With city after city setting 100 percent clean energy goals and states following in lockstep, opportunities are growing for renewable energy companies to develop utility-scale projects. Project development includes the need for energy infrastructure such as transmission lines, for example.
Continue Reading

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”).

Continue Reading

Last week, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously rejected challenges by environmental and industry groups to the Environmental Protection Agency’s (EPA) Clean Water Act (CWA) cooling water intake structure permit rule (Rule) in Cooling Water Intake Structure Coalition (CWISC), et al., v. EPA, et al. The panel’s ruling upholds the Rule and affirms broad deference to the EPA and wildlife agencies on both their factual findings and legal interpretations.
Continue Reading

The Clean Water Act (CWA) term “waters of the United States” (WOTUS) has become an evolving term with an often squishy definition leading to considerable litigation – with last month’s Seventh Circuit decision providing new insight on both the definition and the concept of administrative deference in Orchard Hill Building Co. v. United States Army Corps of Engineers.

Continue Reading

As citizen scientists and environmental non-governmental organizations (NGOs) have stepped up to fill what they have called an enforcement gap since President Trump took office, the NGO playbook has become more complex and creative than perhaps ever before. A recent Fourth Circuit stay is another example of litigation against governments as a routine playbook strategy likely to continue on the horizon, in addition to the primarily used litigation tactics against private parties to further NGO interests in the past.

Continue Reading

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

Last month, the U.S. District Court for the Eastern District of Kentucky sided with a utility and dismissed a citizen suit based on the Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA). The opinion contradicts other recent federal court decisions analyzing the applicability of the CWA to coal ash discharges through groundwater.

Continue Reading

Consistent with President Trump’s February 28, 2017 Executive Order, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced a joint proposal representing the first step of a two-part plan to implement a more narrow “waters of the U.S.” or “WOTUS” definition. The first step, published in the Federal Register on July 27, 2017, seeks to repeal the 2015 WOTUS rule, and replace prior rules.
Continue Reading