Monthly Archives: February 2018

Three Weeks; Three Decisions Rejecting Regulatory Delays

The Trump administration.  The gift that keeps on giving to bloggers.  After posting last week about the order requiring DOE to send its energy efficiency standards to the Federal Register for publication, I noted that that regulatory delay cases were going to have to become a regular feature in this space.  Lo and behold, on the same date, Judge Jeff White rejected EPA’s “Delay Rule” that would have postponed compliance deadlines under the Formaldehyde Act.  … More

The Clean Air Act is Really Complicated; Can’t We Call the Whole Thing Off?

Last week, the Court of Appeals for the District of Columbia struck down EPA’s rule implementing the 2008 ozone standards.  My primary take-away?  The structure of the Clean Air Act is so dense and so complicated that it gives me a headache, and I do like to think I’m something of an expert.  Those of us who believe in government regulation need to be honest and admit that there’s a reason why some people become Libertarians.  … More

The “Best Available Science” Is That the Arctic Ringed Seal Is Threatened

Earlier this week, the 9th Circuit Court of Appeals reversed a District Court decision and reinstated the National Marine Fisheries Service’s decision to list the Arctic ringed seal as threatened under the Endangered Species Act.  The decision was not a surprise, because the 9th Circuit had already affirmed NMFS’s decision to list the bearded seal on identical grounds.

What caught my eye was this language in the opinion – actually a quote from the bearded seal decision.… More

More Guidance on Guidance: DOJ Will Not Enforce “Improper” Agency Guidance Documents

In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.

Now, DOJ has taken the prohibition a step further.  It will no longer rely on guidance issued by other agencies when taking civil enforcement action.  The memorandum has made the regulated community and the NGO community sit up and take notice.

I am sympathetic to the concerns raised in the Sessions memo. … More

NGOs Again Fail to Establish that EPA Has a Non-Discretionary Duty Under the CWA Stormwater Regulations

Last month, the 1st Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA had a non-discretionary duty to require persons owner property where stormwater runoff contributes to an exceedance of a TMDL to obtain NPDES permits.  Now, Judge George Russell has ruled that EPA does not have non-discretionary duty under the Clean Water Act to determine whether commercial, institutional, and industrial users contribute to a violation of water quality criteria in the Back River watershed. … More

Statutory Deadlines Matter — EPA Gets Taken to the Woodshed

Earlier this week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, asserting that emissions from the Brunner Island Steam Electric Station in Pennsylvania contribute to nonattainment in Connecticut.  EPA did not dispute liability; it had clearly missed the original statutory deadline.  The case was all about the remedy.  EPA asked to be given until December 31,… More

The 9th Circuit Weighs In — Discharges to Groundwater Are Subject to the Clean Water Act

As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute.  Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater. … More