On April 12, 2019, the US District Court for the Northern District of California entered an order vacating the Department of the Interior’s repeal of the 2016 Valuation Rule due to violations of the Administrative Procedures Act. The court’s ruling may impact the Trump administration’s repeal and replace rulemakings that are scheduled to be finalized in the near future.
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There are many issues revolving around beneficial use of produced water associated with hydraulically fractured oil and gas wells, from drought relief, to the abundance of produced water, to earthquakes. Will the numerous stakeholders align sufficiently to allow the creation of programs to properly regulate the beneficial use of produced water?
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“According to FERC, it is now commonplace for states to use Section 401 to hold federal licensing hostage.”
These are the words the DC Circuit used in Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, p. 10 (D.C. Cir., Jan. 25, 2019), to describe the state of play on § 401 certifications affecting hydroelectric facility licensing or re-licensing applications. CWA § 401(a)(1) requires, as a prerequisite for federal permits for activities that may result in a discharge into the navigable waters, that affected states certify that any such discharge will comply with applicable, enumerated provisions of the Clean Water Act. But, if a state fails or refuses to act on a request for certification within “a reasonable period of time (which shall not exceed one year) after receipt of such request,” the statute deems the certification requirements waived.
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In September 2018, the US Interior Department issued a final rule rescinding the 2016 Venting and Flaring Rule, which took effect November 2018. The old rule, which never went into effect, would have required oil and gas companies to capture leaked methane gas, repair and prevent leaks, and devise new plans to reduce the flaring and venting of natural gas. Following the effectiveness of the new rule, the applicable policies setting limits on releases of methane gas will mostly be left to individual states.
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Last week, EPA and the Corps issued a long-awaited proposal to redefine the “waters of the US” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act. The reach of the CWA is notoriously unclear, but knowing which areas on your property are jurisdictional and will require permits is critical to project planning and timelines. If finalized, the proposed rule would replace the Obama administration’s contentious 2015 WOTUS Rule and eliminate the regulatory patchwork that currently exists as the 2015 WOTUS Rule is being implemented in only certain parts of the country.
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In overturning a US Fish and Wildlife Service decision not to list the arctic grayling, the Ninth Circuit has shifted the burden to federal wildlife agencies to explain why listing is not appropriate when there is uncertainty regarding potential climate change impacts.
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On July 10, 2018, a panel of the United States Court of Appeals for the DC Circuit rejected an environmental group’s claim that FERC’s funding mechanism results in unconstitutional bias in favor of the pipeline industry. The court also rebuffed a due process attack on the Commission’s use of “tolling orders” to avoid automatic denial of rehearing requests after 30 days. The decision is noteworthy as it represents the latest rejection of similar constitutional challenges to FERC’s operations and practices that pipeline opponents have been raising with increasing frequency. The ruling also highlights the difficulty of bypassing the Natural Gas Act’s administrative rehearing and judicial review process through novel broadside attacks on the Commission’s general practices and procedures.
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The controversy continues over the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). As we noted here, the Solicitor’s Office for the US Department of the Interior (DOI) issued an opinion in late 2017 concluding that the MBTA does not prohibit the incidental take of migratory birds. Although this conclusion was consistent with the holdings of at least two US Circuit Courts of Appeal, the Solicitor’s Opinion came under immediate fire from conservation groups and several former government officials. In May of this year, two environmental groups filed lawsuits in federal court challenging the Opinion. In a court filing earlier this month, the government stated its intention to move to dismiss these suits based on several threshold grounds, such as whether the Opinion is a final agency action subject to judicial review. These lawsuits inject fresh uncertainty into an area of the law that DOI sought to clarify.
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As the Trump Administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act and its implementation by the US Fish and Wildlife Service and National Marine Fisheries Service, the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations.
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The United States Environmental Protection Agency (EPA) concluded a series of eight Superfund Listening Sessions between May 21 and June 18 to explain a number of initiatives to reform the Superfund program and promote the cleanup and redevelopment of contaminated sites. The PowerPoint presentations used in these sessions can be accessed here. While informative, the sessions and PowerPoint slides used by the speakers also raise some interesting questions about potential changes in the remedy selection process and the restoration of damaged natural resources.
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