Oct 142015

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those cases.)

"On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Said the court:

"The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate."

. . .

"[C]centralization of these actions would be problematic due to their procedural posture. Several motions for preliminary injunctive relief already have been ruled upon, resulting in different jurisdictional rulings by the involved courts. Two courts have held that only the United States Courts of Appeals have jurisdiction over these regulatory challenges, whereas another reached the opposite conclusion, that jurisdiction over these actions properly resides in the United States District Courts. 3 Centralization thus would require the transferee judge to navigate potentially uncharted waters with respect to law of the case. This procedural complication also weighs against centralization in this instance."

Sep 102015

Bee pollinating basil (public domain image)

Ed. note: Our initial report on this decision, relying on the court's decision, identified sulfoxaflor as a neonicotinoid. It is, in fact,a  sulfoximine. (The opinion said sulfoxaflor "acts on the same receptor in insects as does the class of insecticides referred to as neonicotinoids, but its mechanism is distinct from other neonicotinoids, so it is currently the only member of a subclass of neonicotinoids called
sulfoximines. Some insects that are resistant to other
neonicotinoids are not resistant to sulfoxaflor because of the unique mechanism sulfoxaflor uses." In a statement issued after the decision, EPA said flatly, "Sulfoxaflor is not a neonicotinoid."

Also: While this item does not directly implicate endangered species or wetlands, it could well have an impact on petitions seeking listing of butterflies or bees. There's no question it's a significant decision.


Sept. 10, 2015 -- The Ninth Circuit vacated EPA's unconditional registration of Dow AgroSciences' insecticide, sulfoxaflor, saying it was "based on flawed and limited data [and] was not supported by substantial evidence" (Pollinator Stewardship Council v. EPA, 13-72346).

The opinion is posted below. Here is Earthjustice's announcement and its initial press release (upon suing)

Sep 022015

The federal government and the 13 states that won an injunction halting implementation of the Clean Water (or “waters of the U.S.”) rule are sparring over the geographic scope of the injunction (North Dakota v. U.S., 15-59-RRE-ARS, D. N.D.). Both sides filed briefs Tuesday, Sept. 1, as required by Chief U.S. District Judge Ralph Erickson. […]

Sep 012015

Reprehensible. Oppressive. Dishonest. Those were just three of the adjectives used by a federal judge who ruled for Texas real estate developer Thomas Lipar and against the United States, which had brought an enforcement action for filling wetlands in north Houston. U.S. District Judge Lynn N. Hughes ordered the government to pay Lipar’s attorney fees […]

May 272015

EPA and the Army Corps of Engineers have announced the new “waters of the U.S.” rule. Press release from EPA, Corps Link to rule Press releases, news coverage NAHB statement American Farm Bureau Federation statement National Farmers Union: “NFU’s policy opposes any expansion of jurisdiction under the Clean Water Act (CWA), but EPA has made […]

May 222015

The Gray Lady, as she is sometimes known, has an article today predicting an announcement of the controversial “waters of the U.S.” rule from the Obama Administration “in the coming days.” Coral Davenport of the Times reports that the announcement could come as soon as today or early next week. EPA spokesman Robert Daguillard would […]

Mar 062015

See our Federal Register page for more   (and scroll down for the coral recovery plan links) On Public Inspection today FWS releases final recovery plan for the four subspecies of island fox (Urocyon littoralis). Each of the four subspecies, San Miguel Island fox (Urocyon littoralis littoralis), Santa Rosa Island fox (U. l. santarosae), Santa Cruz […]

Mar 042015

Three House members have reintroduced a bill to prohibit EPA from retroactively revoking Clean Water Act Section 404 permits, as the agency did with the Spruce Mine in West Virginia. That decision was recently upheld by federal courts in Washington, D.C. The bill, H.R. 1203, was introduced by three Republican congressmen from West Virginia — […]

Feb 102015

Environmental groups file motion in 9th Cir. seeking stay of EPA approval EPA should have consulted with the Fish and Wildlife Service before approving a new herbicide for use in the Midwest, environmental groups and a food safety group argue in a motion filed in the Ninth Circuit Court of Appeals (NRDC v. EPA, 14-73353). […]