Regulated entities may not be able to challenge an agency’s informal decisions if those decisions are unpublished and the entity was not a party to the decision. In a recent D.C. Circuit case, the court dismissed a plaintiff’s petition to review an agency’s informal decision for lack of jurisdiction. The plaintiff’s petition, according to the court, had failed to identify a final agency action, such as a discrete informal adjudication or decision making.
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A district court judge adopted the rarely applied “constructive submission” doctrine, which could ultimately give advocacy groups leverage over states that ignore Clean Water Act (CWA) requirements. This decision may embolden advocacy groups and comes at a time when, as noted in previous posts on this blog, enforcement actions brought by public citizens continue to grow as an effective means of enforcing environmental laws and regulations.
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As federal tax incentives for wind and solar energy projects set to expire this year, project costs will increase, which is sure to impact the renewable energy market in 2020. Without these added financial benefits, strategic utility developers will need to pursue cost-effective development options and other available tax incentives to continue making the most of renewable project investments.

As one of several trends we recently introduced as part of our 2020 renewable energy outlook series, this post takes a closer look at developing projects on brownfields and capitalizing on other federal, state, and local tax incentives for developers.
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Perfluoroalkyl substances (PFAS) — long used in consumer and industrial products —  have recently been in the news and the subject of increased regulatory attention, resulting in proposed and implemented regulation on both the state and federal level. PFAS have been used in a variety of products including, fabric protectants, nonstick coatings on cookware, and fire-fighting foams.
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Illinois’ new cannabis legislation legalizing recreational cannabis is lauded as the “greenest in the nation” for its integrated environmental protections. The act’s energy efficiency, water conservation, and waste reduction requirements set the bar high for Illinois cannabis cultivators, transporters, and dispensaries. Applicants seeking to best position themselves for one of the initial 75 dispensing licenses are advised to provide an environmental plan of action (Environmental Plan) that demonstrates how the applicant will “minimize the carbon footprint, environmental impact, and resource needs for the dispensary.”
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Renewable energy is the fastest growing energy source in the United States, and its development is expected to continue the growth trajectory well into 2020 and beyond. The outlook is bright, but utility companies looking to develop renewable energy can also expect 2020 to be a year of significant changes and challenges. This post is the first in our three-part series covering the renewable energy outlook for 2020 and introducing several key issues on the horizon and trends that we’ve observed.
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The U.S. Environmental Protection Agency (EPA) announced the latest step in implementing its February 2019 “Action Plan” for regulating a group of synthetic chemicals called per- and polyflouroalkyl substances (PFAS) last week. While PFAS have long been used in a wide array of consumer and industrial products, they have recently become an emerging area of focus for environmental law and policy at both the state and federal level. The EPA’s latest Notice of Proposed Rulemaking (Notice) proposes adding PFAS to the list of chemicals for which facilities must report their annual manufacturing, processing, or use under the Emergency Planning and Community Right to Know Act (EPCRA).

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The U.S. Department of Justice (DOJ) is in the midst of a comprehensive policy review regarding the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions. This review could potentially have far-reaching implications for companies that seek to settle such actions brought by either the federal government, or in the case of a citizen suit, a non-governmental organization (NGO). It remains to be seen if the ongoing SEP policy review will result in additional limits on the use of SEPs in settlement, thus limiting the flexibility in achieving penalty mitigation that has been a hallmark of environmental enforcement case resolutions for nearly three decades.
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Informal guidance memos can be a powerful tool — allowing agencies to quickly pivot following a change in administration, avoiding the time and expense associated with the notice and comment process. But whether new guidance memos benefit or harm industry, they can often raise as many questions as they answer, with businesses left to wonder what legal effect an agency policy statement has and whether it can be challenged in court. These questions can hamper long-range planning by increasing regulatory uncertainty. Two recent cases help clarify when agency guidance should be considered a “final agency action” and how and when guidance can be challenged in court.
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On August 9, 2019, the EPA plans to publish a proposed rule to codify the current interpretation of New Source Review (NSR) Project Emissions Accounting. The rule would explicitly allow consideration of emissions decreases from a project, alongside any emissions increases, when determining whether the project causes a significant emissions increase from the source. Historically, many state regulators, and even certain EPA applicability determinations, have suggested that only emissions increases (and not decreases) should be considered. Considering emissions decreases in this analysis allows more projects to avoid triggering NSR.

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