Weekend Review

Opinion:

  • On Friday, Judge Rogers issued an opinion affirming the denial of attorneys’ fees in Conservation Force v. Salazar, a citizen suit under the Endangered Species Act.  Although observing that the Fish and Wildlife Service’s delay in processing applications to import hunting trophies was “substantial  and unexplained,” the Court held it was a mere “procedural default,” and not the sort of “violation” for which the citizen suit provision was intended.

Oral Arguments:

  • Lawrence Hurley and Jeremy Jacobs report that in Friday’s oral argument in Mississippi v. EPA, the D.C. Circuit “seemed responsive to claims from environmental groups and some states that U.S. EPA regulations setting standards for ozone pollution were not strict enough.” Industry arguments that the standards are too tough seemed to attract little support from the bench.  The case may have little practical effect because, as Hurley and Jacobs note, even if the ozone regulations are remanded to the agency, the current standard will likely remain in effect pending new ozone regulations due in 2014.  Greenwire.
  • At oral argument in United States v. Ring, Judge Tatel and Judge Griffith raised questions about whether evidence of legal campaign contributions may have unfairly prejudiced the jury that convicted former Abramoff employee Kevin Ring of conspiracy and honest services fraud. See Breitbart.

Filings:

  • The state petitioners in the Cross-State Air Pollution Rule case, EME Homer City Generation v. EPA, filed their response to the EPA’s petition for rehearing en banc on Friday. In August, a divided court held that the EPA’s rule violated the agency’s statutory authority by imposing excessive emission-reduction requirements on upwind States and by denying States the opportunity to implement the required reductions before subjecting them to Federal Implementation Plans.  See Platts.
  • Technology companies and law professors have filed separate amicus briefs in support of the FCC’s net neutrality rule in Verizon v. FCC. See The HillOnline Media Daily.
  • In Hentif v. Obama, the Department of Justice notified the Court of an apparent jurisdictional defect in the Guantanamo detainee’s appeal: It was filed more than 60 days after entry of the order appealed from (but fewer than 60 days after the redacted order was unsealed). See Lawfare.

Other:

  • The Electronic Privacy Information Center has published congressional testimony concerning the TSA’s failure to submit its airport screening program to public notice and comment and its recent decision to remove backscatter x-ray devices from airports. See JDSupra.
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