The Environmental Protection Agency (EPA) will be 50 years old this year.  Over the past half century, EPA has issued literally tens of thousands of documents explaining its extensive regulatory programs.  These guidance documents come in a wide variety of forms.  Some may be signed by the EPA Administrator. Many more are signed by officials in program offices, in the Regions, or even by technical staff.  Some may provide broad national guidance, while others interpret rules in source-specific factual settings.  Guidance may appear in preambles to rules, in response to “frequently asked questions” (FAQS), in applicability determinations, in Environmental Appeals Board decisions, in General Counsel opinions, and in many other ways.  And of course, as Administrations change, guidance may change to reflect new policies.  Anyone who has had to manage environmental compliance is familiar with the challenges of identifying operative agency guidance.
Continue Reading Agency Guidance and EO 13891 – What’s “active” and what’s “rescinded”?

One of the Supreme Court’s recurring environmental law topics is the scope of Clean Water Act (CWA) jurisdiction. Various aspects of CWA jurisdiction and implementation have been addressed over the years by the Court, including the meaning of “navigable waters” in U.S. v. Riverside Bayview Homes, Inc. (1985); Solid Waste Agency of N. Cook Cnty v. Army Corps of Eng’rs (2001); and Rapanos v. U.S. (2006), and judicial review of agency actions related to the applicability of the CWA dredge and fill permit program in Sackett v. EPA (2012) and U.S. Army Corps of Eng’rs v. Hawkes Co. (2016). Most recently, the Supreme Court heard oral argument on November 6 in County of Maui v. Hawai’i Wildlife Fund, et al., a case that addresses the applicability of the CWA’s prohibition on “point source” discharges to “navigable waters” to releases from point sources to groundwater. The Court granted certiorari to address whether releases from point sources that are carried to navigable waters by groundwater are regulated under the federal NPDES permit program or under state non-point source management programs.
Continue Reading Supreme Court Addresses the Scope of CWA Jurisdiction Once Again

Hunton Andrews Kurth’s environmental practice launches its video series, Inside Look, focusing on recent events and trends impacting regulated industries through discussions with our top attorneys and thought leaders.  Our inaugural video focuses on recent changes in the composition of the US Supreme Court and the potential impact on industry.  Partners F. William Brownell and Elbert Lin discuss the effect of the appointments of Justices Neil Gorsuch and Brett Kavanaugh on administrative law, voting patterns at the Court and the importance of originalism-type arguments in constitutional cases.
Continue Reading Inside Look at Changes to the Supreme Court

In Michigan v. EPA, 135 S. Ct. 2699 (2015), the Supreme Court held that the cost of regulation is an essential factor that EPA must consider when deciding whether to regulate.  According to the Court, “[a]gencies have long treated cost as a centrally relevant factor when deciding whether to regulate.” In subsequent regulatory proceedings, however, EPA has offered different views as to what Michigan’s cost mandate means. 
Continue Reading The Role of “Cost” Consideration in Regulatory Proceedings

According to the dictionary, a phrase is “ambiguous” if it has more than one meaning.
Chevron[1] is frequently cited for the proposition that the presence of “ambiguity” gives an agency the authority to interpret the statute to eliminate the ambiguity. A better view of Chevron is that only the Courts may resolve statutory ambiguity through interpretation. When faced with statutory terms that may be given more than one meaning, courts must determine, applying canons of statutory construction, what Congress has resolved, what Congress has given the Agency discretion to resolve, and what ascertainable standards have been established by Congress to govern the exercise of discretion by the Agency. In other words, Chevron contemplates that the Court declare what the law requires, including the scope of discretion afforded an agency to make policy choices that give content to broad statutory terms.
Continue Reading The Time Has Come to Overrule Auer

Our regulatory state is founded on the principle that regulated parties must have notice of their compliance obligations. Laws or regulations that fail to give fair notice violate due process and cannot give rise to liability. See, e.g., Gen. Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995).

A notoriously unclear regulatory program addresses circumstances under which an existing facility triggers the Clean Air Act’s (CAA) “new source review” (NSR) program and its associated control technology and air quality review requirements. Over the past two decades, courts have concluded that the same words in the regulations have diametrically opposed meanings. Compare Nat’l Parks Conservation Ass’n, Inc. v. TVA, No. 3:01-CV-71, 2010 WL 1291335 (E.D. Tenn.Mar. 31, 2010) (boiler tube replacement is “routine” repair and replacement) with United States v. Ohio Edison Co., 276 F. Supp. 2d 829 (S.D. Ohio 2003) (boiler tube replacement is not “routine” repair and replacement). Indeed, after addressing the application of NSR to an industrial facility on two occasions, one three-judge panel in the Sixth Circuit produced five different opinions advancing three different interpretations of key provisions of the rules. See United States v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013); United States v. DTE Energy Co., 845 F.3d 735 (6th Cir. 2017). Disagreement among judges over the meaning of a regulation is objective evidence of a rule’s failure to provide fair notice of its compliance obligations.
Continue Reading NSR Reform — EPA’s ACE Proposal

On July 9, President Trump announced Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit as his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh has developed an extensive history of jurisprudence during his twelve-year tenure on the DC Circuit. And, given the DC Circuit’s heavy administrative law caseload, Kavanaugh has authored numerous opinions involving environmental law. The upcoming confirmation process is sure to include a focus on Kavanaugh’s robust environmental and administrative law record and what it might portend for the future.
Continue Reading From Judge to Justice: What Brett Kavanaugh’s Supreme Court Nomination Could Mean for Environmental Jurisprudence

In recent years, plaintiffs’ attorneys and public-interest groups have brought common law actions seeking injunctive relief or damages for air emissions they claim cause climate change. Because climate change is a global phenomenon, these actions have targeted both in-state and out-of-state sources. Does state common law reach this far?

A state’s common law is founded in its police powers, which are among the powers that the Constitution generally reserved to the states. By contrast, the Constitution specifically delegates to Congress the power to regulate interstate commerce. A state’s police powers therefore do not extend beyond its borders. For this reason, the Supreme Court in the last century discovered a limited “federal” common law to address interstate pollution at a time when there were no federal laws regulating such interstate concerns. Missouri v. Illinois, 180 U.S. 208, 241 (1901). As the Court observed, “[i]f state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.” City of Milwaukee v. Illinois, 451 U.S. 304, 314 n.7 (1981) (Milwaukee II).


Continue Reading State Common Law and the Global Environment

Executive Branch agencies write vague rules.  Then they give them meaning through interpretation.  That meaning may change over time through re-interpretation.  Indeed, it is not hard to find examples of rules that meant one thing one day and the opposite the next.  See, e.g.Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).  This is a problem for regulated entities that face penalties for failure to comply.  Reflecting such concerns, the deference doctrine has eroded slowly over the past two decades, with pronounced critical commentary from conservative Justices.  In October 2016, the Supreme Court granted review  in a case from the Fourth Circuit — GG v. Gloucester County School Board (cert. granted Oct. 28, 2016)—where the court gave “controlling weight” to a staff interpretation of a Department of Labor (“DOL”) regulation.  In Gloucester County, the Court will have an opportunity to rein in a particularly aggressive use of agency deference.  Does this case presage more comprehensive review of the Court’s deference jurisprudence?  And what does it portend for the Trump Administration’s efforts to reverse Obama Administration regulatory priorities?

Continue Reading The Supreme Court Takes on Agency Deference—Trump Beware!