The Biden-Harris administration is quickly establishing new federal environment requirements affecting commercial property owners and managers. These requirements, along with changes occasioned by the COVID-19 pandemic, raise a host of
Continue Reading The Top 5 New Environmental Issues for Commercial Property Owners or Managers
Because we were reminded this last year how interconnected it all is, and hopefully, we learned a few things about how to keep it beautiful, bountiful, and healthy.
Read the
Continue Reading Happy Earth Day from Greenberg Traurig’s Environmental Practice
With today being World Oceans Day, the future of our oceans and the effects of sea level rise are on our mind. Greenberg Traurig’s Kerri L. Barsh, co-chair of the
Continue Reading Today is World Oceans Day – Here Are Five Things Business Owners Need to Know About Sea Level Rise
Securing risk-based closure of a contaminated site in Miami-Dade County, known as a “No Further Action with Conditions (NFAC),” typically requires the imposition of institutional controls in the form of
Continue Reading New Risk Based Corrective Action Guidance for Miami-Dade Sites
In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee
Continue Reading Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure
Six Tips on Managing Water Damage, Mold Growth, and Bacterial Threats
As Florida, Georgia, South Carolina, Texas, and other impacted areas begin the journey to recovery after Hurricanes Harvey and
Continue Reading Hurricanes Harvey & Irma: Controlling Water, Mold, Bacterial Fallout
On May 31, 2016, in a unanimous ruling, the United States Supreme Court held that the Army Corps’ determination as to whether “protected waters,” subject to Clean Water Act regulations,
Continue Reading Supreme Court Allows Immediate Challenges to Army Corps’ Clean Water Act Determinations
The Florida Fish & Wildlife Conservation Commission (Florida FWC) is taking comment until January 20, 2016, on changes proposed by the agency on its approach to endangered and threatened species
Continue Reading Public Comment Deadline Nears on Florida’s Imperiled Species Management Plan in Contemplation of April 2016 Vote
In the latest chapter of the ongoing Clean Water Rule saga, the Sixth Circuit Court of Appeals today stayed implementation of that rule. Jointly promulgated by USEPA and the Army Corps of Engineers on June 29, 2015 (80 Fed. Reg. 37,054), the Clean Water Rule went into effect on August 25, 2015. The rule substantially revised earlier rulemakings and guidance regarding the scope of the Clean Water Act’s jurisdiction, but triggered lawsuits and Congressional hearings in doing so.
In the judicial forum, a series of actions were filed in federal district and appeals courts. The Judicial Panel on Multi-District Litigation consolidated these actions before the Sixth Circuit Court of Appeals (In re Environmental Protection Agency and Department of Defense Final Rule, Nos. 15-3799/3822/3853/3887). As consolidated, that matter includes 18 states challenging the rule, as well as numerous intervenors (seven states, the District of Columbia and environmental groups) supporting USEPA and the Army Corps.
The Sixth Circuit’s jurisdiction over the consolidated cases has been challenged, but pending resolution of that dispute, the Court granted a motion to stay implementation of the Clean Water Rule. Unlike an earlier decision from the federal district court in North Dakota that stayed implementation of the Clean Water Rule in 13 states, this stay applies nationwide.
In addition to the practical implications of this ruling (discussed below), the grounds for the decision are important, as they provide an indication of how the merits of the pending challenges may be evaluated. The Court concluded that these challenges had a “substantial possibility of success on the merits,” in particular citing two claims: (i) that the final rule varied so substantially from the draft published for public comment that it violated the Administrative Procedures Act, and (ii) that the distance-based jurisdictional limitations lacked any scientific basis. While the Court agreed “the clarification that the new Rule strives to achieve is long overdue,” it concluded “a stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.” The Court split 2-1, with the dissent contending that the Court should not grant the stay without first determining if it had jurisdiction over the case.
As a practical matter, this ruling answers some questions and raises yet others. While implementation of the Clean Water Rule had already been stayed in 13 states, the rule’s implementation is now halted in all states. The decision states that the stay preserves the pre-Clean Water Rule “status quo,” presumably meaning that the regulations and guidance in effect before the Clean Water Act became effective should again be consulted to determine Clean Water Act jurisdiction.
Continue Reading Sixth Circuit Court of Appeals Temporarily Stays Implementation of the Clean Water Rule
The Clean Water Rule, recently promulgated by the United States Environmental Protection Agency (USEPA) and the United States Army Corps of Engineers (Corps), continues to generate controversy, confusion and regulatory
Continue Reading Clean Water Rule: Confusion Rains Down