Yesterday, in SEC v. Jarkesy, the Supreme Court ruled that the defendants in a securities fraud case brought by the SEC were entitled to have the SEC’s claims for civil penalties decided by a jury. The question now is how...more
Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA. The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the...more
Last month, I advised plastics manufacturers to prepare for more litigation. Although I am generally loath to speculate, it already looks as though this prediction is coming true. Earlier this month, PennEnvironment and...more
Earlier this week, the 10th Circuit Court of Appeals vacated EPA’s disapproval of Montana’s regional haze plan for the PacifiCorp’s Wyodak power plant. The basis for the disapproval was an issue near and dear to my heart. ...more
Earlier this week, the 9th Circuit Court of Appeals affirmed EPA’s NPDES permit issued to San Francisco’s Oceanside sewer system. San Francisco had challenged the permit on the ground that EPA does not have authority to...more
8/3/2023
/ Appeals ,
Clean Water Act ,
Environmental Litigation ,
Environmental Protection Agency (EPA) ,
Municipalities ,
NPDES ,
Permits ,
State Water Boards ,
Storm Water ,
USEPA ,
Water ,
Waters of the United States
On March 14, 2023, EPA proposed to regulate certain PFAS under the Safe Drinking Water Act. EPA proposed Maximum Contaminant Level Goals for PFOA and PFOS of zero. It proposed Maximum Contaminant Levels for PFOA and PFOS of...more
3/16/2023
/ CERCLA ,
Clean Water Act ,
Contamination ,
Drinking Water ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Groundwater ,
Hazardous Substances ,
PFAS ,
Regulatory Standards ,
Safe Drinking Water Act ,
Superfund ,
Toxic Chemicals
Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.” Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as...more
Last week, the D.C. Circuit Court of Appeals granted a writ of mandamus to the Center for Biological Diversity, imposing a deadline on EPA to issue an “effects determination” concerning the potential impacts of the pesticide...more
The Supreme Court heard oral argument today in the Sackett case, in which the Sacketts are hoping that SCOTUS will finally issue a clear decision narrowing the scope of jurisdiction under the Clean Water Act. I have stayed...more
Last week, EPA released its proposed “Clean Water Act Section 401 Water Quality Certification Improvement Rule”. The proposed rule would make a number of significant changes to the rule promulgated by EPA in 2020....more
6/7/2022
/ Chevron Deference ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
FERC ,
Judicial Review ,
NPDES ,
Proposed Rules ,
Regulatory Authority ,
SCOTUS ,
Section 401 ,
Trump Administration ,
Water ,
Water Quality
Last week, the First Circuit Court of Appeals ruled that a person who enters into an administrative settlement with a state is immune from citizen suits seeking civil penalties, but not immune from suits for declaratory or...more
Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act. EPA had requested remand, and made clear that it...more
Earlier this month, the 9th Circuit vacated the District Court judgment in a Clean Water Act citizens’ suit, because the basis for the judgment had been undermined by the Supreme Court decision in Maui. The decision is not a...more
Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund. As the masochists who follow the torturous case law we...more
Last week, District Judge Susan Mollway ruled that the County of Maui must obtain a NPDES permit for discharges to groundwater by the Lahaina Wastewater Reclamation Facility. It is the first trial court decision applying the...more
The saga of judicial efforts to enforce the one-year limit on state review of applications for water quality certifications under Section 401 of the Clean Water Act shows no sign of reaching a conclusion.
First, in Hoopa...more
The Supreme Court ruled today that discharges to groundwater are subject to the permitting requirements of the Clean Water Act, but only where the “discharge is the functional equivalent of a direct discharge from the point...more
4/26/2020
/ Appeals ,
Clean Water Act ,
Direct Discharge ,
Discharge of Pollutants ,
Environmental Protection Agency (EPA) ,
Functional Equivalent ,
Groundwater ,
Hawaii Wildlife Fund v County of Maui ,
Navigable Waters ,
Permits ,
Point Sources ,
Remand ,
SCOTUS ,
Vacated ,
Waters of the United States
Yesterday, EPA and the Army Corps of Engineers finalized their revisions to the definition of Waters of the United States. There’s nothing in here that everyone didn’t already know. The agencies largely sidestepped the...more
At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule. The SAB’s...more
1/9/2020
/ Clean Water Act ,
Environmental Protection Agency (EPA) ,
Groundwater ,
Navigable Waters ,
Proposed Rules ,
Science Advisory Board ,
Scientific Research ,
US Army Corps of Engineers ,
Water ,
Waters of the United States ,
Wetlands
Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on...more
November 26, 2019, Judge William Young ruled that discharges to groundwater are not subject to Clean Water Act jurisdiction, even if they ultimately reach surface waters that are unambiguously waters of the United States. He...more
Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act. The regulations are long-overdue and, notwithstanding the source, some of the...more
When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over...more
On Monday, EPA issued an Interpretive Statement concluding that point source discharges to groundwater are never subject to NPDES permitting requirements. EPA did a good job marshalling its arguments – much better than this...more
In 2008, EPA issued an administrative order to Chantell and Michael Sackett, requiring them to remove what EPA had concluded was illegally placed fill on their property in Northern Idaho. Litigation followed, including a...more
4/4/2019
/ Administrative Orders ,
Appeals ,
Arbitrary and Capricious ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Motion for Summary Judgment ,
Navigable Waters ,
Property Owners ,
Remand ,
Significant Nexus Test ,
Waters of the United States ,
Wetlands