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Weekly Cases Update Volume 43, Issue 13

Norse Energy Corp. v. Town of Dryden

43 ELR 20099
515227 (N.Y. App. Div., May 2013)

A New York appellate court held that the state's Oil, Gas and Solution Mining Law (OGSML) does not preempt, either expressly or impliedly, a municipality's power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas...

Energy (generally), New York

Conservation Northwest v. Sherman

43 ELR 20090
11-35729 (9th Cir., April 2013)

The Ninth Circuit held that a court may not approve a consent decree that substantially and permanently amends regulations that the agency could only otherwise amend by complying with statutory rulemaking procedures. The consent decree at issue in the case arose from a settlement between...

Settlement agreements, National forests

Defenders of Wildlife v. Perciasepe

43 ELR 20096
12-5122 (D.C. Cir., April 2013)

The D.C. Circuit upheld a consent decree that established a schedule for EPA to initiate notice-and-comment rulemaking and make a formal decision whether to promulgate a new rule revising certain effluent limitations and effluent limitations guidelines under the CWA. Below, an association of...

Effluent limitations, §301

Mingo Logan Coal Co. v. United States Environmental Protection Agency

43 ELR 20094
12-5150 (D.C. Cir., April 2013)

The D.C. Circuit reversed a lower court decision that EPA exceeded its authority under CWA §404(c) when it invalidated an existing U.S. Army Corps of Engineer permit authorizing a mining company to discharge fill material from its mountaintop coal mine into two nearby streams. In its post-...

EPA veto, §404(c)

Resisting Environmental Destruction on Indigenous Lands v. United States Environmental Protection Agency

43 ELR 20093
12-70518 (9th Cir., April 2013)

The Ninth Circuit, in an amended opinion, denied an environmental group's petition challenging EPA's decision to grant two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The permits require the drillship to...

Outer continental shelf (OCS)

Alt v. United States Environmental Protection Agency

43 ELR 20097
2:12-CV-42 (N.D. W. Va., April 2013)

A district court denied EPA's motion to dismiss a poultry farmer's lawsuit against the Agency seeking a declaratory judgment that farmyard stormwater runoff is statutorily exempt from regulation as an agricultural stormwater discharge. In 2011, EPA issued a compliance order to the farmer...

Stormwater discharges, 402(p)

Kentucky Riverkeeper, Inc. v. Rowlette

43 ELR 20095
11-6083 (6th Cir., April 2013)

The Sixth Circuit struck down the U.S. Army Corps of Engineers' reissuance of nationwide permit 21, which authorizes surface coal mining operations to discharge dredged and fill material into waters of the United States. An environmental group challenged the permit, alleging that the cumulative-...

Discussion of, held inadequate, Nationwide permit

Center for Biological Diversity v. Environmental Protection Agency

43 ELR 20098
11-cv-00293-JCS (N.D. Cal., April 2013)

A district court dismissed with leave to amend environmental groups' lawsuit against EPA alleging that it violated the ESA by failing to undertake required consultations regarding the effects of 382 registered pesticides on endangered and threatened species. The groups seek a broad remedy—an...

Administrative procedure and judicial review, Interagency consultation, §7(a)

Sierra Club v. County of San Diego

43 ELR 20092
37-2012-00101054-CU-TT-CTL (Cal. Super. Ct., April 2013)

A California court held that San Diego County's climate action plan violates the California Environmental Quality Act (CEQA) and must be set aside. The plan should have been the subject of a supplemental environmental impact report (EIR) under CEQA instead of an addendum to the county's existing...

Environmental Assessment/Impact Statement, Environmental impact reports (EIRs)

Stratford Holding, LLC v. Fog Cap Retail Investors LLC

43 ELR 20091
12-14926 (11th Cir., April 2013)

The Eleventh Circuit, in an unpublished opinion, reversed and remanded a lower court decision dismissing a company's cost recovery action under CERCLA for failure to state a claim. The lower court granted the motion to dismiss upon a finding that a "no-listing letter" from the Georgia...

Response costs