Annual Environmental Law Update
This paper was originally published by the Rocky Mountain Mineral Law Foundation in the Proceedings of the 64th Annual Rocky Mountain Mineral Law Institute (2018)
This chapter highlights recent regulatory and judicial developments in environmental law that have occurred since the 2017 Annual Institute. Given the changes that have rapidly occurred over this year and last, the updates discussed in this chapter may already be out of date. This chapter focuses on the attempts by the Trump administration to rescind, repeal, or revise (with differing degrees of success) some of the Obama administration’s most relevant and controversial actions relating to the environment.1
Before diving into recent developments, this chapter provides a brief overview of two Administrative Procedure Act (APA) provisions that are of particular importance to this chapter, sections 7052 and 553.3 Section 705 states: “When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review.” Agency action under section 705 that does not constitute substantive rulemaking does not require public notice or an opportunity for public comment or participation.4 As discussed in more detail below, section 705 has been relied on by former Administrator of the U.S. Environmental Protection Agency (EPA) Scott Pruitt to postpone certain compliance dates set forth in the coal plant effluent limitations guidelines (ELG) and standards rule (ELG Rule),5 and by the Bureau of Land Management (BLM) to postpone certain compliance dates contained in the “Waste Prevention, Production Subject to Royalties, and Resource Conservation” rule (Venting and Flaring Rule).6 Opponents of these and other postponement actions have countered that the agency action at issue actually constitutes substantive rulemaking and consequently section 553(c),7 which imposes notice and opportunity for comment requirements, applies. Because no notice or opportunity for comment was provided, opponents of these agency actions have argued that the postponement actions violate the APA.
On March 28, 2017, President Donald Trump issued Executive Order No. 13,783, titled “Promoting Energy Independence and Economic Growth” (EO 13,783).8 EO 13,783 is premised on “the national interest to promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”9 EO 13,783 required agencies to immediately review all agency actions, including regulations and guidance documents, that potentially burden the development or use of domestically produced energy resources, especially oil, natural gas, coal, and nuclear energy resources.10 EO 13,783 revoked several Obama administration memoranda and executive orders.11
As relevant to this chapter, in EO 13,783 President Trump undertook direct action and mandated other action, including:
• Requiring the Secretary of the Interior to review, among other rules, BLM’s hydraulic fracturing rule published in March 2015 (Fracturing Rule) and BLM’s Venting and Flaring Rule published in November 2016.13
• Ordering the Council on Environmental Quality (CEQ) to rescind its 2016 final GHG guidance16 entitled “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.”17
• Disbanding the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and ordering all Social Cost of Carbon (SCC)18 technical support documents withdrawn “as no longer representative of governmental policy.”19
On March 29, 2017, Secretary Zinke issued two Secretarial Orders in response to EO 13,783.20 The first, Secretarial Order No. 3348, revoked Secretarial Order No. 3338 and lifted the coal leasing moratorium.21 Secretarial Order No. 3348 further directed BLM to “process coal lease applications and modifications expeditiously in accordance with regulations and guidance existing before the issuance of Secretary’s Order 3338.”22 Secretarial Order No. 3349, entitled “American Energy Independence,” stated that “BLM shall proceed expeditiously with proposing to rescind” the Fracturing Rule.23
On February 6, 2018, EPA suspended the 2015 “waters of the United States” rule’s (2015 WOTUS Rule) effective date (Suspension Rule).24 In addition, at least two federal courts have preliminarily enjoined the 2015 WOTUS Rule in 23 states.25 The 2015 WOTUS Rule is stuck in a procedural quagmire partly due to a recently resolved uncertainty about which federal courts, district courts or circuit courts of appeals, have jurisdiction over challenges to the rule, and because, while the rule has been enjoined, as of yet no courts have reached the merits of whether the rule is a proper exercise of EPA’s and the U.S. Army Corps of Engineers’ (Corps) authority.
Consequently, as of the time of this writing, the controlling definitions of WOTUS are found in the 1980s regulations promulgated by the Corps and EPA,26 with the gloss of the 2006 Rapanos v. United States plurality opinion, written by Justice Scalia and joined by Justices Thomas and Alito, and Justice Kennedy’s concurring opinion.27 The Rapanos plurality opinion concluded that WOTUS “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,'” and “does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”28 Justice Kennedy, in a concurring opinion, advanced the “significant nexus” test, i.e., “the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.”29 The Suspension Rule is being challenged in several federal district courts.30
EPA’s and the Corps’ jurisdiction under the Clean Water Act (CWA) is triggered by actions that, broadly speaking, affect “navigable waters.”31 “Navigable waters,” in turn, are defined as “waters of the United States.”32 EPA and the Corps have published several iterations of rules attempting to update the 1980s WOTUS definitions. In 2015, EPA and the Corps published another iteration of the WOTUS Rule.33 The 2015 WOTUS Rule was intended to “provid[e] simpler, clearer, and more consistent approaches for identifying the geographic scope of the CWA.”34 The 2015 WOTUS Rule’s effective date was August 28, 2015.
Before it became effective, many states filed various lawsuits to enjoin the 2015 WOTUS Rule. For example, on June 29, 2015, 13 states challenged the 2015 WOTUS Rule in the U.S. District Court for the District of North Dakota,35 and the court preliminarily enjoined implementation of the rule in those states.36 On June 30, 2015, nine other states filed suit in the U.S. District Court for the Southern District of Georgia.37 On July 21, 2015, those states filed a motion for preliminary injunction, which the court denied after concluding that it lacked jurisdiction, and that jurisdiction properly was in the circuit courts of appeals.38 The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on October 9, 2015.39
Through a convoluted procedural process, the U.S. Supreme Court was called on to decide whether challenges to the 2015 WOTUS Rule belong in district courts or in the circuit courts of appeals.40 After analyzing the two “primary avenues for judicial review of EPA actions” provided for in the CWA,41 the Court ruled that challenges to the 2015 WOTUS Rule belong in the federal district courts.42As a consequence, the Sixth Circuit vacated the nationwide injunction on February 28, 2018.43
After the Supreme Court determined that challenges to the 2015 WOTUS Rule belonged in district courts, the District of North Dakota case and the Southern District of Georgia case picked up steam. In the District of North Dakota case, 7 of the 13 states filed a motion to lift the stay the court had entered pending the Supreme Court’s jurisdictional determination.44 The other states, while continuing to support invalidation of the rule, argued that lifting the stay was premature given EPA’s and the Corps’ decision to revise the rule.45 EPA argued that the stay should be continued for a year, stating that EPA would “administer the regulations in place prior to the 2015 Rule, and will continue to interpret the statutory term ‘waters of the United States’ to mean the waters covered by those regulations, as they are currently being implemented, consistent with Supreme Court decisions and practice . . . .”46 The North Dakota magistrate judge lifted the stay on March 23, 2018.47
On January 24, 2018, only two days after the Supreme Court’s decision, the U.S. Court of Appeals for the Eleventh Circuit vacated the Southern District of Georgia’s denial of injunctive relief and remanded the matter to the district court for further proceedings.48 On June 8, 2018, the district court enjoined application of the 2015 WOTUS Rule in the states before it.49 The court did so despite the fact that EPA has now suspended the rule, because “a court in one of the numerous other lawsuits pending in various states across the country [could] find that the [Suspension Rule] is invalid.”50
[i] U.S. Environmental Protection Agency (EPA) Suspends the 2015 WOTUS Rule
In February 2017, by executive order, President Trump ordered EPA and the Corps to review their WOTUS definition.51 On March 6, 2017, the Corps and EPA announced their intention to review the 2015 WOTUS Rule.52 On January 31, 2018, EPA and the Corps finalized the Suspension Rule.53 The Suspension Rule suspends the 2015 WOTUS Rule for two years, until February 6, 2020. “The effect of the Suspension Rule was that the WOTUS rule was delayed until 2020, and in the interim period the controlling interpretation of ‘waters of the United States’ was that prescribed by the 1980s regulation which had been in place prior to the WOTUS rule.”54
Several lawsuits have been filed challenging the Suspension Rule.55 The plaintiffs in those cases argue that promulgation of the Suspension Rule violated APA § 553(c) by taking action without adequate public notice and comment, and failing to consider the substantive implications of the suspension of the 2015 WOTUS Rule.56 In several of those lawsuits, the federal defendants have moved to transfer the challenge to the Suspension Rule to the U.S. District Court for the Southern District of Texas, where a challenge to the issuance of the 2015 WOTUS Rule is currently pending.57 On May 11, 2018, the U.S. District Court for the District of South Carolina denied such a motion, characterizing the case before it as “about the legality of the process by which the WOTUS rule was suspended,” whereas the pending litigation in the Southern District of Texas is about the legality of the issuance of the 2015 WOTUS Rule.58
So where does this leave us? As the U.S. District Court for the Southern District of New York recently stated: To recap, here is the status quo: The 2015 definition of WOTUS has never been implemented and remains enjoined in [multiple] states. The Sixth Circuit’s nationwide stay has been dissolved. The plaintiffs in Texas seek a nationwide injunction against the 2015 definition. The Suspension Rule is also in effect, meaning that the 2015 definition would not be in effect at least until 2020 even if there were no injunction against it. The 1980s definition still reigns.59
While there is a lot of ongoing legal wrangling, a resolution on the merits of the 2015 WOTUS Rule’s validity seems unlikely anytime soon.
On September 18, 2017, EPA postponed compliance with certain key provisions of the ELG Rule until 2020 (ELG Postponement Rule).60 As a result of the ELG Postponement Rule, the 1982 ELGs for power plants now control.61 The ELG Postponement Rule is being challenged in federal district court.62
EPA promulgated the ELG Rule in 2015, and it became effective on January 4, 2016.63 The rule, however, set out compliance dates starting “as soon as possible beginning November 1, 2018 (approximately three years following promulgation of this rule), but . . . no later than December 31, 2023 (approximately eight years following promulgation).”64 The ELG Rule was designed in part to reduce the levels of mercury, selenium, and arsenic discharged by steam electric power plants.65
After the ELG Rule was promulgated, seven petitions for review of the rule were filed, which were consolidated by the U.S. Judicial Panel on Multidistrict Litigation (JPML) in the U.S. Court of Appeals for the Fifth Circuit on December 9, 2015.66 On August 22, 2017, the Fifth Circuit issued an order severing and staying all proceedings related to certain provisions of the rule, including the best available technology economically achievable (BAT) effluent limitations and the pretreatment standards for existing sources (PSES) “applicable to (1) bottom ash transport water, (2) [flue gas desulfurization (FGD)] wastewater, and (3) gasification water” pending EPA’s completion of its review of the rule.67
On April 12, 2017, Administrator Pruitt announced that he would reconsider the ELG Rule and postponed certain of the rule’s compliance dates pending reconsideration (Stay Notice).68 Administrator Pruitt’s Stay Notice cited APA § 705, discussed above, as justification for postponing certain of the rule’s compliance dates. Recall that the ELG Rule had already become effective as of January 4, 2016, because no court stayed its effectiveness.
As discussed above, section 705 authorizes an agency to “postpone the effective date of action taken by it, pending judicial review” when “justice so requires.”69 With respect to section 705’s “pending judicial review” element, Administrator Pruitt pointed to the Fifth Circuit challenge to the ELG Rule. With respect to the “justice so requires” prong, Administrator Pruitt cited the petitions for reconsideration submitted to EPA in 2017, which raised “wide-ranging and sweeping objections to the Rule, some of which overlap with the claims in the ongoing litigation challenging the Rule in the U.S. Court of Appeals for the Fifth Circuit.”70 Administrator Pruitt also noted that one petition for reconsideration cited new data that demonstrated that plants burning certain types of coal could not comply with the ELG Rule.71 Administrator Pruitt stated that because certain compliance dates had not yet passed, and because of “the capital expenditures that facilities incurring costs under the Rule will need to undertake in order to meet the compliance deadlines for the new, more stringent limitations and standards in the Rule,” the compliance dates “are within the meaning of the term ‘effective date’ as that term is used in Section 705 of the APA.”72
On May 3, 2017, eight environmental groups challenged Administrator Pruitt’s Stay Notice in the U.S. District Court for the District of Columbia, alleging that the notice violated APA § 553(c).73 On April 18, 2018, the court dismissed the case, agreeing with EPA that the plaintiffs’ challenge to the Stay Notice is moot, because EPA withdrew the section 705 Stay Notice in September 2017.74
On September 18, 2017, EPA issued the ELG Postponement Rule, postponing certain compliance dates for two years.75 The two-year delay is an initial delay–EPA noted that it will “further postpone the compliance dates” if necessary.76 The ELG Postponement Rule postpones compliance dates for the BAT effluent limitations and the PSES for FGD wastewater and bottom ash transport water.77 As EPA has stated: “EPA’s action to postpone certain compliance dates in the 2015 Rule is intended to preserve the status quo for FGD wastewater and bottom ash transport water until EPA completes its next rulemaking concerning those wastestreams . . . .”78
On October 11, 2017, the same eight plaintiffs that challenged the Stay Notice filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit challenging the ELG Postponement Rule.79 The D.C. Circuit transferred that case to the Fifth Circuit, and the Fifth Circuit stayed the case.80
On January 30, 2018, the Center for Biological Diversity (CBD) brought suit in the U.S. District Court for the District of Arizona challenging the ELG Postponement Rule on Endangered Species Act (ESA) grounds.81 CBD’s argument is that the administrative record for the ELG Rule demonstrates that the rule would reduce adverse impacts on and reduce take of protected species resulting from power plant discharges, and consequently, delaying the ELG Rule may affect those species, requiring consultation under section 7 of the ESA.82 CBD seeks to compel EPA to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding the impacts of the ELG Postponement Rule.83 On April 3, 2018, the federal defendants moved to dismiss CBD’s claim arguing that jurisdiction lies, if at all, in the federal courts of appeals and not the district court.84 In June 2018, the Utility Water Act Group (UWAG) filed a motion to dismiss, also arguing that CBD’s challenge to the ELG Postponement Rule belongs in the Fifth Circuit because (1) it is subject to exclusive review in a court of appeals, and (2) the JPML designated the Fifth Circuit to hear challenges to the ELG Rule.85
In Hawai’i Wildlife Fund v. County of Maui,86 the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s conclusion that the County of Maui violated the CWA when it discharged pollutants from its wells into the Pacific Ocean. The case involves wells the County uses at its wastewater reclamation facility to dispose of effluent into groundwater and into the Pacific Ocean. According to the decision, the County “injects approximately 3 to 5 million gallons of treated wastewater per day into the groundwater via its wells.”87 The district court found the County liable “for discharging effluent through groundwater and into the ocean without the National Pollutant Discharge Elimination System (NPDES) permit required by the CWA.”88 The district court relied on three independent grounds for its conclusion: “(1) the County ‘indirectly discharge[d] a pollutant into the ocean through a groundwater conduit,’ (2) the groundwater is a ‘point source’ under the CWA, and (3) the groundwater is a ‘navigable water’ under the [CWA].”89
In affirming the district court, the Ninth Circuit rejected the County’s argument that “the point source itself must convey the pollutants directly into the navigable water under the CWA. As the wells here discharge into groundwater, and then indirectly into the Pacific Ocean, the County asserts they do not come within the ambit of the statute.”90 The Ninth Circuit imposed a “fairly traceable” standard, concluding that the County was liable under the CWA because (1) the County discharged pollutants from a point source, (2) the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis.91
The U.S. Court of Appeals for the Fourth Circuit in Upstate Forever v. Kinder Morgan Energy Partners, L.P. relied on Hawai’i Wildlife Fund to conclude that “to qualify as a discharge of a pollutant under the CWA, that discharge need not be channeled by a point source until it reaches navigable waters.”93 In that case, two conservation groups brought a CWA citizen suit alleging that Kinder Morgan Energy Partners, L.P. violated the CWA by polluting navigable waters without a permit.94 The basis for the conservation groups’ claims was a 2014 pipeline rupture that resulted in several hundred thousand gallons of gasoline spilling and seeping into nearby waterways.95 The conservation groups alleged that the gasoline continued to travel to “navigable waters.”96 The Fourth Circuit reversedthe district court, concluding that, despite the fact that the pipeline had been repaired, “the continuing addition of pollutants to navigable waters is . . . an ongoing violation of the CWA,”97 allowing the conservation groups to bring a citizen suit.98 Next, the Fourth Circuit concluded that the conservation groups stated a valid claim for a discharge under the CWA.99 The court concluded that “an indirect discharge may fall within the scope of the CWA . . . .”100 The court cautioned, however, that “such discharges must be sufficiently connected to navigable waters to be covered under the [CWA].”101 The court held that “a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.”102 The court found that standard was met and reversed the district court.103
The Dakota Access Pipeline (DAPL) litigation was originally brought by the Standing Rock Sioux Tribe in 2016, joined shortly thereafter by the Cheyenne River Sioux Tribe, to challenge construction of DAPL and specifically DAPL’s crossing of the Missouri River at Lake Oahe. On June 14, 2017, the U.S. District Court for the District of Columbia granted in part and denied in part the Standing Rock Sioux and Cheyenne River Sioux Tribes’ motions for summary judgment, and remanded certain issues to the Corps.105While largely upholding the Corps’ National Environmental Policy Act (NEPA) analysis, the court concluded that the Corps violatedNEPA in three discrete ways.106 The court did not vacate the easement at that time,107 and later denied vacatur pending remand.108
On March 19, 2018, the court denied claims brought by the Yankton Sioux Tribe and Robert Flying Hawk, chairman of the Tribe’s Business and Claims Committee (collectively, Tribe).109 The court dismissed the Tribe’s National Historic Preservation Act claims as moot, given that DAPL’s construction has been completed.110 The court granted summary judgement in favor of the federal defendants on the Tribe’s treaty rights claim because the Tribe had essentially withdrawn that claim.111 Finally, the court granted summary judgment in favor of the federal defendants on the Tribe’s NEPA claim.112 The Tribe argued that the Corps violated NEPA by improperly segmenting its review by preparing three environmental assessments (EA) and findings of no significant impact (FONSI).113 The court rejected this argument, in part, because “[e]ach of the EAs and FONSIs addresses geographically isolated crossings or easements, and there is no suggestion in the record that environmental impacts in one location would have repercussions for another.”114 The court concluded that the Corps’ EAs and FONSIs were “discrete analyses that address ecologically and geographically disparate areas of federal jurisdiction.”115
The Senate Committee on Environment and Public Works held a hearing on April 18, 2018, to consider impacts from groundwater permit regulations.116 The issue presented to the Committee was whether sources of pollutants that enter groundwater and then move to a waterbody covered by the CWA as a “water of the United States” should be required to receive a discharge permit under the CWA.
[a] Promulgation and Judicial Review
The CPP was published in 2015.117 Under the CPP, every state would have been required to implement detailed plans to reduce CO2emissions from sources such as coal-fired power plants enough to decrease carbon pollution by about one-third by 2030, compared with 2005 levels.118 On October 23, 2015, the day it was published in the Federal Register, 24 states challenged the CPP in the D.C. Circuit.119 On January 21, 2016, the D.C. Circuit denied a motion to stay the CPP pending appeal,120 and on January 26, 2016, the plaintiffs sought an immediate stay of the CPP from the U.S. Supreme Court. On February 9, 2016, the Supreme Court stayed implementation of the CPP pending judicial review.121 On April 28, 2017, the D.C. Circuit agreed to hold the case in abeyance for 60 days.122 The case remains pending, but still held in abeyance at the time of this writing.
In EO 13,783, President Trump required the EPA Administrator to review final rules and guidance relating to the CPP and “as soon as practicable, suspend, revise, or rescind the guidance . . . .”123 On March 28, 2017, the same day that EO 13,783 was signed, EPA announced that it was reviewing the CPP and, if appropriate, would initiate proceedings to suspend, revise, or rescind the CPP.124 On October 10, 2017, EPA proposed to repeal the CPP.125
The BLM’s hydraulic fracturing rule provides a much-needed update to the BLM’s existing regulations. It establishes commonsense standards governing modern hydraulic fracturing operations that reflect the technological advancement of the process over time. It also provides opportunities for the BLM to coordinate standards and processes with States and Tribes to reduce administrative costs and improve efficiency. These new regulations are essential to our efforts to protect the environment and local communities, while also ensuring the continued conscientious development of our federal oil and gas resources.129
On September 21, 2017, the U.S. Court of Appeals for the Tenth Circuit concluded that the judicial challenges to the Fracturing Rule were no longer fit for appellate review given BLM’s intent to withdraw the rule.131 The Tenth Circuit concluded that “our proceeding to address whether the district court erred in invalidating the BLM’s Fracturing Regulation when the BLM has now commenced rescinding that same regulation appears to be a very wasteful use of limited judicial resources.”132 The majority vacated the district court’s decision invalidating the 2015 Fracturing Rule and dismissed the underlying action.133 Judge Hartz dissented, stating that the court did not have adequate information on which to base a decision to vacate and that he would have affirmed the permanent injunction as to the Ute Indian Tribe, which had raised specific arguments supporting the injunction that the other parties failed to challenge.134
As previously discussed, EO 13,783 mandated BLM to review the Fracturing Rule and “as soon as practicable, suspend, revise, or rescind” it.135 SO 3349, published a day later, stated that BLM would proceed to propose to rescind the rule.136 On July 25, 2017, BLM proposed to rescind the rule, providing as justification for the decision that BLM “believe[s] it is unnecessarily duplicative of state and some tribal regulations and imposes burdensome reporting requirements and other unjustified costs on the oil and gas industry.”137 On December 29, 2017, BLM rescinded the rule.138 The repeal was effective immediately.
In January 2018, California brought suit against BLM challenging its decision to repeal the Fracturing Rule.139 California asserted that BLM failed to supply a “reasoned basis” for rescinding the rule, including that
BLM failed to consider how the Final Repeal would fulfill the important statutory mandates that the [Fracturing] Rule was designed to address, failed to explain why it reversed course based on the same information that it considered when it . . . promulgated the Rule just two years earlier, and offered a purported justification for the Final Rule that runs counter to the evidence before the agency.140
That same day, and in the same court, the Sierra Club and others also challenged BLM’s decision to repeal the rule.141 Sierra Club alleges that the repeal violates the Federal Land Policy and Management Act of 1976, the Mineral Leasing Act of 1920 (MLA), the Indian Mineral Leasing Act, and NEPA, and is arbitrary and capricious and contrary to law.142
BLM temporarily suspended portions of the Venting and Flaring Rule on December 8, 2017.143 The suspension rule, however, was enjoined on February 22, 2018, by the U.S. District Court for the Northern District of California.144 The District of Wyoming recently stayed several provisions of the Venting and Flaring Rule.145 Consequently, the rule is in effect, except for the following provisions that were stayed by the District of Wyoming:
• 43 C.F.R. § 3179.7 (gas capture percentage requirement);
• 43 C.F.R. § 3179.9 (measuring and reporting volumes of gas vented or flared);
• 43 C.F.R. § 3179.201 (equipment requirements for pneumatic controllers);
• 43 C.F.R. § 3179.202 (requirements for pneumatic diaphragm pumps);
• 43 C.F.R. § 3179.203 (storage vessels);
On November 18, 2016, BLM published the Venting and Flaring Rule.148 The rule was designed to address waste of natural gas through reduction of venting, flaring, and leaks during oil and natural gas production activities.149 The rule applied to all onshore oil and gas leases, and leases with Indian tribes, other than the Osage Nation.150 The rule became effective on January 17, 2017, although many of the requirements were to be completed by January 17, 2018, or later.
Two industry groups and the States of Wyoming and Montana challenged the Venting and Flaring Rule in the District of Wyoming in November 2016.151 They argued the rule exceeded BLM’s statutory authority by regulating air quality and failed to give due consideration to economic feasibility. The court denied the plaintiffs’ request for a preliminary injunction to prevent the rule from going into effect.152
On April 4, 2018, the District of Wyoming stayed the litigation of the Venting and Flaring Rule and stayed implementation of certain provisions of the rule.153 The court, in so doing, stated: “Sadly, and frustratingly, this case is symbolic of the dysfunction in the current state of administrative law.”154 On April 30, 2018, the court issued an order denying a motion to stay its order pending appeal.155
Pursuant to EO 13,783, BLM was directed to review the Venting and Flaring Rule, and to publish proposed rules suspending, revising, or rescinding it.156 On June 15, 2017, BLM issued a postponement notice, postponing compliance dates for certain provisions of the rule.157 The postponement notice relied on APA § 705158 as the basis for postponement.
California, along with New Mexico and a coalition of conservation and tribal citizens’ groups, challenged the postponement notice as violating APA § 705 because the rule’s effective date had passed and APA § 553 by taking action without adequate public notice and comment.159 On October 4, 2017, the court granted their motion for summary judgment, concluding that section 705 did not authorize postponement, given that the effective date had passed, and that the postponement notice was in violation of section 553’s notice and comment requirements. The court concluded that, for purposes of section 705, effective date and compliance dates have different meanings, and the court vacated the postponement notice.160
On October 5, 2017, BLM issued a proposed rule that would suspend or delay portions of the Venting and Flaring Rule until January 17, 2019.161 BLM finalized that rule on December 8, 2017.162 “The rule . . . ensured that operators on federal and Indian oil and gas leases would not expend their resources on complying with the requirements of the 2016 rule . . . .”163 The suspension rule became effective on January 8, 2018.
California and New Mexico filed suit against BLM challenging the suspension rule.164 The court concluded that California and New Mexico were likely to succeed on the merits of their claim that BLM did not provide a reasoned basis for promulgating the suspension rule, the rule is inconsistentwith BLM’s statutory duties, and BLM failed to provide meaningful notice and opportunity to comment.165
On February 22, 2018, BLM issued a proposed rule to revise the Venting and Flaring Rule “in a manner that reduces unnecessary compliance burdens, is consistent with the BLM’s existing statutory authorities, and re-establishes long-standing requirements that the 2016 final rule replaced.”166 BLM provided several reasons for revising the Venting and Flaring Rule, including that the rule “is more expensive to implement and generates fewer benefits than initially estimated,” and that many of the rule’s requirements “would pose a particular compliance burden to operators of marginal or low-producing wells, and there is concern that those wells would not be economical to operate with the additional compliance costs.”167 BLM noted the possibility of overlapping authority, including EPA’s authority under the Clean Air Act and state regulations.168 BLM was also motivated by a concern that not all of the Venting and Flaring Rule’s provisions “would survive judicial review.”169 In sum: “The proposed rule would eliminate duplicative regulatory requirements and re-establish long-standing requirements that the 2016 final rule sought to replace.”170
EO 13,783 ordered CEQ, the agency charged with implementing NEPA, to rescind its 2016 final GHG guidance entitled “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.”171 On April 5, 2017, CEQ withdrew its 2016 final guidance.172CEQ cited EO 13,783 and reiterated that the 2016 final guidance “was not a regulation,” and stated that its guidance was being withdrawn “for further consideration.”173 CEQ further stated that the withdrawal of the 2016 final guidance “does not change any law, regulation, or other legally binding requirement.”174
EO 13,783 disbanded the Interagency Working Group (IWG) and ordered all SCC technical support documents withdrawn “as no longer representative of governmental policy.”175 The SCC was developed in 2010 to “allow agencies to incorporate the social benefits of reducing [CO2] emissions into cost-benefit analyses of regulatory actions . . . .”176 “The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year.”177 The SCC was intended to monetize “changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services due to climate change.”178
On September 15, 2017, the Tenth Circuit in WildEarth Guardians v. BLM179 concluded that BLM failed to comply with NEPA when it issued coal mining leases in the Powder River Basin. In so doing, the Tenth Circuit rejected BLM’s “perfect substitution” assumption, i.e., that the coal proposed to be supplied by the leases would be filled from elsewhere at a comparable price and therefore approval of the leases would have no appreciable impact on the United States’ total CO2 emissions.180 The Tenth Circuit held that the perfect substitution assumption lacked support in the record and was undermined by the U.S. Energy Information Administration’s Annual Energy Outlook 2008 report, upon which BLM apparently selectively relied in its final environmental impact statement (EIS).181 Although the court found a NEPA violation, it did not vacate the leases, but remanded to the district court for consideration of the appropriateremedy.182 Judge Baldock specially concurred to note his disagreement with the opinion’s discussion of climate science and its “assertion that climate science is settled science.”183 Because the issue before the court was an economic one, in his view, the assertion about climate science and the discussion of climate science was “both unnecessary to this appeal and questionable as a factual matter,” and if it were relevant, he suggested that the court ought to defer to the agency on that issue.184
In WildEarth Guardians v. Jewell,185 WildEarth Guardians contended that the Office of Surface Mining Reclamation and Enforcement (OSMRE) failed to adequately analyze impacts relating to air quality and GHG emissions arising from OSMRE’s approval of a mining plan. The court, in upholding OSMRE’s EA, concluded that the EA’s approach to evaluating GHG emissions comported with CEQ’s 2016 final GHG guidance.186 The court noted that the EA calculated emissions of coal originating from the lease based on EPA emission information from different generating stations and power plants. The court further noted that the EA calculated the total tons of CO2 emissions expected from the lease and analyzed those emissions in the context of annual global and national emissions levels.187
In Sierra Club v. FERC,188 the D.C. Circuit held that the Federal Energy Regulatory Commission (FERC) did not adequately address GHG emissions resulting from burning gas as an indirect effect of FERC’s approval of three interstate pipelines that would transport the gas to power plants. The court rejected FERC’s practical argument that it is impossible to know exactly what quantity of GHG will be emitted by virtue of FERC’s approval of the project, given that the amount of GHG emissions depends on operating decisions of plants using the gas and demand for electricity in the region.189 Because FERC knew how much gas would be transported, the court reasoned that FERC could make an educated assumption about emissions based on emissions information from power plants.190
In Montana Environmental Information Center v. OSMRE,191 decided after the SCC was withdrawn, the court acknowledged that while NEPA does not require a cost-benefit analysis, an agency acts arbitrarily and capriciously when it quantifies the benefits of a project but not the costs.192 The court found OSMRE’s arguments against using the SCC did not address the petitioner’s “main point,” i.e., “that it was arbitrary and capricious to quantify the benefits of an action while failing to quantify the costs of the action even though such an analysis was possible.”193 The court was persuaded that OSMRE was required to quantify the costs of GHG emissions and for that reason, among others, vacated the mining plan.194
On January 22, 2017, the Solicitor of the Interior released Solicitor’s Opinion M-37041, an opinion determining that the Migratory Bird Treaty Act (MBTA)196 applied to any incidental taking of a protected bird regardless of intent.197 The opinion’s purpose was to clarify an issue that was subject to significant litigation and a circuit split on whether intent is required.198 The Solicitor focused on the strict liability standard used for violators of the MBTA and the implication that no requirement to show intent meant that incidental take was also prohibited.199 The opinion dismissed concerns over harsh penalties by explaining that the requirement to show proximate cause provided an inherent limit on potential liability.200
Less than a year later, on December 22, 2017, the Solicitor’s office reached the opposite conclusion, determining that the MBTA prohibits only the purposeful taking of migratory birds.201 The Principal Deputy Solicitor determined that the incidental taking of protected migratory birds could not be criminalized under the MBTA.202 In reaching this conclusion, the opinion highlights that the MBTA’s original purpose was to limit the commercial hunting of birds, which required intent.203 It also found that, in the context of the statute as a whole, the verbs “take” and “kill” are active verbs requiring purposeful action.204 In contrast to the prior opinion, the Principal Deputy Solicitor ultimately concluded that interpreting the MBTA to include “incidental” take would be excessively vague and could cause average citizens to become unknowing criminals.205 While there has not yet been any judicial review of this opinion, opposition has been noted.206
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)208 established requirements concerning hazardous waste sites, provided for liability of persons responsible for release of hazardous waste at these sites, and created a federal “Superfund” to provide for cleanup of these waste sites.209 Perhaps the most common type of waste site in the country is referred to as a brownfield. According to multiple sources, there are somewhere between 450,000 and 500,000 brownfields across the country.210 According to EPA, brownfield sites are real “propert[ies], the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”211
In 2002, Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (2002 Act).212 For the past 16 years, the 2002 Act has been in place to promote economic growth and environmental protection by providing funds to assess and clean up brownfields, expand eligibility for assessment and cleanup grants, clarify CERCLA liability protection, and support state and tribal response programs.213
Recently co-sponsored by bipartisan support, Congress passed the Brownfields Utilization, Investment, and Local Development Act of 2018 (BUILD Act),214 which amended the 2002 Act.215 The BUILD Act has added some notable items. Funding for the brownfields program will continue to be funded at the rate of $200 million per year for each fiscal year through 2023.216 Additionally, the BUILD Act added a provision referencing Alaskan native villages and Alaskan native corporations,217 added a description of a bona fide prospective purchaser,218 expanded eligibility for nonprofit organizations,219 created more exemptions for certain brownfield sites,220increased funding of remediation grants from $200,000 to $500,000 (even allowing up to $650,000 with proper administrative approval),221 and addressed several administrative aspects of the grants.222 The BUILD Act reflects the importance of these grant programs under CERCLA through the year 2023.
Upper Skagit Indian Tribe v. Lundgren,223 decided by the U.S. Supreme Court on May 21, 2018, involved the question of whether tribal sovereign immunity barred a suit by adjoining landowners, Sharline and Ray Lundgren, to determine the boundary between their private land and land claimed by a tribe. The Washington Supreme Court held that it did not. In a 7-2 opinion, the Supreme Court reversed but remanded the matter to the Washington Supreme Court for the parties and that court to address the “immovable property” doctrine, which the Lundgrens’ counsel advanced as an alternate reason for upholding the Washington Supreme Court’s decision.224That doctrine provides that “[a] prince, by acquiring private property in a foreign country, . . . may be considered as so far laying down the prince, and assuming the character of a private individual.”225 Justices Thomas and Alito dissented, faulting the majority for not answering the question before it, and for refusing to address the Lundgrens’ alternative argument based on the immovable property exception to the sovereign immunity doctrine, which Justice Thomas concluded applied to tribal sovereign immunity.226
In United States v. Washington,227 the Ninth Circuit affirmed the lower court’s decision that treaties with Pacific Northwest Tribes require Washington to remove culverts that block or restrict salmon passage. The State of Washington petitioned the U.S. Supreme Court for a writ of certiorari, which was granted. On June 11, 2018, the Supreme Court affirmed the Ninth Circuit’s decision by an equally divided court.228
In Public Service Co. of New Mexico v. Barboan,229 the Tenth Circuit affirmed a district court ruling that tribal ownership of a fractional interest in an “allotment,” land the United States holds in trust for individual Indians, bars condemnation of any interest in the allotment, despite Congress’s intent in 25 U.S.C. § 357 that “lands allotted in severalty to Indians” besubject to condemnation under state law. The Tenth Circuit agreed that tribal ownership of a fractional undivided interest in an allotment converts it from “lands allotted in severalty” to “tribal land,” and therefore the federal condemnation statute no longer applied.
Courts have found standing to challenge NEPA decisions based on alleged deficiencies in the NEPA document’s GHG and climate change analysis even when standing is not based on harms resulting from that analysis. For example, in Sierra Club v. FERC, the court found that Sierra Club had standing to challenge FERC’s EIS on the grounds that it adequately failed to consider the project’s GHG emissions and environmental justice impacts.231 The court found an affidavit submitted by a Sierra Club member stating that the pipeline would cross his property on an easement taken by eminent domain, that construction noise would impair his enjoyment of his daily activities, and that trees shading his house would be removed, satisfied Article III’s standing requirements.232 The court then held: “The deficiency need not be directly tied to the members’ specific injuries. For example, Sierra Club may argue that FERC did not adequately consider the pipelines’ contribution to climate change.”233
In WildEarth Guardians v. BLM, the Tenth Circuit held that petitioners challenging a NEPA decision on climate change grounds do not need to allege injuries caused by climate change.234 The Tenth Circuit reiterated that “it is not the case that Plaintiffs’ injury must be tied to the particular deficiency alleged in the [final EIS], i.e., that Plaintiffs must allege a climate-change related injury in order to have standing to challenge BLM’s analysis of climate change impacts.”235 Rather, so long as redressability is met, there is no requirement that “the legal theory and the standing injury . . . be linked . . . .”236
In Western Energy Alliance v. Zinke,237 the Tenth Circuit held that several environmental groups could intervene in Western Energy Alliance’s (WEA) challenge to BLM oil and gas leasing decisions under the MLA. WEA argued, in relevant part, that BLM was violating the MLA by holding too few oil and gas lease sales.238 The environmental groups moved to intervene and the district court denied that motion, concluding that, while the environmental groups had a legally protectable environmental interest in the lawsuit, i.e., their interest in protecting public lands from oil and gas drilling, WEA’s suit would not impact their interests and that BLM adequately protected those interests.239 The Tenth Circuit reversed.
The Tenth Circuit concluded that the environmental groups had identified “two protectable interests: (1) obviating and/or minimizing impacts from oil and gas development . . .; and (2) preserving the reforms they had worked to implement, including the Leasing Reform Policy.”240 The court next concluded that those two interests would be impaired if the district court were to conclude that BLM’s leasing practices violate the MLA.241 If BLM were to be required to change its leasing practices, then its existing policies, including the Leasing Reform Policy, would have to be amended.242 Finally, the court concluded that BLM did not adequately represent the environmental groups. The court relied, in part, on the “change in the Administration,” noting that it “raises ‘the possibility of divergence of interest’ or a ‘shift’ during litigation.”243 The Tenth Circuit stated that “[t]his possibility has already manifested itself in other arenas,” citing BLM’s changed position on the hydraulic fracturing rules, and Executive Order Nos. 13,771 and 13,783.244 The court stated that “[t]hese Executive Orders have created the opportunity for the BLM to conduct a review that could result in its abandonment of the Leasing Reform Policy.”245 The court thus concluded that “the interests and policy goals of the BLM and the conservation groups will possibly diverge.”246
See also Lincoln L. Davies, Tyler Hubbard & Christopher Sanders, “Trump, Energy Policy, and Hard Look Review,” 64 Rocky Mt. Min. L. Inst. 21-1 (2018).
See Sierra Club v. Jackson, 833 F. Supp. 2d 11, 28-29 (D.D.C. 2012) (holding that when a section 705 notice does not constitute substantive rulemaking it is not subject to notice and comment requirements); Becerra v. DOI, 276 F. Supp. 3d 953, 964 (N.D. Cal. 2017) (Section 705 “permits an agency to postpone the effective date of a not yet effective rule, pending judicial review. It does not permit the agency to suspend without notice and comment a promulgated rule, as respondent has attempted to do here.” (quoting Safety-Kleen Corp. v. EPA, No. 92-1629, 1996 U.S. App. LEXIS 2324, at *2-3 (D.C. Cir. Jan. 19, 1996))).
See 5 U.S.C. § 553(c) (“After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.”).
Secretarial Order No. 3338 (Jan. 15, 2016) was issued by former Secretary of the Interior Sally Jewell. It placed a moratorium on coal leasing while the Secretary undertook a programmatic environmental impact statement to review the impacts of coal leasing nationwide.
See Definition of “Waters of the United States”—Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200 (Feb. 6, 2018) (to be codified at 33 C.F.R. pt. 328 and scattered sections of 40 C.F.R.).
See Final Rule for Regulatory Programs of the Corps, 51 Fed. Reg. 41,206, 41,250 (Nov. 13, 1986) (to be codified at 33 C.F.R. pts. 320-330); CWA § 404 Program Definitions and Permit Exemptions; § 404 State Program Regulations, 53 Fed. Reg. 20,764, 20,773-74 (June 6, 1988) (to be codified at 40 C.F.R. pts. 232, 233).
See North Dakota v. EPA, No. 3:15-cv-00059 (D.N.D. filed June 29, 2015). The states and state agencies that filed suit are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and the New Mexico Environment Department and New Mexico Office of the State Engineer.
See North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). The District of North Dakota stayed the case pending the outcome of the Supreme Court’s jurisdictional decision. See North Dakota v. EPA, No. 3:15-cv-00059 (D.N.D. May 24, 2016) (order).
See Georgia v. McCarthy, No. 2:15-cv-00079, 2015 WL 5092568 (S.D. Ga. Aug. 27, 2015). Other district courts similarly concluded that the challenge to the WOTUS Rule belonged in the circuit courts of appeals. See Murray Energy Corp. v. EPA, No. 1:15-cv-00110, 2015 WL 5062506 (N.D. W. Va. Aug. 26, 2015); Ariz. Mining Ass’n v. EPA, No. 2:15-cv-01752 (D. Ariz. dismissed May 3, 2016); Wash. Cattlemen’s Ass’n v. EPA, No. 0:15-cv-03058, 2016 WL 6645765 (D. Minn. Nov. 8, 2016).
In re EPA, 803 F.3d 804 (6th Cir. 2015). For a discussion of the arguments raised in the Sixth Circuit, see Ivan L. London, “Annual Environmental Law Update,” 63 Rocky Mt. Min. L. Inst. 24-1, § 24.03 (2017).
Id. at 16. On May 1, 2018, the court affirmed the magistrate judge’s March 23, 2018, decision. See North Dakota v. EPA, No. 3:15-cv-00059 (D.N.D. May 1, 2018) (order denying defendant’s appeal from magistrate judge’s order).
See Definition of “Waters of the United States”–Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200 (Feb. 6, 2018) (to be codified at 33 C.F.R. pt. 328 and scattered sections of 40 C.F.R.).
See, e.g., S.C. Coastal Conservation League v. Pruitt, No. 2:18-cv-00330 (D.S.C. filed Feb. 6, 2018); Natural Res. Def. Council, Inc. v. EPA, No. 1:18-cv-01048 (S.D.N.Y. filed Feb. 6, 2018); New York v. Pruitt, No. 1:18-cv-01030 (S.D.N.Y. filed Feb. 6, 2018) (filed on behalf of 10 states and the District of Columbia).
S.C. Coastal, 2018 WL 2184395, at *4; see also New York v. Pruitt, No. 1:18-cv-01030, 2018 WL 2411595, at *2 (S.D.N.Y. May 29, 2018) (order denying motions to transfer to Southern District of Texas). On August 16, 2018, the U.S. District Court for the District of South Carolina concluded that the Suspension Rule was invalid and enjoined it nationwide. S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018).
New York, 2018 WL 2411595, at *2.
See Postponement of Certain Compliance Dates for the ELGs and Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 43,494(Sept. 18, 2017) (to be codified at 40 C.F.R. pt. 423).
See Postponement of Certain Compliance Dates for the ELGs and Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 43,494(Sept. 18, 2017) (to be codified at 40 C.F.R. pt. 423). The ELG Postponement Rule also lifted the stay imposed by the Stay Notice. Id. at 43,496.
Complaint at 14, Ctr. for Biological Diversity v. Pruitt, No. 4:18-cv-00050 (D. Ariz. Jan. 30, 2018) (citing 16 U.S.C. § 1536). The complaint also alleges violations of NEPA. Id. at 17 (citing 42 U.S.C. § 4332(2)(C)).
Id. at 652-53. The Sixth Circuit, in two split decisions, recently rejected the Ninth and Fourth Circuits’ reasoning. See Ky. Waterways Alliance v. Ky. Utils. Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24, 2018); Tenn. Clean Water Network v. Tenn. Valley Auth., 905 F.3d 436 (6th Cir. 2018).
For more information on this topic, see London, supra note 39, at § 24.03; Walter E. Stern, “‘Black Snakes’ or Essential Infrastructure: Dakota Access Pipeline, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, the Federal Government’s Tribal Consultation Obligations, and Why This Matters,” 63 Rocky Mt. Min. L. Inst. 1A-1 (2017); and Jeanette Wolfley, “‘The Black Snake’: The Dakota Access Pipeline Project, Federal Consultation, and the Energy Industry’s Role,” 63 Rocky Mt. Min. L. Inst. 1B-1 (2017).
Id. at 147. Those three violations were: “the agency failed to adequately consider the impacts of an oil spill on Standing Rock’s fishing and hunting rights and on environmental justice, and . . . did not sufficiently weigh the degree to which the project’s effects are likely to be highly controversial in light of critiques of its scientific methods and data.” Id.
See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60); see also Davies, Hubbard & Sanders, supra note 1, at § 21.03.
See West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015) (consolidated with numerous other cases). A number of other states and parties subsequently joined the lawsuit. Many of the pleadings in this case are available at https://ago.wv.gov/publicresources/epa/Pages/D-C–Circuit%2c-No–15-1363.aspx.
See Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 82 Fed. Reg. 48,035 (proposed Oct. 16, 2017) (to be codified at 40 C.F.R. pt. 60).
Future of Hydraulic Fracturing on Federally Managed Lands: Hearing Before the Subcomm. on Energy & Mineral Res. of the H. Comm. on Natural Res., 114th Cong. (2015) (prepared statement of Neil Kornze, Dir., BLM).
See Wyoming v. DOI, No. 2:15-cv-00043, 2016 WL 3509415 (D. Wyo. June 21, 2016), vacated sub nom. Wyoming v. Zinke, 871 F.3d 1133, 1138-39 (10th Cir. 2017) (discussing Fracturing Rule and litigation challenging its validity).
Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain Requirements, 82 Fed. Reg. 58,050 (Dec. 8, 2017) (to be codified at 43 C.F.R. pts. 3160, 3170); see id. at 58,050 (“The 2017 final delay rule does not substantively change the 2016 final rule, but simply postpones implementation of the compliance requirements for certain provisions of the 2016 final rule for 1 year.”); see also Davies, Hubbard & Sanders, supra note 1, at § 21.03[a].
See BLM, “Methane and Waste Prevention Rule,” https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/operations-and-production/methane-and-waste-prevention-rule.
Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements, 83 Fed. Reg. 7924, 7924(proposed Feb. 22, 2018) (to be codified at 43 C.F.R. pts. 3160, 3170).
Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 83,008 (Nov. 18, 2016) (to be codified at 43 C.F.R. pts. 3100, 3160, 3170); see also London, supra note 39, at § 24.02[a].
Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain Requirements, 82 Fed. Reg. 46,458 (proposed Oct. 5, 2017) (to be codified at 43 C.F.R. pts. 3160, 3170).
Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain Requirements, 82 Fed. Reg. 58,050 (Dec. 8, 2017) (to be codified at 43 C.F.R. pts. 3160, 3170).
California v. BLM, 286 F. Supp. 3d 1054, 1065-73 (N.D. Cal. 2018). The court also concluded that California and New Mexico had demonstrated irreparable harm and that the balance of equities weighed in favor of injunctive relief.
Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements, 83 Fed. Reg. 7924, 7924(proposed Feb. 22, 2018) (to be codified at 43 C.F.R. pts. 3160, 3170).
See Letter from John J. Clarke, Dir., Mass Audubon, to Daniel H. Jorjani, Principal Deputy Solicitor (Jan. 17, 2018) (disagreeing with the opinion that the MBTA does not apply to incidental take); see also Complaint, Natural Res. Def. Council, Inc. v. DOI, No. 1:18-cv-04596 (S.D.N.Y. May 24, 2018), 2018 WL 2364032 (arguing that the new opinion violates the purpose of the MBTA and harms important migratory birds).
See EPA, “Superfund: CERCLA Overview,” https://www.epa.gov/superfund/superfund-cercla-overview.
See Kriston Capps, “How Much Cleaning up Brownfields Is Really Worth,” City-Lab (July 29, 2014); EPA, “Overview of the Brownfields Program,” https://www.epa.gov/brownfields/overview-brownfields-program; Robert Alan Simons, “How Many Urban Brownfields Are Out There? An Economic Base Contraction Analysis of 31 U.S. Cities,” 2(3) Pub. Works Mgmt. & Pol’y 267 (Jan. 1998).
EPA, “Overview of the Brownfields Program,” https://www.epa.gov/brownfields/overview-brownfields-program.
See EPA, “Summary of the Small Business Liability Relief and Brownfields Revitalization Act,” https://www.epa.gov/brownfields/summary-small-business-liability-relief-and-brownfields-revitalization-act.
See Anthony B. Cavender, “New CERCLA Brownfields Amendments,” Pillsbury–Gravel2Gavel Constr. & Real Estate Law Blog (Mar. 29, 2018); Hilarie Bass, “BUILD Act Needs a Stronger Rule of Law Foundation,” The Hill (Mar. 26, 2018).
138 S. Ct. 1832 (2018) (per curiam) (mem.). Justice Kennedy took no part in the decision. For a discussion of this case, see Monte Mills, “Current Developments in Indian Water Law and Treaty Rights: Old Promises, Recent Challenges, and the Potential for a New Future,” 64 Rocky Mt. Min. L. Inst. 9-1, § 9.03 (2018).
Id. at 1165. The Leasing Reform Policy was adopted by BLM after years of negotiation and litigation with the environmental groups. Id. at 1162 (citing BLM, Instruction Memorandum No. 2010-117 (May 17, 2010)).
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