EPA’s latest proposed CCR regulations could impact beneficial use practices.
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Fourth Circuit Ruling Narrowly Construes Administrative Enforcement Bar to Clean Water Act Citizen Suit
A recent Fourth Circuit decision narrowly construed the state administrative enforcement bar to the Clean Water Act citizen suit, allowing a citizen suit seeking civil penalties to proceed despite the fact the state had already issued a notice of violation for the same alleged conduct. …
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Article III Standing Still Proving to be a Formidable Defense to Environmental Citizen Suits
Recent federal court decisions continue to show that Article III standing can be a formidable defense to environmental citizen suits, particularly following the Supreme Court’s decision Spokeo v. Robins, 578 U.S. 330 (2016).
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Courts Begin to Apply County of Maui to Clean Water Act Claims
Courts are starting to apply the Supreme Court’s new standard under County of Maui to claims under the Clean Water Act, highlighting the fact-intensive and highly technical nature of the relevant inquiry. …
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Groups Seeking to Expand Reach of Clean Water Act
In April 2020, the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund et al., 140 S. Ct. 1462 (2000), vacating the Ninth Circuit’s decision. The appeals court had affirmed a district court’s finding of Clean Water Act (“CWA”) liability for the County’s alleged failure to obtain a discharge permit for subsurface releases of pollutants into groundwater that conveys pollutants to navigable waters. In vacating the judgment below, the Supreme Court rejected the Ninth Circuit’s “fairly traceable” test and set forth a new standard for determining when a source needs an NPDES permit: “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” Id. at 1468 (emphasis added). In other words, “an addition falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” Id. at 1476 (emphasis added).
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EPA Issues Proposed Revisions to CSAPR Update
On October 30, 2020, EPA published in the Federal Register a proposed rule to revise its 2016 Cross-State Air Pollution Rule Update (the CSAPR Update) to further reduce interstate air pollution from 12 upwind states. EPA is proposing this revision pursuant to its authority under the Clean Air Act’s “Good Neighbor” provision (section 110(a)(2)(D)(i)(l)), which requires upwind states to prevent sources located within their borders from contributing significantly to nonattainment or interfering with maintenance, of the national ambient air quality standards (NAAQS) in downwind states.
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Lower Courts Grappling with Deference Principles Following Kisor
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. …
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Virginia Enacts Aggressive Clean Energy Laws
On Sunday, April 12, Virginia Governor Ralph Northam signed into law the Virginia Clean Economy Act and the Clean Energy and Community Flood Preparedness Act. These two new laws will require Virginia to transition to 100 percent carbon-free energy by 2050 and join the Regional Greenhouse Gas Initiative (RGGI).
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No Unfair Surprises Under Kisor
At least some courts applying the Supreme Court’s recent decision in Kisor v. Wilkie are rejecting agency regulatory interpretations that create “unfair surprise” for regulated parties.
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BlackRock Supports ESG as a New Standard for Investing in its Annual CEO Letters
In his annual letter to CEOs, Larry Fink, CEO of BlackRock expressed his belief that climate change and sustainability were important considerations in investment risk assessments. Investment based on these concepts is often captured under Environmental, Social and Governance Criteria, commonly called ESG. In his letter, Mr. Fink emphasized that he believes “we are on the edge of a fundamental reshaping of finance.”
BlackRock’s letter builds on the ever-advancing trend in corporate institutional investing over the past decade regarding the examination of corporate valuation and investment risk within the context of ESG issues, otherwise referred to as sustainable investing.
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