On April 3^rd, the U.S. District Court of Colorado vacated the U.S. Army Corps of Engineers’ (“USACE”) Record of Decision, Final Environmental Impact Statement, and approval of a dredge-and-fill permit for Denver Water’s expansion project of the Gross Dam and Reservoir in Colorado and remanded the matter back to the agency.  The Court temporarily enjoined Denver Water from continuing construction on the dam pending a hearing on what is “reasonable and necessary” to ensure that the dam will be structurally safe and issued a permanent injunction prohibiting the enlargement of the Gross Reservoir. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Agency Action, Army Corps, Clean Water Act, Climate Change, Colorado, Injunction, NEPA, Permits, Water

This entry was authored by MGKF Summer Associate Karina Zakarian

On June 28, 2024, the United States Supreme Court overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council to the extent that the earlier decision had instructed federal courts to defer to agencies’ reasonable interpretations of ambiguous statutes. See Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024). The decision stems from a challenge to the Magnuson-Stevens Act by several fishery businesses, but the sole issue before the Court was whether Chevron should be overturned. In a divisive 6-3 decision, the Court’s conservative majority held in the affirmative, entombing Chevron deference based upon the Court’s interpretation of the Administrative Procedure Act (“APA”). As a result, federal agencies like the Environmental Protection Agency (“EPA”) are now deprived of a doctrine they had long relied upon to defend their regulatory agendas. Read More »

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In a 5-4 decision, a divided Supreme Court stayed the enforcement of the Environmental Protection Agency’s (“EPA”) Federal Implementation Plan (“FIP”) holding that the emission control measures set to be used in upwind states to improve ozone levels in downwind states was arbitrary and capricious. Ohio et al. v. Env’t Prot. Agency, No. 23A349, No. 23A350, No. 23A351, No. 23A384, 2024 WL 3187768 at *11 (S. Ct. June 27, 2024). The Court reasoned that EPA’s FIP rested on the assumption that all upwind states would adopt emission-reduction measures to ensure effective downwind air quality improvements. EPA, however, failed to reasonably explain if the FIP would be operable if some upwind states fell out of the plan. In the short term, the stay provides temporary relief to industry groups and states that challenged various aspects of the FIP in the D.C. Circuit; in the long term, the Court’s ruling spells trouble for the FIP’s efficacy if and when federal courts rule on the merits of the rule’s legality.      Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Air Act, United States Supreme Court

The Eleventh Circuit recently addressed the standing requirements for a procedural-rights claim, in this case one arising from an agency’s alleged failure to comply with the National Environmental Policy Act (“NEPA”).  In a split 2-1 decision in Center for a Sustainable Coast v. U.S. Army Corps of Engineers, the court held that standing to challenge an agency’s alleged violation of NEPA does not require a showing that a procedural do-over would necessarily redress a substantive injury. No. 22-11079, 2024 WL 1918733 (11^th Cir. May 2, 2024). Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, NEPA, Permits, Standing

In State of Louisiana et al. v. U.S. Envt’l Prot. Agency et al., 2:23-CV-01714, 2024 WL 994651 (W.D. La. Mar. 7, 2024), a federal judge rejected certain states’ and industry groups’ motion for preliminary relief to enjoin the EPA’s revised Clean Water Act (“CWA”) rule (“2023 Rule”). The 2023 Rule reinstated EPA’s long-held interpretation of Section 401 of the CWA that afforded states and tribes broad authority to veto or impose conditions on federally permitted activities due to water quality concerns. The court’s decision is a blow to efforts instituted by EPA under the Trump administration to interpret the authority of states and tribes more narrowly under Section 401. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Retroactive, Water Pollution Control Act

In State of Utah v. Walsh, 2:23-CV-016-Z, 2023 WL 6205926 (N.D. Tex. Sep. 21, 2023), twenty-six states and a number of private parties (“plaintiffs”) sought to overturn the United States Department of Labor’s (“DOL’s”) latest environmental, social, and governance (“ESG”) investment rule (“Rule”) issued pursuant to the DOL’s administrative authority under the Employment Retirement Income Security Act of 1974 (“ERISA”).  In upholding the Rule, the district court rejected in a footnote plaintiffs’ attempt to invoke the major questions doctrine, offering guidance as to the types of cases in which courts are more likely to apply the doctrine following the United States Supreme Court’s decision last year in West Virginia v. EPA (2022). Read More »

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This post was authored by Alice Douglas, with contributions from Summer Associate Reilly Wright 

On July 5, 2023, the United States Department of the Interior’s Bureau of Ocean Energy Management (BOEM) approved the largest offshore wind energy project to date—known as Ocean Wind 1—which will entail the construction of up to 98 wind turbines and up to 3 offshore substations off the coast of New Jersey over the next two years.  Ocean Wind 1, financed by the Danish company Orsted, is the third offshore wind energy project to gain approval by the Biden administration, following the Vineyard Wind project off the coast of Massachusetts and the South Fork Wind project off the coast of Rhode Island and New York, which are both currently under construction. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Citizen Suit, Climate Change, Endangered Species Act, Energy, NEPA, Permits, Standing

Last week the U.S. Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS") (collectively, the "Services") finalized a rule defining the term "habitat" as used for designating "critical habitat" under the Endangered Species Act (the "ESA"). The ESA requires the Services to designate critical habitat for threatened and endangered species to conserve the ecosystems relied upon by these species. By definition, “critical habitat” includes both areas occupied and unoccupied by the species that are “essential to the conservation of the species.” Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, Endangered Species Act, Fish and Wildlife Service, Rulemaking

The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

On January 22, as Philadelphia Eagles fans continued to celebrate the team’s NFC Championship victory over the Minnesota Vikings, the U.S. Supreme Court was busy issuing a unanimous opinion in National Association of Manufacturers v. Department of Defense concerning the Waters of the United States Rule (“Rule”) promulgated by the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) in 2015. The Rule defines the statutory term “waters of the United States” in the Clean Water Act, and has been subject to appeals in both federal district courts and courts of appeals. On October 11, 2017, the Supreme Court heard oral argument addressing whether appeals of the Rule should be filed first in either the district court or the court of appeals, and held today that because the Rule does not fall within one of the Clean Water Act’s (“Act”) seven enumerated categories of EPA actions for which the courts of appeal have jurisdiction, appeals of the Rule must first proceed in district court. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Federal Procedure, NPDES, Permits, Procedure, Supreme Court, Water, Wetlands