For decades, California has been granted unique deference in setting Clean Air Act (CAA) emissions limitations for California-sold vehicles through use of a state-specific waiver....more
US Supreme Court Clean Air Act (CAA) decisions often result in big-picture changes to administrative law. Two CAA decisions this term deal with CAA’s venue-related provisions which specify where cases challenging US...more
The National Environmental Policy Act (NEPA) is a federal statute that outlines how federal agencies must review the environmental impacts of their regulatory actions. The regulated community has often viewed NEPA as an...more
The first weeks of the Trump Administration have been defined by executive orders and new policies that were immediately challenged on constitutional or statutory grounds....more
A Biden-era US Department of Labor (DOL) Rule permitting consideration of environmental, social, and governance (ESG) factors when choosing investments as a “tiebreaker” was recently upheld by Texas federal Judge Matthew...more
In the environmental space, 2024 has been a memorable year with regulatory efforts and court decisions touching on every aspect of environmental and energy regulation, capped out by a closely divided election....more
12/24/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Chevron v NRDC ,
Citizen Suits ,
Clean Air Act ,
Climate Change ,
Coal Industry ,
Energy Sector ,
Environmental Justice ,
Environmental Policies ,
Environmental Social & Governance (ESG) ,
Loper Bright Enterprises v Raimondo ,
PFAS ,
Regulatory Agenda ,
Reporting Requirements ,
SCOTUS ,
Spokeo v Robins ,
Statutory Interpretation ,
TransUnion LLC v Ramirez
While a dispute over the Clean Air Act’s (CAAs) venue provision may seem arcane, a forthcoming US Supreme Court decision will affect core principles of the separation of powers and constitutional due process in ways that may...more
Discussion of administrative law usually doesn’t happen at the dinner table. But a series of recent US Supreme Court decisions may have changed this introducing talk of the Administrative Procedure Act (APA) and the...more
7/15/2024
/ Administrative Procedure Act ,
Alliance for Hippocratic Medicine v Food and Drug Administration ,
Chevron Deference ,
Corner Post Inc v Board of Governors of the Federal Reserve System ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Loper Bright Enterprises v Raimondo ,
Ohio v Environmental Protection Agency ,
Public Trust Doctrine ,
Regulatory Agenda ,
Sackett v EPA ,
SCOTUS ,
SEC v Jarkesy ,
Securities and Exchange Commission (SEC) ,
Statutory Interpretation
On the final day of its term, the US Supreme Court rejected the principle of “administrative finality,” an additional blow to federal agencies after the Court rejected “Chevron deference” the previous day....more
On the second-to-last day of its term, the US Supreme Court issued its decisions in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce. These decisions overruled Chevron USA. v. National Resource...more
7/2/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Chevron v NRDC ,
Clean Air Act ,
Constitutional Challenges ,
Corporate Counsel ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
National Marine Fisheries Service ,
Regulatory Authority ,
SCOTUS ,
SEC v Jarkesy ,
Statutory Interpretation ,
West Virginia v EPA
A recent US Supreme Court decision, which grabbed headlines because it involved an abortion-related drug, with potential repercussions in litigation far-removed from health care due to the decision hinging on “standing,”...more
Below, we break down three recent decisions and explain why the regulated community should pay attention to them: the first from the Southern District of New York in City of New York v. Exxon Mobil Corporation; the second...more
5/24/2024
/ Climate Change ,
Corporate Counsel ,
Denial of Certiorari ,
Environmental Social & Governance (ESG) ,
False Advertising ,
Greenhouse Gas Emissions ,
Greenwashing ,
Human Rights ,
New York ,
Regulatory Agenda ,
SCOTUS ,
Sustainability ,
United Nations Convention on the Law of the Sea (UNCLOS)
Policy debates normally focus on substance. Is climate change real? How can business entities weigh environmental, social, and governance (ESG) factors into their decision-making?
...more
3/25/2024
/ Administrative Procedure Act ,
Appeals ,
Biden Administration ,
Climate Change ,
Declaratory Judgments ,
Disclosure Requirements ,
Environmental Social & Governance (ESG) ,
Injunctions ,
New Rules ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Supremacy Clause
2023 saw terms like “ESG,” “greenwashing,” and “circular economy” come into common use. We also saw a tsunami of other environmental, social, and governance (ESG)-related developments at the international, federal, and state...more
12/11/2023
/ Carbon Off-Set Credits ,
Civil Rights Act ,
Class Action ,
Climate Change ,
Cybersecurity ,
Delta Airlines ,
Department of Labor (DOL) ,
Disclosure Requirements ,
Diversity and Inclusion Standards (D&I) ,
Employee Retirement Income Security Act (ERISA) ,
Environmental Social & Governance (ESG) ,
Equal Protection ,
EU ,
Federal Trade Commission (FTC) ,
Green Guides ,
Greenwashing ,
Investment Company Act of 1940 ,
Popular ,
Proposed Rules ,
Publicly-Traded Companies ,
Recycling ,
Risk Management ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Students for Fair Admissions v Harvard College ,
Task Force on Climate-related Financial Disclosures (TCFD) ,
Title VI
A recent Supreme Court of the State of Hawaii decision permitted climate-related claims against major petroleum and gas companies to proceed toward trial.
The decision in City and County of Honolulu v. Sunoco LP allows...more
11/16/2023
/ Business Litigation ,
Clean Air Act ,
Climate Change ,
Environmental Social & Governance (ESG) ,
Greenhouse Gas Emissions ,
Greenwashing ,
Infrastructure ,
Misleading Statements ,
NGOs ,
Oil & Gas ,
Petroleum ,
Power Purchase Agreements ,
Public Utility ,
SCOTUS
The US Supreme Court has announced it will evaluate whether “impact fees” associated with permits can violate the Fifth Amendment to the US Constitution. At stake is the determination of when, how, and under what...more
10/26/2023
/ Appeals ,
Compensation ,
Constitutional Challenges ,
Fees ,
Fifth Amendment ,
George Sheetz v County of El Dorado ,
Impact Fees ,
Koontz v St John's River Water Management ,
Loper Bright Enterprises v Raimondo ,
Permits ,
Regulatory Takings ,
Relentless Inc v US Department of Commerce ,
SCOTUS
The “Major Questions Doctrine” (MQD) has been the breakout star of the last two terms at the US Supreme Court. Earlier this month, the Fourth Circuit used MQD in upholding the dismissal of a nongovernmental organization’s...more
8/18/2023
/ Chevron Deference ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Fishing Industry ,
Loan Forgiveness ,
Loper Bright Enterprises v Raimondo ,
National Marine Fisheries Service ,
NGOs ,
Pollution Control ,
SCOTUS ,
Student Loans ,
Water Pollution
This US Supreme Court’s administrative and environmental decisions were somewhat predictable for much of the 2022-2023 term. And then they weren’t – the final weeks of the term especially featured some high-drama decisions....more
7/13/2023
/ 303 Creative LLC v Elenis ,
Affirmative Action ,
Civil Rights Act ,
Clean Water Act ,
Department of Education v Brown ,
Environmental Protection Agency (EPA) ,
Haaland v Brackeen ,
Indian Child Welfare Act of 1978 (ICWA) ,
Loan Forgiveness ,
NEPA ,
Notice of Violation ,
Rapanos v US ,
Sackett v EPA ,
SCOTUS ,
Student Loans ,
Students for Fair Admissions v Harvard College ,
Students for Fair Admissions v University of North Carolina ,
Title VI ,
Waters of the United States ,
Wetlands
Last week, the US Supreme Court ruled that the Biden Administration’s efforts to cancel $430 billion in student loan balances was legally unsupportable.
Forty-three million Americans will remember Biden v. Nebraska when...more
7/10/2023
/ Biden Administration ,
Debt Relief ,
Department of Education ,
Department of Education v Brown ,
Haaland v Brackeen ,
Loan Forgiveness ,
OSHA ,
SCOTUS ,
Secretary of Education ,
Standing ,
Student Loans ,
West Virginia v EPA
In the United States, environmental and public health measures often correlate to variables like education, income, and a community’s racial makeup. In the five decades since Congress began to create comprehensive...more
7/7/2023
/ Affirmative Defenses ,
CERCLA ,
Civil Rights Act ,
Clean Air Act ,
Clean Water Act ,
Environmental Justice ,
Environmental Protection Agency (EPA) ,
Equal Protection ,
SCOTUS ,
Students for Fair Admissions v Harvard College ,
Students for Fair Admissions v University of North Carolina ,
Title VI ,
Title VII
A DC Circuit decision related to the US Environmental Protection Agency’ (EPA) hydroflurocarbons (HFC) phase out illustrates that federal regulations face significant scrutiny when reviewed in court even where the regulations...more
In a closely watched environmental Clean Water Act (CWA) case, the US Supreme Court adopted a far narrower construction of CWA’s definition of “waters of the United States,” functionally shifting significant authority over...more
Federalism — the allocation between federal and state governments — is at the heart of American constitutional law. In a dispute related to the constitutionality of California state regulations dealing with pig farming, the...more
The “Chevron doctrine,” meaning whether courts should defer to agency interpretations of ambiguous statutes they administer, has been viewed as a key underpinning of the modern regulatory state.
Repeatedly for nearly a...more
The Ninth Circuit recently weighed in on whether localities’ natural-gas infrastructure bans are preempted by federal laws including the Energy Policy and Conservation Act (EPCA).
Some background. Many regulators and...more