Environmental Administrative Agency

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EPA ALJ Denies Bayer’s Motion for Accelerated Decision

On April 25, 2016, the U.S. Environmental Protection Agency’s (EPA) Administrative Law Judge (ALJ) Susan L. Biro issued an order denying Petitioners Bayer CropScience LP and Nichino America, Inc.’s (BCS/NAI or Petitioners)...more

Better Late Than Never: Massachusetts Moves to Obtain NPDES Delegation

Like most federal environmental programs, NPDES program authority is largely delegated to the states. Only four states aren’t delegated: Idaho, Massachusetts, New Hampshire, and New Mexico. How is it that progressive...more

Mark Your Calendars: BPA Prop 65 Warnings Required as of May 11, 2016; Styrene Also Added to the Prop 65 List

Earlier this month, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a Notice of Emergency Action to allow temporary use of a standard point-of-sale warning message for bisphenol A (“BPA”)...more

Sixth Circuit Will Not Rehear Venue Question in Clean Water Act Rule Dispute

On April 21, 2016 the United States Court of Appeals for the Sixth Circuit denied several petitions for rehearing en banc a Sixth Circuit panel decision that looked at which courts (federal district court or federal courts of...more

CPUC Implementation of the Renewables Portfolio Standard Beyond 2020 Begins

The California Public Utilities Commission is revving itself up to take on the task of putting together a whole new set of procurement requirements to implement the Renewables Portfolio Standard (RPS)-related provisions of...more

U.S. Fish and Wildlife Ordered to Reconsider Delisting of N. American Wolverine

The courts continue to be busy issuing significant Endangered Species Act (ESA) rulings. In the latest one, issued in early wolverineApril, the U.S. District Court for Montana, Missoula Division, in Defenders of Wildlife v....more

Petitioners’ Requests to the Court to Proceed with Review of Enlist Duo During Remand and to Retain Jurisdiction Are Denied

On March 28, 2016, a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit, Case Nos. 15-71207, et al. (consolidated) issued an order denying the Petitioners’ March 10, 2016, motion asking the court to...more

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more

CSAPR > BART: The Eighth Circuit Affirms Minnesota’s Regional Haze Plan

Environmental lawyers live for acronyms. Why is CSAPR > BART? Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards...more

EPA Issues Proposal to Amend RMP Rule

The U.S. Environmental Protection Agency (EPA) has released a long awaited proposal to update the Accidental Release Prevention rules at 40 C.F.R. Part 68, which implement the Clean Air Act Section 112(r)(7) risk management...more

EPA Issues Notice to Cancel Flubendiamide Registrations

On February 29, 2016, the U.S. Environmental Protection Agency (EPA) released a prepublication copy of a notice of intent to cancel all Bayer CropScience, LP and Nichino America, Inc. (BCS/NAI) flubendiamide products. The...more

Critical Habitat for Right Whales Expanded

Action Item: The National Marine Fisheries Services (“NMFS”) promulgated a final rule identifying critical habitats for the endangered Northern Atlantic Right Whale. Stakeholders involved in spill response, ocean and offshore...more

Agencies Engaged in Federal Biotech Overhaul to Host Final Two Public Sessions in March

After hosting the first of three stakeholder meetings late last year, federal government agencies engaged in overhauling the 1986 Coordinated Framework for the Regulation of Biotechnology recently announced that meetings two...more

NSR Enforcement Staggers On: A Split Decision in Missouri

Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power...more

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

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

EPA Names New Director of the Pesticide Re-Evaluation Division

On February 1, 2016, the U.S. Environmental Protection Agency (EPA) announced that Yu-Ting Guilaran has been selected as the new Director of the Pesticide Re-Evaluation Division (PRD) within the Office of Pesticide Programs...more

Litigating Environmental Whistleblower Claims Under OSHA Procedures

The federal government is allocating more time and resources to whistleblower programs. Now, more than ever, companies need to take steps to minimize exposure to whistleblower claims. When a whistleblower case is filed, it...more

Environmental Policy Quarterly

Welcome to the Winter 2016 edition of Environmental Policy Quarterly, published jointly by the Environmental, Land and Natural Resources Practice Group and the Public Policy and Law Practice Group of K&L Gates. This...more

Biofuel, Corn, And Sorghum Farmers Challenge Lowered RFS Volumes

On January 8, 2016, seven biofuel and agriculture groups requested the U.S. Court of Appeals for the D.C. Circuit to review the Renewable Fuel Standards (RFS) for 2014, 2015, and 2016. The Petition was filed by Biotechnology...more

Unlike Keith Richards, I Have Not Fallen Out Of A Tree

Last month, I went out on a limb and predicted that the D.C. Circuit Court of Appeals would not stay the CPP. Today, the Court vindicated my faith in judicial rationality and refused to grant a stay. In a brief order, the...more

Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose EconomyWide GHG Controls? Count Me Skeptical

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG...more

Solar Installer Update: Commerce Issues Preliminary Results in the 2nd Administrative Review of 2012 Antidumping and...

On January 8, 2016, the U.S. Department of Commerce (through its International Trade Administration or ITA office) published a notice of Preliminary Results in the 2nd annual Administrative Review for the 2012 and...more

EPA Releases Preliminary Risk Assessment for Neonicotinoid Insecticide Imidacloprid

On January 6, 2016, the U.S. Environmental Protection Agency (EPA), in collaboration with California’s Department of Pesticide Regulation (DPR) announced the release of a preliminary pollinator risk assessment for the...more

Courts Must Determine The Economic Benefit Of Noncompliance In Assessing CWA Penalties

It is well-known that the “economic benefit of noncompliance” is one of the factors to be evaluated in setting penalties under the Clean Water Act. Thus, it is not surprising that, after an oil spill at Citgo’s facility in...more

Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial...

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen The Supreme Court of the United States (SCOTUS) agreed on Friday to review an important Clean Water Act (CWA) decision issued by the Eighth Circuit in Hawkes Co.,...more

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