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
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.
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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
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
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
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
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
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
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
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 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
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
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
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
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
On November 27, 2017, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:
“discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract...more
Last week, Attorney General Sessions sent a memorandum prohibiting the use of guidance in place of notice and comment rulemaking “when purporting to create rights or obligations binding on members of the public or the...more
On November 14, 2017, the Boston Globe joined most local environmental organizations in opposing delegation of the NPDES program to Massachusetts. How wrong is this? Let me count the ways....more
On November 13, 2017, eight states in the Transportation Climate Initiative issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation. The statement does not identify any specific...more
Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate. At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that...more
Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment. It makes grim reading – or perhaps more accurately, grim reaper – reading. Here’s what we...more
As regular readers know, the tension between guidance and regulation is one of my favorite topics. My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued,...more
Last week, the Lancet Commission on pollution and public health (free registration required) released a study on the annual costs of pollution. There’s bound to be argument about the specifics, but it’s difficult to argue...more
EPA Administrator Scott Pruitt issued a Directive prohibiting the practice of “sue and settle.” He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.” They are two...more
The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to...more