Recent Cases – Environmental

In a long-anticipated decision on the reach of the Clean Water Act (“CWA”), the Supreme Court significantly narrowed the scope of the wetlands and other waters subject to the CWA’s protections. The Court’s opinion in Sackett v. Environmental Protection Agency, released May 25, 2023, limits waters of the United States (“WOTUS”) to “relatively permanent” water bodies such as streams, oceans, rivers and lakes, and to wetlands with a “continuous surface connection” to those water bodies. The Court’s holding removes a wide swath of previously-protected wetlands from the CWA’s permitting requirements, likely eliminates jurisdiction for many ephemeral and intermittent streams, and spells all but certain doom for the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency’s recent rulemaking adopting a new definition of WOTUS for CWA purposes.

Continue Reading Supreme Court Narrows Scope of Waters Protected by the Clean Water Act in Sackett v. EPA

Last week, in California Restaurant Association v. City of Berkeley, the Ninth Circuit ruled the federal Energy Policy and Conservation Act (EPCA) preempts local bans on the installation of natural gas infrastructure in new construction. Specifically, the Ninth Circuit held that EPCA’s preemption of local efforts to regulate the energy use of natural gas appliances is to be construed broadly, applying equally to regulations that affect the use of such appliances. In other words, because the City of Berkeley’s ban on natural gas pipes in new construction “render[ed] the gas appliances useless,” it had improperly infringed on the federal government’s exclusive power to regulate the use of gas appliances.

Continue Reading Ninth Circuit Strikes Down Berkeley’s Ban on Natural Gas in New Construction, Dealing Blow to California’s Electrification Efforts