Fourth Circuit Upholds Corps' Issuance of CWA §404 Fill Permit
On Wednesday, the Fourth Circuit upheld the U.S. Army Corps of Engineers' decision to issue a CWA §404 fill permit to a surface mine in West Virginia. Environmental groups argued that the Corps made "a material factual error" and "misapprehended" the baseline conditions of the relevant watershed in its analysis of the cumulative impact. But the Corps considered the relevant factors, evaluating both the impact site and the entire watershed. Only after this evaluation did the Corps reach its informed judgment as to the baseline conditions. Nor was the Corps' finding of cumulative insignificance arbitrary or capricious.
Supreme Court Rules in Monsanto's Favor in Patented Seed Case
The U.S. Supreme Court held that patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission. The doctrine restricts a patentee’s rights only as to the “particular article” sold; it leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item. Accordingly, because a farmer that planted and harvested patented seeds intended for livestock feed made additional copies of the manufacturer's patented invention, his conduct falls outside the protections of patent exhaustion.
The May 2013 issue of News & Analysis looks at the need for adaptive law and resilience in U.S. environmental law, and whether TMDLs can serve as ARARs. The issue also features comments on new opportunities for environmental taxes, carbon capture and storage, and an annual review of chinese environmental law. The transcript to a recent ELI seminar on key legal issues facing the Obama Administration in 2013 is included as well.