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Over the past several years, Environmental, Social and Governance (ESG) initiatives have gained popularity among investors, but have gained less traction in federal law. ESG are a set of criteria that investors use to evaluate the environmental and societal impacts of a business. Some European countries require that companies report their ESG metrics, but ESG reporting in the United States has generally been voluntary. There are some indications that a Biden administration — especially coupled with a democratic congress — may seek to amplify ESG reporting in the U.S. As an early indication of such action, the new administration is expected to view ESG differently than the Trump administration.…
Continue Reading ESG in the First 100 Days?

Regulated industries pay close attention to how regulators use scientific data, because the stakes are high. While scientific knowledge may evolve rapidly, regulatory processes — and the business decisions that rely on them — tend to proceed more deliberately. As a result, the regulated community has long pushed the U.S. Environmental Protection Agency (EPA) to base its decisions only on scientific information that is present in the public domain and thus subject to greater scrutiny.…
Continue Reading EPA Releases Late-Term “Secret Science” Rule

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.
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Continue Reading Lame-Duck Rules Could Loosen Migratory Bird Restrictions

Judge Gavel on a black wooden background.

Citizen suits can be complicated when states engage in regulatory actions after a private party files a complaint. The major federal environmental statutes are largely intended to be implemented by state and federal regulators, and suits by private parties including non-governmental organizations are intended to supplement — and not supplant — the regulators’ role.…
Continue Reading Court Sets Citizen Suit Case for Trial Even Though State Regulators Are Evaluating Similar Issues

Power plant, photovoltaic, wind energy

On August 31, 2020, the United States Environmental Protection Agency (EPA) issued the pre-publication notice of a final rule that revises two aspects of the technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating industry set by the Obama Administration in 2015. The final rule takes effect 60 days after EPA publishes it in the Federal Register. Its revisions apply to two waste streams, flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water, and may afford certain power plants increased flexibility to achieve compliance.…
Continue Reading EPA Finalizes Revised Effluent Limitation Guidelines for Power Plants

New York goes green

Have a large site ready for renewable energy development in New York? The state is looking for you.

On July 22, 2020, New York Governor Andrew Cuomo announced a search for possible sites, requesting information (RFI) from local communities and private parties about prospective sites.…
Continue Reading New York Issues RFI for Build-Ready Sites to Host Large-Scale Renewable Energy Developments

Gavel In Court Room

The viability of Nationwide Permit (NWP) 12 – used to authorize certain actions during utility line construction – is uncertain. After a Montana judge vacated and enjoined the use of the permit nationwide for new oil and gas pipelines,[1] the U.S. Army Corps of Engineers (Corps) immediately appealed to the Ninth Circuit. In its May 22 brief on the motion to stay the district court’s order imposing the nationwide injunction, the Corps argued that the injunction violated due process and that the order lacked clarity. The Ninth Circuit refused to stay the matter, rejecting these arguments in its most recent order[2] because the Corps had not shown “sufficient likelihood of success on the merits” and “probability of irreparable harm.”…
Continue Reading Nationwide Permit 12: The Uncertainty Continues

On May 22, 2020, the Environmental Protection Agency (EPA) Administrator signed a proposed rule entitled “EPA Guidance; Administrative Procedures for Issuance and Public Petitions” that provides guidance and procedures for regulatory documents issued by the agency. The proposed rule purports to address concerns from the regulatory community that guidance documents were sometimes used to modify legal obligations which should only be imposed by statute or formal regulations.…
Continue Reading EPA Issues Proposed Rule Intended to Increase Transparency and Public Participation Related to Agency Guidance Documents

Missouri River floodplain

With parts of the Midwest setting records for wet weather this month, many eyes have turned toward the shorelines of the Great Lakes, which are experiencing an extended period of near-record high water levels. High water has wreaked havoc on public and private shorelines alike, eroding beaches, damaging seawalls, and threatening buildings. For many property owners, installation or repair of infrastructure such as breakwaters or bulkheads may be an attractive solution to limit future losses. But owners and their contractors must be careful to comply with state and federal laws that require permits for construction that impacts a navigable waterway.…
Continue Reading Without Careful Permitting, Erosion Control Projects Can Lead to a Flood of Legal Headaches

Environmental Protection Agency Building in Washington DC

The EPA’s controversial science adviser policy has suffered two more defeats following the recent Union of Concerned Scientists v. Wheeler decision, making three straight losses in court for the Trump Administration’s policy limiting scientist participation in U.S. Environmental Protection Agency advisory boards.…
Continue Reading Three Strikes and the EPA’s Scientist Advisory Committees Directive May Be Out