When people think of environmental law, they often think of statutory law and regulations. But parties sometimes seek to use other sources of law — such as the Constitution — to regulate the environment.
Two NGOs and a labor union recently filed an action in federal court to challenge the Trump Administration’s Executive Order 13771, officially entitled “Reducing Regulation and Controlling Regulatory Costs,” but commonly known as the “Two-for-One” order because it requires two regulations to be eliminated for every regulation added. In Public Citizen, Inc. et al. v. Donald J. Trump et al., plaintiffs allege that the “Two-for-One” order conflicts with various federal statutes, which require federal agencies to consider statute-specific factors when deciding whether to promulgate or repeal regulations, and that no statutory law requires agencies to consider as part of this process whether other, unrelated regulations should be repealed.
The Toxic Substances Control Act (TSCA) often seems like the forgotten federal environmental statute in that it gets less attention in the press and judicial decisions than statutes like the Clean Air Act, Clean Water Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). That said, a judge on the Northern District of California issued a high-profile TSCA decision worthy of some discussion. Continue Reading Federal Court Issues Key Decision on NGO Challenge to Use of Fluoride in Water
While the manufacturing industry assesses the benefits of President Trump’s promised relaxation of federal environmental policy, many may find themselves increasingly embroiled with other challenges. Likely at the top of that list are disputes with “citizen scientists” – non-scientists eager to fill in what they see as gaps in Environmental Protection Agency (EPA) regulation and enforcement.
We have discussed deference in past posts and, this past month, the Supreme Court granted certiorari in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, Case No. 17-71. The case may focus the Court’s attention on deference and other issues. Specifically, the case addresses whether the U.S. Fish & Wildlife Service’s (FWS) interpretation of the Endangered Species Act (ESA) was appropriate. Continue Reading On Dusky Gopher Frogs and Chevron Deference: A Report on a Recent U.S. Supreme Court Certiorari Grant
In recent years, the Public Utility Regulatory Policies Act (PURPA) “one mile” rule has come under increased scrutiny for favoring small power producers over utilities and consumers. The “one mile” rule, promulgated by the Federal Energy Regulatory Commission (FERC), is used to determine whether multiple facilities of a single power producer are part of the same “site” for the purpose of obtaining “qualifying facility” (QF) status under PURPA. Many utilities have argued that FERC’s application of the “one mile” rule has allowed small power producers to “game the system,” resulting in too many mandatory purchasing contracts and high energy costs being passed on to consumers. This concern is raised most frequently with wind farms, where turbines are located within relatively close proximity. Continue Reading House Subcommittee Prods FERC To Examine PURPA “One Mile” Rule
The environmental world has waited with bated breath for jurisdictional certainty in defining regulated waters under the federal Clean Water Act (CWA). While we wait, two interesting CWA procedural decisions may play into how the substantive issue gets to the U.S. Supreme Court.
The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them. Continue Reading Ninth Circuit Issues Decision in Novel Clean Water Act Case
The Environmental Protection Agency (EPA) issued a new guidance memorandum on Thursday, January 25, 2018 that addresses the question of when – and whether – a major source of hazardous air pollutants (HAPs, such as lead, mercury, and benzene) can be reclassified as an “area source” under Section 112 of the Clean Air Act, and thereafter avoid major source permitting requirements. The new guidance allows major sources to become area sources at any time, by agreeing to federally enforceable limits on their potential to emit HAPs. This replaces the EPA’s previous “once in, always in” policy, whereby any major source of HAPs remained a major source regardless of later reductions in its potential to emit HAPs.
The arrival of a new year marks the beginning of the annual proxy season. And this year, shareholders can expect to see a lot more climate change disclosure in 2017 corporate financials.
Companies now have guidelines to help do that. In June 2017, the Financial Stability Board’s (FSB) Task Force on Climate-related Financial Disclosures (TCFD) issued voluntary disclosure recommendations, so companies can provide shareholders with information about the business risks, opportunities, and impacts posed by climate change. The TCFD is an international coalition of business, government, and financial leaders tasked with developing voluntary disclosure recommendations to help companies identify, report, and protect against climate risks. The voluntary recommendations are designed to “foster shareholder engagement and broader use of climate-related financial disclosures, thus promoting a more informed understanding of climate-related risks and opportunities by investors and others.” Id. at iv. The TCFD emphasizes that disclosure should be made according to each jurisdiction’s requirements and that the guidelines do not replace existing law. Continue Reading 2018 Rising Trends in Corporate Climate Disclosures