Regardless of whether Kisor changed principles of deference under Auer, lower courts appear less inclined to find ambiguity in agency regulations after the Kisor decision; and when they do, “unfair surprise” continues to be the most common factor weighing against deference to an agency’s interpretation.
Continue Reading Lower Courts Grappling with Deference Principles Following Kisor

The Eleventh Circuit appears to be poised to be one of the first, if not the first, appellate courts in the country to address the impact of the Supreme Court’s decision in Kisor v. Wilkie, which addresses how courts should evaluate an agency’s interpretation of its own regulations.
Continue Reading Eleventh Circuit Potentially Poised to Address Impact of Kisor

For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy.  Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate.  The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court.
Continue Reading New Lawsuit Seeks to Expand the Reach of the Clean Water Act to Air Emissions

In April 2015, EPA issued a final rule governing the control and management of coal combustion residuals (CCR) in surface impoundments used to treat those residuals. As part of its rule, EPA required operators to submit initial closure plans for impoundments and post them on a publicly available website in November 2016. These initial closure plans must contain information related to the method of closure, and are subject to change as operators gather additional information. In June 2017, the Roanoke River Basin Association filed the first ever citizen suit under the CCR Rule.
Continue Reading District Court Dismisses First Ever CCR Rule Citizen Suit

Over the past several years, the EPA and states have wrestled with the controversial question of how to manage ash and other residual materials produced by the combustion of coal in coal-fired power plants. The Water Infrastructure Improvements Act (“WIIN Act”), signed by President Obama on December 16, 2016, should help provide clarity to address this question by creating a state permitting program for managing coal ash based on site-specific conditions and potential risk to human health and the environment.
Continue Reading The WIIN Act: A Path to Risk-Based Management of Coal Ash