Archives: Administrative Procedures Act

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US District Courts Start Applying Kisor v. Wilkie; Is Auer Deference Now a “Paper Tiger”?

As we’ve covered extensively on this blog, the administrative state responsible for implementing environmental, health, and safety policy in the United States is in flux. A few months ago in Kisor v. Wilkie the US Supreme Court upheld but significantly narrowed Auer deference. Auer instructs that courts must defer to an agency’s construction of its … Continue Reading

Is the U.S. Endangered Species Act Itself Now Threatened or Endangered?

On August 12, 2019, the U.S. Department of the Interior (DOI) unveiled three final rulemakings that will have a significant impact on the future implementation of certain portions of the Endangered Species Act (ESA). According to DOI, the new regulations are “designed to increase transparency and effectiveness and bring the administration of the [ESA] into the … Continue Reading

DC Circuit Upholds US EPA Decision Not to Issue New Financial Assurance Requirements for the Hardrock Mining Industry

On July 19, 2019, the D.C. Circuit issued its decision in Idaho Conservation League v. Wheeler, upholding US EPA’s decision not to issue financial responsibility requirements for the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The requirements, if adopted, would have cost the hardrock mining industry … Continue Reading

US Supreme Court Affirms Tweaked Auer Deference, But Is It Now a “Paper Tiger”?

In our prior coverage of Kisor v. Wilkie, we predicted that the Court would impose “greater scrutiny” on “administrative agencies’ . . . interpretation of their regulations.”  And the Court did.  The Court’s decision will affect every aspect of the federal government’s regulation of environmental, safety, and health. At the end of its term, the … Continue Reading

Keystone XL Pipeline Litigation Takes a Turn on Heels of President Trump’s New Presidential Permit

The Keystone XL Pipeline is back in the spotlight. In the first quarter of 2019, the U.S. District Court for the District of Montana and the U.S. Court of Appeals for the Ninth Circuit upheld the injunction prohibiting TransCanada Keystone Pipeline, LP and TransCanada Corporation (TransCanada) from beginning construction on the Keystone XL Pipeline. On … Continue Reading

Four Things to Know About US EPA’s Draft WOTUS Rule

On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act.  The proposed rule is the second step in a two-part process … Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

Often called the fourth branch of government, administrative agencies implement the labyrinth of federal regulations governing people and companies in the United States. Administrative agencies play a particularly important role in regulating environmental, health, and safety in the United States. Those administrative agencies may soon face greater scrutiny from federal courts in their interpretation of their own … Continue Reading

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due … Continue Reading

US Court of Appeals for Ninth Circuit Orders Ban on Chlorpyrifos

In a 2-1 opinion this August, the Ninth Circuit Court of Appeals instructed US EPA to revoke all tolerances and cancel all registrations for chlorpyrifos, one of the most widely used conventional insecticides in the United States.  If left in place, this ruling will effectively ban domestic use of the popular pesticide, though the Ninth Circuit … Continue Reading

US Agencies Propose Sweeping Changes to Endangered Species Act Implementing Regulations

The US Fish and Wildlife Service (FWS) and the National Oceanic Atmospheric Administration (NOAA) Fisheries, two federal agencies charged with administering the Endangered Species Act (ESA or Act), recently announced major revisions to the regulations implementing the Act. The proposed rules were published in the Federal Register on July 25, 2018 and have already garnered … Continue Reading

White House Seeks Guidance on Environmental Review Standards

Government agencies may soon use a different framework for evaluating the environmental impact of their decisions. The Council on Environmental Quality (CEQ), the executive agency tasked with ensuring that federal agencies meet their obligations under the National Environmental Policy Act (NEPA), published a notice on June 20, 2018 seeking input from the public about changes to the … Continue Reading

US EPA Releases Problem Formulation Documents for “First Ten” TSCA Risk Evaluations

The United States Environmental Protection Agency (US EPA) has formally released “problem formulation” documents for the risk evaluations it is conducting on the “first ten” chemical substances under the amended Toxic Substances Control Act (TSCA).  Formal notice of the problem formulation documents was published in the Federal Register on June 11, 2018.  Comments on the … Continue Reading

Groups Request Comment Period Extension on US EPA’s Proposed Rule Banning the Use of “Secret Science”

US EPA announced on April 24, 2018 that EPA Administrator, Scott Pruitt, had signed a proposed rule to strengthen the science used in regulations issued by US EPA. The proposed rule, “Strengthening Transparency in Regulatory Science,” was published on April 30, 2018 and would require that – where scientific studies are pivotal to US EPA’s regulatory action … Continue Reading

US Supreme Court Declines to Reconsider Key Agency Deference Standard

On March 19, 2018, the US Supreme Court denied a petition for writ of certiorari in Garco Construction, Inc. v. Speer.  In doing so, the Court declined an opportunity to revisit an important and controversial administrative deference standard, known as Auer or Seminole Rock deference, which requires courts to give “controlling weight” to an agency’s interpretation … Continue Reading

D.C. Circuit Holds US EPA Cannot Stay Implementation of Methane Rule Issued by Obama Administration

On July 3, 2017, the US Court of Appeals for the D.C. Circuit vacated US EPA’s decision to stay implementation of portions of a final rule concerning methane and other greenhouse gases.  In Clean Air Council v. Pruitt, a three-judge panel held that US EPA lacked authority under the Clean Air Act to stay the … Continue Reading

State Attorneys General Join Fight Over “1-in 2-out” Trump Executive Order

Attorneys General from 14 states—led by West Virginia and Wisconsin—filed an amicus brief on April 17 in support of the “1-in 2-out” Executive Order (EO) issued by President Trump.  This EO, which we have covered previously, requires that: For every new regulation promulgated, two regulations are eliminated; Any new incremental costs associated with new regulations … Continue Reading

Are Changes on the Horizon to the Deference Historically Afforded to US Administrative Agencies?

As we have previously discussed on this blog, a cornerstone of US administrative law, Chevron deference, is in flux.  That fluctuation and its eventual resolution will impact US businesses, including in the promulgation of critical environmental regulations.  Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, Inc. … Continue Reading

US Congress Considers Law That Would Overturn Chevron Deference

Earlier this year, Senate and House Republicans introduced the “Separation of Powers Restoration Act of 2016.”  On July 12, 2016, the House passed the bill by a vote of 240-171, largely along party lines. The legislation would fundamentally alter a cornerstone of administrative law: Chevron deference.  Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, … 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
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