The Clean Power Plan, the Obama Administration’s attempt to reduce carbon dioxide emissions from existing power plants, had its day in court on September 27. What a day it was!

Ten judges of the D.C. Circuit Court of Appeals heard arguments addressing the validity of the EPA’s Clean Power Plan in this rare “once in a lifetime” case. (Judge Merrick Garland, a nominee to the Supreme Court, did not hear the case.) A dozen lawyers battled for nearly eight hours — far longer than the three hours the court had allotted — on issues ranging from the Plan’s constitutionality, obscure principles of statutory interpretation, congressional intent, states’ rights, and administrative procedure.
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The Supreme Court recently denied certiorari of a Seventh Circuit opinion permitting parties to challenge “completed” phases of a staged remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even where work in subsequent stages remains ongoing.  The decision in Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014) addressed the contours of the general statement that U.S. EPA’s decisions in an “on-going” remediation may not be challenged under CERCLA.  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Prior to Frey, courts applying this provision had found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.
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