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Litigation

ENVIRONMENTALISTS' SUIT TARGETS WATER BOARDS' PUBLIC RECORDS POLICY

The state and regional water boards have consistently failed to offer open access to public documents, and have not adopted new public records policies following the passage of an open government initiative last November, a coalition of environmental groups charge in a lawsuit against the boards filed this week.

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High Court Lets Stand Ruling To Allow Citizen Suits Despite Enforcement

In a victory for environmentalists, the Supreme Court has decided not to review an appellate ruling upholding citizens' rights to file suit against a wastewater treatment plant, even when the plant is already facing a state enforcement action.

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Appeals Ruling May Limit Suits Over Federal Advisory Committees

A recent federal appellate decision finding that the Federal Advisory Committee Act (FACA) does not contain a right to sue could complicate efforts for individuals and outside groups to challenge the actions of federal advisory panels, observers say.

The U.S. Court of Appeals for the 9th Circuit ruled March 17 that the act does not contain a private right of action -- or right to sue -- making it the only federal circuit to have ruled on the issue.

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NOVEL SUIT SEEKS ENDANGERED SPECIES REVIEW DURING TITLE V CHALLENGES

A new lawsuit by environmental groups could set an unusual precedent by using the Clean Air Act's Title V permit program to force scrutiny of regulators' compliance with the Endangered Species Act (ESA) when permitting power plants or other industrial facilities, according to industry and citizen group attorneys.

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NEW NSR SETTLEMENT INCLUDES FIRST-TIME WIND ENERGY REQUIREMENT

A recent new source review (NSR) settlement announced under a long-running EPA enforcement initiative against power plants includes the first provision that could require the settling company to finance new wind energy generation.

A state source says the provision reflects growing interest in encouraging renewable energy from the states that negotiated the deal with EPA and the Department of Justice (DOJ). The provision also comes as EPA has been pursuing ways to incorporate renewable energy in enforcement agreements.

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ACTIVISTS MOUNT WATER ACT SUIT OVER LAND APPLICATION OF PESTICIDES

Environmentalists have mounted a landmark challenge against a blueberry farmer for aerially applying pesticides in what could be the first Clean Water Act (CWA) challenge to applications of pesticides over land that eventually drift into waters, attorneys say.

The suit follows EPA issuance of a rule exempting pesticide applicators from obtaining CWA discharge permits when pesticides are applied directly to waters to control pests present there, or when pesticides are applied to control pests present over waters and some of the pesticides end up in waterbodies.

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POWER UTILITIES DENIED ROLE IN LITIGATION OVER EFFLUENT GUIDELINES REVIEWS

A federal district court has ruled that a coalition of electric utilities may not weigh in on EPA's behalf in a lawsuit that claims the agency is not meeting Clean Water Act (CWA) requirements to review and revise existing effluent guideline regulations.

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RULING ALLOWING CITIZEN SUITS AFTER ENFORCEMENT ACTIONS WILL STAND

In a victory for environmentalists, the Supreme Court has decided not to review an appellate ruling upholding citizens' rights to file suit against a wastewater treatment plant, even when the plant is already facing a state enforcement action.

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WETLANDS SENTENCE REFLECTS COURTS' ABILITY TO DEPART FROM STRICT GUIDE

A recent federal district court ruling scaling back a Michigan developer's sentence for illegally filling wetlands underscores the significance of the Supreme Court's recent decision overturning strict mandatory federal sentencing guidelines, legal observers say.

The sources say the ruling in Rapanos v. U.S. may be one of the first cases where a court has relied on the high court's rulings to decrease a defendant's sentence in an environmental crimes case.

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NEVADA DEVELOPERS APPEALING UNIQUE WETLANDS TAKINGS CASE

A Nevada development team is urging a federal appeals court to reverse a decision in an unusual wetlands takings case, arguing the lower court was wrong when it ruled that wetlands mitigation requirements did not constitute a taking.

Specifically, the developers argue that the district court failed to apply or wrongly applied established legal precedent when it ruled a requirement to create more than 200 acres of new wetlands did not effect a physical, categorical or regulatory taking.

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