This week, the Fourth Circuit issued a decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P. that addresses three key issues arising in many federal Clean Water Act (CWA) cases:

  1. How, as a legal matter, courts treat “historic” contamination under the CWA;
  2. Whether good-faith remedial efforts undertaken under the supervision of relevant agencies by themselves strip federal jurisdiction over citizen suits under similar legal authority; and
  3. Whether CWA-regulated “pollutants” need to discharge directly into CWA-regulated “navigable waters” to violate the CWA.

Continue Reading Fourth Circuit Decision Addresses Three Key Clean Water Issues

Harvest the Wind and Corn

On April 3, 2018, the Illinois Commerce Commission (ICC) approved, with a number of substantial modifications, the Illinois Power Agency’s (IPA) first “long term renewable resources procurement plan” under the Illinois Future Energy Jobs Act (Illinois Public Act 99-0906, known as FEJA) enacted in December 2016. The ICC order resolves a number of issues regarding (i) long-term forward procurements of renewable energy credits (RECs) from new utility-scale renewable generation facilities, and (ii) the new Illinois Adjustable Block Program (ABP), Community Solar Generation (CSG) Program, and Illinois Solar for All Program (ISFA) mandated by FEJA. Continue Reading Illinois Commerce Commission Modifies and Approves the Illinois Power Agency’s First Long-Term Renewable Resources Procurement Plan

Decorative Scales of Justice

“Standing” –  a person’s right to sue someone else for injury – is a fundamental issue in every case. In 2016, the U.S. Supreme Court decided Spokeo v. Robins, which required that a person’s injury be both “concrete” and “particularized” to confer standing.

Since Spokeo, the environmental bar has been left guessing how Spokeo would play out in environmental cases, as many environmental cases are rooted in federal statutes that give private individuals the right to sue. That question was answered for the first time last week when a federal judge in North Carolina dismissed a lawsuit brought under the Resource Conservation and Recovery Act (RCRA) and the Coal Combustion Residuals (CCR) rule, in part because the plaintiff environmental group failed to meet the standing test established under Spokeo. Continue Reading Recent RCRA Ruling Offers Insight on Applying Spokeo to Environmental Citizen Suits

Two NGOs and a labor union recently filed an action in federal court to challenge the Trump Administration’s Executive Order 13771, officially entitled “Reducing Regulation and Controlling Regulatory Costs,” but commonly known as the “Two-for-One” order because it requires two regulations to be eliminated for every regulation added. In Public Citizen, Inc. et al. v. Donald J. Trump et al., plaintiffs allege that the “Two-for-One” order conflicts with various federal statutes, which require federal agencies to consider statute-specific factors when deciding whether to promulgate or repeal regulations, and that no statutory law requires agencies to consider as part of this process whether other, unrelated regulations should be repealed.

Continue Reading Takeaways from a Recent Challenge to the Trump Administration’s “Two-for-One” Order

Drop Of Water

The Toxic Substances Control Act (TSCA) often seems like the forgotten federal environmental statute in that it gets less attention in the press and judicial decisions than statutes like the Clean Air Act, Clean Water Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  That said, a judge on the Northern District of California issued a high-profile TSCA decision worthy of some discussion. Continue Reading Federal Court Issues Key Decision on NGO Challenge to Use of Fluoride in Water

While the manufacturing industry assesses the benefits of President Trump’s promised relaxation of federal environmental policy, many may find themselves increasingly embroiled with other challenges. Likely at the top of that list are disputes with “citizen scientists” – non-scientists eager to fill in what they see as gaps in Environmental Protection Agency (EPA) regulation and enforcement.

Continue Reading Three Strategies for Manufacturers to Address Escalating Citizen Science

inconspicuous motley spotted frog in the wild

We have discussed deference in past posts and, this past month, the Supreme Court granted certiorari in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, Case No. 17-71. The case may focus the Court’s attention on deference and other issues. Specifically, the case addresses whether the U.S. Fish & Wildlife Service’s (FWS) interpretation of the Endangered Species Act (ESA) was appropriate. Continue Reading On Dusky Gopher Frogs and Chevron Deference: A Report on a Recent U.S. Supreme Court Certiorari Grant

Coal Power Plant At River

In recent years, the Public Utility Regulatory Policies Act (PURPA) “one mile” rule has come under increased scrutiny for favoring small power producers over utilities and consumers. The “one mile” rule,  promulgated by the Federal Energy Regulatory Commission (FERC), is used to determine whether multiple facilities of a single power producer are part of the same “site” for the purpose of obtaining “qualifying facility” (QF) status under PURPA. Many utilities have argued that FERC’s application of the “one mile” rule has allowed small power producers to “game the system,” resulting in too many mandatory purchasing contracts and high energy costs being passed on to consumers. This concern is raised most frequently with wind farms, where turbines are located within relatively close proximity. Continue Reading House Subcommittee Prods FERC To Examine PURPA “One Mile” Rule

The environmental world has waited with bated breath for jurisdictional certainty in defining regulated waters under the federal Clean Water Act (CWA). While we wait, two interesting CWA procedural decisions may play into how the substantive issue gets to the U.S. Supreme Court.

Continue Reading Three Lessons to Consider in Choosing Your Court for CWA Cases