Late last month, I noted that the overturning of Chevron did not mean the end of judicial deference to agency expertise. Earlier this week, a decision by the D.C. Circuit Court of Appeals provided some confirmation that...more
8/15/2024
/ Administrative Procedure Act ,
Air Pollution ,
Chevron Deference ,
Citizen Suits ,
Corporate Counsel ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
SCOTUS ,
Statutory Interpretation
Greenwire (subscription required) had an article yesterday with the breathless headline “Post-Chevron era tests courts’ readiness to tackle science.” The article noted that, in the recent Supreme Court decision in Ohio v....more
7/31/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
Scientific Evidence ,
SCOTUS ,
Section 706 ,
Statutory Interpretation
Last week, a number of Democratic Senators filed an amicus brief in Loper Bright Enterprises v. Raimondo, arguing that the Supreme Court should not overrule Chevron. The first heading under the argument section of the brief...more
Last week, EPA released its proposed “Clean Water Act Section 401 Water Quality Certification Improvement Rule”. The proposed rule would make a number of significant changes to the rule promulgated by EPA in 2020....more
6/7/2022
/ Chevron Deference ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
FERC ,
Judicial Review ,
NPDES ,
Proposed Rules ,
Regulatory Authority ,
SCOTUS ,
Section 401 ,
Trump Administration ,
Water ,
Water Quality
Over the past decade, there has been an unprecedented shift in investor focus toward the analysis use of Environmental, Social and Corporate Governance (ESG) risks and impacts in investment decision-making. While the...more
12/4/2020
/ Alaska ,
Chevron Deference ,
Citizen Suits ,
Clean Air Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Land-Use Permits ,
Mining ,
Non-Delegation Doctrine ,
Permits ,
SCOTUS
November 26, 2019, Judge William Young ruled that discharges to groundwater are not subject to Clean Water Act jurisdiction, even if they ultimately reach surface waters that are unambiguously waters of the United States. He...more
According to Bloomberg Environment (subscription required), EPA’s Clean Air Science Advisory Committee cannot reach agreement whether to recommend that the NAAQS for PM2.5 be lowered. Even after two years, I guess I had not...more
10/31/2019
/ Agency Deference ,
Air Pollution ,
Air Quality Standards ,
Chevron Deference ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
NAAQS ,
Public Health ,
Regulatory Standards ,
Risk Assessment ,
Scientific Evidence
Last week, the 9th Circuit Court of Appeals affirmed a District Court ruling requiring the Department of Energy to publish in the Federal Register four rules finalized by the Obama administration, but not previously...more
10/16/2019
/ Appeals ,
Auer Deference ,
Chevron Deference ,
Department of Energy (DOE) ,
Energy Efficiency ,
Energy Sector ,
Federal Register ,
Final Rules ,
Obama Administration ,
Regulatory Standards ,
Trump Administration
Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act. The regulations are long-overdue and, notwithstanding the source, some of the...more
On Monday, July 23, 2018, the 2nd Circuit Court of Appeals rejected all challenges to EPA’s cooling water intake structure rule. Notwithstanding the Court’s rejection of the industry challenges, it’s a big win for industry....more
Last week the 9th Circuit Court of Appeals rejected arguments that the Fish and Wildlife Service may only issue permits under the Migratory Bird Treaty Act for the “scientific use” of a species where the use will benefit the...more
On Tuesday, April 11, 2017, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations. The Court found that EPA had no statutory authority...more
When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued. CLF alleged that EPA violated a non-discretionary duty when...more
The conservative cases in support of Chevron deference keep arriving. This week, the 9th Circuit Court of Appeals affirmed EPA’s federal implementation plan for compliance with its regional haze regulations by the Navajo...more
In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results...more
The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog. There are only 100 of these “shy” frogs left, and none...more
With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs. Put simply, I don’t get it. There are at least two good reasons why conservatives should prefer Chevron...more
Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment. This is a big deal in its own right, simply because the numbers are really...more
On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. The industry challenges were a complete washout. The environmental petitioners won one significant victory and a number of smaller ones....more
I will confess that I do enjoy being correct. In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree. Various parties...more
Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards are “appropriate and necessary.” I don’t have much to add to our post at the time of the proposed...more
Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a...more
On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay. This should not be news. Although Judge Ambro comprehensively disposed of the appellants arguments in a thoughtful opinion, I think...more
The short answer is, yes, though the majority is more wrong.
In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word...more
On Tuesday, Chief Judge Robert Chambers ruled that Fola Coal Company violated the Clean Water Act by discharging mine waste with sufficiently high levels of conductivity to cause or materially contribute to impairment of...more