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Judicial Activism and Judicial Restraint: The 5th Circuit Vacates EPA’s...
On Friday, in Texas v. EPA, the 5th Circuit Court of Appeals vacated EPA’s decision rejecting Texas’s SIP revisions that would have implemented (and did implement, for 16 years) a Flexible Permit...
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Pre-enforcement Review? Not Enough. How About Pre-issuance Review?
In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to...
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Corps Jurisdictional Determinations Are Final Agency Action: Now What?
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final...
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The Drumbeat Continues: Another Court Rejects an FEIR For Not Properly...
Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of...
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Court Rejects BLM’s Efforts to Unbalance the Scales of Justice
Yesterday, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the...
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Does EPA Have a Non-discretionary Duty To Make a Statute Work?
If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump...
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Shooting Fish In a Barrel: EPA Loses Another Regulatory Delay Case
On Wednesday, EPA lost yet another regulatory delay case. After the Obama EPA promulgated rules updating requirements concerning certification and use of “restricted use pesticides” in January 2017,...
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How Much Does Trump Even Care About Deregulation?
On Thursday, the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States Rule for two years was struck down. Judge David Norton of the District...
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Two Strikes Against the Administration’s WOTUS Suspension Rule
In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule. Now, a judge in...
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Eliminating a Moratorium Affecting 1.86 Billion Tons of Coal Is Final Agency...
In 2016, DOI Secretarial Order 3338 imposed a moratorium on new coal leases on federal land until BLM prepared a programmatic environmental impact statement intended to address, among other issues, the...
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Woe is WOTUS
When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of...
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EPA’s Limits on Advisory Committee Participation Are Subject to Judicial Review
On Monday, the 1st Circuit Court of Appeals held that EPA’s directive forbidding those who receive EPA grants from serving on EPA advisory committees is subject to judicial review. It’s an important...
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EPA Withdrawal of Its Proposed Veto of a 404 Permit Is Reviewable — This...
Last week, the 9th Circuit Court of Appeals ruled that EPA’s decision to withdraw its proposed veto of the Army Corps’ Section 404 permit for the Pebble Mine project in Bristol Bay, Alaska, was subject...
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