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Standing in a Federal Agency's Shoes: Should Third-Party Action Affect Redressability under the National Environmental Policy Act?

Through the doctrine of constitutional standing, federal courts have consistently attempted to limit their jurisdiction to claims in which they can redress the plaintiff’s injury. This determination becomes more complicated when a third party asserts that it would “replace” the defendant’s role and cause the same injury to the plaintiff that the defendant would have caused.

Mar 25, 2020
Alexander Tom

Alternative Reasoning: Why the Ninth Circuit Should Have Used NEPA in Setting Aside the Tongass Exemption

After over a decade of controversy and litigation, the Ninth Circuit finally shielded the Tongass National Forest from road construction and timber harvest. In Organized Village of Kake v. U.S. Department of Agriculture, the court’s en banc panel struck down the Forest Service’s decision to exempt the Tongass from the extensive protections granted to all other national forests via the Roadless Rule.

Mar 25, 2020
Katherine Reynolds

Rained Out: Problems and Solutions for Managing Urban Stormwater Runoff

The Clean Water Rule was the latest attempt by the Environmental Protection Agency and the Army Corps of Engineers to define “waters of the United States” under the Clean Water Act. While both politics and scholarship around this issue have typically centered on the jurisdictional status of rural waters, like ephemeral streams and vernal pools, the final Rule raised a less discussed issue of the jurisdictional status of urban waters.

Mar 25, 2020
Roopika Subramanian

ICG Hazard: Permitting Away the Clean Water Act

In Sierra Club v. ICG Hazard, the Sixth Circuit held that a general permit holder is only liable for discharges expressly prohibited by his/her permit terms as long as 1) he/she adequately disclosed other discharges and 2) the permitting agency reasonably contemplated those discharges at the time the permit was issued. ICG Hazard was the first time that a court of appeals had ever considered how the permit shield provision should apply in the general permit context.

Mar 25, 2020
Mae Manupipatpong