Recent Developments

State Case Law

Walker v. United States, (N.M., June 21, 2007). 
Water rights of public land ranchers do not include a property right to graze cattle on federal public lands because New Mexico water rights do not include a right to forage. The Court heard the case on certification from the U.S. Court of Federal Claims.

Federal Case Law

National Ass'n of Homebuilders v. Defenders of Wildlife (U.S., June 25, 2007). The Court upheld the transfer of NPDES permitting functions to state officials, despite a claim that such transfer might endanger certain listed species. The decision may have implications to any actions taken by EPA or other federal agencies that are "non-discretionary," vis a vis the requirements in ESA Section 7 related to consultations with U.S. Fish & Wildlife Service on major federal actions.

Wilkie v. Robbins (U.S., June 25, 2007). Court held that a private landowner could not maintain a private right of action for damages against the BLM after BLM initiated efforts to regulate cattle grazing on federal lands.

US v. Atlantic Research (U.S., June 11, 2007). Court held that potentially responsible parties, which voluntarily remediate property, may assert a cost recovery claim under CERCLA Section 107, 42 U.S.C Section 9607.

Massachusetts v. EPA (U.S. 2007). Court held that the Clean Air Act authorizes the EPA to regulate greenhouse gas emissions.

Environmental Defense v. Duke Energy Corp. (U.S. 2007). Court held that the EPA need not conform its PSD regulations concerning facility modifications to conform to similar requirements under the NSPS program.

K-7 Enter. v. Jester, Case No. 06-57 (E.D. Tex., June 20, 2007). RCRA citizen suit can be maintained even if contamination has occurred for over 30 years, even if the spread of such contamination has slowed or remained constant for a decade.

Legislation

H.B 3732, which was signed into law on June 15, provides grants, loans, and other financial and regulatory incentives to encourage businesses to develop advanced clean energy projects for generation of electricity in Texas.

Regulatory

Aboveground storage tank owners and operators subject to spill prevention, control and countermeasure ("SPCC") requirements have until July 1, 2009 to prepare, amend, and implement SPCC plans under an EPA extension.

EPA and Army Corps of Engineers publish guidance and related documents regarding which surface waters and wetlands are considered "waters of the United States" for the purposes of Clean Water Act permitting. www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm

Do you know about a matter, particularly of a Texas flavor, that should be included in the Recent Developments? Send it to craigpritzlaff@andrewskurth.com