From the Penobscot River in Maine to the St. Mary’s River in Florida, the Atlantic sturgeon ranges, swimming periodically up river to spawn and returning to marine waters when it is done. With a lifespan of up to 60 years, the Atlantic sturgeon can grow up to 14 feet long and weigh up to 800 pounds, according to the National Marine Fisheries Service (NMFS). Despite this species’ mighty proportions and vast range, five distinct population segments of the species have been listed by the as threatened or endangered.

Continue Reading From Maine to Florida, Designated Critical Habitat for Atlantic Sturgeon Will Complicate Federal Permitting

Throughout the Obama administration, federal officials from the President on down touted an “all of the above” approach to energy policy.  At the same time, they pressed forward with environmental regulations—climate change rules in particular—that would have made a seismic shift in the role fossil fuels play in the nation’s energy mix.

We all know the Trump administration is poised to make major changes.  A shakeup for the EPA was a consistent theme of the Trump campaign. The President made things official in March when he signed an executive order that, among other things, called for a “review” of the Clean Power Plan (CPP), the EPA’s program to regulate greenhouse gas emissions from existing power plants, and a proposed rule regarding the CPP is now under review at the White House Office of Management and Budget. The administration has also announced plans to cut the EPA’s budget, to take a new “red team-blue team” approach to climate change science, and to pull the U.S. out of the Paris climate accord. That’s quite a lot of activity for an administration that is often accused of moving too slowly. Continue Reading From “All of the Above” to “See What Sticks”

Corporate_Business Meeting Backli

Recently, the states and federal agencies have clashed in a number of environmental rulemakings and subsequent litigation over those rules. These disagreements have raised a host of important legal and policy questions, including the proper balance of power between the states and the federal government and the communication process and overall relationship between the states and federal agencies. Recently filed litigation challenging the Stream Protection Rule, 81 Fed. Reg. 93,066 (Dec. 20, 2016), would prompt judicial review of many of these issues. But the likelihood of administrative or congressional action on this rule (through the Congressional Review Act) could preclude judicial input on these questions for now. If the rule is ultimately withdrawn or overturned, the manner in which it is may also present important federalism questions. Further complicating this process are two motions to intervene in two of these cases, filed by several environmental groups to defend the final Stream Protection Rule from being vacated or weakened.

Continue Reading Continuing Federalism Issues Emerge in Challenges to Stream Protection Rule

The U.S. Supreme Court is not the only one keen on taking a closer look at deference to agency interpretations. Just as the Supreme Court will have an opportunity “to rein in a particularly aggressive use of agency deference” later this year, the House of Representatives is also set to take aim at judicial deference to agency interpretations through the recently proposed Regulatory Accountability Act (the Act) — a compilation of several earlier reform bills. A similar act was proposed last July and passed the House, but was ultimately not considered by the Senate. With the new incoming administration, however, the Act may have an increased chance of success.

Continue Reading Congress May Take a Stab at Limiting Judicial Deference

On October 17, the federal District Court of the Northern District of West Virginia ruled in a lawsuit brought by Murray Energy that EPA had violated Clean Air Act § 321(a)’s requirement that the agency “conduct continuing evaluations of potential loss or shifts of employment” that may result from EPA air regulations. Judge John Preston Bailey, a nominee of President George W. Bush, found that “Congress unmistakably intended to track and monitor the effects of the Clean Air Act and its implementing regulations on employment in order to improve the legislative and regulatory processes,” and that job loss evaluations “may have the effect of convincing the EPA, Congress, and/or the American public to relax or alter EPA’s prior decisions.” At that time, Judge Bailey gave EPA just two weeks to come up with a plan to evaluate those impacts.

Continue Reading Federal Court Orders EPA to Conduct Job Loss Evaluations of Air Regulations