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

Going paperless is generally seen as a cost-savings initiative. But, consistent with Governor Rauner’s “Cutting the Red Tape” initiative, the Illinois Environmental Protection Agency (Illinois EPA) proposed a rule that would allow Illinois businesses to track state-regulated, non-hazardous special wastes using paper waste manifests, the way that they had tracked these wastes before June 2018. The change would actually save significant money for generators, transporters, and receiving facilities dealing in state-regulated, non-hazardous special wastes, because they would no longer have to use the e-Manifest and pay its per-manifest fees. Continue Reading Midwest Businesses Could See Waste-Tracking Cost Savings from Illinois EPA Proposal

As climate change is integrated more and more into the planning of corporate opportunities and risks, the Fourth National Climate Assessment released last week may be a valuable resource to assess how climate change may impact your plants or business strategy on the horizon. Continue Reading Infrastructure, Planning Implications, and Midwest Impact of National Climate Assessment

The U.S. Environmental Protection Agency (EPA) recently proposed a revised policy to clarify what constitutes “ambient air” under the Clean Air Act, which will directly affect what areas stationary sources of air emissions must model to determine the effect of their facilities on air quality. The revised policy will most notably affect sources that have to model air quality around their facilities to demonstrate compliance with National Ambient Air Quality Standards (NAAQS), as well as sources applying for air construction permits under the EPA’s Prevention of Significant Deterioration (PSD) permitting program. Continue Reading EPA Proposes to Clarify Areas Excluded from Clean Air Act’s Definition of “Ambient Air”

Last week, the U.S. Environmental Protection Agency (EPA) completed its reconsideration of a January 2009 final action on “project aggregation.” Project aggregation is the concept that addresses when to combine nominally separate physical or operational changes at a stationary source to determine whether the changes trigger New Source Review (NSR) permitting requirements under the Clean Air Act (CAA). The 2009 final action (74 FR 2376) (the “2009 Aggregation Action”) sets forth the EPA’s desired interpretation and policy concerning when to aggregate such activities into a single project. The EPA has submitted the final action reconsidering the 2009 Aggregation Action for publication in the Federal Register (the “2018 Reconsideration”). After the 2018 Reconsideration is published, the 2009 Aggregation Action will go into effect Continue Reading EPA Completes Reconsideration of “Project Aggregation” Final Action