Abstract

In 2012, the United States Court of Appeals for the Eleventh Circuit, deciding an issue of first impression, held that a party that enters a consent order to settle potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not entitled to pursue a cost recovery action against other potentially responsible parties under section 1073 of the Act, but may only seek contribution from those parties under section 113(f) of the Act. The court also affirmed a decision by the Bureau of Ocean Energy Manage- ment to approve an exploration plan for oil and gas drilling in the Gulf of Mexico after the Deepwater Horizon oil rig disaster without requiring an Environmental Impact Statement. The petitioners' challenge under the National Environmental Policy Act and the Endangered Species Act was rejected by the court. Finally, the court held that the United States Fish & Wildlife Service's decision not to designate a critical habitat for the endangered Florida panther was exclusively within the discretion of the agency and thus not a violation of the Endangered Species Act. District courts in the Eleventh Circuit also issued two significant decisions under the Clean Water Act" in 2012. The United States District Court for the Northern District of Florida upheld the Environmental Protection Agency's determination that water quality criteria to limit nutrient pollution in Florida waters should be numeric rather than narrative. The court went on to uphold parts of the Final Rule setting out numeric criteria applicable to lakes, but struck down criteria applicable to streams and certain streams entering unimpaired lakes, concluding that they were arbitrary and capricious. Finally, the United States District Court for the Middle District of Georgia held that Georgia's state law water quality protection scheme was sufficiently different from that of the federal Clean Water Act and parties entering consent orders with the state to settle potential liability under Georgia's scheme are not protected from citizen suits under the Clean Water Act for the same violations.

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