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Another Ruling that Discharges to Groundwater May Be Subject to the Clean Water Act

Last week, the 4th Circuit Court of Appeals – not the most liberal court in the land – joined the 9th Circuit in ruling that discharges from a point source to groundwater can be subject to the Clean Water Act. The decisions...more

How Much Deference Will EPA Get On Its CAFE Standards Decision?

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much...more

Shooting Fish In a Barrel: EPA Loses Another Regulatory Delay Case

On March 21, 2018, EPA lost yet another regulatory delay case. After the Obama EPA promulgated rules updating requirements concerning certification and use of “restricted use pesticides” in January 2017, the Trump EPA...more

CSAPR is Better Than BART

On March 20, 2018, the D.C. Circuit Court of Appeals rejected environmental and state/industry challenges to EPA’s Regional Haze Rule. In essence, the ruling confirms that EPA was reasonable in determining that compliance...more

OMB Reports that the Benefits of Regulation Exceed the Costs. The President Knows that Can’t Be Right

Late last month, to no fanfare whatsoever, OMB released its annual report on the costs and benefits of federal regulations. There’s a reason that the Administration did not give the report any attention. The report states...more

3/5/2018  /  Cost-Benefit Analysis , EPA , OMB

Three Weeks; Three Decisions Rejecting Regulatory Delays

The Trump administration. The gift that keeps on giving to bloggers. After posting last week about the order requiring DOE to send its energy efficiency standards to the Federal Register for publication, I noted that that...more

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

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

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

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

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

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

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

Significant Nexus Lives! (For Now, In the 9th Circuit)

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

AG Sessions Speaks. No More Guidance. Make It So.

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

Opposing NPDES Delegation to Massachusetts Is So 20th Century

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

11/15/2017  /  Boston Globe , EPA , NPDES

If the Apocalypse Approaches, But the Administration Ignores It, Will It Make a Sound?

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

Sometimes Guidance Actually Provides Guidance

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

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