Abstract

In 2005 the Eleventh Circuit courts addressed issues of regulatory interpretation of the Clean Air Act (“CAA”); compliance with the National Environmental Policy Act (“NEPA”) in connection with the development of wetlands; and a conflict between the Federal Emergency Management Agency’s (“FEMA”) coastal flood insurance program and the Endangered Species Act (“ESA”). First, the Eleventh Circuit Court of Appeals invalidated a rule of the Alabama Department of Environmental Management that exempted certain stack emissions that otherwise violated the State Implementation Plan under the CAA. Also, the United States District Court for the Northern District of Alabama heard one of several cases arising out of an enforcement dispute between the Environmental Protection Agency (“EPA”) and power companies over the companies’ upgrades to existing power plants. The court held that, for purposes of the EPA’s rule excluding routine maintenance, repair, or replacement projects from the CAA’s pre-construction permit requirement, any project that is routine throughout the industry and does not increase the maximum hourly capacity of the plant to emit pollutants can qualify for the exclusion. In a case concerning the Clean Water Act (“CWA”) and NEPA, the United States District Court for the Southern District of Florida ruled that the United States Corps of Engineers, in issuing a CWA section 404 permit allowing a county to fill jurisdictional waters for development, had improperly segmented a portion of the development from the larger development plan for permitting purposes. Additionally, the court held that the Corps improperly concluded that an Environmental Impact Statement was not even required for the segmented portion. Finally, in an ESA case, the Southern District of Florida enjoined FEMA from administering its National Flood Insurance Program in portions of the Florida Keys because the plan facilitated development that degraded the habitat of several endangered or threatened species.

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