Municipalities and other local governments do not have free rein when it comes to regulating the environment, and the Second Circuit’s recent decision in Vermont Railway, Inc. v. Town of Shelburne is a clear reminder of that fact.
Continue Reading Second Circuit Derails Municipal Ordinance Targeted at Railway Operations
Developing renewable energy on contaminated lands has proven to be both effective and cost-effective for companies pursuing a new solar or wind energy project. The utility-scale solar farm constructed on the 120-acre Reilly Tar & Chemical Corporation Superfund site is a great example, and there are thousands more that are ripe for redevelopment. Continue Reading Three Strategies to Develop Renewable Energy Projects on Potentially Contaminated Lands
The future of the Obama Presidential Center remains uncertain after last week’s court ruling allowed a citizen suit against it to proceed. But businesses facing citizen suits should take comfort in courts’ continued willingness to consider—and occasionally grant—motions to dismiss citizen suits for lack of standing. Continue Reading Obama Presidential Center Decision Reinforces Bar for Citizen Suit Standing
The latest development in climate change litigation came out of last week’s Eastern District of Pennsylvania dismissal – spurring more speculation that these issues will eventually be appealed to and decided by the U.S. Supreme Court. This is one of several novel cases around the country attempting to hold the federal government responsible for climate change.
The decision comes on the heels of a similar, closely watched, and highly publicized suit filed by 21 minors – Juliana v. U.S. – in which an Oregon federal judge denied a comparable motion to dismiss, but granted interlocutory appeal, opening the door for it to be presented to the Ninth Circuit. Continue Reading Latest Kids’ Climate Suit Development Increases Supreme Court Speculation
While President Trump’s border security policy has dominated recent news headlines, his deregulation policy has quietly jockeyed into a better position to survive court scrutiny. Last week, a federal district court issued an opinion that suggests it may never confirm whether the Trump Administration’s “two-for-one” executive order thwarts consumer protection and safety-related rulemakings by past administrations, because no plaintiffs have standing to raise these arguments. Rulemakings have a primary role in environmental law. This decision emphasizes that, in many cases, rulemakings will continue to be primarily shaped by the executive branch, not courts, excepting in particular cases. Continue Reading Trump Administration Deregulatory Agenda Rolls Ahead for Now
A case filed in 2015 by 21 minors, Juliana v. United States, seeks to hold the U.S. government liable for climate change. After an Oregon federal judge granted an interlocutory appeal to the defendants following a denial of their motion to dismiss, the case is now pending before the Ninth Circuit. Continue Reading Top Issues to Watch After Kids’ Climate Suit Lands in Ninth Circuit
Permitting issues—including federal wildlife permits—are common hurdles for the renewable energy sector. The U.S. Fish and Wildlife Service (FWS) sought to reduce these burdens by issuing new guidance in late 2017 to try to clarify that the Migratory Bird Treaty Act (MBTA) restricts only activities that intentionally harm protected species. But attempts at MBTA reform were quickly caught up in litigation between states, environmental groups, and the federal government, creating ongoing uncertainty for renewable energy and other infrastructure projects. And with the record-long government shutdown still in play, it may be even longer than previously expected until this regulatory reform is necessarily addressed. Continue Reading Migratory Bird Treaty Act Uncertainty Continues for Energy and Infrastructure Developers
Public discussion of environmental law predictably focuses on the physical environment, including newspaper articles replete with references to climate change, lead in drinking water, recycling, or stories about individual species of endangered animals such as dusky gopher frogs. Legal decisions also discuss these issues. However, more often than not, they also address the questions of what agencies are authorized to do under statutes passed by Congress and which branch of government is best positioned to decide what is appropriate. Continue Reading Supreme Court Reiterates that Executive Actions Can Almost Always Be Challenged in Court
The U.S. Supreme Court signaled that it remains concerned with the issue of administrative deference following its grant of certiorari last week to hear Kisor v. O’Rourke specific to the issue of whether the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. Overruling one or both of these decisions could result in courts giving considerably less deference to agencies’ interpretations of their own regulations. Continue Reading Administrative Agency Deference Theme Reemerges with SCOTUS Considering Overturning <em>Auer</em>
The Trump Administration revealed the new and long-awaited “waters of the United States” or “WOTUS” rule last week, which is designed to clear confusion on one of the most hotly debated topics in environmental law today – the scope of federal jurisdiction under the Clean Water Act (CWA). Continue Reading Long-Awaited WOTUS Rule Addresses Uncertainty, But May Face Litigation Ahead