On January 22, 2018, the United States Supreme Court issued its unanimous ruling in National Association of Manufacturers v. the Department of Defense, et al., No. 16-299. The decision resolves the issue of the proper court for judicial review of the Clean Water Rule (Rule) issued by the Environmental Protection Agency (EPA) and the Corps of Engineers (Corps).
This article will provide some background about the Rule and legal challenges, information about the Supreme Court’s ruling, and highlight some of the uncertainties created in the wake of the decision. Continue reading “Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails”
Since the beginning of the Trump administration, many of the rules issued by the Obama administration, such as the Clean Power Plan and the Clean Water Rule, have been targeted for review. Scott Pruitt and EPA have been in roll-back and repeal mode. However, with the newly announced Smart Sectors Program, EPA seems to be taking a positive approach to dealing with industry and the regulated community instead of merely dealing with previously issued rules. Continue reading “EPA Unveils Framework For Industry Input on Regulations”
The EPA continues to implement the de-regulatory agenda of President Trump. One rule that is now being reviewed for repeal and revision is the Clean Water Rule. Many felt that the Rule went well beyond the scope of the Clean Water Act and regulated private property that had not been previously subject to regulation. As a result, they support EPA’s and the Corps’ current efforts to repeal the Rule and revise it to a more traditional view of the Clean Water Act’s jurisdictional reach. Continue reading “The Clean Water Rule Gets A Well-Needed Review”
President Trump has signaled a desire to reduce the burden caused by environmental regulations. An executive order issued Jan. 30 requires that two rules be identified for repeal for every new rule proposed. He issued another executive order Feb. 24 announcing that it is the official policy of the U.S. to alleviate unnecessary regulatory burdens. At the same time, though, the president has stated he wants to reinvigorate the manufacturing and oil and gas development sectors, while also shortening the environmental review process for major infrastructure projects. Continue reading “Will EPA achieve its core mission?”
President Trump and his staff have taken several steps to implement his environmental agenda.
As reported previously (see Freeze on Regulations), Mr. Trump’s Chief of Staff, Reince Priebus, on January 20, 2017, issued a Memorandum requiring, among other things, that all federal agencies postpone the effective date of all regulations published in the Federal Register but not yet effective as of January 20, 2017. EPA, on January 23, 2017, complied, postponing the effective date of thirty rules until March 21, 2017. See 82 Fed. Reg. 8499 (Jan. 26, 2017). The thirty regulations include the:
- Risk Management Program revisions (previously effective on March 14, 2017),
- Renewable Fuel Standards for 2017 (previously effective on February 10, 2017), and
- Addition of a subsurface intrusion component to the hazard ranking system (previously effective on February 8, 2017).
Continue reading “ALERT: The Trump Administration’s First Week”
Over the objections of multiple national, state, and local groups, the EPA and the Corps of Engineers have published their final rule regarding the definition of ‘waters of the United States.’ Although they claim that the new definition merely ‘clarifies’ their existing jurisdiction, it actually expands their regulatory authority to waters and wetlands to an extent not contemplated when the Clean Water Act (CWA) was originally passed. The scope of jurisdiction is critically important because a costly and time-consuming permit is required to place materials in wetlands or other waters deemed jurisdictional. Continue reading “EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands”
In Belle Company v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014) [http://www.ca5.uscourts.gov/opinions/pub/13/13-30262-CV0.pdf], the Fifth Circuit distinguished the jurisdictional determination (JD) issued to Belle from the compliance order issued to the Sacketts and declined to extend “final agency action” status to a JD issued by the Corps. In Sackett v. EPA, 132 S. Ct. 1367 (2012) [http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf], the Supreme Court ruled that a compliance order issued by the EPA was a final agency action and thus subject to judicial review under the Administrative Procedure Act (APA). Continue reading “The Fifth Circuit Declines to Extend Sackett to Jurisdictional Determinations”