For decades, the extent of regulatory authority under the Clean Water Act (CWA) has been the subject of a great deal of litigation. Typically, the litigation involves a challenge to the authority of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) to require a CWA permit, by private parties – chiefly real estate developers and industry groups – seeking to constrain that authority and limit permitting requirements. A November 28, 2017 decision by the Ninth Circuit in the case of United States v. Robertson is the latest – but by no means the last – decision in a long line of cases wrangling over the definition of “waters of the United States” under the CWA. Continue Reading Ninth Circuit Decision Means Flood of Litigation Over “Waters of the U.S.” Definition Will Continue Despite Trump Administration Efforts

Last Thursday, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) proposed delaying implementation of the rule defining the term “Waters of the U.S.” (WOTUS) for two years. This is one of many moving pieces involving the WOTUS rule at this time, and another step by the agencies under the Trump administration towards maintaining the status quo and ensuring the 2015 rule is not implemented. Continue Reading The EPA and Army Propose to Delay WOTUS Rule until 2020

As 2017 comes to a close, the specifics of the Trump Administration’s agenda for energy regulatory reform in 2018 are beginning to take shape. To implement President Trump’s Executive Order on “Promoting Energy Independence and Economic Growth” (No. 13783), federal agencies solicited public comment and have now issued reports identifying their priorities for reform. These energy independence reports, as well as the Trump Administration’s broader agenda for regulatory reduction and reform, describe steps the administration can take—largely without congressional involvement—to reduce the compliance burden associated with environmental regulations and permit requirements. Continue Reading 2018 Energy Reform Priorities: Streamlining to Further Reduce Compliance Burden

Several departments have released the regulatory reform reports requested by the Trump Administration’s Executive Order 13783, which is intended to speed the progress of and lower the costs of infrastructure and energy projects.

Reports are in from the Environmental Protection Agency (EPA), Department of the Interior (DOI), Department of Energy (DOE), and Department of Commerce, and several themes are clear: Long project approval and lengthy permitting timelines must end. The executive branch must coordinate efforts among agencies. Departments must consider how their regulatory role impacts the national and local economies. Continue Reading Regulatory Reform: Where Are We Now?

Environmental Protection Agency (EPA) Administrator Scott Pruitt declared “the war against coal is over” yesterday in his announcement that the EPA will move to repeal the Clean Power Plan. In a lengthy proposal leaked last week that was then updated and signed October 10, the EPA proposes to repeal the Clean Power Plan (CPP), a controversial regulation designed to cut carbon dioxide (CO2) emissions from existing fossil fuel-fired power plants. In support of the proposal, the EPA describes the Obama-era EPA’s interpretation of the Clean Air Act as unlawful. Continue Reading Pruitt Declares “The War Against Coal is Over”

In response to utility industry requests, the Environmental Protection Agency (EPA) issued interim final guidance earlier this month that sets forth a process for state submission and criteria for approval of state-led Coal Combustion Residual (CCR) permit programs under the Water Infrastructure Improvements for the Nation Act. Continue Reading Utilities Empowered to Help Shape How Coal Ash is Regulated

Following the one year anniversary of significant amendments to the Toxic Substance Control Act (TSCA), there has been a flurry of activity related to the Act—from new rules issued by the Environmental Protection Agency (EPA) to lawsuits filed across the country. Here are some of the major highlights:

Continue Reading Four Milestones Since the Birth of a Significantly Revised TSCA

Consistent with President Trump’s February 28, 2017 Executive Order, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced a joint proposal representing the first step of a two-part plan to implement a more narrow “waters of the U.S.” or “WOTUS” definition. The first step, published in the Federal Register on July 27, 2017, seeks to repeal the 2015 WOTUS rule, and replace prior rules. Continue Reading Next Steps in EPA Deferral to States: Waters of the U.S. Rule Repeal and Replacement

For the past several months, Monsanto has been in court challenging California’s decision to add the chemical glyphosate—the active ingredient in its herbicide Roundup—to the Proposition 65 list. It recently faced a setback when the California Supreme Court rejected Monsanto’s request to stay a lower court’s decision to include glyphosate among the 960 chemicals on the list.  California’s Office of Environmental Health Hazard Assessment (OEHHA) wasted no time after the decision and added glyphosate to the list on July 7, 2017. Continue Reading No Delay for Proposition 65 Listing of Glyphosate