In case you missed it...

• Date: 01 March 2022

52 ELR 10240 ENVIRONMENTAL LAW REPORTER 32022

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 Januar y 2022. They are

listed under the following categories: Air, Climate Change, Energy, Governance, Land Use, Natural Resources, Water,

and Wildlife. The summaries are then arranged a lphabetically by case name within each category. To access ELR's entire

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

AIR

Quincy, Massachusetts , City of v. Massachusetts Department of

Environmental Protection, No. 21-1131, 52 ELR 20002 (1st

Cir. Dec. 17, 2021). e First Circuit armed the Mas sachu-

setts Department of Environmental Protection’s (MDEP’s)

decision to issue an air permit for a natural gas compressor

station in Weymouth, Massachusett s. Neighboring cities and

individuals arg ued MDEP failed to follow its own established

procedures by eliminating an electric motor as a possible al-

ternative to a gas-red turbine for the new station, and the

court remanded to MDEP to asse ss whether an electric motor

was what state regulations called the “best available control

technology” (BACT). MDEP aga in determined that an elec-

tric motor was not BACT for the station and rearmed the

air permit. e court found t hat the Department;s actions on

remand were neither arbitrary nor capricious, and therefore

denied the cities’ and individuals’ petition for further review

and armed MDEP’s decision after rema nd.

CLIMATE CHANGE

Delaware v. BP America Inc., No. 20-1429-LPS, 52 ELR

20006 (D. Del. Jan. 5, 2022). A district court gra nted Dela-

ware’s motion to remand to state court its climate liability

lawsuit against fossil fuel companies. Delaware argued it had

suered, and would continue to suer, dama ges from climate

impacts caused by the companies’ denial of and disinforma-

tion about the existence, cause, and adverse eects of global

warming, including accelerating sea-level rise, increased ex-

treme weather events, ocean acidication, and elevated av-

erage air temperature, and that it had incurred, and would

continue to incur, expenses to preemptively mitigate the in-

juries caused by the companies’ misconduct. e companies

removed the suit to federal court, citing several grounds for

federal jurisdiction. e state moved to rema nd the suit back

to state court, challenging the grounds for removal under

federal common law, Grable jurisdiction, the federal ocer

removal statute, and the Outer Continental Shelf Lands Act.

e court found the companies fa iled to show that removal

was justied on the basis of any of those grounds, and re-

manded the suit.

ENERGY

American Public Gas Ass’n v. United States Department of

Energy, No. 20-106, 52 ELR 20012 (D.C. Cir. Jan. 18,

2022). e D.C. Circuit remanded DOE’s 2020 rule that

set more stringent energy-eciency sta ndards than those of

the American Societ y of Heating, Refrigerating, and Air-

Conditioning Engineers for commercial packaged boilers.

Industry groups argued, among other things, that the De-

partment inated t he economic value of the more stringent

standard by attributing to a new regulation economic ben-

ets that would be realized without one, and used energy

prices in its life-cycle cost analysis that did not reect the

marginal prices paid by purchasers of commercial pack-

aged boilers. e court found it was not reasonable for

DOE to conclude that clear and convincing evidence sup-

ported adoption of a more stringent standard, as required

by the Energy Policy and Conservation Act. It remanded

the rule to DOE to take appropriate remedial a ction within

90 days.

Miami, Oklahoma, Cit y of v. Federal Energ y Regulatory Com-

mission, No. 20-1325, 52 ELR 20013 (D.C. Cir. Jan. 18,

2022). e D.C. Circuit remanded FERC orders rejecting a n

Oklahoma city’s complaint that a hydroelectr ic dam overseen

by the Commission caused period ic ooding. e city argued

that the dam operator violated Article 5 of its license, which

FERC had issued under the Federal Power Act, and sought

to require the operator to obtain land rights in the areas that

regularly ooded. FE RC dismissed the complaint, nding the

operator was not in violation of its license and that there was

insucient evidence as to whether the operations regularly

caused ooding, a nd suggested the ooding issues could be

considered in the upcoming relicensing proceeding in 2025.

e court found FERC never addressed whether Article 5 of

the license obliged the operator to acquire rights to cover the

expense of ooding in the city, and that its “review” of the

city’s evidence of ooding was not an acceptable evaluation.

Further, the Commission’s suggestion that the ooding i ssues

could be handled in the upc oming relicensing proceeding ran

afoul of administrative law. e court also found that Con-

gress’ oor amendment to the Defense Authorization Act,

which the operator asserted limited FERC’s jurisdiction and

thus deprived the court of jurisdiction, was ambiguous. It

Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.