Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).
The EPA kicked off the week with the proposed Affordable Clean Energy (ACE) rule, which is meant to replace the Clean Power Plan (CPP). As expected and foreshadowed by its proposed changes to the legal rationale underpinning the CPP, the EPA will regulate only source emissions, not sector-wide emission reduction activities. The EPA claims this “best system of emissions reduction” is consistent with the Clean Air Act Section 111(d) authority and is both technically feasible and appropriate for coal-fired power plants.
Continuing reductions in environmental regulations across the power industry may seem like a good time for the C-suite to direct energy and attention towards other key priorities, but there is another force steadily working to tug reform back over the line — highly organized and increasingly strategic NGOs. Because deregulation is antithetical to their policy preferences, environmental groups routinely argue that federal agencies violate federal statutory laws, and power plant operations and infrastructure get caught in the crossfire.
Administrative deference is a fundamental tenet of environmental law. A recent decision in Los Angeles Waterkeeper v. Pruitt, however, provides an important reminder that agency deference is bound by the four corners of the underlying statute. In this case, a district judge in the Central District of California awarded judgment to two environmental NGOs by compelling the EPA to exercise powers granted under the Clean Water Act’s residual designation authority (RDA), precluding the EPA from considering other factors not prescribed by the statute.
The decision is interesting because the Clean Water Act (CWA) RDA is something of a regulatory backwater, and it highlights an important practice-pointer going forward, which is that addressing explicit factors set forth in a statute matter more than broader agency policy preferences. Continue Reading NGOs Win Recent Challenge on Permits for Industrial Facilities when EPA Overlooks Factors in the CWA Statute
The Trump Administration rolled out its anticipated rules on fuel efficiency and emissions standards for model years 2021-2026 last week. The proposal, at over 900 pages of text, is still being analyzed and reviewed, but early indications are that there will be significant resistance from many affected parties. Here are five key questions rising to the surface in the wake of the proposal. Continue Reading Five Questions on the Litigation Backlash from the Trump Administration’s Fuel Emissions Rollback
Last week, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously rejected challenges by environmental and industry groups to the Environmental Protection Agency’s (EPA) Clean Water Act (CWA) cooling water intake structure permit rule (Rule) in Cooling Water Intake Structure Coalition (CWISC), et al., v. EPA, et al. The panel’s ruling upholds the Rule and affirms broad deference to the EPA and wildlife agencies on both their factual findings and legal interpretations. Continue Reading Court Upholds CWA Intake Structure Rule
The Clean Water Act (CWA) term “waters of the United States” (WOTUS) has become an evolving term with an often squishy definition leading to considerable litigation – with last month’s Seventh Circuit decision providing new insight on both the definition and the concept of administrative deference in Orchard Hill Building Co. v. United States Army Corps of Engineers.
As citizen scientists and environmental non-governmental organizations (NGOs) have stepped up to fill what they have called an enforcement gap since President Trump took office, the NGO playbook has become more complex and creative than perhaps ever before. A recent Fourth Circuit stay is another example of litigation against governments as a routine playbook strategy likely to continue on the horizon, in addition to the primarily used litigation tactics against private parties to further NGO interests in the past.
Since the early days of the Trump Administration, our blog has regularly covered the Administration’s various attempts at regulatory reform. An appellate decision last week on a National Highway Traffic Safety Administration (NHTSA) rule signaled an end to administrative stays based on mere agency averments that it intends to reconsider a notice-and-comment rulemaking. Instead, the agency must use the notice-and-comment process to revisit the rule. Absent these processes, the regulation goes into effect.
Administrative deference – in essence, that courts resolve close questions in favor of “expert” agencies – is a cornerstone of environmental practice and we’ve blogged frequently on this issue. Courts question agencies, however, when their decisions do not square with cited evidence. For regulatory challenges, courts also confine their review to the administrative record and agencies cannot interject new evidence during a judicial appeal of a regulation. Continue Reading Administrative Deference Doesn’t Mean Anything Goes – Just Ask the D.C. Circuit