Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis. The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened. As a card-carrying member of the regulated community, I am prone to teeth-gnashing as well. And I agree with my friend Jeff Porter,… More
Category Archives: Administrative Procedure Act
Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act. EPA had requested remand, and made clear that it disagreed with the amendments promulgated in 2020, but it opposed vacatur.
Whatever one’s view of the merits of the 2020 rule, from the court’s perspective, faced with EPA’s current statements indicating substantial disagreement with significant elements of the 2020 rule,… More
Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits. The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.
May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?” Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?” If not,… More
On August 3, the District of Columbia Court of Appeals held that FERC could not avoid use of the social cost of carbon in assessing the impacts of natural gas projects by arguing that “there is no universally accepted methodology.” Given the growing recognition of the significant role FERC is going to have in combatting climate change, it’s an important decision.
FERC acknowledged that construction and operation of the projects under review would “contribute incrementally to future climate change impacts.” However,… More