Litigation ‘Super Bowl’ tops list of 2016 cases to watch

Source: Robin Bravender, E&E reporter • Posted: Thursday, December 10, 2015

The morass of litigation engulfing the Obama administration’s signature climate change rule will be the top environmental law issue to watch next year, according to new rankings from Vermont Law School.

U.S. EPA’s Clean Power Plan — a contentious rule requiring power plants to curb their greenhouse gas emissions — is at the center of a massive court battle that is widely expected to drag on for years and ultimately wind up at the Supreme Court. The legal “Super Bowl” surrounding the regulation ranked No. 1 on the law school’s annual top 10 list.

The Supreme Court “has upheld the EPA’s authority and obligation to regulate carbon pollution three times,” the watchlist says. “But it has also signaled that there is a limit to how much deference it will give to the EPA’s assertion of broad authority with such significant economic and social consequences. So the outcome is uncertain.”

The No. 2 issue identified by the law school: a battle over EPA’s landmark approach for cleaning up the Chesapeake Bay.

Earlier this year, the 3rd U.S. Circuit Court of Appeals upheld EPA’s pollution diet — or total maximum daily load (TMDL) — for the entire 64,000-square-mile watershed. The American Farm Bureau Federation and other industry groups have asked the Supreme Court to review EPA’s plan, arguing that the agency far overstepped its boundaries under the Clean Water Act (Greenwire, Nov. 6).

“Regardless of whether the Supreme Court hears the case, the Third Circuit ruling will provide a foundation for the EPA, states, and environmental organizations in the development of plans to address polluted stormwater runoff across the country, from the Great Lakes to the Gulf of Mexico,” the law school’s list says.

Another issue that made the top 10 is the battle playing out over the administration’s so-called Waters of the U.S. rule, dubbed “The WOTUS Wars” on the rankings.

“It will take years to achieve clarity” on that rule, wrote law student Charlotte Rand and professor Patrick Parenteau. “With the exception of the Clean Power Plan, no rule has ignited more controversy and litigation than the rule adopted by the Environmental Protection Agency and the Department of the Army seeking to clarify the meaning of the term ‘waters of the United States’ (WOTUS) under the Clean Water Act.”

Lawsuits opposing the regulation have been lodged in courts around the country amid a debate about the proper venue for challenging the rule. Yesterday, federal judges appeared to favor keeping those lawsuits in appeals court rather than district courts across the country as requested by the regulation’s challengers (E&ENews PM, Dec. 8).

Other topics on the list include: the aftermath of a Supreme Court decision that knocked down EPA mercury standards for power plants, litigation surrounding rules “cracking down on fracking,” a pending Supreme Court decision on electricity market rules and a decision not to list the greater sage grouse under the Endangered Species Act.

Click here to read Vermont Law School’s top 10 list.