Category Archives: Federal Regulation

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Rolling Back Environmental Rollbacks in the New Administration

In 2016, the incoming Trump Administration stated its intention to reduce substantially federal environmental regulation. The president issued executive orders requiring two rule repeals for each new rule and directing the reorganization of the U.S. Environmental Protection Agency (EPA). He also carried through on promises to announce the country’s withdrawal from the Paris Climate Accords … Continue Reading

New Lawsuit Challenges DOJ Policy Prohibiting SEPs

The ongoing battle over Supplemental Environmental Projects (SEPs) – environmentally-beneficial, beyond-compliance projects that defendants agree to undertake for potential penalty mitigation in settlement of environmental enforcement actions – heated up last week when an environmental group sued the attorney general and others for violating the Administrative Procedure Act (APA) in issuing a legal memorandum effectively … Continue Reading

New Jersey’s Environmental Justice Legislation: The Focus on Major Source Permit Applications Might Impact Property Values

Last month, I wrote about the “Environmental Justice for All Act,” a bill that proposes a finding that vulnerable populations are disproportionately burdened by environmental hazards. New Jersey is following the federal environmental justice debate, passing historical environmental justice legislation in both the House and Senate, where it is currently awaiting Governor Phil Murphy’s approval. … Continue Reading

‘Environmental Justice for All Act’ Introduced in U.S. Senate

On July 30, Sens. Cory Booker (D-NJ), Kamala Harris (D-CA), and Tammy Duckworth (D-IL) unveiled the “The Environmental Justice for All Act.” The bill proposes a finding that communities of color, low-income communities, tribal communities, and other vulnerable populations, such as children, elderly, and persons with disabilities, are disproportionately burdened by environmental hazards. The premise … Continue Reading

A Tale of Two Environmental Policies: President Trump Announces NEPA Reform, as Former Vice President Biden Vows to Roll Back Reforms If Elected

On July 15, 2020, President Trump’s administration finalized a significant overhaul of the regulations governing the administration of the National Environmental Policy Act (NEPA). In January 2020, when the regulatory overhaul was announced, we observed that rolling back 50 years of precedent in an administrative action could trigger judicial challenges to the rule and result … Continue Reading

Trump Administration Proposes Significant Streamlining of National Environmental Policy Act

On Jan. 9, 2020, the Trump administration’s Council on Environmental Quality (CEQ) proposed rules that would update comprehensively the regulations promulgated under the National Environmental Policy Act (NEPA) for the first time in 40 years. After 40 years there is little question that the regulations could use updating and that environmental reviews can be streamlined. … Continue Reading

Congress Takes Initial Steps to Address PFAS in the National Defense Authorization Act Conference Report

On Dec. 11, the House of Representatives passed S. 1790, the National Defense Authorization Act (NDAA) conference report. The Senate followed suit on Dec. 17, bringing an end to protracted negotiations on this annual must-pass legislation. In one of their final acts, conferees agreed to provisions addressing per- and polyfluoroalkyl substances (PFAS). Two major provisions … Continue Reading

FERC Launches Comprehensive PURPA Overhaul

On Sept. 19, 2019, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) to modernize the Public Utility Regulatory Policies Act of 1978 (PURPA), to address market changes in the energy landscape over recent decades. Comments are due 60 days from publication in the Federal Register. PURPA was enacted in 1978 … Continue Reading

Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains

On Sept. 12, 2019, the U.S. Environmental Protection Agency and the Department of the Army followed through on an early Trump administration promise to repeal a 2015 jurisdictional rule defining the scope of the government’s authority under the Clean Water Act. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (pre-publication version). Dubbed … Continue Reading

PFAS Solution Moving Through Congress on Must-Pass Defense Bill

PFAS (perfluoroalkyl and polyfluoroalkyl substances) have been under scrutiny on both sides of the Capitol in recent months, and the Senate made significant headway in late June in reaching consensus on PFAS legislation. Following two hearings in the Senate Environment and Public Works (EPW) Committee this spring, a package was unveiled and quickly considered in … Continue Reading

Congress Is Gearing Up to Address PFAS

Lawmakers in Congress have their sights set on increased regulation of PFAS (per- and polyfluoroalkyl substances). What are PFAS? PFAS are a class of widely used chemicals, some of which have been common since the 1940s. They are used in non-stick coatings, stain- and water-repellant fabrics, firefighting foam, and many other applications. Over the past … Continue Reading

Can a State Provide Oversight Under a Federal CERCLA Order or Decree?

Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A). Section 400(h) provides: (h) Oversight. The … Continue Reading

Environmental Aspects of the United States-Mexico-Canada Commercial Agreement (USMCA)

The recent United States-Mexico-Canada Agreement (USMCA), which replaces the North American Free Trade Agreement (NAFTA), claims to modernize and reinforce obligations regarding environmental matters that were previously covered in NAFTA and by the Commission for Environmental Cooperation (CEC). This GT Alert summarizes some of the most important environmental aspects established by Chapter 24 of the … Continue Reading

It’s the Law: Don’t Sell Your Homebrew!

Homebrewing and drinking craft beer are both widely popular. Currently, there are more than 6,000 craft breweries in the U.S., and over 2,000 homebrew clubs. As brewing for fun and profit has become more widespread, the applicable legal framework has also developed – and compliance is just as important for hobbyists as for professionals. At … Continue Reading

Court of Appeals Throws Lifeline to Major D.C.-Area Infrastructure Project

A unanimous panel of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) threw the Washington, D.C. area’s beleaguered “Purple Line” light rail project a lifeline earlier this week when it overturned a district court ruling that would have required the Federal Transportation Administration (FTA) to prepare a Supplemental Environmental … Continue Reading

Federal Environmental Deregulation and Pennsylvania Operations

On Oct. 16, the Environmental Protection Agency published its proposal to repeal the carbon pollution emission guidelines for existing electric power plants, the centerpiece of the Clean Power Plan, 82 Fed. Reg. 48,035. That action serves as a reminder that the current national administration takes seriously its promise to deregulate business under the environmental laws. … Continue Reading

The Death of Public Citizen in Pipeline NEPA Analyses: Was it Ever Alive?

Last week we examined the Sierra Club v. Federal Energy Regulatory Commission decision from the D.C. Circuit holding that natural gas pipeline NEPA review must consider greenhouse gas emissions impacts from power plants served by the proposed pipeline. This week, we review the decision and its impact on pipeline projects: In August, the U.S. Court … Continue Reading

New York State Proposes Revisions to Its Environmental Review Regulations

Late last month the New York State Department of Environmental Conservation (DEC) proposed to revise its Part 617 regulations, which are the rules governing the conduct of environmental impact review under New York’s “Little NEPA,” known as the State Environmental Quality Review Act (SEQRA). The proposal was officially noticed in today’s issue of the New … Continue Reading

FAST Act Implementation Progress: An Important Tool for Expediting Energy Projects for the Incoming Trump Administration?

FAST Act Implementation Progress: An Important Tool for Expediting Energy Projects for the Incoming Trump Administration? On Dec. 4, 2015, President Obama signed the Fixing America’s Surface Transportation Act, also known as the “FAST Act,” which sought to expedite the NEPA environmental review process for major infrastructure projects. One year later, rulemaking and guidance from … Continue Reading

EPA Seeks to Impose Financial Responsibility Requirements on Hardrock Mine Operators

On Dec. 1, the Environmental Protection Agency (EPA) administrator signed a proposed rule, “Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry,” which would impose new financial responsibility requirements for current owners and operators of hardrock mines, including numerous metal mines in the western United States. Federal Register … Continue Reading

Buckle Up for a Wild Ride: Environmental Policy in the Trump Administration

Millions of Americans are coming to grips with the broad social and political ramifications of Donald Trump’s stunning upset victory in last Tuesday’s presidential election. And while the president-elect’s policy pronouncements to date have been short on detail, one thing is clear: those concerned with environmental protection and climate change had better buckle up for … Continue Reading

CEQ Issues Measured Final Guidance for Federal Agencies in their Consideration of GHG Emissions in NEPA Reviews

On Aug. 1, 2016, the Council on Environmental Quality (CEQ) issued its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act (NEPA) Reviews. CEQ issued the guidance in an endeavor “to provide greater clarity and more consistency in how agencies … Continue Reading

Supreme Court Allows Immediate Challenges to Army Corps’ Clean Water Act Determinations

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, are present on a property is subject to judicial review. See United States Army Corps of Engineers v. Hawkes Co., Inc. No. 15-290 (U.S. May … Continue Reading

Congress Adopts “FAST Act,” Seeking Expedited NEPA Review For Major Infrastructure Projects

Review under the National Environmental Policy Act (“NEPA”) can be one of the most costly and time consuming components of any federal project or action.  Often, the hurdle of NEPA can be so substantial that necessary projects fall by the wayside.  Recognizing the tremendous burden environmental review can create, President Obama signed into law the … Continue Reading
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