On June 30, 2025, the Supreme Court denied the Port of Tacoma (the “Port”) and SSA Terminals LLC's (“SSA”) petition for writ of certiorari to review the 9^th Circuit’s decision in Port of Tacoma v. Puget Soundkeeper Alliance addressing whether the Clean Water Act (“CWA”) authorizes citizens to enforce conditions of state-issued pollutant discharge permits adopted under state law that impose a greater scope of coverage than required by the CWA.  The 9th Circuit answered this question in the affirmative, holding that Washington's Industrial Stormwater General Permits (“ISGP”), a CWA National Pollutant Discharge Elimination System (“NPDES”) permit, required the Port and SSA to have the necessary stormwater controls across the entire West Sitcum Terminal (the “Terminal”).  The Supreme Court's recent decision to deny certiorari leaves litigants open to a patchwork of Circuit determinations on the scope of the CWA’s citizen suit provision.  Read More »

Share | Email| Comments|  Topics: Citizen Suit, Citizens Suit, Clean Water Act, Ninth Circuit, NPDES, Permits, Private Right of Action, Stormwater, Supreme Court, United States Supreme Court, Water

On June 18, 2025, the Supreme Court decided EPA v Calumet Shreveport Refining, LLC et al., and its companion case Oklahoma et al. v. EPA, clarifying the tripartite framework for determining venue in Clean Air Act (“CAA” or “Act”) litigation.  Looking at the CAA's venue provision (42 U.S.C. 7607(b)(1)), the Court explained that if a challenge is to an “nationally applicable” EPA action the challenge should be directed to the U.S. Circuit Court of Appeals for the D.C. Circuit and the matter ends there.  But, if the challenge is to a “locally or regionally applicable” EPA action, then typically those challenges belong in the relevant regional Circuit Court.  However, when a “locally or regionally applicable” action falls within the “nationwide scope or effect” exception, which requires the action be (1) “based on a determination of nationwide scope or effect” and (2) accompanied by an EPA finding to the same effect, the Court instructed that the matter should be routed back to the D.C. Circuit.  Applying this understanding of CAA's venue provision, the Court reached different conclusions in Calumet and Oklahoma, finding respectively that the “nationwide scope or effect” exception applied in one instance and not in the other. Read More »

Share | Email| Comments|  Topics: Agency Action, Air, Clean Air Act, D.C. Circuit, EPA, Federal Procedure, Procedure, Refinery, Renewable Fuel Standard, State Implementation Plans, Supreme Court, United States Supreme Court, Venue

On June 20, 2025, the Supreme Court issued it opinion in Diamond Alternative Energy v. EPA, holding fuel producers had standing—and had specifically demonstrated redressability—to challenge California-specific regulations EPA approved under the Clean Air Act.  The Court’s opinion  reversing and remanding to the D.C. Circuit left the merits of the case for another day, but acknowledged that the regulations at issue may be rescinded shortly, mooting most, if not all, of the parties’ controversy. Read More »

Share | Email| Comments|  Topics: Agency Action, Air, California, Clean Air Act, Climate Change, D.C. Circuit, Emissions, EPA, Federal Procedure, Greenhouse Gas, Legislation, Oil and Gas, Standing, Supreme Court, United States Supreme Court

On May 29, 2025, the Supreme Court decided Seven County Infrastructure Coalition v. Eagle County, reversing the D.C. Circuit’s determination that the Environmental Impact Statement (“EIS”) issued by the U.S. Surface Transportation Board (the “Board”) in connection with an approximately 88-mile railroad line in northeastern Utah violated the National Environmental Policy Act (“NEPA”).  Justice Kavanaugh, writing for the Court, concluded the NEPA question presented “is not close” and the Board was “absolutely correct” in declining to evaluate “environmental effects from separate projects upstream or downstream from the project at issue” in the EIS.    Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Administrative Procedures Act, D.C. Circuit, Decisions of Note, Federal Circuit, Loper Bright, NEPA, Oil and Gas, Pipelines, Railroad, Supreme Court, United States Supreme Court

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 »

Share | Email| Comments|  Topics: Administrative Procedures Act, Chevron Deference, United States Supreme Court

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 »

Share | Email| Comments|  Topics: Clean Water Act, Enforcement, NPDES, United States Supreme Court

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

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 »

Share | Email| Comments|  Topics: Supreme Court, Takings, Takings Clause, United States Supreme Court

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