On November 2, voters in New York approved “Proposal 2” and adopted a new section 19 to Article I of the state constitution that reads: “Each person shall have a
Continue Reading The New Environmental Rights Amendment to the New York Constitution

Insights and Commentary on Global Environmental and Energy Issues
On November 2, voters in New York approved “Proposal 2” and adopted a new section 19 to Article I of the state constitution that reads: “Each person shall have a…
Continue Reading The New Environmental Rights Amendment to the New York Constitution
NOTE: The EPA will be hosting a webinar on this topic on Nov. 2 at 2:00 p.m. EST.
On Oct. 18, 2021, United States Environmental Protection Agency (EPA) Administrator…
Continue Reading Potential Impact of EPA’s PFAS Strategic Roadmap on CERCLA Cleanups
Maribel N. Nicholson-Choice, a shareholder in GT’s Environmental Practice, is quoted in an Aug. 3 Law360 article titled “3 Key Enviro Priorities In The Infrastructure Bill.”
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Continue Reading Maribel Nicholson-Choice Quoted in Law360 Article, ‘3 Key Enviro Priorities In The Infrastructure Bill’
Indicating its intention to move forward aggressively to address growing legacy chemical concerns, the U.S. Environmental Protection Agency in February took two steps towards regulating certain per- and polyfluoroalkyl substances…
Continue Reading Biden EPA Moving Forward with National Drinking Water Regulations for PFOA and PFOS
In the wake of the drinking water crises in Flint, Michigan and elsewhere, the U.S. Environmental Protection Agency (EPA) proposed a rule on Oct. 10, 2019, that would impose new…
Continue Reading After Flint, EPA’s New Lead Rule Proposal May Not Satisfy Critics
Contradicting the argument raised by the United States in a recent amicus brief in the U.S. Court of Appeals for the Ninth Circuit, the EPA finalized new guidance on April…
Continue Reading Contradicting the Department of Justice, EPA Changes Stance on Groundwater Discharges
March 22 is World Water Day! In honor of this day, here is a roundup of GT’s recent water-related insights:
Kathleen Kline authored an article in The Legal Intelligencer titled “Recent Opinions Hold Differing Views on Point Source Discharges Into Waters.”
The article explores two recent opinions from the U.S.
Continue Reading Recent Opinions Hold Differing Views on Point Source Discharges Into Waters
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
Following a developing trend around the country, the Massachusetts Department of Agriculture (DAR) recently promulgated regulations restricting how fertilizers containing phosphorous, nitrogen or potassium may be applied. The goal of these regulations is to reduce nutrient loading to waterbodies, which can lead to eutrophication and other negative water quality impacts.
The regulations, promulgated at 330 CMR 31.00, were authorized by Chapter 262 of the Acts of 2012 (An Act Relative to the Regulation of Plant Nutrients). While restricting both, the regulations distinguish between agricultural and non-agricultural uses of fertilizers. For non-agriculture fertilizer uses, fertilizers containing more than 0.67% phosphate by weight (excluding compost and organic fertilizers) are restricted in various ways, including:…
Continue Reading Massachusetts Regulates Fertilizer Use to Reduce Nutrient Water Pollution