Courts

• Date: 01 December 2023

53 ELR 10958 ENVIRONMENTAL LAW REPORTER 122023

IN CASE YOU MISSED IT . . .

In the Courts

"In the Courts" contains full summar ies of court cases reported in ELR Update during the month of Oc tober 2023. 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.

AIR

Utah v. Environmental Protection Agency, No. 23-1157, 53

ELR 20152 (D.C. Cir. Sept. 25, 2023). e D.C. Circuit de-

nied the state of Utah’s motion to stay EPA’s 2023 “good

neighbor” rule, which aims to ensure that 23 states meet

the CAA’s good neighbor requirements by reducing ozone-

forming emissions of nitrogen oxides from power plants a nd

industrial facilities that contribute to compliance issues in

downwind states. e court found t he petitioners did not

satisfy the stringent requirements for a stay.

CLIMATE CHANGE

Connecticut v. Ex xon Mobil Corp., No. 21-1446-cv, 53 ELR

20154 (2d Cir. Sept. 27, 2023). e Second Circuit armed

a district court order rema nding to state court a cli mate li-

ability lawsuit aga inst an oil and ga s company. e state of

Connecticut initially sued the company in state court, a l-

leging it engaged in a decades-long campaign of knowingly

misleading and deceiving Connecticut consumers about the

negative climatological eects of the fossil fuel s it marketed

to them. e company removed the suit to federal court, in-

voking jurisdict ion under the federal question statute, federal

ocer removal statute, and Outer Continental Shelf L ands

Act (OCSLA). e district court rejected all of the compa-

ny’s grounds for federal jurisdiction and remanded t he suit

to state court. e appellate cour t found no federal issue was

“necessarily raise d” by any of the state’s claims; that the com-

pany could not establish it performed the actions for which

it was being sued—dec eptive marketing and public relations

campaigns —“under color of federal oce”; and that the

state’s claims concerned neither extracting nor burning oil

and gas, and thus could not trigger jurisdiction under OC -

SLA. It armed remand to state court.

ENERGY

Allen v. United States, No. 22-1590, 53 ELR 20159 (6th Cir.

Oct. 3, 2023). e Sixth Circuit armed dismissal of a law-

suit concerning a dam col lapse in Michigan. Property owners

who live downstream of the da m argued the U.S. govern-

ment negligently entrusted operation of the dam to an unt

operator. A district court held the government was entitled to

sovereign immunity and dism issed the suit for lack of subject

matter jurisdiction. e appellate court agreed, nding that

§803(c) of the Federal Power Act imposes liability on the li-

censees who build and ma nage hydropower projects, not the

government. It dismissed the suit.

Idaho Conservation League v. Bonneville Power Administra-

tion, No. 22-70122, 53 ELR 20164 (9th Cir. Oct. 16, 2023).

e Ninth Circuit, 2-1, denied environmental groups’ peti-

tion to review the Bonnevil le Power Administration’s (BPA’s)

decision setting power rates for the 2022-2023 sca l period.

e groups argued BPA violated the Northwest Power Act by

setting rates th at failed to comply with its duty to provide eq-

uitable treatment for sh and wildlife. e court found that

the provision imposing this duty did not mention ratemak-

ing, and therefore did not apply. It denied the petition.

LAND USE

Western Watersheds Project v. Perdue, No. C V-21-0 0020 -

TUC-SHR, 53 ELR 20155 (D. Ariz. S ept. 29, 2023). A dis-

trict court denied environmenta l groups’ motion for summa-

ry judgment in a challenge to t he Forest Service’s approval of

a grazing project in the Apache-Sitgreaves and Gila National

Forests. e groups argued the Ser vice violated NEPA by fail-

ing to take a “ha rd look” at impacts on Mexican gray wolves,

failing to prepare a n EIS, and failing to consider a reasonable

range of alternatives. e court found the record supported

Copyright © 2023 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.