayed the case alleging NPDES permit violations pending issuance of a new permit. It's not clear why violations of the old permit would be affected by issuance of a new one.

Conservation Law Foundation v. Exxonmobil Corp., 2020 WL 1332949 (D. Mass. 2020) (granting motion to stay in case to enforce NPDES permit, held that doctrine of primary jurisdiction dictates that EPA be allowed to consider technical issues such as weather patterns and climate change at heart of plaintiff’s suit and for which EPA is better equipped than the court to handle and to reissue a new permit by 2021)

Envt’l Law & Policy Cntr. v. Coast Guard, 2020 WL 1249159 (E.D. Mich. 2020) (on motion for summary judgment, held that contingency plan submitted by pipeline company and certified by the Coast Guard was adequate under § 311(j)(4) to address a worse-case scenario; Coast Guard provided sufficient evidence that they considered ice and high-waves in a worse-case scenario; plaintiffs had standing to challenge where they showed that an oil spill would adversely affect their use of the water)

Lemon Bay Cove, LLC v. United States, ___ Fed. Cl. ___, 2020 WL 1316839 (Ct. Cl. 2020) (in takings case arising from Corps denial of 404 permit to build housing development in submerged lands because developer could not meet 404(b) standards, held that triable issues of fact preclude summary judgment; the evaluation of investment-back expectations is influenced by warnings prior to purchasing the property that it may be hard to develop; significant disagreement exists over how much plaintiff invested in the property and how much the property would be worth if developed)

Also of interest is the First Circuit's recent decision in Union of Concerned Scientists v. Wheeler, ___ F.3d ___ (1st Cir. 2020) in which the court reversed the district court's dismissal of the case alleging that EPA violated the APA and FACA when it promulgated a new regulation banning scientists from its advisory committees if they were receiving a grant from EPA. The rule would effectively remove many of the academic scientists in the country which would in turn favor industry scientists. Some of the excluded scientists receive grants under section 104(b)(3) of the CWA.

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