On August 11, the US Department of Justice (DOJ) released a new report that promotes constructive recommendations to modernize and improve the Administrative Procedure Act (APA) presented at a DOJ-hosted summit in December 2019.
Continue Reading DOJ Issues “Rich Menu of Options” for Congress to Revise the Administrative Procedure Act

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.
Continue Reading Decision Vacating DOI Valuation Rule May Impact Future Rulemakings

In their ongoing efforts to require EPA to develop a hazardous substance spill program under the Clean Water Act, environmental groups allege in a new lawsuit that EPA must promulgate worst-case discharge regulations requiring certain facilities to develop facility response plans. What this means for EPA’s recent proposal not to develop a general CWA hazardous substance spill program and potentially regulated facilities remains to be seen.
Continue Reading Environmental Groups Sue EPA to Develop Worst-Case Hazardous Substance Spill Rules

WOTUS, an acronym that has received a lot of attention in recent years, stands for the “waters of the United States.” When Congress enacted the Clean Water Act (“CWA” or the “Act”) in 1972, it prohibited “the discharge of any pollutant by any person” into navigable waters without a permit. The Act defines navigable waters as the “waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12). But Congress failed to, in turn, define the words “waters of the United States,” and the Supreme Court has noted that these “words themselves are hopelessly indeterminate.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (J. Alito, concurring). The meaning of these words matters because violations of the CWA are subject to substantial criminal and civil penalties, so knowing whether a feature on your site is a WOTUS subject to federal jurisdiction has important consequences.
Continue Reading Navigating the CWA’s Reach: What’s Happening with WOTUS?