Environmental Administrative Agency

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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

Hazardous Waste Recycling Regulations – the Latest Chapter

“A long time ago in a [May 19, 1980 Federal Register] far, far away [or so it seems],” the U.S. Environmental Protection Agency (EPA) declared its authority to regulate all hazardous secondary material, whether discarded or...more

Illinois Supreme Court Agrees to Decide FutureGen Clean Coal Dispute

In the closing days of its November term, the Illinois Supreme Court agreed to decide an issue of potentially enormous consequence to a major Illinois utility, agreeing to review an order of the Illinois Commerce Commission...more

Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State...

In a lengthy, 65-page opinion filed December 8, 2014 (of which fully two-thirds was unpublished), the Fifth District Court of Appeal affirmed the Fresno County Superior Court’s judgment upholding the EIR, Conditional Use...more

House Committee Hearing Debates "GMO" Labeling Bill

On December 10, 2014, the U.S. House Energy & Commerce Subcommittee on Health held a hearing on Examining FDA's Role in the Regulation of Genetically Modified Food Ingredients. The witnesses included Michael Landa, Director...more

Swing, Pendulum, Swing: California's Historic Drought and Unprecedented Responses

Most know by now that California is facing one of its driest years in recorded history. Yet droughts are not new to California, and to put things in context we can be thankful that current drought conditions are only as bad...more

DOT Denies Request to Prohibit Shipment of Bakken Crude Oil on Older Tank Cars; Environmental Groups Push Battle to Courtroom

On December 2, 2014 following the Department of Transportation’s (“DOT”) November 7, 2014 denial of their request for an immediate ban on use of older DOT-111 or CTC-111 railcars for the shipment of crude oil from the Bakken...more

OMB Releases Fall 2014 Regulatory Agenda

The White House Office of Management and Budget’s Office of Information and Regulatory Affairs has released its semi-annual Unified Regulatory Agenda and Regulatory Plan for Fall 2014, covering more than 60 Federal...more

EPA Proposes Stricter Ozone NAAQS

On November 25, 2014, EPA proposed to strengthen the National Ambient Air Quality Standard (NAAQS) for ground-level ozone. The rule is available online and should be published soon in the Federal Register....more

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that...more

TSCA Reform a Viable Contender For Serious Legislative Attention Next Year

I have been asked to say a few words about 2015 legislative expectations regarding environmental laws, particularly and most likely with respect to reform of the Toxic Substances Control Act (TSCA). In my view, TSCA reform is...more

Current Water Utility CCN Decertification Issues At The Public Utility Commission Of Texas

The responsibility for the regulation of water and sewer service, including the oversight of certificates of public convenience and necessity (“CCNs”), was recently transferred from the Texas Commission on Environmental...more

EPA Finally Proposes a Revised Ozone Standard, Sort Of

Yesterday, EPA finally proposed a revised ambient air quality standard for ozone – except that the agency is still hedging its bets. The Clean Air Science Advisory Committee had previously supported a revised ozone NAAQS of...more

The Sunset Will Last A Little Longer — UST Fund Extended

On September 25, 2014, Governor Brown signed SB 445 (Hill) Underground storage tanks; hazardous substances: petroleum: groundwater and surface water contamination into law (UST Law). The UST Law was an urgency measure that...more

CEQA Lead Agencies Do Not Waive Defense that CEQA Did Not Apply Despite Proceeding under CEQA

Recently, the court in Rominger v. County of Colusa found that a lead agency which approved a mitigated negative declaration for a project, can take the seemingly inconsistent position that the proposed project was not a...more

European Companies Appeal ECHA Titanium Dioxide Decision

The European Chemicals Agency (ECHA) published on November 3, 2014, an announcement of appeal of a June 17, 2014, contested decision following a compliance check of the Registration, Evaluation, Authorization and Restriction...more

Wotus: Scotus, Potus . . . Lotus?

It was inevitable I suppose. In a town where every policy discussion reaffirms the lampooning it receives in HBO’s “Veep,” it was only a matter of time until the EPA/Army Corps’ proposed rule on the scope of jurisdiction...more

Real Estate and Land Use - November 2014

Change of Heart – Court of Appeal Reverses Opinion in Bowman v. California Coastal Commission - Why it matters: The court in Bowman originally held that a permit condition could not be modified or deleted by a second...more

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with...more

Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review....more

Setting fees for use of federal dams

Federally owned dams and other structures can create opportunities for private development of hydropower facilities, in exchange for a fee. While fees charged to hydropower developers for using federally owned dams will...more

Meet Your Deadlines: West Virginia AST Act Challenges

In This Presentation: - How We Got Here - Aboveground Storage Tank Act - Key Definitions - Key Elements - Upcoming Deadlines - AST Registration Stats - Interpretive Rule (47 CSR 62) -...more

Queensland Government calls for input into Climate Adaptation Strategy

The Queensland Department of Environment and Heritage Protection is in the process of developing a whole-of-government Climate Adaptation Strategy (CAS) to reduce risks to the Queensland economy, environment, infrastructure...more

EPA Reverses Course on Malfunctions

EPA proposes eliminating all startup, shutdown and malfunction affirmative defense provisions from SIPS. On September 17, 2014, the United States Environmental Protection Agency (EPA) issued a supplemental notice of...more

Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards

In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in...more

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