Abstract

The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA),the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act and thus was required to comply with the Endangered Species Act to ensure that its actions did not jeopardize endangered species. In a case involving the National Environmental Policy Act (NEPA), the court held that the United States District Court for the Southern District of Florida had not afforded the EPA the proper deference in reviewing the agency’s Environmental Impact Statement prepared pursuant to NEPA, and the agency’s subsequent decision to issue Clean Water Act permits allowing mining in wetlands. The court also held that the EPA did not act arbitrarily or capriciously in issuing a final rule altering the obligations of operators of underground injection wells under the Safe Drinking Water Act. Finally, the court held that the government’s remediation plan at a federal facility that had not been listed on the National Priorities List was selected pursuant to provisions of the Comprehensive Environmental Response, Compensation, and Liability Act that deprived the federal district court of jurisdiction to hear a citizen suit challenging the sufficiency of the plan.

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