On October 4, 2021, the US Fish and Wildlife Service (FWS or the Service) published a final rule revoking its January 7, 2021, Migratory Bird Treaty Act (MBTA or Act) rule. 86 Fed. Reg. 54,642  (Oct. 4, 2021) (Rule or Revocation Rule). The January 7 rule was issued at the end of the Trump administration and established that the MBTA does not prohibit incidental (unintentional) take of migratory birds.  86 Fed. Reg. 1134 (Jan. 7, 2021). In the preamble to the Rule, which lists an effective date of December 3, 2021, the Service explained that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642.  On the same day it published the Revocation Rule, FWS also published an Advanced Notice of Proposed Rulemaking (ANPR), requesting public input that will be used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions, 86 Fed. Reg. 54,667 (Oct. 4, 2021), and issued a Director’s Order clarifying the Service’s current enforcement position.

Continue Reading FWS Revokes Trump Administration’s Migratory Bird Treaty Act Rule

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).
Continue Reading Article III Standing Still Proving to be a Formidable Defense to Environmental Citizen Suits

As we have reported previously in this blog, in March 2021, the Massachusetts Governor signed historic climate legislation designed to effectuate the Commonwealth’s goal of net-zero emissions by 2050 (Chapter 8 of the Acts of 2021 or the “Act”). Some of the more controversial items in the Act were the provisions to incorporate requirements into the state’s building code to advance construction and/or retrofitting of buildings with energy systems designed to reduce emissions. In general, the efforts to facilitate a transition away from fossil-fuel energy systems in buildings continue to prove difficult as existing programs and policies are not necessarily designed to prompt the shift away from traditional energy systems at the pace that some argue is required to meet the aggressive emission targets of the state goals.

Continue Reading State Lawmakers Confront the Challenge of the Energy Transition

After a disappointing showing in Mexico’s recent mid-term elections, President Andrés Manuel López Obrador (AMLO) and his Morena party will face greater hurdles to unwinding Mexico’s 2013 Energy Reforms adopted by the former ruling party, the Partido Revolucionario Institucional (PRI). Although retaining a majority in the Chamber of Deputies and gaining some new state governors, Morena lost its supermajority and, as a result, very likely also lost the opportunity to implement constitutional changes to reverse the 2013 Energy Reforms and achieve its goal of a nationalized energy sector in Mexico.
Continue Reading Could Mexico’s Mid-Term Elections Signal a Return to Energy and Environmental Policy Rationality?

In the wake of new and enhanced environmental justice policies issued by the federal and state governments, it behooves lawyers practicing in any discipline to account for EJ issues in their legal practice. This article identifies considerations for lawyers who will confront and seek to manage EJ issues in their transactional practice.
Continue Reading Environmental Justice Considerations in Business Transactions

The Railroad Commission of Texas (RRC) has made known its commitment to expedited filings and approvals for the regulated community as well as public access to information and improved transparency for all parties. This effort is exemplified by the recently announced Pipeline Inspection, Permitting and Evaluation System (PIPES) program. https://www.rrc.texas.gov/announcements/071221-rrc-launches-pipes/ Organizations can now file reports, inspections, and other documents as well as pay fees online. Organizations can also upload documents for RRC review. In addition, PIPES provides public users access to publicly available RRC documents. As the online availability of reports and other documents expands, it becomes even more important for organizations to focus on timely accurate filings as well as an organization’s online public profile.
Continue Reading RRC Announces PIPES which Allows Online Pipeline Safety Filings and Public Access

In response to judicial remand of its Cross-State Air Pollution Rule (CSAPR) Update, EPA published a revised CSAPR Update – the latest of EPA’s interstate transport rules using its CSAPR methodology – at the end of April 2021, slashing ozone-season budgets for emissions of nitrogen oxides (NOx) for a dozen states. By the end of the 60-day period for filing petitions for judicial review on June 29, a single petition for judicial review had been filed in the US Court of Appeals for the DC Circuit.
Continue Reading EPA’s Revised CSAPR Updated is Issued and a Single Petition for Review is Filed in the DC Circuit

The White House announced on July 22, 2021, President Biden’s nomination of David Uhlmann to be the Assistant Administrator for Enforcement and Compliance Assurance (OECA) at the US Environmental Protection Agency (EPA). Uhlmann is currently the director of the Environmental Law and Policy Program at the University of Michigan Law School and was previously a federal prosecutor for 17 years, including as the Chief of the Environmental Crimes Section of the US Department of Justice. His nomination signals the White House’s clear intent to reinvigorate EPA’s enforcement program after what the EPA’s Inspector General found in its March 31, 2020 report to be years of declining case statistics across multiple administrations.

Continue Reading Nominee to lead EPA Enforcement Will Be Aggressive and Thorough