Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of...more
On January 22,2018, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent.
...more
As a follow-up to my post last week about the 9th Circuit decision requiring EPA to propose new lead paint standards under TSCA within 90 days, I was encouraged to see Cass Sunstein support the decision in a BloombergView...more
If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency. That was...more
While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive. There were two developments worth noting this month.
First, Bloomberg Markets reported that...more
In July, EPA released the recommendations of the Superfund Task Force. Public Employees for Environmental Responsibility filed a FOIA request, looking for documents related to the operation of the Task Force. This week, the...more
I’ve noted numerous times that the NSR program is incomprehensible gibberish. These are scientific and objective comments. The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended...more
On November 27, 2017, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:
“discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract...more
Last week, Attorney General Sessions sent a memorandum prohibiting the use of guidance in place of notice and comment rulemaking “when purporting to create rights or obligations binding on members of the public or the...more
On November 14, 2017, the Boston Globe joined most local environmental organizations in opposing delegation of the NPDES program to Massachusetts. How wrong is this? Let me count the ways....more
Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment. It makes grim reading – or perhaps more accurately, grim reaper – reading. Here’s what we...more
As regular readers know, the tension between guidance and regulation is one of my favorite topics. My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued,...more
EPA Administrator Scott Pruitt issued a Directive prohibiting the practice of “sue and settle.” He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.” They are two...more
In 2011, the National Parks Conservation Association sued EPA for failure to enforce the regional haze requirements of the Clean Air Act. EPA and the NPCA settled in 2012, establishing a schedule by when SIPs or FIPs had to...more
Earlier this week, a divided 9th Circuit Court of Appeals affirmed entry of a consent decree between the Sierra Club and EPA, resolving litigation over EPA’s failure to promulgate attainment designations for the sulfur...more
In a very interesting – and extremely rare – case, Emhart Industries has successfully defended itself against a unilateral administrative order issued by EPA under CERCLA, on the ground that key decisions made by EPA were...more
Earlier this week, the D.C. Circuit Court of Appeals struck down part of an EPA rule promulgated pursuant to the Montreal Protocol. The section that was struck down would have required manufacturers of HFC-134a, which is not...more
Earlier this week, Scott Pruitt released the results of the Superfund Task Force he established in May. Though skeptical, I was pleased at the creation of the task force and goals he established for it. With the release of...more
July 18, 2017, the D.C. Circuit Court of Appeals remanded EPA’s MACT standards for PCBs, polycyclic organic matter, and hexachlorobenzene to EPA. Rather than setting specific MACT standards for these compounds, EPA regulated...more
On July 13, 2017, EPA extended the compliance deadline for its General Permit for Small Municipal Separate Storm Sewer Systems for one year, until July 1, 2018. The move almost certainly prompted a collective sigh of relief...more
Earlier this week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of...more
On June 29, 2017, the Court of Appeals for the 4th Circuit reversed a District Court decision and rejected the lawsuit by Murray Energy which argued that EPA had a non-discretionary duty under § 321(a) of the Clean Air Act...more
Earlier this week, EPA and the ACOE began implementing the Trump administration’s efforts to deconstruct the Obama rule defining “Waters of the United States” under the Clean Water Act. EPA and the ACOE submitted for Federal...more
Earlier this week, Attorney General Sessions issued a brief memorandum barring DOJ from entering into any civil or criminal settlement that would provide for a payment by a defendant to any non-governmental person that is not...more
On June 5, 2017, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging President Trump’s Executive Order 13771, the so-called “2 for...more