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

This Post was authored by Christopher Rodrigues, a MGKF summer associate.

In a unanimous decision penned by Circuit Judge Kavanaugh, the United States Court of Appeals for the D.C. Circuit affirmed a lower court decision holding that the EPA properly withheld information from its response to several environmental groups' Freedom of Information Act (“FOIA”) requests. Envtl. Integrity Project v. EPA, No. 16-5109, 2017 U.S. App. LEXIS 9332, at *4 (D.C. Cir. May 30, 2017).  The court held that Section 308 of the Clean Water Act (“CWA”) does not supersede Exemption 4 of FOIA. Id.  In relevant part, Section 308 of the CWA states that effluent data shall be made available to the public, unless releasing the information would divulge trade secrets.  33 U.S.C. § 1318(b) (1987).  Exemption 4 under FOIA, however, allows the government to withhold information that would reveal a company’s trade secrets or commercial or financial information.  5 U.S.C. § 552(b)(4) (2016).  Thus, the inconsistent exemptions have created tension in the lower courts that the D.C. Circuit has attempted to alleviate for future decisions in Environmental Integrity. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, D.C. Circuit, Effluents, FOIA, Rulemaking

Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Clean Water Act, Eighth Circuit, Enforcement, EPA, Federal Procedure, Informal Agency Action, Permits, Procedure, Rapanos, Supreme Court, Water, Wetlands

The U.S. District Court for the Middle District of Louisiana recently ruled that an U.S. Army Corps of Engineers’ approved jurisdictional determination finding wetlands subject to the Clean Water Act (CWA) is not a final agency action within the meaning of the Administrative Procedure Act (APA). The court further held that its holding was not impacted by the U.S. Supreme Court’s recent decision in Sackett v. EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Due Process, Procedure, Real Estate, Wetlands

Last week, the United States District Court for the Western District of Washington, in Trident Seafoods Corp. v. Bryson, No. C12-134 MJP (Nov. 30, 2012), sent litigants a reminder about the necessity of proper standing in rulemaking challenges.  Indeed, standing is often one of the most difficult aspects of these cases, and often result in early case dismissal, as it did in Trident. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Federal Procedure, Procedure, Rulemaking, Standing

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit published two decisions in cases involving environmental groups’ challenges to EPA’s efforts to regulate certain classes of hazardous air pollutants (“HAPs”).  Both cases concerned Section 112(c)(6) of the Clean Air Act, a provision enacted by Congress in 1990 that requires EPA to (1) complete a list of sources of seven specified HAPs that accounts for at least ninety percent of the total emissions of each of the seven HAPs and (2) subject these listed sources to emissions standards.  42 U.S.C. § 7412(c)(6).  Section 112(c)(6) gives EPA a choice among two emission standards:  (1) a stringent standard known as “maximum achievable control technology” (“MACT”) or (2) a standard based on health thresholds.  See § 112(c)(6), (d)(2) and (d)(4).  The cases decided last Friday highlight both procedural and substantive aspects of regulating air pollution. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Air, Clean Air Act, D.C. Circuit, Decisions of Note, HAPs, Hazardous Air Pollutants, Mercury, Rulemaking

One of the very first things I was told by the senior partner when I started practicing law was that there isn’t an honest mistake that can’t be fixed, except blowing the statute of limitations. As a result, my calendar has limitations periods blocked out weeks, months and in some cases years in advance, and if there’s ever a question of when it runs, I use the earliest date. The Tenth Circuit’s decision in Impact Energy Resources, LLC v. Salazar, Nos. 11-4043 & 11-4057 (Sept. 5, 2012 10^th Cir.), is a cautionary tale to those who may not be as conservative. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Exploration, Federal Procedure, Interior, Leases, Mineral Leasing Act, Oil and Gas, Procedure, Public Lands, Statute of Limitations, Tenth Circuit, Tolling

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands