Last month, EPA issued interim health advisories for PFOA and PFOS that took many people’s breath away. It is rather amazing how quickly we’ve moved from parts per billion past parts per trillion to the low parts per quadrillion range. 
At the same time, EPA issued a final health advisory for GenX compounds, setting the level at 10 parts per trillion. … 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
In 2016, DOI Secretarial Order 3338 imposed a moratorium on new coal leases on federal land 
until BLM prepared a programmatic environmental impact statement intended to address, among other issues, the impact of coal leasing on climate change.
Times do change. In 2018, DOI Secretarial Order 3348 eliminated the moratorium and the requirement to prepare a PEIS. Litigation ensued.
Last week,… More
Earlier this week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017. The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, 
pending EPA’s reconsideration of certain aspects of the Obama-era rule.… More
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” 
are final agency action subject to judicial review under the APA. As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions. Indeed, Chief Justice Roberts noted that the Court’s decision:
Tracks the ‘pragmatic’ approach we have long taken to finality.… More
According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are final agency subject to judicial review. The reach of Sackett expands a bit more.
As we noted after the 8th Circuit decision in Hawkes,… More
Early last month, we noted that the decision in Luminant v. EPA suggested that the reach of the Supreme Court decision in Sackett is not unlimited. The Court of Appeals for the 5th Circuit agrees. In Belle Company v. Corps of Engineers, the Court ruled that a Corps Jurisdictional Determination, or JD, is not final agency action subject to judicial review.… More