While President Trump’s border security policy has dominated recent news headlines, his deregulation policy has quietly jockeyed into a better position to survive court scrutiny. Last week, a federal district court issued an opinion that suggests it may never confirm whether the Trump Administration’s “two-for-one” executive order thwarts consumer protection and safety-related rulemakings by past administrations, because no plaintiffs have standing to raise these arguments. Rulemakings have a primary role in environmental law. This decision emphasizes that, in many cases, rulemakings will continue to be primarily shaped by the executive branch, not courts, excepting in particular cases. Continue Reading Trump Administration Deregulatory Agenda Rolls Ahead for Now
Last week, the U.S. Environmental Protection Agency (EPA) completed its reconsideration of a January 2009 final action on “project aggregation.” Project aggregation is the concept that addresses when to combine nominally separate physical or operational changes at a stationary source to determine whether the changes trigger New Source Review (NSR) permitting requirements under the Clean Air Act (CAA). The 2009 final action (74 FR 2376) (the “2009 Aggregation Action”) sets forth the EPA’s desired interpretation and policy concerning when to aggregate such activities into a single project. The EPA has submitted the final action reconsidering the 2009 Aggregation Action for publication in the Federal Register (the “2018 Reconsideration”). After the 2018 Reconsideration is published, the 2009 Aggregation Action will go into effect Continue Reading EPA Completes Reconsideration of “Project Aggregation” Final Action
Twenty-two months into the Trump Administration and a trend has become abundantly clear: courts are profoundly skeptical of the Trump Administration’s use of executive orders to undo or undercut regulations. Federal rulemakings are serious business for courts and regulated industries, which is why we have chronicled the Trump Administration’s regulatory reform efforts, including proposals to undo rules implemented by previous administrations.
In a key decision earlier this month with potentially hefty ongoing implications for developers and property owners, the U.S. Court of Appeals for the Third Circuit held a chemical company liable for nearly $1 million in pre-acquisition cleanup costs. The case is Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC and offers another clear illustration that property owners and developers may be liable for environmental response costs incurred before they acquired property. Continue Reading Property Owners and Developers Beware: Third Circuit Holds Chemical Company Liable for Pre-Acquisition Cleanup Costs
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.
Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018. Continue Reading New California Prop 65 Warning Requirements: What Businesses Should Consider Now
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.
The Trump Administration rolled out its anticipated rules on fuel efficiency and emissions standards for model years 2021-2026 last week. The proposal, at over 900 pages of text, is still being analyzed and reviewed, but early indications are that there will be significant resistance from many affected parties. Here are five key questions rising to the surface in the wake of the proposal. Continue Reading Five Questions on the Litigation Backlash from the Trump Administration’s Fuel Emissions Rollback
Since the early days of the Trump Administration, our blog has regularly covered the Administration’s various attempts at regulatory reform. An appellate decision last week on a National Highway Traffic Safety Administration (NHTSA) rule signaled an end to administrative stays based on mere agency averments that it intends to reconsider a notice-and-comment rulemaking. Instead, the agency must use the notice-and-comment process to revisit the rule. Absent these processes, the regulation goes into effect.
Administrative deference – in essence, that courts resolve close questions in favor of “expert” agencies – is a cornerstone of environmental practice and we’ve blogged frequently on this issue. Courts question agencies, however, when their decisions do not square with cited evidence. For regulatory challenges, courts also confine their review to the administrative record and agencies cannot interject new evidence during a judicial appeal of a regulation. Continue Reading Administrative Deference Doesn’t Mean Anything Goes – Just Ask the D.C. Circuit