For nearly 40 years and in more than 18,000 judicial opinions, federal courts have used the Chevron doctrine to defer to an agency's reasonable interpretation of an ambiguous statute. On June 28, 2024, the U.S. Supreme Court...more
9/3/2024
/ Administrative Procedure Act ,
Centers for Medicare & Medicaid Services (CMS) ,
Chevron Deference ,
Chevron v NRDC ,
Consumer Financial Protection Bureau (CFPB) ,
Corner Post Inc v Board of Governors of the Federal Reserve System ,
Department of Justice (DOJ) ,
Department of Labor (DOL) ,
Department of Transportation (DOT) ,
Environmental Protection Agency (EPA) ,
Federal Trade Commission (FTC) ,
FERC ,
Food and Drug Administration (FDA) ,
Government Agencies ,
HUD ,
IRS ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
NTSB ,
OCC ,
Popular ,
Regulatory Authority ,
Relentless Inc v US Department of Commerce ,
SCOTUS ,
Stare Decisis ,
Statute of Limitations ,
Statutory Interpretation ,
U.S. Treasury
A federal court has thrown out key Endangered Species Act (ESA) analyses of oil and gas operations in the Gulf of Mexico, which will be vacated as of Dec. 20, 2024. The United States District Court for the District of...more
8/30/2024
/ Administrative Agencies ,
Administrative Procedure ,
Administrative Procedure Act ,
BOEM ,
Endangered Species Act (ESA) ,
Fully Protected Species ,
Gulf of Mexico ,
Gulf Oil Spill ,
Incidental Take Permits ,
Maritime Transport ,
National Marine Fisheries Service ,
Offshore Drilling ,
Oil & Gas ,
Oil Spills ,
Outer Continental Shelf ,
Outer Continental Shelf Lands Act ,
Pending Litigation ,
Wildlife Protection
The Council on Environmental Quality (CEQ) on May 1, 2024, published its Phase II regulations1 under the National Environmental Policy Act (NEPA).2 As part of a multiphase effort to amend the NEPA regulations that straddled...more
The U.S. Army Corps of Engineers (ACE) on March 22, 2024, announced its plans for enhancing the protection of the country's wetlands following the U.S. Supreme Court's Sackett v. EPA decision. In Sackett, the Supreme Court...more
3/26/2024
/ Clean Water Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Infrastructure Investment and Jobs Act (IIJA) ,
Inland Waterways ,
Loss Mitigation ,
Memorandum of Understanding ,
Navigable Waters ,
Rehabilitation and Restoration Plans ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
The U.S. District Court for the District of Columbia on Feb. 15, 2024, issued an order vacating the U.S. Environmental Protection Agency's (EPA) approval of the state of Florida's application to assume permitting authority...more
2/20/2024
/ Administrative Authority ,
Administrative Procedure Act ,
Clean Water Act ,
Conservation ,
Critical Habitat ,
Endangered Species Act (ESA) ,
Environmental Protection Agency (EPA) ,
National Marine Fisheries Service ,
Permits ,
Regulatory Takings ,
Section 404 ,
State and Local Government ,
US Army Corps of Engineers ,
US Fish and Wildlife Service ,
Wildlife Protection
The U.S. Court of Appeals for the Fifth Circuit on Nov. 14, 2023, dismissed claims brought by environmental groups challenging offshore oil and gas Lease Sale 261. The court ordered that the sale take place within 37 days of...more
11/16/2023
/ Administrative Procedure Act ,
Appeals ,
BOEM ,
Department of the Interior ,
Dismissals ,
Endangered Species ,
Endangered Species Act (ESA) ,
Inflation Reduction Act (IRA) ,
Offshore Drilling ,
Offshore Lease ,
Oil & Gas
The U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) on Aug. 29, 2023, issued a final rulemaking revising the definition of "Waters of the United States" (WOTUS) within Corps1 and EPA2...more
9/8/2023
/ Biden Administration ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Jurisdiction ,
Legal History ,
Navigable Waters ,
Navigable Waters Protection Rule ,
Rapanos v US ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
Significant Nexus Test ,
US Army Corps of Engineers ,
Waters of the United States
The U.S. Supreme Court on May 25, 2023, issued its opinion in Sackett v. Environmental Protection Agency, 598 U.S. ____ (2023). The opinion addresses the definition of "Waters of the United States" (WOTUS) pursuant to the...more
6/1/2023
/ Clean Water Act ,
Environmental Protection Agency (EPA) ,
Federal Jurisdiction ,
Inland Waterways ,
Navigable Waters ,
Regulatory Oversight ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) issued a final rulemaking on Jan. 18, 2023, revising the definition of "Waters of the United States" (WOTUS) within the Corps1 and...more
1/20/2023
/ Biden Administration ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Federal Jurisdiction ,
Final Rules ,
Navigable Waters ,
Rapanos v US ,
Regulatory History ,
Rulemaking Process ,
Sackett ,
SCOTUS ,
Substantial Nexus ,
Trump Administration ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
Florida Gov. Ron DeSantis issued Executive Orders 22-218 and 22-219 on Sept. 23 and 24, 2022, respectively, declaring a state of emergency due to Tropical Depression Nine (also referred to as Hurricane Ian) across the entire...more
A lot has been written recently about the recent final rule issued by the Council on Environmental Quality (CEQ) to amend certain provisions of its regulations for implementing the National Environmental Policy Act (NEPA)....more
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced on Aug. 4, 2021, the start of a long anticipated rulemaking process to revise the regulatory definition of "waters of the U.S."...more
8/9/2021
/ Biden Administration ,
Clean Water Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Federal Jurisdiction ,
Inland Waterways ,
Navigable Waters ,
Regulatory Reform ,
Rulemaking Process ,
Trump Administration ,
US Army Corps of Engineers ,
Waters of the United States
The U.S. Environmental Protection Agency (EPA) on Dec. 17, 2020, signed an agreement to delegate to the Florida Department of Environmental Protection (FDEP) the authority to issue permits in the state under Section 404 of...more
The Council on Environmental Quality (CEQ) published a final rule in the Federal Register on July 16, 2020, updating its regulations for implementing the National Environmental Policy Act (NEPA). The amended regulations – the...more
This newsletter provides a look around the corner, highlighting top issues and emerging opportunities for the private sector.
This edition covers, among other relevant topics, a number of recent U.S. political developments...more
7/23/2020
/ Climate Change ,
Energy Sector ,
Environmental Policies ,
Gulf of Mexico ,
Mexico ,
Natural Resources ,
Offshore Wind ,
Pending Legislation ,
PFAS ,
Renewable Energy ,
Tax Credits ,
U.S. Treasury ,
Waters of the United States
• The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have issued their long-awaited proposed rule to define "Waters of the United States" (WOTUS) pursuant to the Clean Water Act, fulfilling an early...more
12/21/2018
/ Clean Water Act ,
Clean Water Rule ,
Environmental Protection Agency (EPA) ,
Jurisdiction ,
Navigable Waters ,
Proposed Rules ,
Trump Administration ,
US Army Corps of Engineers ,
Waste Treatment Facilities ,
Water ,
Waters of the United States
• A recent memorandum from the U.S. Department of Justice's (DOJ) Environment and Natural Resources Division (ENRD) provides guidance on civil and criminal enforcement of environmental laws. DOJ will continue to pursue...more
4/26/2018
/ Cooperation ,
Criminal Investigations ,
Criminal Prosecution ,
Department of Justice (DOJ) ,
Enforcement Actions ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Environmental Violations ,
Memorandum of Guidance ,
Natural Resources ,
Policies and Procedures ,
Risk Management ,
Voluntary Disclosure
• U.S. Supreme Court ruled unanimously – on narrow procedural grounds – that the courts of appeals do not have original jurisdiction to hear challenges to the Clean Water Act (CWA), the Obama Administration's 2015 rule...more
2/5/2018
/ Administrative Procedure Act ,
Appeals ,
Clean Water Act ,
Clean Water Rule ,
Environmental Protection Agency (EPA) ,
Jurisdictional Determination (JD) ,
Land Developers ,
Property Owners ,
Rulemaking Process ,
Time Extensions ,
Trump Administration ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
• A U.S. Department of the Interior (DOI) legal memo has found that the Migratory Bird Treaty Act (MBTA) applies only to purposeful "take" and does not apply to otherwise lawful activities.
• The memo specifically...more
In Alaska Oil & Gas Ass'n v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit recently upheld a rule listing two species of seals as "threatened" under the Endangered Species Act (ESA) based on climate change...more
11/30/2016
/ Administrative Procedure Act ,
Alaska ,
Arbitrary and Capricious ,
Center for Biological Diversity ,
Climate Change ,
Conservation ,
Endangered Species ,
Endangered Species Act (ESA) ,
Environmental Policies ,
ESA Listings ,
National Marine Fisheries Service ,
Trump Administration
The Supreme Court of the United States ruled on May 31, 2016, in United States Army Corps of Engineers v. Hawkes Co., Inc., No. 15-290, slip op., 578 U.S. ___ (2016) that approved jurisdictional determinations (JDs) issued by...more
6/3/2016
/ Administrative Appeals ,
Administrative Procedure Act ,
Clean Water Act ,
Final Judgment ,
Hawkes Co v United States Army Corps of Engineers ,
Judicial Review ,
Jurisdictional Determination (JD) ,
Land Developers ,
Permits ,
Property Owners ,
SCOTUS ,
Section 404 ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
The U.S. Fish and Wildlife Service (Service) on May 6, 2016, issued a draft rule that would extend to 30 years the maximum life of permits authorizing the incidental take of bald and golden eagles pursuant to the federal Bald...more
5/20/2016
/ Bald and Golden Eagle Protection Act ,
Conservation ,
Endangered Species ,
Energy Sector ,
Incidental Take Permits ,
Migratory Bird Treaty Act (MBTA) ,
NEPA ,
Renewable Energy ,
Solar Energy ,
US Fish and Wildlife Service ,
Wind Power
The Maryland Court of Appeals has issued an important decision broadly upholding county stormwater permits issued by the Maryland Department of the Environment (MDE). The court's unanimous decision, authored by Judge Sally...more
Maryland courts have issued two important decisions pertaining to the ability of Montgomery County, Md., to assess and collect stormwater management fees from a private landowner and the validity of the Municipal Separate...more
On June 25, 2015, the U.S. Supreme Court held that individuals and groups can challenge housing policies or practices that have a disproportionate adverse effect on protected classes (i.e., a disparate impact) – even if there...more