Courts

• Date: 01 May 2024

54 E LR 10424 ENVIRONMENTAL LAW REPORTER 5-2024

In the Courts

"In the Courts" contains full summaries of court cases reported in ELR Update during the month of March 2024. They are

listed under the following categories: A ir, Climate Change, Energy, Land Use, Natural Resources, Water, and Wildlife. The

summaries are then arranged alphabeticall y by case name within each category. To access ELR's entire collection of court

cases and summaries, visit https://www.elr.info/judicial.

IN CASE YOU MISSED IT . . .

AIR

Environmental Committee of the Florida Electric Power Co-

ordinating Group, Inc. v. Environmental Protection Agency,

No. 15-1239, 54 ELR 20035 (D.C. Cir. Mar. 1, 2024). e

D.C. Circuit, 2-1, granted in part and denied in part peti-

tions to review EPA’s SIP call for 35 states and the Dist rict

of Columbia. A group of about half these states as well as

companies subject to those SIPs sued, arg uing EPA misinter-

preted its authority under the CA A when it called for SIPs

containing at least one of four types of startup, shutdown, or

malfunct ion (SSM) provisions that it deemed impermissible:

(1)automatic exemptions; (2)director’s discretion provisions;

(3)overbroad enforcement discretion provisions; and (4)af-

rmative defense provisions. e court found EPA abided by

its authority under CA A §7410(k)(5). As for EPA’s decision to

issue the call for the four types of SSM provisions, the cour t

agreed with petitioners as to t he automatic exemptions and

director’s discretion provisions and set aside the ca lls inso-

far as they rested on those; rejected petitioners’ challenge to

the overbroad enforcement discretion provisions and upheld

EPA’s nal action; and agreed with petitioners as to certain

types of a rmative defense provisions but rejected their chal-

lenge as to other types. It granted the petitions and vacated

the SIP-call order with respect to t he calls based on automatic

exemptions, director’s discretion provisions, and armat ive

defenses that are f unctionally exemptions, but denied them

as to the calls based on the enforcement discretion provision

and armative defenses against specic relief.

CLIMATE CHANGE

Anne Arundel, Maryland, County of v. BP P.L .C., Nos. 22-

2082 and 22-2101, 54 ELR 20030 (4th Cir. Feb. 26, 2024).

e Fourth Circuit ar med a district court order remanding

to state court two cli mate deception lawsuits aga inst oil and

gas companies. City a nd county governments in Mar yland

initially sued in state court, allegin g the companies used and

promoted fossil fuel products while knowi ng, concealing ,

and obscuring the connection between those products and

climate change, i n violation of Maryland’s Consumer Protec-

tion Act and state tort law. e companies removed the suits

to federal court, invoki ng jurisdiction under the federa l of-

cer removal statute and the federa l question statute. e dis-

trict court rejected both g rounds for federal jurisdiction and

remanded to state court. e appellate court found the ac-

tivities cited by the companies did not support federa l ocer

removal because they involved fossil fuel production rather

than conceal ment or misrepresentation of information about

products, and that the First A mendment issues raised by the

companies were not “necessary elements” of the cities’ state-

law claims. It concluded there was no va lid basis for removal,

and armed the di strict court’s remand orders.

ENERGY

PJM Power Providers Group v. Fede ral Energy Regulator y Com-

mission, Nos. 23-1778/23-1790/23-1808/23-1984/23-2544/

23-2559/23-2560/23-2612, 54 ELR 20041 (3d Cir. Mar. 12,

2024). e ird Circuit granted petitions to review FERC

orders allowing the adm inistrator of a 2024/2025 capacity

auction to apply a new rule retroactively to a pending action

to avoid a spike in electricity prices. Electric suppliers and

their trade groups argued the orders violated the led rate

doctrine, which forbids retroact ive rates, and sought to have

them vacated. e appellate cour t found the new rule was

retroactive because it altered the legal consequence attached

to a past auction when it allowed the admi nistrator of the

auction to use a dierent locational del iverable area reliability

requirement than the one it had calcu lated and posted, and

that FERC violated the led rate doctri ne by approving it.

It granted the petitions and vacated t he portion of FERC’s

orders allowing the new ru le to be applied to the 2024/2025

capac ity auc tion.

LAND USE

Apache Stronghold v. United States, No. 21-15295, 54 ELR

20036 (9th Cir. Mar. 1, 2024). In an en banc decision, the

Ninth Circuit, 6-5, armed a district court order denying

a tribal group’s motion for preliminary injunction aga inst

the U.S. government’s transfer of federal land within Tonto

National Forest to a mining company. e land is a site of