The “major questions” doctrine is likely to substantially affect environmental law. The “major questions” doctrine provides that for “major policy question[s] of great economic or political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority to both decide the major policy question and to regulate and enforce.” As we noted in our last post touching on the “major questions” doctrine, we expect that the “major questions” doctrine may be a focus of other cases on the docket this year including a pending case involving U.S. Environmental Protection Agency greenhouse gas regulations.

Continue Reading Court Cites “Major Questions” Doctrine when Striking Down Biden “Social Cost of Carbon” Efforts

Property management companies (PMC) need to pay attention to a recent change in the U.S. Environmental Protection Agency’s (EPA) enforcement discretion concerning liability from renovations that could encounter lead-based paint. EPA has announced a change to its enforcement priorities for the Lead Renovation Repair and Paintings (RRP) Rule, which applies to renovations, repairs, or painting that could disturb lead-based paint in certain buildings constructed before 1978. Following the change, PMCs themselves, in addition to contractors hired, will be required to be trained by EPA-approved training providers and certify that they follow lead-safe work practices when conducting regulated renovations.
Continue Reading EPA Affirms its Intention to Hold Property Management Companies Responsible for Lead-Based Paint Safety Requirements for Renovations

The top U.S. Department of Justice (DOJ) Environmental official has put corporate employees on notice that DOJ is increasing its focus on prosecuting individuals for environmental crimes, including the threat of jail time. In a pre-recorded keynote address to the American Bar Association (ABA) National Environmental Enforcement Conference on December 14, 2021, Assistant Attorney General for the Environment and Natural Resources Division (ENRD) Todd Kim stated, “Only individuals can go to jail, and we have found that criminal corporate accountability starts with accountability for individuals responsible for criminal conduct.”
Continue Reading DOJ Targeting Employees for Criminal Environmental Prosecution: Tips for Minimizing Exposure

Environmental justice remains a top concern for the Biden Administration. The United States Environmental Protection Agency (U.S. EPA) recently highlighted in its 2022-2026 Strategic Plan (Strategic Plan) that it intends to enhance use of the Civil Rights Act of 1964 to “embed environmental justice and civil rights in the Agency’s core work” and to “strengthen civil rights enforcement in communities overburdened by pollution.”

Continue Reading EPA Places Environmental Justice Front and Center

As illustrated by our previous coverage here, here, and here, the scope of the federal government’s enforcement power under the Migratory Bird Treaty Act (MBTA) has been an ever-evolving source of litigation and confusion for industries across the country.
Continue Reading Fish and Wildlife Service Seeks Input on Developing Migratory Bird Permit Program

Last month, we wrote about “midnight” regulations issued by the Trump Administration and a process available for Congress to respond. Since then, the Trump Administration took an important step towards issuing one such regulation, regarding activities that “incidentally” harm protected migratory birds. If finalized, this rule would be the culmination of a years-long effort to loosen the Migratory Bird Treaty Act’s (MBTA) restrictions, which could aid energy and infrastructure developers and operators.

Continue Reading Lame-Duck Rules Could Loosen Migratory Bird Restrictions

No single answer exists for how the regulated community is expected to meet their environmental obligations or address potential delays in environmental compliance, especially amidst shelter-in-place orders in several states due to the COVID-19 pandemic. However, relief from environmental obligations during this pandemic may be available under certain environmental laws and legal obligations. The nature of that relief will largely depend on the specific legal requirement, the impact on the source itself, and the evolving response by federal and state governments to the COVID-19 outbreak.

Continue Reading Environmental Compliance Relief and Requirements During Shelter-in-Place Mandate

Both communities and companies will no longer benefit from the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions, following the United States Department of Justice’s (DOJ) comprehensive policy review and prohibition of the practice in all settlements. Despite 30 years of productive use backing these mutually beneficial arrangements, which began during my time at the DOJ in the 1990s, the DOJ has officially called it quits for now – at least until the next administration has a chance to reconsider this decision. For those who have not been immersed in these environmental enforcement actions, SEPs allow settling parties to mitigate a portion of a civil penalty in exchange for performance of environmentally beneficial projects.
Continue Reading Everyone Loses with New DOJ Policy Ending 30-Year Practice of Supplemental Environmental Projects

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.

Continue Reading Environmental Regulatory Rollbacks Are No Time for Utilities to Relax

On July 21, 2016, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) in Docket No. RM16-17-000 to revise regulations regarding the collection of data for analytics and surveillance purposes from market-based rates (MBR) sellers and entities trading virtual products or holding financial transmission rights (Virtual/FTR Participants). FERC also withdrew two earlier NOPRs in Docket Nos. RM15-23-000 and RM16-3-000. FERC indicated that the newly-issued NOPR would address many of the issues in the withdrawn NOPRs.
Continue Reading FERC Issues NOPR on Information Collection, Rescinds Previous Iterations of Rule