This week a Federal Judge in Montana threw out a NGO's citizen suit against the Yellowstone Mountain Club for what the NGO claimed were unpermitted discharges of nitrogen to a Water of the United States. I wrote about this...more
This morning the Supreme Court of the United States heard from the Sacketts of Idaho for the second time. For sixteen years the Sacketts have been in the Federal Courts in connection with their attempt to build a house on a...more
Bobby Magill of Bloomberg has published a concise summary of the two hours in the Supreme Court yesterday during which attorneys for the United States of America and the Sacketts of Idaho were grilled on the reach of the...more
Many years ago the Conservation Law Foundation sued the Federal Environmental Protection Agency in an attempt to cause EPA to exercise its "residual designation authority" under the Federal Clean Water Act to require permits...more
EPA and the Army Corps of Engineers have asked the White House Office of Management and Budget to review its most recent attempt to define "Waters of the United States". That definition determines the reach of the Federal...more
Just a few weeks ago the conservative majority of our nation's Supreme Court said that it is up to Congress to authorize what it described as a "seemingly sensible solution" to the fact that our planet is quite literally...more
Massachusetts's Supreme Judicial Court has agreed with a Superior Court Judge that the Massachusetts Department of Environmental Protection was not authorized by the Massachusetts Legislature to defer to certain municipal...more
One of the most surprising comments I received on my piece last week about the United States Supreme Court getting out of the environmental law making business was that the Court's opinion in West Virginia v. EPA was a...more
For most of my time on this planet, and all of my more than thirty years as an environmental lawyer, the nation's highest court has, with very few exceptions, blessed the United States Environmental Protection Agency's broad...more
Much has already been written about the Supreme Court's decision yesterday to tie EPA's hands in its effort to mitigate the GHG fueled climate catastrophe we face. As we prepare to celebrate the birth of our nation, I'd like...more
EPA has announced that the second part of its eighth attempt to define the reach of the Clean Water Act will be delayed until November of 2023. At the same time EPA announced it will move forward with finalizing part one of...more
Surprising no one, lawyers for EPA and the US Army Corps of Engineers have implored the Supreme Court to affirm the Ninth Circuit Court of Appeals' application of Justice Kennedy's "significant nexus" test for determining the...more
Regardless of your perspective on the respective roles of Congress, the President and the Courts in creating federal environmental law, an essay by Sam Sankar of EarthJustice is well worth your time. ...more
A little over a month ago EPA's Science Advisory Board decided "EPA could benefit from SAB review of the science supporting [EPA's] proposed definition of Waters of the United States.” As many of you know, EPA's proposal is...more
Almost two years to the day after the United States Supreme Court's decision in Maui v. Hawaii Wildlife Fund, the First Circuit Court of Appeals rendered its decision in The Blackstone Headwaters Coalition v. Gallo Builders. ...more
Inside EPA's water policy maven, Lara Beaven, is reporting on the EPA's Science Advisory Board's judgment that "EPA could benefit from SAB review of the science supporting [EPA's] proposed definition of Waters of the United...more
Some of you may recall that late last year an NGO filed a lawsuit against an operator of a wastewater treatment facility in the mountains of Montana alleging that the reuse of water treated by the facility was the "functional...more
Bloomberg has published the United States Chamber of Commerce's amicus brief in the Rapanos case. As many of you know, the Supreme Court of the United States is using this case to consider (again) the jurisdictional reach of...more
I doubt the Supreme Court will adopt the Sacketts' test for determining Clean Water Act jurisdiction but the "significant nexus" test is in trouble
Yesterday the Sacketts of Idaho shared with the United States Supreme...more
Today five Justices of the United States Supreme Court reversed a California Federal District Court Judge's decision vacating a Clean Water Act rule enacted by the Trump Administration EPA. The 2020 rule had reduced the role...more
Yesterday EPA Assistant Administrator for Water Radhika Fox told an EPA Advisory Committee EPA remains committed to using Federal rule making to find "common ground" respecting the reach of the Federal Clean Water Act. ...more
Earlier this week the Department of Justice filed a motion to dismiss a solar developer's legal challenge to the Vineyard Wind project. That motion to dismiss is a multifaceted attack on the plaintiff's standing to mount his...more
Lara Beaven of Inside EPA reports on the standoff between the State of Florida and the United States Environmental Protection Agency over the "current definition" of Waters of the United States for the purpose of determining...more
Bloomberg Environment is the first to break the news that the United States Supreme Court has granted the wish of the Sacketts of Idaho, almost half the States of the Union and several associations who asked our nation’s...more
The social commentator Will Rogers famously said that a "farmer has to be an optimist or he wouldn’t still be a farmer." Those words certainly ring true when one reads EPA's Farm, Ranch, and Rural Communities Advisory...more