In case you missed it...

• Date: 01 March 2021

51 ELR 10260ENVIRONMENTAL LAW REPORTER 32021

IN CASE YOU MISSED IT . . .

In the Courts

"In the Courts" contains full summaries of court cases reported in ELR Update during the month of January 2021. They

are listed under the following categories: Air, Natural Resources, Toxic Substances, and Wildlife. The summaries are then

arranged alphabetically by case name within ea ch category. To access ELR's entire collec tion of court cases and summa-

ries, visit https://www.elr.info/judicial.

AIR

American Lung Ass’n v. Environmental Protection Agency, No.

19-1140, 51 ELR 20009 (D.C. Cir. Jan. 19, 2021). e D.C.

Circuit vacated EPA’s Aordable Clean Energy Rule that

repealed and replaced the Clean Power Plan as a means of

regulating power plants’ greenhouse gas emissions. A group

of public health petitioners sought review of the ru le’s conclu-

sion that §7411 of the CAA only permitted emission reduc-

tion measures that could be implemented at and applied to

the source, and other petitioners objected to the rule’s de-

termination that states could not count biomass co-ring as

a method of complying with numerical emission limits. In-

dustry petitioners rai sed an assortment of challenges to EPA’s

authority to regulate. e court found that EPA’s promulga-

tion of the present rule rested on a “fundamental miscon-

struction” of CAA §7411(d), and that the rule’s amendments

to slow the process for reducing emissions were arbitrar y and

capricious. It therefore vacated the rule and remanded to the

Agency for furt her proceedings.

Texas v. United States Environmental Protection Agency, No.

18-60606, 51 ELR 20003 (5th Cir. Dec. 23, 2020). e

Fifth Circuit denied petitions to review EPA’s 2018 redes-

ignation of Bexar County, Texas, from attainment to non-

attainment and designation of three neighboring counties

as attainment/unclassiable for 2015 ozone NAAQS. Texas

argued EPA only had authority to change t he state’s recom-

mended designation of Bexar County when it was “neces-

sary”—meaning it was unavoidable and must be done—

and that it was not necessary in this instance. e Agency

countered that the CAA authorized changes that “the Ad-

ministrator deems necessary,” which grants discretionary

authority to EPA to make such determinations and that, in

any event, the Agency did not err in its determination. e

court agreed, nding that Congress clearly delegated dis-

cretionary authority to EPA to determine when adjustments

should be made and that the Agency reasonably interpreted

the CAA. An environmental group challenged EPA’s deci-

sion to designate the neighboring counties as attainment/

unclassiable, contending that the counties contributed to

Bexar County’s ozone emissions and thus that the Agency’s

decision changed its interpretation of “contribution” with-

out adequate explanation. e court di sagreed, nding that

EPA used a permissible, multifactor analysis to determine

that the counties’ contributions to Bexar County ambient

ozone levels were insucient to merit a nonattainment des-

ignation. It therefore denied both Texas’ and the group’s

petitions for review.

NATURAL RESOURCES

Gwich’in Steering Committee v. Bernhardt, Nos. 3:20-cv-

00204-SLG, 3:20-cv-00205-SLG, and 3:20-cv-00223-

SLG, 51 ELR 20007 (D. Alaska Jan. 5, 2021). A district

court denied motions to preliminarily enjoin BLM from is-

suing oil and gas leases and authorizing seismic activity in

the Arctic National Wildlife Refuge. Indigenous and envi-

ronmental groups argued that BLM violated, among other

statutes, the Alaska National Interest Lands Conservation

Act, NEPA, and the ESA in preparing an EIS and record

of decision for the leases, and sought to enjoin the agency

from issuing the leases or authorizing seismic exploration in

the refuge until the court rules on the merits of their claims.

e court found that while the groups may be correct that,

over time, they may be signicantly injured as a result of the

planned leases, such cumulative and future potential eects

did not demonstrate the irreparable harm necessary for pre-

liminary injunctive relief at this time. It therefore denied the

groups’ motions.

Sierra Club v. United States Army Corps of Engineers, No.

2:20-cv-00396-L EW, 51 ELR 20001 (D. Me. Dec. 16, 2020).

A district court denied a motion to preliminarily enjoin con-

struction of a power transmission line through the Western

Maine Mountains. Environmental groups challenged the

Army Corps of Engineers’ decision to issue a CWA/Rivers

and Harbors Act permit for the line without preparing an

EIS, arguing that a project the size and scope of the trans-

mission line could not be permitted by the Corps unless it

prepares an EIS for the entire project, describing the envi-

ronmental impacts holistically and in detail and subjecting

the EIS to public review and comment. e court concluded

that the groups failed to show they were likely to succeed

in proving that the project was a major federal action such

that all environmental impacts could be identied by their

members, or that the interested public must be addressed by

Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.