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Publication Date

7-2014

Document Type

Survey Article

Abstract

In 2013, the United States Court of Appeals for the Eleventh Circuit rejected a challenge to the Navy's Undersea Warfare Training Range (Range) off the coast of Jacksonville, Florida, based on potential impacts the Range could have to the endangered North Atlantic Right Whale and other endangered species. The court held that the Navy and the National Marine Fisheries Service (NMFS) had met their obligations under the National Environmental Policy Act of 1969 (NEPA as amended and the Endangered Species Act of 1973 (ESA as amended thus far in the project. The court also decided two cases under the Clean Air Act (CAA) as amended. In one case, the court upheld a revision to Alabama's State Implementation Plan allowing sources of air pollution to deviate from the standard limit for opacity, which the Environmental Protection Agency (EPA) had approved in 2008 but then disapproved in 2011; the court held the agency's 2011 disapproval of the change was unauthorized and the 2008 approval was a permissible construction of the relevant provisions of the Act. In another case, the court held that the government's expert testimony, purporting to show that equipment and process upgrades undertaken by Alabama Power Company to reduce downtime at three of its coal-fired power plants resulted in a significant increase in emissions, should have been ruled to be reliable and admissible over a challenge under Daubert v. Merrell Dow Pharmaceuticals, Inc., even though the plants were "cycling" plants and did not operate continuously at full capacity.

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