Peter Whitfield

Peter Whitfield

BakerHostetler

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District Court Rejects Challenge to Wind Farm Permitting, Finds No Violation of ESA or Eagle Protection Act

This month a federal court in Maine rejected a challenge to a permit issued by the U.S. Army Corps of Engineers (Army Corps) for the Oakfield wind power project. The court determined that the Army Corps did not violate the...more

2/27/2015 - Bald and Golden Eagle Protection Act Building Permits Endangered Species Act Energy Projects US Army Corps of Engineers Wind Power

Federal Court Remands Renewable Energy Project for Additional Explanation; Delay Ensues

Last week, a federal district court in Nevada ruled that the Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (FWS) failed to adequately explain a decision to authorize a proposed wind energy project. The...more

2/17/2015 - Bureau of Land Management Energy Projects Energy Sector Environmental Impact Report Fish and Wildlife Service Wind Power

New Year, New NEPA Guidance: CEQ Takes on GHGs

At the conclusion of 2014, the Council on Environmental Quality (CEQ) released revised draft guidance for federal agencies evaluating the effects of greenhouse gas (GHG) emissions and climate change as part of an...more

1/30/2015 - Carbon Emissions Climate Change Draft Guidance Greenhouse Gas Emissions NEPA

D.C. Circuit Rejects Psychological Harm Theory in Deer-Culling Case

This Tuesday, the D.C. Circuit issued an opinion in No. 13-5136, Grunewald v. Jarvis, affirming the lower court’s decision that the National Park Service’s promulgation of the White-Tailed Deer Management Plan was lawful. At...more

1/23/2015 - Administrative Procedure Act Endangered Species National Park Service National Parks NEPA

District Court Limits Tiering of Biological Opinions

On December 5, 2014, a federal district court held that the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) when it relied entirely on existing programmatic biological opinions to...more

12/19/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service Forest Service Logging

Federal District Court Doubles Down, Vacates Hawaii County GMO Ban

On November 26, Magistrate Judge Barry Kurren struck down Hawaii County’s Ordinance 13-121, which restricts the open-air growth and cultivation of genetically engineered crops or plants (GMOs). See Slip Op. at 28. In this...more

12/5/2014 - Farms GMO Local Ordinance Preemption Vacated

The State and Local GMO Regulatory Landscape – Post-Election Edition

The November election changed the regulatory landscape for genetically modified organisms (“GMO”). Though none of the proposed GMO labeling laws on state ballots succeeded, two counties were successful in passing either a ban...more

11/21/2014 - Election Results Food Labeling Food Manufacturers Food Marketing GMO Legislative Agendas Political Parties Popular

Ninth Circuit Rebuffs Shell’s Declaratory Judgment Act Suit

The Ninth Circuit recently rejected “a novel litigation strategy” under the Declaratory Judgment Act (DJA). Shell Gulf of Mex. v. Ctr. for Biological Div., 13-35835 (9th Cir. Nov. 12, 2014) (Slip Op.). According to the Ninth...more

11/17/2014 - Administrative Procedure Act Declaratory Judgment Act Oil & Gas Shell Oil

The State and Local Regulatory Landscape for Bioengineered Plants

Across the country, numerous state and local governments have enacted or are considering laws affecting the cultivation, use, and labeling of genetically engineered plants (“GMOs”). These laws are best described in three...more

11/3/2014 - Disclosure Requirements Farms Food Labeling GMO Regulatory Standards

District Court Rules that Claims Challenging Forest Management Are Ripe and Final

Last week, the United States District Court for the Middle District of Florida determined that a group of plaintiffs could bring a claim against the U.S. National Park Service challenging actions that were characterized by...more

9/25/2014 - Environmental Claims Environmental Liability Forestry

Judge Overturns Kauai County Pesticide and GMO Law

On August 25, the federal district court for Hawaii vacated Kauai County’s Ordinance 960, which imposed mandatory disclosure obligations regarding the use of certain pesticides and the cultivation of genetically modified...more

9/8/2014 - Disclosure Requirements Farms GMO Local Ordinance Pesticides Popular

10th Circuit Limits ESA Consultation Obligations To Boundaries Of The Agency Action

This past week, the 10th Circuit held that the Environmental Protection Agency (EPA) had no obligation to engage in consultation pursuant to Section 7 of the Endangered Species Act (ESA) where the potential effects on...more

8/6/2014 - Clean Air Act Endangered Species Endangered Species Act Environmental Policies EPA

EPA Issues New RFS Rule; Expands Advanced Biofuel Pathways

On July 2, EPA published a final rule that amends three separate sets of regulations relating to fuels. These regulations clarify the number of cellulosic biofuel renewable identification numbers (RINs) that may be generated...more

7/14/2014 - Biofuel Clean Air Act Energy Environmental Policies EPA Renewable Fuel Renewable Fuel Standard

Federal Agencies Need to Address “Controversial” Social Cost of Carbon in NEPA Cost-Benefit Analysis

A federal district court in Colorado recently issued a decision faulting federal agencies for failing to calculate the social cost of greenhouse gas (GHG) emissions on the basis that such a calculation was not feasible. The...more

7/2/2014 - Energy Costs Energy Projects Greenhouse Gas Emissions NEPA

Sierra Club Seeks to Vacate Affirmative Defenses under Clean Air Act for Unavoidable Malfunctions

This month, the Sierra Club filed a petition for review challenging certain provisions of nine EPA rules that provide for affirmative defenses against alleged Clean Air Act violations in the case of unavoidable malfunctions....more

6/27/2014 - Affirmative Defenses Carbon Emissions Clean Air Act EPA Greenhouse Gas Emissions NRDC Sierra Club

Highlights of the UARG v. EPA Decision

On Monday, the Supreme Court’s decision in Utility Air Regulatory Group v EPA, No. 12–1146 (June 23, 2013) limited EPA’s authority to regulate greenhouse gases (“GHGs”) under the Clean Air Act, reversing in part and affirming...more

6/26/2014 - BACT Clean Air Act Climate Change Environmental Policies EPA Greenhouse Gas Emissions Permits Power Plants SCOTUS Title V Utilities Sector Utility Air Regulatory Group v EPA

D.C. Circuit Tells EPA Its Policy on Aggregating Sources for Clean Air Act Permitting Violates EPA’s Own Regulations

Following a ruling by the D.C. Circuit, EPA may no longer consider interrelatedness in determining adjacency when making source determination decisions in its Title V or New Source Review permitting decisions under the Clean...more

6/9/2014 - Clean Air Act EPA Natural Gas NSR Oil & Gas Title V

Department of Transportation Issues Order Requiring Rail Carriers To Notify States of Crude Shipments

In response to recent derailments of trains transporting crude, the Department of Transportation issued an emergency order pursuant to its regulatory authority over the transportation of hazardous materials. The order applies...more

5/14/2014 - Bakken Shale DOT Notice Requirements Oil & Gas Oil Spills Railroads Train Accidents

Federal Bill Seeks To Establish Uniform GMO Labeling Requirements

Earlier this month, Representative Mike Pompeo, along with 4 co-sponsors, introduced the Safe and Accurate Food Labeling Act (H.R. 4432). This bill sets forth three main objectives: it establishes a process for evaluating the...more

4/25/2014 - Department of Agriculture Food Labeling Food Safety GMO Proposed Legislation USDA

Federal Agency Approvals Beyond the Scope of the Migratory Bird Treaty Act

In the last month, two separate federal district courts have declined to extend the scope of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), to federal agency approvals of projects that plaintiffs alleged could...more

4/11/2014 - BOEM DOE Energy Migratory Bird Treaty Act

Industry Group To Weigh In On GMO Labeling Debate

With the rise in state legislative efforts to require labeling for foods produced using genetic engineering or “GMOs,” the Grocery Manufacturers Association (GMA) is poised to enter the labeling debate by working with federal...more

1/15/2014 - FDA Food Labeling Genetically Engineered Seed GMO

More GMO Labeling Ballot Initiatives Coming in November; Federal Labeling Initiatives in Congress

Despite losses in California and Washington, groups in favor of labeling food containing or consisting of genetically modified organisms (“GMO”) continue legislative efforts at the state and national level. Oregon and...more

12/18/2013 - Ballot Measures Food Labeling Food Safety GMO

GMO Laws Take Root in Hawai‘i

Recently, two counties in the State of Hawai‘i passed laws that restrict the growth and cultivation of genetically modified crops (“GMO”). Kaua‘i County passed Bill 2491 after overriding a mayoral veto on November 16, 2013....more

12/11/2013 - Food Safety GMO

D.C. Court Says Comprehensive NEPA Not Required for Domestic Pipeline

Last week, the D.C. District Court issued a decision in Sierra Club v. U.S. Army Corps of Engineers, No. 13-cv-1239, denying the plaintiffs’ request to preliminarily enjoin Enbridge’s construction of the Flanagan South...more

11/22/2013

Washington State GMO Labeling Initiative Defeated; Kaua’i Anti-GMO Law Vetoed; Big Island Anti-GMO Bill Pending

Washington voters rejected Initiative 522 at the polls by a considerable margin this past Tuesday. Initiative 522, a right-to-know law styled similarly to California’s Proposition 37 that was defeated last year, would have...more

11/7/2013 - Ballot Measures Food Labeling GMO

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