In case you missed it...

• Date: 01 March 2021

51 ELR 10260 ENVIRONMENTAL 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 Januar y 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 Agenc y, No.

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

Circuit vacated EPA’s Aordable Clean Energ y 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repealed and replaced the Clean Power Plan as a means of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 emi ssion reduc-

tion measures that could be implemented at and applied to

the source, and other petitioners objected to the ru le’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 rev iew EPA’s 2018 redes-

ignation of Bexar Count y, Texas, from attainment to non-

attainment and designation of three neighboring counties

as attainment/uncla ssiable for 2015 ozone NAAQS. Texas

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

mended designation of Bexar Count y when it was “neces-

sary”—mean ing it was unavoidable and must be done—

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

countered that the CA A authorized cha nges that “the Ad-

ministrator deems neces sary,” which grants discretionar y

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 t hat 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 lea ses and authorizing seismic activity in

the Arctic National Wildlife Refuge. Indigenous and envi-

ronmental groups argued that BLM violated, among other

statutes, the Ala ska National Interest La nds Conservation

Act, NEPA, and the ESA in prepar ing an EIS and record

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

from issuing the lease s or authorizing seismic exploration in

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

e court found that while t he groups may be correct that,

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

planned leases, such cumulative and future potentia l 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. Environmenta l groups challenged the

Army Corps of Engineers’ decision to issue a C WA/Rivers

and Harbors Act permit for the line without preparing an

EIS, arguing t hat a project the size and scope of the tra ns-

mission line could not be permitted by the Corps u nless it

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

ronmental impacts holistica lly and in detai l and subjecting

the EIS to public review and comment. e court c oncluded

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.