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The Clean Air Act is Really Complicated; Can’t We Call the Whole Thing Off?

Last week, the Court of Appeals for the District of Columbia struck down EPA’s rule implementing the 2008 ozone standards. My primary take-away? The structure of the Clean Air Act is so dense and so complicated that they...more

2/20/2018  /  Clean Air Act , EPA , Ozone

Now It’s DOE’s Turn — Another Court Requires the Administration to Promulgate Regulations

Last week, I noted that EPA had been ordered to respond to a petition by Connecticut under § 126(b) of the Clean Air Act. This week, DOE was ordered to promulgate energy efficiency rules under the Energy Policy and...more

Trump’s Infrastructure Plan — Environmental Reviews, They Are a-Changin’

President Trump’s infrastructure plan includes a number of important proposals. My initial reaction is consistent with my view of many of the President’s initiatives – he gives regulatory reform a bad name. We do need to...more

The “Best Available Science” Is That the Arctic Ringed Seal Is Endangered

Earlier this week, the 9th Circuit Court of Appeals reversed a District Court decision and reinstated the National Marine Fisheries Service’s decision to list the Arctic ringed seal as threatened under the Endangered Species...more

More Guidance on Guidance: DOJ Will Not Enforce “Improper” Agency Guidance Documents

In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance. Now, DOJ has taken the prohibition a step further. It will no longer rely on guidance issued by...more

2/13/2018  /  DOJ , EPA

Statutory Deadlines Matter — EPA Gets Taken to the Woodshed

Earlier this week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, asserting that emissions from the Brunner Island Steam Electric Station in Pennsylvania...more

2/12/2018  /  Clean Air Act , EPA , Remedies

NGOs Again Fail to Establish that EPA Has a Non-Discretionary Duty Under the CWA Stormwater Regulations

Last month, the 1st Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA had a non-discretionary duty to require persons owner property where stormwater runoff contributes to an exceedance of...more

The 9th Circuit Weighs In — Discharges to Groundwater Are Subject to the Clean Water Act

As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute. Now the 9th Circuit has weighed in, finding that point discharges to groundwater are...more

Settling Federal Environmental Enforcement Claims — Some Payments to Third Parties May Be Allowed (But Not Many)

Earlier this month, Jeffrey Wood, Acting Assistant Attorney General for Environment and Natural Resources issued a memorandum expanding on Jeff Sessions’ memorandum of June 5, 2017, generally barring payments to third parties...more

EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of...more

1/30/2018  /  Appeals , Auer Deference , Citizen Suits , EPA , NPDES , TMDL

It’s Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases

In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script. It was three sentences long....more

The Supreme Court Sends WOTUS Rule Challenges to the District Courts — It’s Good to Be King

On January 22,2018, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent. ...more

When Did Chevron Become a Dirty Word?

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

FERC Rejects Grid Reliability and Resilience Pricing — For Now!

On January 8, 2018, FERC terminated the docket it opened in response to DOE Secretary Perry’s September proposal to compensate generators who maintain a 90-day fuel supply on-site. The intent of the proposal was to...more

EPA Does Have a Duty to Update Its Lead Paint Standards: Cass Sunstein Agrees With Me

As a follow-up to my post last week about the 9th Circuit decision requiring EPA to propose new lead paint standards under TSCA within 90 days, I was encouraged to see Cass Sunstein support the decision in a BloombergView...more

Does EPA Have a Non-discretionary Duty To Make a Statute Work?

If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency. That was...more

Some Extreme Climate Events Would Not Have Happened But For Climate Change: Lawyers Are Paying Attention

Today’s ClimateWire (subscription required) contained a long summary of evidence that scientists are increasingly able to demonstrate that climate change is what we lawyers would call the “but for” cause of extreme weather...more

The Migratory Bird Treaty Act No Longer Criminalizes Incidental Takes

Last week, the Office of the Solicitor in the Department of the Interior issued a legal Opinion concluding that the Migratory Bird Treaty Act does not prohibit the incidental take of migratory birds. It’s a thorough Opinion....more

Shareholder Activism on Climate Is Only Going to Increase

While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive. There were two developments worth noting this month. First, Bloomberg Markets reported that...more

The Members of EPA’s Superfund Task Force Had Really Good Memories

In July, EPA released the recommendations of the Superfund Task Force. Public Employees for Environmental Responsibility filed a FOIA request, looking for documents related to the operation of the Task Force. This week, the...more

The North Slope Is Really, Really, Getting Warmer. Drill, Baby, Drill

The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it. The data for Utqiagvik (that’s hard to type!) were so high...more

EPA Will NOT Second-Guess Generators’ Projections of Future Emissions Under the NSR Program

I’ve noted numerous times that the NSR program is incomprehensible gibberish. These are scientific and objective comments. The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended...more

12/12/2017  /  EPA , NAAQS , NSR

Attacking Invasive Species Requires Serious Measures — A Judicial Opinion with Beatles Annotations

Everyone knows what a problem invasive species can be. Difficult problems require difficult solutions. In a recent case decided by the 1st Circuit Court of Appeals, the scope of the government’s authority to address one...more

Texas Now Has More Wind Than Coal Capacity. So Far, Trump Has Not Saved Coal.

On November 28, 2017, The Houston Chronicle reported that electric generation capacity from wind now exceeds that of coal in Texas. That’s not even counting Vistra’s recent announcement that it intends to close three...more

Climate risk? Credit risk! Moody’s Warns State and Local Governments

Earlier this week, Moody’s Investors Service announced issuance of a report (payment required) warning that: “the effects of climate change, including climbing global temperatures, and rising sea levels, are forecast to...more

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