Strategic in-house counsel and court-watchers are keeping a close eye on developments related to the U.S. Supreme Court’s recent commitment to further address deference to administrative interpretation of regulations, a fundamental legal principle central to the regulated community. This practice of courts resolving close questions of statutory or regulatory interpretation in favor of “expert” agencies can cause significant ripple effects to industry profitability – especially when agencies’ regulatory interpretations change.
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The future of the Obama Presidential Center remains uncertain after last week’s court ruling allowed a citizen suit against it to proceed. But businesses facing citizen suits should take comfort in courts’ continued willingness to consider—and occasionally grant—motions to dismiss citizen suits for lack of standing.
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The latest development in climate change litigation came out of last week’s Eastern District of Pennsylvania dismissal – spurring more speculation that these issues will eventually be appealed to and decided by the U.S. Supreme Court. This is one of several novel cases around the country attempting to hold the federal government responsible for climate change.

The decision comes on the heels of a similar, closely watched, and highly publicized suit filed by 21 minors – Juliana v. U.S. – in which  an Oregon federal judge denied a comparable motion to dismiss, but granted interlocutory appeal, opening the door for it to be presented to the Ninth Circuit.
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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.
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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.
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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.
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Much has been written about the problem of the stagnating electricity market due to a combination of falling demand, widespread energy efficiency initiatives, lower electricity costs and aging infrastructure.

This issue has created a situation in which both power generators and utilities are unable to effectively plan for the future. Some utilities have even asked the federal government to approve rate payer-funded bailouts for specific power plants.


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Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).

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