FERC Prevails Again in Order No. 1000 Appellate Proceedings

On April 19, 2017, the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the Federal Energy Regulatory Commission’s (FERC) implementation of Order No. 1000 with respect to ISO-New England (ISO-NE). The D.C. Circuit had previously upheld the legality of the order itself in 2014, and the Seventh Circuit upheld FERC’s implementation of Midcontinent Independent System Operator Inc.’s Order No. 1000 compliance plan in 2016. This week’s decision represents another success for FERC and its Order No. 1000 policy objectives. Continue Reading

EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants

On April 12, 2017, the EPA announced that it will reconsider and administratively stay future deadlines of the 2015 final rule that set new, technology-based effluent limitations guidelines (ELGs) and standards for steam electric power plants under the Clean Water Act. The final rule places significant burden on affected segments of the steam electric power generating industry. While certain requirements of the new ELGs were generally set to become effective as soon as November 1, 2018 through incorporation into NPDES permits, the compliance timetable and future of the final rule is now unclear. Continue Reading

Are We Facing the Decline of Chevron Deference and an Article III Renaissance?

In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months,  see here and here. Continue Reading

California Prop 65 Decision Raises New Potential Conflict with Federal Pesticide Product Registration and Labeling Requirements

Monsanto officially lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup. As we previously reported, Monsanto argued that the State of California’s reliance on an unelected, European organization to decide that glyphosate poses a cancer risk was improper. Last month, a California superior court rejected Monsanto’s arguments. Continue Reading

Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty

A recent federal court ruling in a Sierra Club lawsuit against Dominion Virginia Power alleging violations of the Clean Water Act (CWA) raises key questions about how other courts will interpret “point source” and “navigable waters” relative to ash ponds and groundwater releases, and whether a reasoned cost-benefit analysis can be used to substantially mitigate civil penalties and remedy selection.

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Energy Independence is Theme of Trump Environmental Plan

On March 28, 2017, President Trump signed an executive order (EO) called “Promoting Energy Independence and Economic Growth.”  The EO rescinds a host of climate change-related policies and rules instituted by the prior administration, including the Clean Power Plan and the Climate Action Plan. This new energy policy promotes all forms of domestic energy, and, as President Trump stated in the rollout, American energy dominance. The EO, through five policy statements, directs all federal agencies to identify and revise or revoke any rule that “burdens” the energy industry.

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Ag’s Big Win: A Follow Up

The latest ruling in an Iowa case against Des Moines Water Works represents another win for farmers and the agricultural community.

As we previously posted, in January the Iowa Supreme Court ruled against Des Moines Water Works on certified, state-law questions including whether drainage districts are immune from paying money damages. The case had come to the Iowa Supreme Court after the Federal District Court for the Northern District of Iowa had certified state-law questions. The ruling was a relief for the agricultural community, which had been concerned about the potential for large, economic liability associated with nutrient run-off.

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Run-Away Liability and the BNSF Ruling

On March 3, 2017, BNSF Railway entered into a proposed consent decree with multiple environmental groups, led by the Sierra Club. BNSF agreed to clean up what it characterized as “coal pollution” along its tracks in Washington, fund $1 million in additional environmental work, and study the feasibility of covering its railcars. In exchange, the environmental groups agreed to drop their suit. The agreement allowed BNSF to avoid potentially billions of dollars in penalties, but an earlier ruling in the case set the stage for similar suits to be brought across the country. BNSF may have won its battle, but did it and other railroads lose the war?

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Lessons Learned: Negotiating Covenants Not to Sue in Environmental Agreements

Parties that settle environmental claims with the government frequently include covenants not to sue in their settlement agreements. But how does a party ensure that a covenant not to sue prevents the government from suing it again? By negotiating a broad covenant not to sue that contemplates all the ways in which the government may hold it liable at a site.

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