Blue Ridge Environmental Def V Ferc Et Al 2018 Petition for Review

CHESAPEAKE Make clean WATER BLUEPRINT (BAY TMDL)

John Pavoncello/York Acceleration

United States District Courtroom for the District of Columbia
Chesapeake Bay Foundation, et. al. v. United States Ecology Protection Agency, et. al.
Case No.: i:xx-cv-02529 (and consolidated instance)
Updated nine/15/2021

In December 2010, EPA used its authorisation under the federal Make clean Water Act to issue a Total Maximum Daily Load for the Chesapeake Bay and its tributaries (Bay TMDL) to limit backlog nitrogen, phosphorous, and sediment pollution from the entire Chesapeake Bay watershed.

A requirement of the Bay TMDL is each jurisdiction (DC, DE, Physician, NY, PA, VA, and WV) were directed to issue Watershed Implementation Plans (WIP's) in three phases—2010, 2012, and 2019. WIP's include detailed, specific steps each jurisdiction must have to run across the Bay TMDL by 2025. The combination of the TMDL and WIPs serves as the Chesapeake Bay Clean H2o Blueprint ("Blueprint"). Information technology was agreed that EPA would oversee TMDL progress and take activity(s) necessary to ensure that the Bay States adhered to the terms of the Chesapeake Bay Agreement.

In the past dozen years, CBF has been successful in litigation to support Bay restoration and the Blueprint. CBF'south lawsuit against EPA in 2009 resulted in a settlement agreement that fix specific deadlines for evolution and completion of the Bay TMDL. Fowler et al. v. EPA (2010). CBF dedicated the Design from attacks by the American Farm Bureau and its allies. In that case, a federal court estimate in Pennsylvania constitute that the Blueprint created through a federal/state partnership was legal and an example of "cooperative federalism." This decision was upheld by the Third Circuit Court of Appeals in American Farm Agency v. EPA (2015). See Litigation's concluded cases for boosted details.

In 2019, Pennsylvania and New York submitted Phase Three WIP'due south that neglect to attain levels of pollution reduction required past the Bay TMDL by 2025. EPA approved these WIP's without significant change, ensuring that Bay water quality will not be restored by 2025. As a result, in September 2020, CBF and our partners filed suit against EPA in the U.S. District Court for the District of Columbia for failing to comply with their responsibilities nether the Clean Water Act and the Pattern. Our partners in the litigation are Anne Arundel County, Maryland; The Maryland Watermen's Association; and Robert Whitescarver and Jeanne Hoffman, CBF members and operators of a livestock farm in Virginia. Our case was consolidated with a split up, but similar, lawsuit filed by Attorneys General in Maryland, Virginia, Delaware, and the District of Columbia. Defendants, EPA, filed a Motion to Dismiss the cases in November 2020, notwithstanding they failed to produce an adequate record of the documents supporting its decision equally required past law.  As a result, we filed a Motion to Supplement the Authoritative Tape Alphabetize on August 6th asking the Court to order the Defendants to complete the record prior to the plaintiff's responding to the Motion to Dismiss the case.  EPA filed a response to our Motion on September 7th and our response is due by October seventh.

This case is existence handled by Vice President for Litigation Jon Mueller, along with Litigation staff counsel Paul Smail and Brittany Wright.

Trappe East Wastewater Treatment Facility

Excursion Court of Maryland for Talbot County
In Re: Petition of Chesapeake Bay Foundation, et al.
Instance No.: C-20-CV-21-000006
Updated: ix/15/2021

A developer plans to build a mixed-use community consisting of commercial uses, over 2,500 residential dwellings, and a 30-acre man-made lake in Talbot Canton, Maryland chosen Lakeside at Trappe. The property currently consists of row ingather farmland well-nigh Miles Creek and the Choptank River. The developer plans to connect the residences and commercial uses to a wastewater treatment facility (WWTF) that will be synthetic on-site. The treated wastewater, or effluent, will be disposed through groundwater belch by manner of country application using spray irrigation. In a spray irrigation system, the effluent is sprayed on to crop land and the pollutants are supposed to be integrated in the crops or retained in the soil. However, studies bear witness that some of the pollutants will seep through the ground to the groundwater where they will eventually make their mode to surface waters (rivers, creeks, and wetlands). The Lower Choptank River is already impaired by sediments, nutrients, and fecal coliform.

The Maryland Department of the Environment ("MDE") issued a state discharge permit for the WWTF on December 22, 2020. The permit allows the WWTF to discharge up to 540,000 gallons of effluent per day when the Lakeside project is consummate. This makes the WWTF the largest facility of its kind in the Country of Maryland. When issuing the permit, MDE did not acknowledge the impacts of this connection betwixt groundwater discharges to surface waters and how this connection implicates the Chesapeake Bay Blueprint. This sets a dangerous precedent when permitting future on-site facilities such as this.

On February 1st, CBF, along with local residents, appealed the conclusion to issue the state discharge allow by filing a Petition for Review with the Talbot County Circuit Court. A separate, but similar Petition was filed past ShoreRivers.  This instance has been remanded back to MDE for further consideration of the discharge let in question.  CBF's example has therefore been stayed.  MDE has scheduled a public hearing for October 28th and the borderline to submit comments is Nov 5th.  CBF will attend the public hearing and file comments on the discharge allow.

This matter is being handled by the Director of Litigation Paul Smail

Donnie Biggs

Virginia—Phase III Watershed Implementation Program

Hanover Circuit Court
Virginia Clan of Municipal Wastewater Associations v. Virginia Department of Environmental Quality
Case No.: 19003147
Updated: 4/xv/2020

In Baronial 2019, Virginia proposed its tertiary Watershed Implementation Plan (WIP) setting forth how the Commonwealth plans to run into the nutrient (nitrogen and phosphorus) and sediment allocations established for Virginia's portion of the Bay in EPA's Chesapeake Bay Total Maximum Daily Load (Bay TMDL). However, the Virginia Association of Municipal Wastewater Associations (VAMWA) filed suit challenging Virginia'southward WIP. In their appeal, they ask the courtroom to observe the unabridged WIP invalid and strike the provision requiring wastewater treatment plants to upgrade their facilities. CBF filed a Motility to Arbitrate in this case on January 10th as VAMWA's challenge threatens the Commonwealth of Virginia's ability to meet the Blueprint goals by 2025. DEQ filed a Motility to Dismiss the appeal.

This case is beingness handled past Vice President for Litigation Jon Mueller along with staff counsel in the Virginia office

Make clean AIR ACT CHALLENGES

Find more information on the types of air pollution impacting the Bay and pollution flowing in from outside the watershed on our Air Pollution web page or spotter our video.

Actions to Reduce Greenhouse Gas Emissions Nether the Clean Air Human activity

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MOTOR VEHICLE STANDARDS

United States Courtroom of Appeals for the District of Columbia Circuit
Union of Concerned Scientists, et al. v. U.s.a. Environmental Protection Bureau, et al.
Case No.: nine-1230 (and consolidated cases)
Updated: 9/15/2021

In September of 2019, the National Highway Traffic Condom Administration (NHTSA) and EPA jointly issued a final dominion: The Safer Affordable Fuel-Efficient (Safe) Vehicles Rule Part 1: 1 National Plan (Condom Part One Rule). In this rule, NHTSA and EPA, under separate statutes, removed states' authority to regulate greenhouse gas emissions from vehicle tailpipes and to implement zero-emission vehicle (ZEV) mandates. CBF filed a comment alphabetic character opposing this Rule.

For decades, EPA has granted California a waiver under the Clean Air Act to establish its Make clean Cars program, including greenhouse gas emissions and ZEV standards. Delaware, Maryland, New York, Pennsylvania, and D.C. have adopted elements of California'southward program in order to reduce air pollution and fight climate change. The Role One Rule as well removed all states' dominance to prefer California'southward standards.

In response, CBF filed an administrative petition requesting that NHTSA reconsider and withdraw its portion of the Part One Rule. CBF likewise joined a coalition of public interest groups in filing a petition for review with the D.C. Circuit challenging EPA'due south portion of the Part One Dominion. Our example was consolidated with other cases filed past NGOs, industry groups, and states.

On Jan 19, 2021 NHTSA denied CBF'southward petition for reconsideration. On Jan xx, 2021, President Joseph Biden signed Executive Guild 13990 on "Protecting Public Health and the Surround and Restoring Science to Tackle the Climate Crisis" which establishes a policy to mind to science and improve public health and protect our environment. The Order directed all executive departments and agencies to review, and as appropriate, take action to accost federal regulations finalized during the concluding four years that conflict with these objectives. On February 8, 2021, the D.C. Excursion granted a motion from the Agencies to agree the consolidated Role 1 cases in cessation, pending farther order of the court, while the Agencies conducted their review of Safe Part One. On April 22nd, NHTSA issued a proposed rulemaking to repeal NHTSA's portion of the Prophylactic Role 1 Rule and on April 28th, EPA issued a notice that is it reconsidering its portion of the Rule that eliminated certain aspects of California's vehicle emissions reduction plan and those of D.C. and Chesapeake Bay states. CBF joined coalition comments on both regulations.  EPA is directed past the court to file status reports at 90-day intervals.  Nosotros continue to monitor for a concluding rule and will take farther action, if necessary.

The states Court of Appeals for the District of Columbia Circuit
Chesapeake Bay Foundation, Inc. 5. National Highway Traffic Prophylactic Administration
Case No.: 21-1091
Updated: 3/21/2022

On November eight, 2019, subsequently NHTSA and EPA issued the final SAFE Part One Dominion, CBF filed an administration petition for afterthought requesting that NHTSA reconsider and withdraw its activeness in the SAFE Office One Rule. CBF'southward Petition identified procedural and noun flaws with NHTSA's Part Ane Rule. On Jan 19, 2021, the evening before the presidential inauguration, NHTSA denied our administrative Petition. On March 18th, CBF filed a protective petition for review with the D.C. Circuit to preserve the right to challenge the denial.

Us Court of Appeals for the District of Columbia Circuit
Competitive Enterprise Institute, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 20-1145 (and consolidated cases)
Updated: nine/1/2021

On April thirty, 2020, NHTSA and EPA issued The Safer Affordable Fuel-Efficient (Rubber) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Lite Trucks ("SAFE Part Two Rule"). In this Rule, NHTSA weakened existing federal fuel economy standards (fuel economy is the number of miles a car can travel on i gallon of gasoline) and EPA weakened the federal carbon dioxide emissions standards for vehicle tailpipes. The Agencies' weakening of the federal standards will result in significant increases of climate and air pollution that damage the surround and human being health, including the residents and ecosystem of the Bay watershed.

Every bit a consequence, on May 27, 2020, CBF joined a coalition of public interest groups to challenge the Dominion in the D.C. Circuit by filing petitions for review of both NHTSA'south and EPA's actions. Our petitions take been consolidated with other appeals filed by industry groups, land air quality direction agencies, and a coalition of states (including the Bay jurisdictions of Maryland, Pennsylvania, Virginia, New York, Delaware, and the District of Columbia). Petitioners, including the public interest groups filed opening briefs on Jan 14, 2021. Prior to conference being completed, and due to President Joe Biden'due south Executive Club 13990 which gives EPA and NHTSA a borderline of July 2021 to potentially advise new rules revising the Safety Part Ii standards, our instance has been held in abeyance pending further order of the courtroom. EPA published a proposed rule to revise the greenhouse gas emissions standards for low-cal-duty vehicles acknowledging that the Safe rule weakened the prior standards. CBF will file a comment alphabetic character by the September 27th deadline. EPA is directed to file status reports with the court at 90-mean solar day intervals.

These matters are being handled by CBF Litigation Staff Attorney Ariel Solaski.

CBF

Make clean Power Plan

United States Court of Appeals for the District of Columbia Excursion
American Lung Clan, et. al. five. Us Ecology Protection Agency et. al.
Case No.: 19-1140 (and consolidated cases)
Updated: ix/one/2021

On July 8, 2019, EPA issued a terminal rule repealing the Clean Power Plan and finalizing the Affordable Clean Free energy Rule. The Clean Power Plan (October 23, 2015) was a regulatory program in place to reduce greenhouse gas and carbon dioxide emissions from coal fired power plants by transitioning to cleaner energy sources. The Affordable Clean Energy dominion volition exist an ineffective replacement, that volition require few, if any, emission reductions, and will ultimately pb to an increase in greenhouse gas emissions. Besides, the new Affordable Clean Energy Rule does non meet the requirements of the Make clean Air Deed considering united states now have the responsibility of developing standards of performance for air emissions reductions. Under Section 111 of the CAA, EPA is authorized to institute these standards.

The Affordable Clean Energy Rule will be harmful to the health of the Chesapeake Bay and those living in and working inside the Watershed because the NOx emitted from ability plants enters the atmosphere and either combines with sunlight to grade ozone or remains equally a grade of nitrogen that deposits direct into waterbodies. The nitrogen causes algae blooms that can be harmful to oysters, fish, and blue crabs. In improver, the new Dominion volition delay implementation of the Chesapeake Bay TMDL and worsen the impacts of climate modify from which the Bay is already suffering.

CBF filed comments on both the repeal of the Make clean Power Programme and the Affordable Clean Free energy replacement rule urging EPA to withdraw the proposal and fully implement the Make clean Power Plan. As a result, after the Final Rule was published, CBF filed a Petition for Review with the D.C. Circuit on Aug. 30th challenging both the Repeal of the Make clean Power Programme. As a result, after the Last Dominion was published, CBF filed a Petition for Review with the D.C. Circuit on August 30, 2019 challenging both the Repeal of the Clean Ability Plan and the implementation of the Affordable Make clean Energy Rule. CBF's example has been consolidated with other appeals filed by NGO groups, energy organizations, and State Petitioners. CBF likewise intervened in an appeal brought by energy organizations who are challenging EPA's authority to regulation greenhouse gas emissions nether the Clean Air Human activity. Arguments in the appeals were held in front end of a iii-judge panel in the U.S. Court of appeals for the D.C. Excursion on October 8, 2020.

In a win for protecting air quality in the Chesapeake Bay watershed and in fighting modify, on January xix, 2022, the D.C. Excursion issued an Stance vacating the affordable Clean free energy Dominion and directed EPA to write a new rule to regulate greenhouse gas emissions from power plants. The Court held that EPA acted unlawfully by limiting its authority under the CAA. The Courtroom as well held that climate change is the most pressing environmental claiming of our time and the ACE rule failed to reduce greenhouse gas emissions from ability plants, 1 of the larges sources of emissions.

On February 12, 2021, EPA filed a motion with the D.C. Circuit for a fractional stay of the mandate (a document that constitutes the courtroom's official activity) for the vacatur of the Clean Power Plan Repeal Rule until EPA takes further action and develops new regulations for reducing greenhouse gas emissions from power plants under the Clean Air Human activity. The Court issued the partial mandate on March 5, 2021 directing EPA to file status study with the Court every xc days. A status study was filed on May 24th informing the court that a new rulemaking action is ongoing.

On April 30th, a coalition of states led by West Virginia and coal companies filed a Petition for Writ of Certiorari with the U.S. Supreme Court asking the court to review the D.C. Circuit Court's decision and make up one's mind whether EPA has the say-so to regulate hazardous air pollutants from coal-fired power plants nether the CAA. CBF joined public wellness and environmental organizations and filed a cursory in opposition on August 5th. We expect the Supreme Courtroom'southward decision on granting or denying the petition.

CBF will continue to monitor EPA's deportment related to the Clean Ability Program and accept appropriate activity, if necessary.

This affair is being handled past CBF Litigation Staff Attorney Brittany Wright.

Actions to Reduce Particulate Matter Air Pollution

U.s. Court of Appeals for the D.C. Circuit
State of California, et al. v. Usa Environmental Protection Agency
Example No.: 21-1014
Updated: 9/1/2021

The Clean Air Human activity ("CAA") identifies half dozen "criteria pollutants" known to endanger human wellness and welfare, including airborne particle pollution, or particulate affair (PM). Breathing in PM can be harmful to your health. Fine particulate matter, measuring less than 2.v micrometers in diameter, known equally PM2.v, is especially harmful considering it can travel deep into the lungs and pb to serious health issues. Low-income communities and communities of color are unduly afflicted and more vulnerable to PM pollution due to proximity to the pollution sources and other compounding factors.

Sources of PM 2.5 pollution throughout the Chesapeake Bay region include industrial facilities, power plants, concentrated poultry operations, and vehicle tailpipe pollution. These sources also release precursor pollutants, similar ammonia and nitrogen oxides, which contribute to the formation of PM and lead to harmful nitrogen deposition into the Bay and its waterways.

The CAA directs EPA to establish National Ambient Air Quality Standards ("NAAQS") to protect public health and welfare for each criteria pollutant, including PM.  EPA is required to review the NAAQS every 5 years to ensure they accurately reverberate the latest scientific knowledge and are sufficiently protective. States are responsible for designing state implementation plans ("SIPs") detailing how the NAAQS will be attained throughout the state.

In December of 2020, EPA issued a terminal activity titled "Review of the National Ambient Air Quality Standards for Particulate Thing" that retains the existing NAAQS for PM 2.v at the levels previously set up in 2012. EPA's PM NAAQS review procedure repeatedly marginalized scientific expertise and did not business relationship for the latest scientific knowledge, and the 2012 standards are insufficient to protect human health and welfare (including the watershed). As a result, CBF joined a coalition of ecology and public health groups to file a challenge to the rule at the D.C. Excursion Court of Appeals on January xix, 2021. These consolidated cases are held in abeyance until March 1, 2023, as the EPA reviews the PM NAAQS Rule in accord with Executive Order 13990. EPA is directed to file status reports at 90-day intervals.

This case is being handled by CBF Litigation Staff Chaser Ariel Solaski.

Encounter our weblog postal service "Dirty Air."

Actions to Reduce Ozone Pollution

United States Court of Appeals for the D.C. Excursion
State of New York, et al. five. United States Environmental Protection Agency
Instance No.: 21-1028
Updated: ix/1/2020

Ground-level ozone (O₃) is a "criteria pollutant" identified past the federal Clean Air Human activity ("CAA") for which EPA is required to establish National Ambient Air Quality Standards ("NAAQS") to protect human health and welfare. Ground-level ozone is a colorless and highly irritating gas that forms above the globe's surface. Ozone forms when pollutants (including nitrogen oxides) being emitted past cars, power plants, and other sources chemically react in the presence of sunlight. Ozone, the principal component of smog, is one of the most unsafe forms of air pollution in the United States today. Ozone in the air we exhale can be harmful to our wellness especially for sensitive groups with preexisting conditions (asthma and chronic bronchitis), children and the elderly, and those who piece of work outdoors. Low-income communities and communities of color disproportionately conduct the burden of ozone pollution and the associated harms to health.

Ozone pollution also impacts the wellness of the Chesapeake Bay. Nitrogen oxides (NOx) emissions, an ozone precursor, crusade harmful algae blooms that proceed sunlight from reaching underwater grasses and dead zones that lack enough oxygen to sustain fish, crabs, and other Bay species.

On December 31, 2020, EPA finalized a Rule that retained the existing national air quality standards for ozone at the levels set in 2015 (70 ppb). This level is insufficient to protect public health and welfare as required by the CAA. Also, during the ozone review procedure, EPA repeatedly departed from long-established practice and disregarded scientific expertise, rendering the final Rule arbitrary and unlawful. On February 11th, CBF joined a coalition of environmental and public health groups to file a claiming to theRule in the D.C. Circuit. Our instance has been consolidated with other appeals. On February 22nd, the cases were held in abeyance as EPA reviews the Ozone NAAQS Rule in accordance with Executive Order 13990. The Court has directed the parties to file Motions to govern further proceedings past October 29th.

Krista Schlyer/iLCP

Mercury Pollution

Updated: 9/one/2021

Since 2005, CBF has successfully pushed EPA to crave stringent controls on coal-fired ability plants to reduce air borne pollutants and mercury levels. In collaboration with other NGO groups, CBF's legal actions led to the creation of a federal regulation known every bit the Mercury and Air Toxics Standards (MATS), 77 Fed. Reg. 9304 (February. 16, 2012). Unfortunately, it is again existence challenged in 2020.

MATS was based on EPA'south finding that it is "appropriate and necessary," nether the Make clean Air Act, to regulate mercury and toxic air emissions from fossil fuel-fired power plants that pose a meaning hazard to the surround and to human wellness. The mercury from power plants falls from the air into rivers, lakes, streams, and the Bay where it is taken upward by plants and small-scale organisms and gradually travels up the food chain into fish and other wildlife. The mercury is converted into methylmercury, a neurotoxin that attacks the human nervous system and causes IQ deficits in children. This toxin tin eventually exist ingested by people who swallow contaminated fish and can cause serious adverse health furnishings. Mercury contamination is especially damaging for developing fetuses and young children. Low-income communities, communities of color, and subsistence fishers who rely on self-defenseless fish to feed their families, are also at greater risk.

Despite the dangers caused past exposure to mercury pollution, the MATS have been repeatedly challenged in court by industry groups and some states. While those actions were initially defeated in the lower courts, the challengers asked the U.S. Supreme Court to overturn those decisions and vacate the MATS in 2013. CBF joined in the filing of a brief opposing the challengers' petition for certiorari. The petition was granted, and the U.S. Supreme Courtroom in Michigan v. EPA upheld the standards. The Courtroom found that EPA had unreasonably failed to consider costs when conducting its "appropriate and necessary" finding.

In response to the Supreme Courtroom'south ruling, EPA completed an economic assay and in Apr 2016 issued a Supplemental Finding that the costs of the MATS Dominion were reasonable, and the standards remained "appropriate and necessary." This finding was immediately challenged in courtroom by Murray Energy, a coal mining company. CBF joined a coalition of NGOs to intervene and defend the MATS. In April 2017, with the case fully briefed and scheduled for oral arguments, the authorities moved to concord the instance in abeyance while it reconsidered its position supporting the Supplemental Finding; the Courtroom granted EPA's asking and suspended the case.

In Apr 2020, EPA issued a final rule attempting to reverse the 2016 Supplemental Finding. The 2020 dominion changed how EPA considered the costs and benefits of the MATS Rule and determined that regulating hazardous air emissions from coal-and oil-fired power plants is not "appropriate and necessary," even though studies bear witness that once fully implemented, the MATS Rule led to a 96-percent reduction in emissions of mercury and other hazardous air pollutants at significantly less cost than industry had predictable. During the public participation procedure, CBF submitted a comment letter on how EPA'due south proposal could increase mercury emissions within the Chesapeake Bay airshed and how reducing mercury pollution is crucial for Bay restoration, curbing climate change, and protecting the region's vulnerable populations.

In June 2020, CBF joined a coalition of NGO groups challenging the 2020 dominion at the U.Southward. Court of Appeals for the D.C. Circuit. CBF's case was consolidated with other appeals and joined by a coalition of states, including Bay watershed states. The instance is docketed as Westmoreland Mining Holdings five. EPA (Case No.: 20-1160). On February 17, 2021, the Court issued an Club belongings these cases in abeyance pending EPA's implementation of Executive order 13990 directing EPA to review the MATS Supplemental Findings. EPA is directed to file condition reports with the Courtroom at 120-24-hour interval intervals beginning June 16, 2021. Nosotros continue to monitor for whatsoever developments as EPA has not issued a revised MATS Dominion to date.

These matters are being handled by counsel for Earthjustice, CBF Litigation Chaser Ariel Solaski, and Vice President for Litigation Jon Mueller.

CLEAN WATER ACT

Wetlands

Bill Portlock/CBF Staff

Waters of the United States (WOTUS)

United States Commune Court for the District of Maryland
Chesapeake Bay Foundation, et. al. v. United States Environmental Protection Agency
Case Nos. 1:xx-cv-01063 (consolidated)
Updated: nine/23/2021

The Clean Water Act was designed to "restore and maintain the chemical, physical, and biological integrity of the Nation'southward waters." To do this, the Deed protects "navigable waters"—defined as "waters of the United States "—from unregulated pollution and filling without a permit. However, because "waters of the United States" is non actually defined in the Clean Water Act, it has been subject to decades-long litigation and regulations attempting to analyze the definition.  As a effect, EPA and the U.S Army Corp of Engineers (Corps) collectively issued the 2015 Clean H2o Rule. This Rule divers the wetlands and streams that qualify for federal protection nether the Make clean Water Act based on the connectivity of waters and the impacts streams and wetlands have on downstream water quality. Hundreds of streams and wetlands in the Chesapeake Bay watershed were protected nether the 2015 Rule.

However, in a rejection of sound science and legal precedent, EPA and the Corps embarked upon a ii-step procedure to repeal and replace the 2015 Clean Water Rule. First the agencies finalized a repeal of the Rule entitled Definition of "Waters of the United States"—Recodification of Pre-Existing Rules (Oct. 22, 2019). CBF filed comments prior to the issuance of this rule as the repeal would reinstate the prior confusing regulatory regime and remove protections for certain water features like Delmarva Bays and pocosins (a wetland bog with sandy, peat soil) found in the Bay region. Thereafter, the agencies issued the concluding replacement dominion entitled The Navigable Waters Protection Dominion: Definition of "Waters of the United states of america" (Apr. 21, 2020). CBF and more than 2,000 of our members submitted comments opposing the replacement rule, which ignores leading science on the biological connections betwixt streams and wetlands and navigable waters. This rule eliminates Clean Water Act protection for hundreds of streams and wetlands across the watershed, pregnant a pollution discharger would no longer need a federal permit to release pollutants into these waters. This reduces the ability to forbid and control pollution harmful to the Bay and its tributaries.

As a event, CBF, together with ShoreRivers, challenged both the repeal rule and the Navigable Waters Protection Rule past filing two split up actions in U.South. District Court against EPA and the Corps on Apr 27, 2020 asking the court to vacate both rules and to reinstate the 2015 Clean Water Dominion. On Aug. 24th CBF's cases were consolidated. CBF's motion for summary judgment was filed on Nov 24th and Defendants reply and cantankerous motility for summary judgment was filed on January fifteen, 2021. However, before concluding motions were filed, on February 2, 2021, the Court Ordered the cases to be held in abeyance until July 29, 2021 as EPA reviews the WOTUS Rule in accordance with President Biden's Executive Order 13990, "Protecting Public Health and the Environs and Restoring Science to Tackle the Climate Crisis," which establishes a policy to listen to science and meliorate public wellness and protect our environs.

On August 4, 2021, the Agencies issued a Federal Annals notice announcing that they intend to undertake 2 rulemakings.  Start, the Agencies intend to advise restoring the regulations defining "waters of the U.s." that were in place in 2015. Second, the Agencies intend to propose a second rule that will build upon this regulatory foundation. On August 30, 2021, in a split up, but related example, the U.S. District Court for the District of Arizona vacated the April 2020 Navigable Waters Protection Rule. In light of this determination, the EPA and Regular army Corps announced the agencies intent to carelessness the Navigable Waters Protection Dominion, and instead rely on the pre-2015 regulatory authorities and guidance from Supreme Court cases. CBF submitted comments on the Agencies request for pre-proposal feedback on September iii.

Also, the court has issued a scheduling society for CBF and the Agencies to resolve CBF'due south cases. CBF is advocating for the Navigable Waters Protection Rule issued in April 2020 to be vacated.  Defendants' opening movement is due on November 15, CBF's response is due on December 15, and Defendants' reply is due on January 14, 2022.

This affair is existence handled by CBF Litigation Attorney Brittany Wright.

Forest CONSERVATION

John Pavoncello/York Acceleration

Abingdon Business Park

Maryland Courtroom of Special Appeals
Chesapeake Bay Foundation, Inc. v. CREG Westport I, LLC, et al.
Case No.: CSA-REG-1063-2020
Updated: 9/15/21

On December nine, 2019, the Harford County Director of Planning and Zoning ("Planning Director") approved a Forest Conservation Plan for Abingdon Business Park. The developer's (CREG/Westport I, LLC) program includes warehouse facilities and other mixed uses on approximately 330 acres of forested land in Harford County, Maryland. The site contains office of the Haha Branch stream, which drains into the Bush River and, ultimately, the Chesapeake Bay. The downstream Bush River is already classified as impaired for high levels of sediment from stormwater runoff. In add-on, the Forest Conservation Plan permits the clearing of over 200 acres of forested state and the removal of 49 old and large copse known equally "specimen trees."

On January eight, 2020 CBF, together with nearby property owners, filed a Petition for Judicial Review with the Excursion Court for Harford County contesting the Planning Director'due south decision to approve the forest conservation plan. We allege it does not meet the requirements of the Harford Canton Zoning Code. The County and the Programmer together filed a Motility to Dismiss the Petition in March of 2020 and CBFs filed an opposition.  After a hearing was held, the Court granted the Motion to Dismiss holding that the forest conservation plan was non a "terminal decision" and therefore does non provide Petitioners with the ability to appeal it. CBF believes that this decision is inconsistent with state constabulary. We filed an appeal to the Maryland Court of Special Appeals on Nov 20. Oral Arguments were held virtually on June fourteen, 2021, and on September 8, the appellate court issued an Stance affirming the decision of the circuit court and ruled that the wood conservation programme was not a "final decision" field of study to appeal.

This matter is beingness handled by CBF Litigation Attorney Paul Smail and Brittany Wright.

HYDROPOWER

Eliot Malumuth

Conowingo Dam Relicensing

Us Court of Appeals for the D.C. Circuit
Updated: ix/fifteen/2020

Since its construction in 1928, the Conowingo Dam on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today researchers estimate the reservoir is almost completely filled and, equally a result, has lost much of its chapters to trap sediment and nutrients. In particular, during big storms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below.

In August 2013 CBF intervened in the Federal Energy Regulatory Commission'south (FERC) relicensing proceedings for the dam. Intervention ensures CBF's voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC's Draft Environmental Impact Argument (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all 3 projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC volition decide whether to effect a license after Exelon conducts a sediment report and afterwards the Maryland Department of the Environment ("MDE") bug a H2o Quality Certification for the projects under Department 401(a)(1) of the Make clean Water Act. On May 17, 2017, Exelon's submitted their application for a Water Quality Certification. CBF filed comments on the awarding on Baronial 23, 2017 detailing the impacts of the Dam on Maryland's h2o quality and the achievement of the water quality standards associated with the Chesapeake Bay TMDL for nutrients and sediments.  CBF also presented oral comments during a public hearing held on December 5, 2017 and filed boosted comments on January xvi, 2018. MDE issued its Certification on April 27, 2018 requiring Exelon to business relationship for and reduce the corporeality of nitrogen and phosphorus discharged through the dam due to the inability of the dam to continue trapping these pollutants.

In response to MDE's Certification, Exelon filed 2 judicial actions against MDE on May 25, 2019. One action was a Complaint for declaratory and injunctive relief filed in the U.S. District Court for the District of Columbia and a similar activeness was filed in the Baltimore Urban center Circuit Courtroom. Both Complaints essentially asked the court to Gild MDE to withdraw their Certification as the requirements exceed the State's authorization under the CWA and violate the United States Constitution. Exelon also lodged a "Protective Provision and Administrative Appeal" with MDE requesting the Department reconsider and stay its decision.

By filing these judicial deportment, Exelon attempted to avoid the appropriate authoritative appeals process in lodge to void the Water Quality Certification. CBF filed Motions to Intervene in both cases to ensure that the proper administrative process was followed and defend the State of Maryland's authority to certify and condition discharges that would otherwise harm h2o quality.

The Excursion Court for Baltimore City dismissed Exelon's Complaint in October 2018 earlier ruling on CBF's Motion to Arbitrate. Nonetheless, the U.S. Commune Court for D.C denied CBF'southward Motility to Intervene on March 29th. CBF appealed the denial with the U.Southward. Courtroom of Appeals for the D.C. Circuit in April 2019. All the same, after briefing was completed and prior to Oral Arguments, Exelon and the Country of Maryland filed a Settlement Agreement with FERC that would resolve all of Exelon's judicial and administrative appeals.

The settlement requires Exelon to invest approximately $200 one thousand thousand adjusted for aggrandizement over the 50-year license agreement term for environmental benefit projects, while non admitting whatever responsibility or liability for pollution scoured and discharged from the dam during high river catamenia events such as storms. On Jan 17, 2020, CBF filed comments on the Settlement Agreement with FERC urging the commission to reject the proposed settlement offer.  Nevertheless, on March 19th, FERC issued an Society granting a new 50-yr license to Exelon without imposing any conditions on the operation of the Dam that would mitigate its impact to downstream water quality. CBF and our partners, Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, and Shore Rivers filed a request for a rehearing of FERC'due south March 19th Order.  After FERC denied our asking, we filed a Petition for Review with the United States Courtroom of Appeals for the D.C. Circuit on June 17th requesting the Court review FERC's Order to event the new license and a 2nd Petition for Review on September 13th based on FERC'southward Order on our rehearing request.  This case is currently being held in abeyance to allow for additional petitions for review and instance consolidation.

This thing is being handled by CBF Litigation Attorneys Paul Smail and Brittany Wright, CBF senior scientist Beth McGee, and CBF'due south Maryland Office.

NATURAL GAS

Wide swaths of land cleared for laying pipeline destroy disquisitional forests and create extensive sediment runoff.

The Bay Journal

Rule Atlantic Coast Pipeline

Updated: 9/15/2021

On July 5, 2020, Dominion Energy and Duke Energy, the developers of the Atlantic Coast Pipeline, appear they were abandoning the project designed to conduct natural gas 600 miles through West Virginia, Virginia, and Northward Carolina. CBF was one of many advocates and litigants fighting to stop the pipeline due to the unprecedented risk the pipeline would present to people, waterbodies and forests in Virginia. Our victory in the Fourth Excursion Court of Appeals revoking an air pollution permit that would have allowed the construction of a gas burning compressor station in a Buckingham County minority customs was one of the factors contributing to the demise of the project.  CBF'south Statement on Cancellation of Atlantic Coast Pipeline

As required by the Federal Energy Regulatory Commission ("FERC"), Dominion submitted a Restoration Plan on December 16, 2020. The program outlines the steps Rule will take to restore the areas where structure had begun. CBF continues to monitor the FERC proceedings and will have appropriate activeness, if necessary, to ensure adequate restoration projects are completed including areas where trees accept been removed, subcontract fields accept been paved for staging yards, waterbodies where pipes have been installed, and where endangered species habitat has been destroyed.

Background Details

The Atlantic Declension Pipeline ("ACP") is an expansive operation spanning the distance of more than 600 miles from the Allegheny Mountains through North Carolina, including streams, rivers and wetlands in the Chesapeake Bay watershed throughout Virginia. More than 21 miles of line volition cross national forest lands in Virginia and West Virginia. In improver, the proposed pipeline would have generated additional sediment and nutrients, resulting in an unprecedent risk to these waterbodies, also as wetlands and forests in the Chesapeake Bay watershed. Forests are vital to the wellness of the Bay as they foreclose pollution from entering waterways, protect clean air, and provide habitat to wild animals throughout the region. Thousands of acres of forests will exist destroyed to construct the pipeline.

Legal Challenges:

Challenge to Certificate of Public Convenience and Necessity
United States Court of Appeals for the District of Columbia Circuit
Atlantic Coast Pipeline, et. al. v. Federal Free energy Regulatory Committee
Case No.: 18-1224

In October 2014, Atlantic and Dominion were granted approval for pre-filing review of the proposed Atlantic Coast Pipeline project by the Federal Free energy Regulatory Commission ("FERC"). FERC reviews applications for construction and operation of interstate natural gas pipelines nether Section 7 of the Natural Gas Human action. In Feb 2015, FERC published a Notice of Intent to prepare an Environmental Impact Statement (EIS) and requested public comments. CBF along with other organizations filed comments and motions to intervene to protest the proposed pipeline project. In September of 2015, Atlantic and Dominion filed applications with FERC for certificates of public convenience and necessity. This certificate is required for the construction or expansion of natural gas facilities used for the sale or transportation of natural gas and must be issued by FERC, along with the EIS.

Despite the significant environmental impacts associated with the proposed pipeline, FERC issued the last EIS on July 21, 2017 and issued an Society granting the certificate of public convenience and necessity on Oct 13, 2017 without because relevant evidence in the record.

On November 13, 2017, CBF and our partners filed a Petition with FERC requesting a rehearing and a stay of the Certificate'due south Order, which would pause pipeline construction while the review was being completed. Nevertheless, rather than ruling on the rehearing request, FERC indefinitely postponed a ruling without issuing a stay while construction of the pipeline was underway. This allowed construction to proceed even though a request for afterthought was pending. As a outcome, in March of 2018, CBF and our partners filed a Petition with the Fourth Circuit Courtroom of Appeals request the Court to stay structure of the Pipeline until FERC issued a last Order on the Nov 13th rehearing request. The 4th Circuit Dismissed the Petition for lack of jurisdiction and in August of 2018 FERC denied our rehearing asking.

Later on FERC denied the rehearing request, CBF and our NGO partners filed a Petition for Review with the U.Due south. Courtroom of Appeals for the 4th Circuit requesting the Certificates Gild be vacated. Our instance was transferred to the D.C. Circuit Court of Appeals and consolidated with an appeal filed by ACP related to FERC's Certificates Order on construction funding. Briefing was completed and the oral arguments scheduled for Oct 16, 2019 were removed from the court docket and the case held in cessation until the United States Supreme Court ruled on a separate thing regarding the Atlantic Coast Pipeline and a special utilise let authorizing the construction of the pipeline through parts of the Appalachian Trail and George Washington and Monongahela National Forests, Atlantic Coast Pipeline, et. al. v. Cowpasture River Preservation Association. In June of 2020, the Supreme Courtroom ruled in favor of ACP in this instance overturning the 4th Excursion decision vacating the permit issued by the U.Southward. Wood Service.

On July 23, 2021, FERC made available for public annotate a draft Supplemental Environmental Affect Statement for the proposed restoration project. On September 13, CBF joined our NGO partners and filed comments on this restoration programme urging FERC to make revisions and address shortcoming, including how tree removal will occur around wetlands and waterbodies. CBF's case remains held in abeyance, even after the abandonment of the projection, until the company's restoration programme is completed and finalized with FERC. The parties continue to file status reports, with the Courtroom, every ninety days until the restoration plan and case is concluded.

Water Quality Certification
United States Court of Appeals for the 4th Circuit
Chesapeake Bay Foundation, et al. v. Land Water Control Lath, et. al.
Case No.: 18-1077

The Virginia Department of Environmental Quality is responsible for ensuring that the proposed projection complies with all land water quality standards, including obtaining a section 401 h2o quality certification as defined in Section 401 of the Make clean H2o Human activity, 33 UsaC. § 1341(a). Section 401 certification process requires states to assess whether a federal-permitted projection, that discharges into us navigable water, violates the land'southward water quality standards.

The Commonwealth of Virginia's Department of Environmental Quality ("DEQ") and the Virginia Land Water Control Board issued the 401 Water Quality Certification to ACP on December 20, 2017. CBF along with local co-plaintiffs filed a Petition for Review of this conclusion with the United States Court of Appeals for the Fourth Circuit located in Richmond, VA on January 19, 2018. CBF and our co-plaintiffs allege that DEQ and the Water Control Board lacked sufficient data to detect "reasonable assurance" that the proposed ACP would not violate state water quality standards, as required past Section 401 of the Make clean Water Human activity. In add-on, the certification was issued without providing acceptable public notice and comment opportunities throughout the certification process.

CBF's case was consolidated with an entreatment filed by Southern Environmental Law Center ("SELC") representing several organizations, including Appalachian Voices, Sierra Club, and Chesapeake Climate Action Network. Arguments were held on September 28, 2018 in the 4th Excursion Court of Appeals located in Richmond, Virginia and on Jan 14th, in a published opinion, the Court denied the joint petition for review and upheld the water quality certification issued for the Atlantic Coast Pipeline.

The Buckingham Compressor Station

Friends of Buckingham

Buckingham Canton Compressor Station

Us Court of Appeals for the Fourth Excursion
Friends of Buckingham, et. al. v. State Air Pollution Control Board, et. al.
Instance No.: 19-1152
Updated: 4/15/2020

Dominion practical for a permit to construct and operate a natural gas compressor station in Buckingham County, VA for the Atlantic Declension Pipeline. The permit would allow the new source to emit greenhouse gases, nitrogen oxides, and other toxic pollutants into the atmosphere, harming air quality and public health in violation of the Virginia State Constitution. In add-on, the community where the compressor station would be built is a historic African American community raising environmental justice problems. CBF submitted comments on the proposed allow and testified at the hearing before the Virginia Air Pollution Control Board on November 8, 2018. After allowing for boosted public comments related to demographics and site suitability, the Lath voted 4-0 to approve the air permit on January eighth. Issuance of the permit violates the state clean air police force considering the lath improperly considered a state statute requiring the board to determine the suitability of the site for the compressor station given that is being placed in a minority customs.

As a outcome, on Feb 8th, CBF and SELC (representing Friends of Buckingham) filed a Articulation Petition for Review with the fourth Circuit Courtroom of Appeals. Oral arguments were held on October 29, 2019. On Jan vii, 2020, the 4th Circuit issued a Published Stance vacating the Permit and remanding the case back to the Virginia Air Pollution Command Board. The Court held that the Board did not perform its statutory duty to determine whether the facility is suitable for this site, in calorie-free of environmental justice and potential health risks for the people of Marriage Hill.

These cases are being handled by Vice President for Litigation Jon Mueller, staff counsel in the Virginia office, and counsel for the Southern Environmental Law Centre.

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Source: https://www.cbf.org/how-we-save-the-bay/in-the-courtroom/active-cases.html

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