Sue and Settle: Regulating Behind Closed Doors

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Case Name Case # Court Judge Date Filed Date Settled Agency(ies) Plaintiff(s) Issue What They Got Notice of Proposed Settlement/CD Settlement/CD Attorney's Fees? Name of Rule Proposed Rule/Preliminary Action Final Rule/Final Action Learn more
California v. EPA 08-1178 United States Court Of Appeals For The District Of Columbia Circuit N/A 5/5/08 6/30/2009 (EPA granted the waiver; see also EPA waiver web page) EPA Sierra Club, Environmental Defense Fund, NRDC, Environment California Grant of California GHG Waiver EPA, California, environmental groups and the automobile industry negotiated a settlement of a multi-party lawsuit requesting that EPA set Clean Air Act Title II emissions limitations on GHG emissions from automobiles, and granting California a waiver to set its own automobile GHG standards. EPA had previously denied the waiver in 2008; a lawsuit followed. In January, 2009, California asked for reconsideration of the waiver request. EPA granted the waiver in June 2009 (the notice was published in the Federal Register on July 8, 2009). N/A N/A No N/A Reconsideration of Previous Denial, 2/12/09 EPA Granting Waiver, 6/30/09 (Published in Federal Register 7/8/09)  
Center for Biological Diversity v. Kempthorne 08-05546 (lead case--a consolidated case is NRDC v. DOI, 08-05605)  United States District Court Northern District Of California San Francisco Division Marilyn H. Patel 12/11/08 5/14/09 DOI, NMFS, Department of Commerce Greenpeace, Defenders of Wildlife, Center for Biological Diversity, NRDC, Conservation Northwest, Pacific Coast Federation of Fishermen's Associations, Sierra Club, Humane Society December 2008 amendments to the Section 7 consultation rules under the ESA and the decision to exempt greenhouse gas emitters from regulation under the ESA While the lawsuit was pending, the Department of Interior unilaterally revoked the Section 7 rule at issue, reverting to the Section 7 consultation process as it existed prior to the December 2008 amendments. The parties to this lawsuit then jointly agreed to dismiss the case. A formal settlement agreement was not issued. N/A Joint Stipulation to Dismiss Case entered 5/14/2009 No N/A N/A N/A  
Greater Yellowstone Coalition v. Kempthorne 08-02138 United States District Court For The District Of Columbia Emmet G. Sullivan 12/9/08 11/2/09 National Park Service, DOI Wilderness Society, Sierra Club, NRDC, Greater Yellowstone Coalition, Winter Wildlands Alliance December 2008 rule allowing limited recreational snowmobile use (720 snowmobiles per day) inside Yellowstone National Park While the lawsuit was pending, the National Park Service announced, on October 15, 2009, a new winter rule superseding the December 2008 rule of which the plaintiffs complained. The plan reduced snowmobile usage to 318 snowmobiles per day, which is less than half the allowed number under the prior rule. N/A Federal Defendants’ Response To Order To Show Cause (Government argued the case was rendered moot by new plan).  On 11/02/09, government filed motion showing notices that were eventually published in Federal Register on 11/20/09. Unclear Winter Visitation and Recreational Use in National Park System Yellowstone Proposed Rule, 11/5/2008; Greater Teton Proposed Rule, 7/24/2009 (see Final Rule for Proposed Rule Date) Notice of Publication of Federal register Notices (submitted to Court), 11/20/2009; Notices published in Federal Register on 11/20/09 as well  
League of Wilderness Defenders-Blue Mountains Biodiversity Project v. Kevin Martin 09-01023 United States District Court District Of Oregon Patricia Sullivan 8/28/09 Stipulation of Dismissal, 12/30/2009 U.S. Forest Service Sierra Club, League of Wilderness Defenders-Blue Mountains Biodiversity Project Whether authorization of the Wildcat Fuels Reduction and Vegetation Management Project in the Umatilla National Forest violates NEPA and APA U.S. Forest Service agreed to withdraw its decision notice for the project, which would have allowed timber to be harvested from the National Forest. The parties then agreed to dismiss the case. N/A 12/30/2009, Stipulation Of Dismissal (both parties stipulated and agreed to dismissal of the complaint without prejudice) Yes ($350) N/A N/A N/A  
Mississippi v. EPA (Ozone case) 08-1200 United States Court Of Appeals For The District Of Columbia Circuit N/A  5/23/2008 1/19/2010 (This is the publication date of the proposed ozone standards) EPA American Lung Association, Environmental Defense Fund, NRDC, National Parks Conservation Association, Appalachian Mountain Club Ozone NAAQS Reconsideration Earthjustice sued EPA in 2008 challenging the NAAQS for ground-level ozone, which were lowered at the time from 84 parts per billion (ppb) to 75 ppb. In 2009, EPA announced it would reconsider the rule, and Earthjustice agreed to place its lawsuit on hold as long as EPA imposed stricter ozone NAAQS. EPA proposed new NAAQS somewhere in the range of 60 and 70 ppb. The Obama Administration put the planned rule on hold. However, the rule is expected to be proposed in late 2013.   1/19/2010, Publication of Proposed Ozone Standards No Ozone NAAQS 1/19/10 9/2/2011 (Rule is withdrawn)  
Natural Resources Defense Council v. Federal Maritime Commission 08-07436 United States District Court for the Central District of California Christina A. Snyder 11/10/08 9/11/09 Federal Maritime Commission Sierra Club, NRDC, Coalition for Clean Air Federal Maritime Commission (FMC) decision to terminate portions of the Port of Los Angeles' and Long Beach's Clean Trucks Programs While the lawsuit was pending, FMC ended its administrative investigation against the Ports of Los Angeles and Long Beach related to their clean trucks programs, and in a related case, FMC's attempt to block implementation of the ports’ clean trucks program was dismissed. N/A Notice of Voluntary Dismissal on 9/11/2009 Unclear N/A N/A    
Natural Resources Defense Council v. U.S. Department of the Interior 08-05605 United States District Court For The Northern District Of California Marilyn H. Patel  12/16/2008 5/15/09 DOI, NMFS, Dept. of Commerce Sierra Club, Pacific Coast Federation of Fishermen's Associations, Conservation Northwest, NRDC, Institute for Fisheries Resources, Humane Society December 2008 amendments to the Section 7 consultation rules under the ESA and the decision to exempt greenhouse gas emitters from regulation under the ESA While the lawsuit was pending, the Department of Interior unilaterally revoked the Section 7 rule at issue, reverting to the Section 7 consultation process as it existed prior to the December 2008 amendments. The parties to this lawsuit then jointly agreed to dismiss the case. A formal settlement agreement was not issued. N/A Joint Stipulation to Dismiss Case (5/15/2009) No N/A N/A N/A  
Ohio Valley Environmental Coalition v. Army Corps of Engineers 09–247 (R46–024) Supreme Court of the United States N/A  8/26/2009 (cert petition) 7/30/2010 (Memo that effectively settled the case) EPA Appalachian Center for the Economy and the Environment and Public Justice, Coal River Mountain Watch, Ohio Valley Environmental Coalition, and West Virginia Highlands Conservancy  CWA Guidance for Mountaintop Removal Mining Permits Environmental groups challenged CWA permitting for mountaintop removal mining, saying EPA did not account for the impact on stream function. EPA issued this "guidance" while suit was pending in the U.S. Supreme Court, which effectively settled the case.  N/A N/A Unclear CWA Guidance for Mountaintop Removal Mining Permits N/A 6/30/2010, Stream Guidance Memo  
Sierra Club v. EPA (Emission case)  09-1063 United States Court Of Appeals For The District Of Columbia Circuit N/A  2/12/2009  6/15/2010 EPA revoked the rule EPA Sierra Club, Louisiana Environmental Action Network Emission-Comparable Fuels (ECF) conditional exclusion reconsideration EPA issued a December 2008 rule creating a category of Emission-Comparable Fuels (ECF) wastes that could be burned in industrial boilers without triggering RCRA combustion requirements, as long as the resulting emissions were comparable to those produced by burning fuel oil. Environmental groups sued, and EPA proposed a rule that would withdraw this conditional exclusion for ECF. In June, 2010, EPA published a final rule that revoked this conditional exclusion. N/A Final rule withdrawing conditional exclusion; 6/15/10 Unclear Comparable Fuel Exclusion and Expansion Rules 12/8/09 Final rule withdrawing conditional exclusion; 6/15/10  
Southern Appalachian Mountain Stewards v. Anninos 09-00200 United States District Court For The Eastern District Of Virginia Norfolk Division Raymond A. Jackson 4/30/09 6/18/2010 (This date is based on a 6/30/10 status report explaining the suspension of permits as of 6/18/10)  Army Corps Southern Appalachian Mountain Stewards, Sierra Club Decision to issue a streamlined nationwide Clean Water Act permit for surface coal mining Army Corps suspended the use of Nationwide Permit 21, which authorized discharges of dredged or fill material into waters of the United States for surface coal mining activities. As a result, coal mining companies must obtain costly, time-consuming individual dredge and fill permits from the Corps. N/A The U.S. Army Corps of Engineers (“the Corps”) Headquarters has made a final decision to suspend the Nationwide Permit No. 21 (“NWP 21") 6/30/2010 No Unclear N/A N/A  
Taylor v. Locke 09-02289 United States District Court For The District Of Columbia Henry H. Kennedy, Jr.  12/2/2009 7/19/10 National Marine Fisheries Service (NMFS) Earthjustice (on behalf of three fishermen) Atlantic Herring Fishery Revocation of Exemption Settlement removes exemption that allowed herring industrial trawlers to release small amounts of fish that remain after pumping without federal inspection. The new final rule by NMFS, published in 2010, requires federal accounting and inspection for all fish brought on board. N/A Joint Motion To Stay, 7/19/10  Unclear Atlantic Herring Trawling 9/7/10 11/30/10