A key building block of U.S. government is how administrative agencies interpret their own regulations. Because this question is so fundamental to the entire regulated community, we have blogged about administrative deference generally and the Kisor case specifically. The Supreme Court affirmed the long-standing judicial tenet of administrative deference to agencies’ interpretation of their own regulations this week. In doing so, however, the majority cautioned against a laissez faire application of deference, emphasizing that courts must carefully and explicitly consider the specific criteria established under Auer v. Robbins before deferring to an agency’s interpretation of its own regulation.
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Everyone knows that environmental cleanups are complicated. Sites can be geographically vast and varied, involve operations that have released chemicals over decades, and goal posts for how and what should be investigated, characterized, and – if necessary – remediated can change over time. The U.S. Supreme Court recently granted certiorari in a case that could potentially throw remediation efforts at Superfund sites around the country – as Atlantic Richfield (the petitioner) put it – into “chaos.”
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Last week, the U. S. Supreme Court handed down an important decision on the jurisdictional reach of the Natural Gas Act (NGA).  The Court concluded that the NGA does not pre-empt a long-running group of state-law antitrust suits aimed at alleged misconduct by natural gas pipelines.

In Oneok, Inc. et al. v. Learjet, Inc. et al., No. 13-271, the Court considered claims brought as class actions and consolidated in 2003 as the Western States Wholesale Natural Gas Antitrust Litigation in federal court in Nevada.  The plaintiffs are manufacturers, hospitals, and other institutions that buy natural gas directly from interstate pipelines.  These purchasers sued more than a dozen pipelines for reporting false information to natural gas price indexes, claiming injury because contract prices, based on the price indexes, were inflated by the allegedly false reports.
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On Tuesday, October 15, 2013, the United States Supreme Court agreed to hear challenges to the United States Environmental Protection Agency’s (USEPA) authority to regulate greenhouse gases emitted from stationary sources.  A total of nine petitions for certiorari had been filed with the Court challenging various regulatory actions taken by USEPA with respect to greenhouse gases.  The Court consolidated and granted certiorari in six of the nine petitions.
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In a much-publicized decision in 2007, the Supreme Court ruled that the United States Environmental Protection Agency (USEPA) is authorized to regulate greenhouse gases (GHGs) through the Clean Air Act. Massachusetts v. EPA, 549 U.S. 497 (2007). A slew of recent cases have rejected plaintiffs’ attempts to assert common law claims for damages based on the consequences of past emissions of GHGs. The courts generally have found that USEPA has occupied the role of regulating GHGs, and challenges to the agency’s actions must be brought through the appropriate administrative channels. As the Supreme Court weighs whether to grant certiorari in the Coal. for Responsible Regulation, Inc., et al. v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), the case that addresses four USEPA GHG rules, the Supreme Court may have difficulty in changing course from the idea that GHGs should be regulated pursuant to the Clean Air Act.
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Natural Resources Defense Council v. USEPA: Court Rejects USEPA’S Approach to PM2.5 NAAQS Implementation

Recently, the Circuit Court for the District of Columbia rejected the United States Environmental Protection Agency’s (USEPA’s) 2007 and 2008 rules implementing the 1997 national ambient air quality standard (NAAQS) for fine particulate matter having a diameter equal or less than 2.5 micrometers (PM2.5). The court held that USEPA erred by promulgating the PM2.5 implementation rules pursuant to the general nonattainment area implementation provisions for NAAQS found in Title 1, Part D, Subpart 1 of the Clean Air Act, rather than the stricter particulate matter-specific nonattainment area implementation provisions for NAAQS found in Subpart 4. The two rules were remanded back to USEPA for promulgation consistent with Subpart 4. The decision results in uncertainty for sources located in PM2.5 nonattainment areas.
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The decades old MobileSierra doctrine has captured the attention of decision makers and energy law practitioners in great measures recently, prompted by the examination of various nuances long overdue for clarification.  Under the Mobile-Sierra doctrine, the Federal Energy Regulatory Commission (“FERC” or “Commission”) must presume that an electricity rate set in a freely negotiated wholesale-energy contract meets the “just and reasonable” requirement of the Federal Power Act, and the presumption may be overcome only if FERC concludes that the contract seriously harms the public interest.  Many have viewed this standard as “practically insurmountable.”
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Originally published as a Schiff Hardin Environmental Update newsletter

On Wednesday, March 21, 2012, the United States Supreme Court unanimously held that administrative orders issued by the U.S. Environmental Protection Agency (USEPA) under the Clean Water Act (CWA) are subject to pre-enforcement judicial review under the Administrative Procedure Act (APA). Sackett, et vir, v. EPA, 566 U.S. ____ (2012). The Court ruled against USEPA and in favor of the couple that brought the suit, the Sacketts, who argued they were entitled to bring a civil action under the APA to challenge USEPA’s issuance of an administrative compliance order issued under § 309 of the CWA.
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The decades old Mobile-Sierra doctrine has captured the attention of decision makers and energy law practitioners in great measures recently, prompted by the examination of various nuances long overdue for clarification.[1] Under the Mobile-Sierra doctrine, the Federal Energy Regulatory Commission (“FERC” or “Commission”) must presume that an electricity rate set in a freely negotiated wholesale-energy contract meets the “just and reasonable” requirement of the Federal Power Act, and the presumption may be overcome only if FERC concludes that the contract seriously harms the public interest.  Many have viewed this standard as “practically insurmountable.”
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Originally published as a Schiff Hardin Environmental Update newsletter

The Supreme Court decided the case American Electric Power Co. v. Connecticut, U.S. 10-174, in favor of the petitioner utility companies. Several states, a municipality and three nonprofit land trusts filed suit against AEP and other utilities in 2004, alleging that significant greenhouse gas emissions from their plants caused specific and identifiable harm to state resources. The Second Circuit held in favor of the plaintiffs, holding that the case can proceed under the federal common law of nuisance. Today, the Supreme Court reversed, holding that the Clean Air Act displaces any such federal common law claim. The Court left open, and remanded, the question of whether the Clean Air Act preempts similar state common law claims. While this case specifically addressed greenhouse gas emissions from fossil-fuel fired power plants, the case will likely have much wider-reaching implications.
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