The Supreme Court's recent decision to end the "substantially advances a legitimate state interest" takings test in Lingle v. Chevron is already making its way into the circuits. A takings claim rested among a host of other claims brought before the 9th Circuit by a game ranch. (For the Congressional Budget Office's explanation of what a takings is, see here, and how the courts evaluate takings claims, see here.)

The ranch was affected by Montana voter initiative I-143, which passed in November of 2000. The initiative outlawed fee hunting on existing game ranches and prevented the creation of future game ranches. (Game ranches entail the raising of "alternative livestock" usually elk, deer, or exotic game on fenced-in properties. This should not be confused with ranching for wildlife where landowners improve habitat in return for tags they can sell to hunters for pursuing wild game on their property. For more on ranching for wildlife, as opposed to game ranching, see here.) The 9th Circuit refused to hear a substantially affects theory of takings in light of Lingle and left a deprivation of all economic value theory of takings (which remains valid under current Supreme Court precedent) to be decided once the state courts have decided whether a takings has occurred under Montana law.

Around the environmental horn in other cases this week:

The 4th Circuit ruled that the term modification under the Clean Air Act's Prevention of Significant Deterioration requirements must mean the same thing as the term modification under the New Source Performance Standards and for the moment that means a modification only occurs when a discharging plant's hourly emissions rate goes up. Modifications that do not lead to an increase in hourly emissions are not modifications. Jonathan Adler has commentary on the significance of the ruling.

The 9th Circuit noted in City of Arcadia v. EPA that just because the EPA has stepped in to create a Total Maximum Daily Load (TMDL) plan for a state under the Clean Water Act, it does not prevent the state from later stepping in with its own TMDL to replace the EPA's TMDL. In this California case, the state TMDL also turned out to be the tougher of the two.

The 9th also found in Arc Ecology v. Dept. of Air Force that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) doesn't apply extraterritorially, i.e. to former naval and air force bases in the Philippines.