September 20, 2019


Air:      The D.C. Circuit held that EPA’s January 2018 memorandum (the Wehrum Memo) rescinding the “once in always in” interpretation of the Clean Air Act that had prohibited a major source of air emissions from being reclassified as an area source by reducing its potential to emit does not constitute final agency action for which judicial review is available.  California Communities Against Toxics et al. v. EPA et al., case no. 18-1085.  The court determined that the Wehrum Memo was not final agency action.  Finality is lacking, according to the court, because the Wehrum Memo does not impose obligations, prohibitions, or restrictions; puts no party in the position of having to choose between costly compliance and a penalty; has no independent legal authority; and is subject to challenge by regulated entities when EPA acts on the statutory interpretation that the guidance advances.  Judge Rogers (a Reagan appointee) dissented, reasoning that the Wehrum Memo constituted final action from which legal consequences will flow and stating that she would vacate the Wehrum Memo for failure to conform to the Administrative Procedures Act’s requirements for public notice and opportunity for public comment.

Water:  The Fourth Circuit held that discharges of pollutants to groundwater is actionable under the Clean Water Act’s citizen suit provision.  Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018).  The court adopted a broad reading of the CWA, ruling that the law does not require a “direct” discharge of pollutants from a point source into navigable waters. The Fourth Circuit’s analysis of the scope of the CWA did not focus on the definition of a “point source,” but rather focused on the origin of the pollutants. The Court observed that considering the point of origination of the pollution and any intervening land as point sources would impose a requirement not contemplated by the CWA. Id. at 650.  Allegations of a “direct hydrological connection between ground water and navigable waters,” suffice in the court’s view.

 The Sixth Circuit held that substances discharged from coal ash ponds into groundwater are not subject to a citizens suit under the Clean Water Act.  Tennessee Clean Water Network v. Tennessee Valley Auth., 905 F.3d 436 (6th Cir. 2018).  As the court explained, a complete CWA claim has five elements: 1) the pollutant must be 2) added to 3) navigable waters 4) from 5) a point source. Id. at 439. Key to the decision was the lack of a point source from which the substances were discharged into navigable waters.  The court noted that the discharge was to the groundwater, which in turn discharged to a navigable water, and the groundwater does not meet the definition of a point source.  In his dissent, Judge Clay asserted that the CWA “does not require a plaintiff to show that a defendant discharged a pollutant from a point source directly into navigable waters, but only that the defendant added any pollutant to navigable waters from any point source.” Id. at 448.

Waste:  The D.C. Circuit Court of Appeals held that EPA lacked jurisdiction over legitimate recycling of a hazardous secondary material even when the entity that generated the material being recycled paid a third party to recycle it. California Communities v. EPA, No. 18-1163 (July 2, 2019).  Harking back to its earlier decision in American Petroleum Institute v. EPA, 862 F.3d 50 (D.C. Cir. 2017), the court rejected the petitioners’ argument that payment for recycling automatically triggered classification of the recycled material as waste.

The Sixth Circuit allowed a RCRA citizens suit alleging “imminent and substantial endangerment to health or the environment” resulting from releases of substances into groundwater from coal ash ponds.  Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018) but dismissed the Clean Water Act allegations of the suit on the same basis as in Tennessee Clean Water Network.

NEPA:  The D.C. Circuit found an Environmental Impact Statement deficient due to its failure to examine facts relating to the impact of construction of a uranium mining project on a Native American tribe’s cultural resources.  Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm'n, 896 F.3d 520 (D.C. Cir. 2018).   The Oglala Sioux Tribe appealed an NRC decision that granted a license for the construction of a uranium mining project in the Black Hills of South Dakota. The Commission’s decision was based on the Tribes’ inability to show that noncompliance with the Act would cause irreparable harm. The D.C. Circuit ruled that the Commission did not adequately conduct fact-finding mandated by NEPA.  The NRC’s settled practice has been to require that parties challenging the NRC’s actions in the NEPA process demonstrate harm or prejudice before being entitled to relief.  The Atomic Safety and Licensing Board had ruled that NEPA’s hard look requirement was not satisfied by the Commission because its EIS inadequately analyzed the potential impacts to Sioux “cultural, historical or religious sites.” Id. at 531.