The Focus On Environmental Justice

Although the concept of environmental justice has been around for decades, it has never been more pervasive. Since the advent of the Biden Administration, EPA has infused environmental justice principles into all its activities. It has also invigorated and encouraged citizen groups to file complaints alleging environmental justice issues.

Since January 2021, EPA has issued multiple pronouncements related to environmental issues in permitting, compliance, and remediation matters. For example, in August 2022, EPA released guidance entitled Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions. In it, and for the first time, EPA suggested that a “permit denial may be the only way to avoid a Title VI violation” if there are no mitigation measures an agency can take to address disparate impacts. 

Continue reading The Focus On Environmental Justice

SCOTUS Levels the Playing Field

The Supreme Court’s decision in Corps of Engineers v. Hawkes provides a welcome and much-needed avenue for review of approved jurisdictional determinations (JD) issued by the Corps of Engineers. Hopefully, the decision will inhibit the Corps from unfounded or tenuous assertions of jurisdiction over wetlands and other waters of the United States. Continue reading “SCOTUS Levels the Playing Field”


The Supreme Court recently issued a stay of the Clean Power Plan, the Obama Administration’s signature regulation addressing greenhouse gas (GHG) emissions from existing power plants.

The Clean Power Plan (CPP) imposed the first-ever national standards to limit carbon dioxide (CO2) emissions from existing power plants. The CPP relies on Clean Air Act (CAA) Section 111(d) and established interim and final CO2 emission performance rates for fossil fuel-fired (mainly coal or oil) electric generating units. States are required to develop and implement plans to ensure that power plants achieve the interim CO2 emissions performance rates over the period of 2022 to 2029 and the final CO2 emission performance rates by 2030. The initial state plan was due on September 6, 2016 with final, complete state plans submitted no later than September 6, 2018. Continue reading “The CPP Meets SCOTUS”

An Exploration of EPA’s Cost-Benefit And Regulatory Impact Analyses

Environmental regulation has become pervasive over the last several decades. Great strides have been made, leading to visible and tangible reductions in emissions and discharges and ultimately cleaner air and water. In recent years, though, emission reductions have become more difficult to obtain and more costly on a per ton basis, leading many to believe that the installation of additional controls or the imposition of additional regulatory requirements will achieve only incremental reductions in emissions and discharges. As such, their costs cannot be justified when balanced against an ever decreasing amount of benefits. Continue reading “An Exploration of EPA’s Cost-Benefit And Regulatory Impact Analyses”

The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 2

Rulemakings Following Massachusetts

After Massachusetts, EPA embarked on the process of grounding its reasons for action in the statute, as directed by the Supreme Court. In July, 2008, EPA published an Advanced Notice of Proposed Rulemaking (ANPR) in which it solicited comments on “a wide variety of issues regarding the potential regulation of greenhouse gases under the CAA.” [60] Interestingly, the “ANPR also contained a summary of much of the work EPA had done in 2007 regarding draft greenhouse gas emission standards for light duty vehicles and trucks under section 202(a) of the Act.” [61] The fact that work was done in 2007 on such standards seems to imply that, at least informally, a ‘judgment’ under Section 202 had already been made. Continue reading “The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 2”

The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 1

This article will endeavor to explain the regulation of greenhouse gases under the Clean Air Act, focusing on and explaining the provisions of the Clean Air Act relied on by the Environmental Protection Agency to justify or support that regulation. The article will examine the CAA’s applicable definitions and provisions, the Supreme Court’s interpretation of those provisions in the seminal case of Massachusetts v. EPA, the various findings and rules published in the wake of Massachusetts v. EPA, the recent case law interpreting the validity of these findings and rules, the major rules regulating greenhouse gases which have been issued or proposed by the Environmental Protection Agency, and the likely future of greenhouse gases regulation. Continue reading “The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 1”

Supreme Court Rules on Major Greenhouse Gas Regulation

The Supreme Court rejected EPA’s approach to regulating greenhouse gases (GHGs) for smaller sources. At the same time, though, it gave EPA what it really wanted – the authority to regulate the GHGs emitted by sources already deemed “major.” Continue reading “Supreme Court Rules on Major Greenhouse Gas Regulation”

The Expansion of the ‘Unconstitutional Conditions’ Doctrine In Land Use Regulation

The United States Supreme Court extended important protections to landowners faced with ‘unconstitutional conditions’ imposed on them by the government in the context of land-use regulations. Koontz v. St. Johns River Water Management District, — U.S. —, 133 S.Ct. 2586 (2013).

Mr. Koontz owns 14.9 acres of land in Florida, most of which contains wetlands. He proposed to develop a 3.7 acre portion of it and deed a conservation easement to the St. Johns River Water Management District (District) on the remaining acres (about 11 acres) to mitigate the environmental effect of the development. The District, however, considered the 11 acre easement to be inadequate and told Mr. Koontz that it would approve the development only if he agreed to one of two concessions. He could reduce the size of his development to 1 acre and grant an easement over the remaining 13.9 acres. Or, in the alternative, he could proceed as originally proposed (build on the 3.7 acres while deeding an easement over the remaining acres) only if he also agreed to make improvements on District-owned land several miles away. Mr. Koontz believed that these alternatives were excessive in light of the environmental effects of his proposal and refused. The District denied his permit. Thereafter, Mr. Koontz filed suit under a Florida state law allowing landowners monetary damages for an agency’s unreasonable exercise of the state’s police power which constitute a taking without just compensation. Continue reading “The Expansion of the ‘Unconstitutional Conditions’ Doctrine In Land Use Regulation”

EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants

In a recent appellate court decision that is sure to create a great deal of uncertainty and hamper development efforts, the Court of Appeal for the D.C. Circuit approved EPA’s authority to veto permits issued by Army Corps of Engineers (Corps) well after they are issued. In fact, based on this ruling, these may do this ‘whenever’ they want. Mingo Logan Coal Company, Inc. v. EPA, No. 12-5150, April 23, 2013.

The Clean Water Act (CWA), Section 404(a), authorizes the Corps to issue permits for the discharge of fill material into waters of the United States at specified disposal sites. This authority, however, is subject to the CWA Section 404(c), which provides authority to EPA’s Administrator “to prohibit the specification (including the withdrawal of specification) of any” disposal site “whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect.” It is the timing of EPA’s actions (‘whenever he determines’) that will create problems. Continue reading “EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants”

The Sackett Decision —A Major Victory for Property Owners

The Environmental Protection Agency (EPA) has acknowledged the precedential effect of the landmark Sackett case and wisely decided to expand the decision’s reach beyond the Clean Water Act to a designated group of actions similar to the one at issue in that case. For many, though, the expansion does not go far enough.

In Sackett v. EPA, 132 S.Ct. 1367 (2012), the United States Supreme Court provided a major victory to landowners seeking pre-enforcement review of compliance orders issued under the Clean Water Act. The Supreme Court decision in Sackett changed the entire review framework.

The Sacketts placed dirt and rock on about a half-acre of their property, which the EPA claimed contained wetlands. EPA sent a compliance order to the Sacketts, requiring the Sacketts to, among other things, immediately undertake activities to restore the lot in accordance with an EPA-created Restoration Work Plan and to provide EPA access to the lot and to all records and documentation related to the conditions at the lot. EPA warned the Sacketts that a failure to comply could result in penalties of $37,500 per day, plus a like amount for a failure to comply with the compliance order.

Prior to this decision, the Sacketts would not have an opportunity to contest this order in court unless and until EPA sought to enforce it judicially or sought penalties for the underlying violation. The Supreme Court made clear that judicial review was available under the Administrative Procedure Act (APA) because the compliance order was a “final agency action for which there is no other adequate remedy in a court.” 5 USCA §704. Based on the Supreme Court’s review of the compliance order and APA, the compliance order was deemed a ‘final agency action for which there is no other adequate remedy in a court.’ As a result, the Sacketts were allowed to seek judicial review of the compliance order under the APA.

The EPA has now extended the logic of the Sackett ruling to other ‘final agency actions’ under different statutes. Bowing to reality and saving litigants countless legal battles, EPA issued a memorandum, dated March 21, 2013, in which it advised its regional offices that ‘administrative enforcement orders’ contain language notifying the recipient that judicial review of the order is available. Specifically included in the scope of the new policy are:

  • FIFRA, Section 13: Stop Sale, Use, or Removal Orders
  • CAA, Sections 113(a)(5) and 167: Stop Work Orders
  • CAA, Section 113(a): Administrative Compliance Orders
  • SDWA, Section 1414: Administrative Compliance Orders
  • SDWA, Section 1431: Emergency Compliance Orders
  • EPCRA, Section 325(a): Administrative Compliance Orders
  • RCRA, Sections 3008(a) and 9006(a): Administrative Compliance Orders
  • RCRA, Section 3008(h): Interim Status Corrective Action Orders
  • RCRA, Section 9003(h): Corrective Action Orders

However, there are several very important regulatory decisions that are not included. First, jurisdictional determinations issued by the EPA or the Army Corps of Engineers are not included. In Belle Co., LLC v. U.S. Army Corps of Engineers, a Louisiana district court ruled that Sackett does not extend to such determinations, but the decision is under appeal to the U.S. Court of Appeals for the 5th Circuit. Second, notices of violation (NOVs) under the Clean Air Act were excluded probably because an NOV does not order or compel any type of action. Third, imminent and substantial endangerment orders issued under RCRA Section 7003 are not included. Finally, orders under CERCLA are specifically excluded from judicial review. 42 USCA 9613(h).

Despite the exceptions, acknowledging judicial review of agency decisions is a step in the right direction for those who receive such an order. Ironically, though, it may also mean that any such order will be able to withstand judicial review. As the EPA will know that it may be challenged, it is most likely to ensure that the facts and evidence are available in the record to support the order.