On January 23, 2020, the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers issued the Navigable Waters Protection Rule (the “2020 Rule”), which includes a revised definition of the “waters of the United States” subject to federal regulation under the Clean Water Act.[1] The revisions in the 2020 Rule come after a line of U.S. Supreme Court (“Supreme Court”) cases ending with Rapanos v. United States,[2] as well as an Obama-era administrative rule addressing the waterbodies under federal jurisdiction (the “2015 Rule”).[3] Rapanos was the last time the Supreme Court interpreted the term “waters of the United States,” with the intent of curtailing the substantial litigation concerning the meaning of the phrase and defining what “waters of the United States” should be included under federal jurisdiction. The 2015 Rule intended to clarify the definition further and codify the Supreme Court decisions. When effective, the newly issued Navigable Waters Protection Rule will limit the 2015 Rule, attempting again to define what are and what are not “waters of the United States.”
Continue Reading Navigable Waters Protection Rule: How are the “Waters of the United States” Being Defined?

The California Office of Environmental Health Hazard Assessment (OEHHA) recently adopted amendments to California Code of Regulations, section 25600.2 – the section titled “Responsibility to Provide Consumer Product Exposure Warnings.”  These amendments provide more specific guidance for manufacturers, retailers and other businesses in the chain of commerce on how to satisfy their responsibilities to provide consumer product exposure warnings for chemicals listed under Proposition 65. The amendments become effective on April 1, 2020.
Continue Reading Proposition 65: California Clarifies Responsibilities To Warn Amongst Manufacturers, Distributors and Retailers

Public awareness regarding air pollution in the European Union is at an all-time high and citizens expect authorities to act. In this vein, the European Commission[1] has recently taken a number of direct and indirect actions, including engagement of the Court of Justice of the EU, enforcement measures against car manufacturers and a Europe-specific “Green Deal,” to stem the tide of rising air pollution and become the world’s first climate-neutral continent by 2050.
Continue Reading EU is Taking Action: The Fight for Clean Air

This Fall, the California Coastal Commission (“Commission”) was handed down two significant victories, further cementing its authority and jurisdiction within California coastal zones. These cases demonstrate that, in certain instances, compliance with the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (“CEQA”) and local regulations may not be enough to secure development rights for either private developers or local governments.
Continue Reading Fall Season Results in California Coastal Commission Victories

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a rule on October 23, 2019, repealing the Clean Water Rule promulgated by the Obama administration in 2015. The rule, which goes into effect on December 23, 2019, puts the pre-2015 regulations governing areas subject to federal jurisdiction under the Clean Water Act back into place nationwide. Environmental groups and state attorneys general have vowed to challenge the repeal in court.
Continue Reading EPA and Army Repeal Clean Water Rule and Move Forward with Plan to Redefine Waters Subject to Federal Regulation under Clean Water Act

Today President Trump announced on Twitter that the U.S. was revoking California’s waiver under the Clean Air Act (CAA) which allowed it to impose stricter tailpipe emission standards than the federal ones. California’s Governor Newsom and Attorney General Becerra immediately announced that the state would file suit to challenge the revocation.

While the revocation has been characterized as an immediate rollback, the federal corporate average fuel economy (CAFE) standards[1] established under the previous administration, which are consistent with California’s, remain in place. Last year the Trump administration proposed to rollback those standards, freezing the efficiency and emission rules in 2021 and canceling further increases in stringency set through 2028. The final rule has not yet been issued. It is rumored that it will not be, as the administrative record supporting it has many problems and most acknowledge that it faces significant legal hurdles.
Continue Reading Politics Trumps Economics? Trump’s Revocation of California’s Waiver Under the Clean Air Act

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26:

  • Eliminate the automatic extension of protections to threatened (as opposed to endangered) species;
  • Revise the provisions for designating critical habitat and listing and de-listing species under ESA Section 4; and
  • Revise the procedures for interagency consultation under ESA Section 7.


Continue Reading Endangered Species Act Rulemakings Face Immediate Challenge

On June 13, 2019, the Office of the United States Trade Representative ruled that bifacial solar modules are exempt from the Section 201 tariffs on solar cell and module imports. This exemption applies to articles imported on or after June 13, 2019, and creates an opportunity for cost savings over traditional monofacial solar modules. Developers and solar companies who have been importing, or are considering importing, solar modules should consider the potential for such savings in light of this exemption.
Continue Reading Bifacial Solar Modules Now Exempt from Section 201 Tariff

In a recent opinion, the D.C. Circuit suggested the Federal Energy Regulatory Commission (FERC) must attempt to obtain information necessary to evaluate the environmental effects of a proposed interstate pipeline project due to the project’s effect on natural gas production and consumption. In Birckhead v. FERC, USCA Case No. 18-1218 (D.C. Cir. 2019), the court criticized FERC for failing to obtain and consider information about upstream production and downstream consumption in its National Environmental Policy Act (NEPA) review of a proposed project to add compression to an existing pipeline, even though the applicant was unlikely to have information regarding the origin and destination of the gas to be transported. The court indicated that FERC has an obligation to at least request information about upstream and downstream activities from pipeline applicants, and suggested that, under the decision in Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017), FERC may be required to consider the environmental effects of those activities as indirect effects of FERC’s pipeline approval.
Continue Reading D.C. Circuit Says NEPA Requires FERC To Inquire Into Up and Downstream Effects of Pipeline Project

On April 2, 2019, the Federal Energy Regulatory Commission (“FERC” or “Commission”) determined that the one-year statutory limit on state review of interstate natural gas pipeline company applications for water quality certification was a bright-line deadline that could not be extended by private agreement.[1] FERC found that the New York State Department of Environmental Conservation’s (“NYDEC”) failure to act within one year of receipt of a water quality certification application submitted by National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (together, “National Fuel”) constituted waiver of the State’s authority under Section 401 of the Clean Water Act[2] to make a final determination on the application. Section 401 limits such review to one year or less from the date of receipt of the application. The Commission rejected contentions by the NYDEC and Sierra Club that the NYDEC could extend the date by which it could act on a water quality certification application. The Commission’s Order will arguably restrict states’ ability to review water quality certification applications associated with interstate natural gas pipeline projects, may actually lead to uncertainty for entities proposing to construct such pipeline facilities, and will test the Commission’s interpretations of Section 401 and related case law.
Continue Reading FERC Holds the Line on One-Year Limit for State Review of Clean Water Act Certifications for Interstate Natural Gas Pipelines