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Weekly Cases Update Volume 43, Issue 10

United States v. Washington

43 ELR 20071
70-9213 (W.D. Wash., March 2013)
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A district court issued a permanent injunction ordering the state of Washington to repair or replace culverts under state-owned roads that that block fish passage to and from inland waters. The court agreed with Native American tribes' claim that the state has a treaty-based duty to preserve...

Treaty fishing rights, Wildlife (generally)

Sullivan v. Resisting Environmental Destruction on Indigenous Lands

43 ELR 20074
6769 (Alaska, March 2013)
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The Alaska Supreme Court held that neither the Alaska Constitution nor the Alaska Land Act require the state's natural resources agency to issue a written best interest finding at each step of an oil and gas development project. The Act's best interest finding requirement is purely a creature of...

Constitutional law, Natural Resources (generally)

Ohio Valley Environmental Coalition v. United States Army Corps of Engineers

43 ELR 20075
3:08-0979 (S.D. W. Va., March 2013)
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A district court held that the U.S. Army Corps of Engineers violated the CWA and NEPA when it issued a §404 permit allowing a mining company to permanently fill 11,194 linear feet of streams in Boone County, West Virginia. The court previously issued a remand order requiring the Corps to: (1) re...

Corps of Engineers permits, Mitigation

United States v. DTE Energy Co.

43 ELR 20070
11-2328 (6th Cir., March 2013)
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The Sixth Circuit held that the CAA does not categorically prevent EPA from challenging preconstruction projections of whether and to what extent emissions will increase following construction. The preconstruction projection determines whether the project constitutes a “major modification” and...

New source review

Friends of the Earth v. United States Environmental Protection Agency

43 ELR 20073
12-0363 (D.D.C., March 2013)
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A district court held that EPA has no mandatory or nondiscretionary duty to make a determination as to whether lead emissions from general aviation aircraft engines using aviation gasoline endanger the public health or welfare under CAA §231(a)(2)(A). A finding that emissions cause or contribute...

Aircraft, §231, Citizen suits, §304

Iowa League of Cities v. Environmental Protection Agency

43 ELR 20069
11-3412 (8th Cir., March 2013)
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The Eighth Circuit vacated two EPA letters announcing new legislative rules for water treatment processes at municipally owned sewer system. EPA admitted it did not engage in notice and comment procedures, but it insisted there has been no procedural impropriety because the letters should be...

Requirements not met, Effluent limitations, §301

Alaska v. United States Department of Agriculture

43 ELR 20068
11-1122 (D.D.C., March 2013)
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A district court dismissed as untimely Alaska's lawsuit challenging the 2001 roadless rule, which prohibits roadwork and timber harvesting on 58.5 million acres of national forest, including 14.7 million acres of the Tongass and Chugach National Forests in Alaska. Alaska's cause of action...

National forests, National forests

Powder River Basin Resource Council v. Wyoming Oil & Gas Conservation Commission

43 ELR 20072
94650-C (D. Wyo., March 2013)
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A district court held that individual ingredients of hydraulic fracturing formulas are trade secrets and do not need to be publicly disclosed. The Wyoming Public Records Act does not define trade secrets, but the Wyoming oil and gas commission's policy for evaluating trade secrets is reasonable...

Energy (generally), Natural gas, Toxic Substances (generally)
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