This entry was authored by MGKF Summer Associate Ryan Raynor

Next term, the United States Supreme Court will decide the extent to which federal agencies must consider environmental impacts beyond their control in performing environmental reviews. On June 24, 2024, the Supreme Court granted certiorari to the Seven County Infrastructure Coalition and the Uinta Basin Railway, LLC to determine whether the National Environmental Policy Act (“NEPA”) requires a federal agency conducting an environmental impact statement (“EIS”) to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Eagle Cnty., Colorado v. Surface Transportation Bd., 82 F.4th 1152, 1179 (D.C. Cir. 2023), cert. granted sub nom. Seven Cnty. Coalition v. Eagle Cnty., Co, 2024 WL 3089539 (U.S. June 24, 2024). Read More »

Share | Email| Comments|  Topics: Energy, FERC, Greenhouse Gas, Natural Gas, NEPA, Oil and Gas, Pipelines, Railroad, United States Supreme Court

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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This entry was authored by MGKF Summer Associate Autumn Chassie

On May 28, 2024, the Supreme Court agreed to decide City and County of San Francisco v. Environmental Protection Agency. This case arose after the Environmental Protection Agency (“EPA”) required San Francisco to update its long-term control plan for combined sewer overflows and to re-evaluate alternatives for discharges during heavy rains when the system’s capacity is exceeded. 75 F.4th 1074 (9th Cir. 2023). The primary issue is whether the Clean Water Act (“CWA”) allows EPA to impose general prohibitions in National Pollutant Discharge Elimination System (“NPDES”) permits, which could subject permit holders to enforcement actions for violating water quality standards without specifying exact discharge limits. 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 »

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On April 12, 2024, the United States Supreme Court unanimously decided Sheetz v. County of El Dorado, California, No. 22-1074, holding that county-level legislation that imposes conditions on the receipt of building permits, here the imposition of traffic impact fees, may amount to a taking under the Constitution’s Fifth Amendment when the conditions do not have an “essential nexus” to the government’s land use interest and a “rough proportionality” to the proposed development’s impact on that interest.  The ruling overturned decisions from lower courts that had held that the Takings Clause operates to invalidate only administrative conditions imposed by local land use agencies, not legislative enactments like the traffic impact fee imposed by the County in this case.   Read More »

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In Sackett v. EPA, 2023 WL 3632751 (U.S. May 23, 2023), the Supreme Court limited the authority of the United States Environmental Protection Agency (“EPA”) to regulate wetlands by embracing a “continuous surface connection test” to determine if adjacent wetlands are subject to the Clean Water Act (“CWA”) and explicitly rejecting Justice Kennedy’s “significant nexus” test from Rapanos v. United States, 547 U.S. 715, 754 (2006). While the 9-0 decision was unanimous in judgment by holding that the Sacketts’ wetland was not subject to federal jurisdiction, the court was sharply divided as to the test to determine when an adjacent wetland qualifies as a Water of the United States (or “WOTUS”).  A five-justice majority held that the CWA’s jurisdiction includes only adjacent wetlands that are indistinguishable from WOTUS due to a continuous surface connection. Under this framework, for an adjacent wetland to be subject to CWA jurisdiction, the adjacent body of water must constitute a WOTUS, and the adjacent wetland must have a continuous surface connection with the WOTUS such that it is difficult to determine where the body of water ends and the wetland begins.  The majority’s holding casts serious doubt on the continuing viability on the final WOTUS rule that became effective earlier this year and relied in part on the “significant nexus” test that EPA and the United States Army Corps have applied through guidance since the Rapanos decision. See 88 Fed. Reg. 3004 (Jan. 18, 2023). Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note, EPA, Major Questions Doctrine, Navigability, Ninth Circuit, Rapanos, Supreme Court, United States Supreme Court, Wetlands

On Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

On June 25, 2021, the Supreme Court, reversing the Tenth Circuit, held that a small refinery that had previously received an exemption from certain requirements of the renewable fuel standard (“RFS”) program was eligible for an extension of that exemption, even if it had had a lapse in coverage in previous years. See HollyFrontier Cheyenne Refining, LLC, v. Renewable Fuels Association, et al., Slip Op. 20-472 (June 25, 2021). Petitioners, three small fuel refineries, had each applied for a hardship exemption under the RFS program, and the Environmental Protection Agency (“EPA”) had granted each request. Those exemptions were then challenged by a group of renewable fuel producers. The Tenth Circuit ultimately sided with the renewable fuel producers, holding that because each refinery had allowed its previously held exemption to lapse at times in the past, each was no longer eligible to receive an extension of the original exemption. After hearing oral argument in April 2021, the Supreme Court reversed the Tenth Circuit and held that the text of the statute does not require that the exemption be continually held in order to remain valid. Read More »

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On May 17, 2021, the Supreme Court vacated an appellate court decision which had remanded to state court an action seeking to hold petroleum companies liable for the effects of climate change, finding that the appellate court impermissibly restricted the scope of its review of a district court’s order. Although, as noted by the Supreme Court, “[t]he only question before us is one of civil procedure,” the case of BP P.L.C. v. Mayor and City Council of Baltimore, Docket No. 19-1189 (May 17, 2021) may have a profound practical impact on ongoing environmental litigation. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Decisions of Note, Energy, Fourth Circuit, Greenhouse Gas, Oil and Gas, Procedure, Refinery, Removal, Supreme Court, United States Supreme Court

Less than a month after hearing oral arguments, the United States Supreme Court issued its unanimous decision in Guam v. United States, Docket No. 20-382 (May 24, 2021), the eagerly anticipated opinion on whether consent decrees and administrative orders that do not expressly resolve liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nevertheless give rise to a claim for contribution under Section 113(f)(3) of CERCLA. The issue is a crucial one and has been the subject of numerous court opinions because of the short, three-year limitations period for contribution actions. The opinion, which the Court intended to provide clarity in the area, holds that only settlements that release “CERCLA-specific liability” trigger the right to contribution. Read More »

Share | Email| Comments|  Topics: Case Update, CERCLA, Clean Water Act, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Decisions of Note, Landfill, Statute of Limitations, Superfund, Supreme Court, United States Supreme Court, Waste