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
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
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
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
11/4/2024
/ Administrative Law Judge (ALJ) ,
Chevron Deference ,
Climate Change ,
Energy Policy ,
Energy Sector ,
Environmental Policies ,
Federal v State Law Application ,
Legislative Agendas ,
Loper Bright Enterprises v Raimondo ,
Regulatory Agencies ,
SCOTUS
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
8/15/2024
/ Administrative Procedure Act ,
Air Pollution ,
Chevron Deference ,
Citizen Suits ,
Corporate Counsel ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
SCOTUS ,
Statutory Interpretation
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
7/31/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
Scientific Evidence ,
SCOTUS ,
Section 706 ,
Statutory Interpretation
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 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
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
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
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
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
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
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
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
2/10/2022
/ Appeals ,
Clean Air Act ,
Climate Change ,
Energy Sector ,
Environmental Litigation ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Municipalities ,
Preemption ,
SCOTUS ,
State and Local Government
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
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
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
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
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
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
12/4/2020
/ Alaska ,
Chevron Deference ,
Citizen Suits ,
Clean Air Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Land-Use Permits ,
Mining ,
Non-Delegation Doctrine ,
Permits ,
SCOTUS
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