Tag Archives: EPA

Coalition Seeks to Compel US EPA Action on States’ Impaired Waters Listings for Lake Erie

A coalition of environmental and conservation groups have given US EPA notice of their intent to sue over the Agency’s failure to timely review Ohio’s and Michigan’s biennial impaired waters listings. Under §303(d)(2) of the Clean Water Act (CWA), US EPA is required to approve or disapprove a state’s proposed list of impaired waters not … Continue Reading

Asbestos-Containing Materials: A Non-Scope Consideration Worth Investigating During Environmental Due Diligence

A common question that arises when performing environmental due diligence on commercial real estate is the degree to which the presence of asbestos-containing materials (ACMs) should be investigated.  In the case of ACMs, “what you don’t know can hurt you” and, therefore, the old axiom of “less is more” does not apply.  This is especially true regarding asbestos not only … Continue Reading

Ninth Circuit Rules Smelter Emissions Are Not a CERCLA Disposal

The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under … Continue Reading

US District Court Strikes Down BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On June 21, 2016, the US District Court for the District of Wyoming set aside the US Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal and Native American lands, finding that BLM lacked Congressional authority to promulgate the regulations.  “Congress has not delegated to the Department of Interior the authority to regulate … Continue Reading

US Supreme Court Rules Against the Corps and in Favor of Landowners With Respect to the Reviewability of Jurisdictional Determinations, Reserving for Another Day the Full Scope of Finality under the Administrative Procedure Act

In one of the most closely watched environmental and administrative law cases this term, the US Supreme Court ruled unanimously against the government on Tuesday, May 31, 2016, affirming the Eighth Circuit’s decision allowing federal courts to review the US Army Corps of Engineers’ jurisdictional determinations. Jurisdictional determinations are decisions wherein the Corps determines whether wetlands or dry … Continue Reading

A Short History of Clean Power Plan Litigation as of March 2016

The Clean Power Plan and its surrounding litigation has quickly become one of the hottest topics both inside and outside the legal world. News that the U.S. Supreme Court had granted a stay of the Clean Power Plan on February 9, 2016 spread like wildfire, but many recent followers are unaware of just how long and polemic … Continue Reading

Sixth Circuit Jurisdictional Determination on “Waters of the United States” Fails to Resolve Legal Uncertainty

On February 22, a divided Sixth Circuit Court of Appeals ruled that it has jurisdiction to hear suits over the joint US EPA and US Army Corps of Engineers’ controversial amendment to the definition of “waters of the United States.” Murray Energy Corp. v. US Dep’t of Def. et al., Slip op., No. 15-3751 (6th … Continue Reading

Despite Best Efforts, US EPA Faces 2016 Deadline for New Financial Assurance Rules

US EPA has agreed to promulgate financial assurance rules for hard rock mining companies by December 1, 2017.  Specifically, the agencies requirements will apply to facilities which extract or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc).  The financial assurance requirements will obligate companies performing environmental cleanup to provide a … Continue Reading

US Senate Falls Short in Attempt to Override Obama’s Veto of “Waters of the United States” Resolution

On January 21, 2016, Senate Republicans failed to override President Obama’s veto of a recent legislative attempt to block the “Waters of the US” Rule. The challenged Rule defines the term “waters of the United States” under the Clean Water Act, while, as we noted previously, expanding federal jurisdiction over waters that were not previously … Continue Reading

US EPA Violated Federal Law by Using Taxpayer Dollars to Fund “Covert Propaganda” and Illegal Grassroots Lobbying

A federal investigation has revealed that US EPA violated federal law by utilizing “covert propaganda” and illegal grassroots lobbying to encourage voters to support its Waters of the United States Rule (the “Clean Water Rule“).  US EPA’s legal violations in the context of the Clean Water Rule could lead to additional trouble for the agency.  Members of the … Continue Reading

US District Court Blocks BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On September 30, 2015, the US District Court for the District of Wyoming preliminarily enjoined the US Bureau of Land Management (BLM) from enforcing its final rule regulating hydraulic fracturing on federal and Native American lands, pending the resolution of a challenge to the rule under the Administrative Procedures Act (APA) brought by various industry, state, … Continue Reading

Federal Judge Sides With US EPA In Pebble Mine FOIA Litigation

On August 24, 2015, Judge H. Russel Holland of the US District Court for the District of Alaska dealt a blow to Pebble Limited Partnership’s (Pebble Partnership) efforts to obtain documents which it believes could support its claim that US EPA failed to comply with the Federal Advisory Committee Act (FACA) by coordinating with environmental … Continue Reading

US District Court Enjoins Waters of the US Rule But Limits Injunction to the 13 Plaintiff States

On August 27, 2015, the US District Court for the District of North Dakota granted a motion for preliminary injunction to a coalition of 13 states (the States) attempting to block implementation of the Waters of the United States (WOTUS) Rule, promulgated by US EPA and the Army Corps of Engineers (the Corps) and set to go into … Continue Reading

US Chamber of Commerce Joins House of Representatives in Calls for Greater Regulatory Transparency From EPA

Recently, the US Chamber of Commerce (Chamber) published its report Truth In Regulating: Restoring Transparency to EPA Rulemaking, criticizing EPA for not providing critical details about the regulatory intent and true costs associated with significant Agency rulemakings.  The Chamber report follows on the heels of last week’s passage of H.R. 1029, the EPA Science Advisory Board Reform … Continue Reading

US Supreme Court Holds that Agencies Are Not Required to Comply With Notice and Comment Requirements When Revising Interpretative Rules

This month, in Perez v. Mortgage Bankers Association, the US Supreme Court overturned the D.C. Circuit’s Paralyzed Veteran doctrine, rejecting nearly 20 years of precedent requiring federal agencies to abide by notice-and-comment rulemaking procedures when they substantially alter an “interpretive” rule. However, the decision also hints that even broader changes may be afoot.  Writing in … Continue Reading

Definition of “Waters of the US”: US EPA Science Advisory Board Calls For Less Exclusions, More Jurisdiction

On April 21, 2014, US EPA and the US Army Corps of Engineers issued a proposed rule to redefine “waters of the United States” under the Clean Water Act (CWA). As previously reported here, the proposed rule has come under intense scrutiny for its apparent expansion of CWA jurisdiction. Now, recent reports published by US EPA’s … Continue Reading

US District Court Focuses on Reviewability of Agency Letters and Emails: Determinations to be Case-by-Case

In Puget Soundkeeper Alliance v. EPA, the US District Court for the Western District of Washington held that emails and letters from US EPA staff to the Washington Department of Ecology (Department) describing US EPA staff’s belief that the Department’s fish consumption statistics were not accurate did not rise to the level of a statutory determination that the … Continue Reading

Western Australia State Supreme Court Decision Puts Multiple Mining and Infrastructure Projects At Risk of Being Considered Unlawful

The Western Australia State Government has announced that 25 major mining and infrastructure projects are at risk of being considered unlawful. This announcement follows a State Supreme Court decision which held that a failure to manage conflicts of interest had invalidated the approval process of the Western Australia Environmental Protection Agency (EPA). The Case The … Continue Reading

Congress and State Officials Increase Scrutiny of US EPA “Sue and Settle” Rulemaking

Fed up with USEPA’s “sue and settle” rulemaking tactics, the regulated community’s complaints have resulted in increased scrutiny of the practice by members of Congress and state officials and has even resulted in recent litigation.  Our prior article details the specifics of USEPA’s “sue and settle” rulemaking practices, but in essence, it is where USEPA has been sued (or threatened … Continue Reading
LexBlog