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FWS and NMFS Propose to Eliminate Habitat Loss From the Definition of "Harm" Under the ESA: Is This the "Best Meaning" of the ESA?

Earlier this week, my colleagues Adam Kahn and Kevin Chen posted about the proposed rule issued by the Fish and Wildlife Service and the National Marine Fisheries Service that would rescind the definition of “harm” under the...more

Climate Litigation Against the US Is Dead. How Long Will State Climate Damage Cases Survive?

On Monday morning, the Supreme Court denied certiorari in Juliana v. United States. The cert. denial leaves in place the 9th Circuit Court of Appeals decision that ordered the case dismissed for lack of standing. At least for...more

If CEQ No Longer Implements NEPA, Is that Good or Bad for Project Developers?

Earlier this week, the Court of Appeals for the District of Columbia ruled that the National Environmental Policy Act does not authorize the Council on Environmental Quality to issue binding regulations governing how federal...more

How Will the Election Results Affect the Supreme Court (If At All!)?

As the election approaches, lawyers, clients, and those who don’t have enough to do are beginning to speculate about what the election might mean for the Supreme Court. In my little world, people are particularly concerned...more

Some Evidence that Deference to Agency Technical Decisions May Survive Loper-Bright

Late last month, I noted that the overturning of Chevron did not mean the end of judicial deference to agency expertise. Earlier this week, a decision by the D.C. Circuit Court of Appeals provided some confirmation that...more

Does Loper-Bright Mean the End of Deference to Agency Expertise?

Greenwire (subscription required) had an article yesterday with the breathless headline “Post-Chevron era tests courts’ readiness to tackle science.” The article noted that, in the recent Supreme Court decision in Ohio v....more

After Jarkesy, What Happens to EPA's Authority to Collect Administrative Civil Penalties?

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

Post-Sackett, Who Will Speak for the Clean Water Act?

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

Chevron Is (Still) Not a Left-Wing Plot

Last week, a number of Democratic Senators filed an amicus brief in Loper Bright Enterprises v. Raimondo, arguing that the Supreme Court should not overrule Chevron.  The first heading under the argument section of the brief...more

Establishing Standing in Citizen Suits Under the Clean Air Act: Breathing Polluted Air May Not Suffice

Earlier this month, Judge William Young dismissed for lack of standing claims brought by the Conservation Law Foundation alleging that bus companies violated anti-idling regulations.  The opinion is important, because it does...more

The Supreme Court Majority Prepares to Bury Chevron; Is There Anyone Left to Praise It?

Earlier this week, the Supreme Court accepted cert. in Lopez Bright Enterprises v. Raimondo, which presents a straightforward challenge to the continuing viability of Chevron...more

Berkeley’s Ban on Natural Gas in New Construction is Preempted: What Will Happen to Other Local Bans?

On Monday, the 9th Circuit Court of Appeals held that the City of Berkeley ordinance entitled “Prohibition of Natural Gas Infrastructure in New Buildings” was preempted by the Energy Policy and Conservation Act. The relevant...more

EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation

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

Might the WOTUS Saga Drag On For a While Longer?

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

EPA Proposes A Section 401 “Improvement Rule” — Now That’s a Low Bar

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

EPA Restores the California Advanced Clean Car Program; GHG Emissions From Transportation Will Continue For Some Time

EPA has now formally restored its waiver under § 209(b) of the Clean Air Act that allows California’s greenhouse gas emissions standards and Zero Emission Vehicle mandate, notwithstanding the preemption of state vehicle...more

State Law Climate Damage Cases (Still) Belong in State Court

In the first appellate decision to decide the issue since the Supreme Court decision in BP P.L.C. v. Mayor & City Council of Baltimore, the 10th Circuit ruled this week that climate damage claims brought by several Colorado...more

What’s Up With the Supreme Court?

As everyone knows, the Supreme Court has teed up West Virginia v. EPA, which challenges EPA’s authority to regulate greenhouse gases, and Sackett v. EPA, which challenges EPA’s authority to define what constitutes a water of...more

EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.

Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.” Déjà vu all over again. Under the proposal, the agencies: are exercising their discretionary authority to...more

Implementing Maui Remains a Case-by-Case Affair, at Least for Now

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

Maui Needs a NPDES Permit; What’s Next for WOTUS?

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

I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is

Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA. I have previously commented on the Court’s tendency to...more

Don’t Let the Door Hit You On Your Way Out: Trump EPA Suffers One Final Judicial Defeat.

Yesterday was the last full day of President Trump’s term. On environmental issues, it closed on a fitting note – another major judicial defeat. The District of Columbia Court of Appeals vacated EPA’s Affordable Clean...more

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

Over the past decade, there has been an unprecedented shift in investor focus toward the analysis use of Environmental, Social and Corporate Governance (ESG) risks and impacts in investment decision-making. While the...more

SCOTUS Gets One Right: Discharges To Groundwater Require Permits, But Only If They Are the Functional Equivalent of a Direct...

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

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