June 28, 2018
EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…
May 17, 2018
“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)
The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes…
April 24, 2018
We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…
April 10, 2018
By Order dated April 5, 2018, the West Virginia Supreme Court issued its second ruling in the past six months exploring the duties imposed by the West Virginia Surface Coal Mining and Reclamation Act (“WV SCMRA”) upon coal mine operators. See Belcher v. Dynamic Energy, Inc.. WV SCMRA requires mine operators to “replace” water supplies of property owners who use the water for domestic,…
February 13, 2018
“Consistent with our duty to uphold the rule of law with fair notice
and due process, this policy helps restore the appropriate role of guidance
documents and avoids rulemaking by enforcement.” – Associate
Attorney General Rachel Brand.
On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice…
February 7, 2018
Last week the United States Court of Appeals for the Ninth Circuit ruled that discharges from wastewater injections that seep into groundwater and ultimately reach “waters of the United States” are subject to the Clean Water Act’s (CWA) permitting requirements.
The suit alleged that Maui County, Hawaii had injected wastewater into wells that eventually made its way into the Pacific Ocean through…
January 3, 2018
One of the pleasures of the Christmas season is the giving and receiving of gifts. The pleasure is particularly enhanced when the gift is unexpected, or when it has a unique value to its recipient. By these measures, the U.S. District Court in Lexington, Kentucky delivered a wonderful present in a decision issued on December 28.
The case, Kentucky Waterways Alliance, et al., v. Kentucky…
December 19, 2017
On November 22, 2017, in one of many ongoing challenges to pipeline construction, a three-judge panel of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in a 2-1 decision, granted an emergency stay of pipeline construction within the city of Green, Ohio (“Green”) pending a decision on the merits of Green’s petition seeking review of the Clean Water Act (“CWA”) §401…
September 6, 2017
On August 23rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…
May 18, 2017
|
In 2013 and 2014, we previously wrote about EPA's efforts to regulate the disposal and use of coal combustion ash. Those efforts culminated in a late 2014 decision by EPA not to regulate coal combustion residuals (CCR) (ash) as a hazardous waste, but nonetheless to place specific restrictions on its disposal as a solid waste. By a petition dated May 12, 2017, a group representing coal fired… |
February 7, 2017
I have written previously (“Deciding Who Will Decide” January 18) about the complicated developments in the litigation over the “waters of the United States” rule (WOTUS) rule promulgated by the Corps of Engineers and EPA in 2015. The Sixth Circuit granted a motion by one of the parties in the case, the National Association of Manufacturers, on January 25 to suspend the…
January 26, 2017
The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president. Thus, while Congress voted to disapprove several rules under the Obama administration,…
June 28, 2018
EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…
May 17, 2018
“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)
The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes…
April 24, 2018
We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…
April 10, 2018
By Order dated April 5, 2018, the West Virginia Supreme Court issued its second ruling in the past six months exploring the duties imposed by the West Virginia Surface Coal Mining and Reclamation Act (“WV SCMRA”) upon coal mine operators. See Belcher v. Dynamic Energy, Inc.. WV SCMRA requires mine operators to “replace” water supplies of property owners who use the water for domestic,…
February 13, 2018
“Consistent with our duty to uphold the rule of law with fair notice
and due process, this policy helps restore the appropriate role of guidance
documents and avoids rulemaking by enforcement.” – Associate
Attorney General Rachel Brand.
On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice…
February 7, 2018
Last week the United States Court of Appeals for the Ninth Circuit ruled that discharges from wastewater injections that seep into groundwater and ultimately reach “waters of the United States” are subject to the Clean Water Act’s (CWA) permitting requirements.
The suit alleged that Maui County, Hawaii had injected wastewater into wells that eventually made its way into the Pacific Ocean through…
January 3, 2018
One of the pleasures of the Christmas season is the giving and receiving of gifts. The pleasure is particularly enhanced when the gift is unexpected, or when it has a unique value to its recipient. By these measures, the U.S. District Court in Lexington, Kentucky delivered a wonderful present in a decision issued on December 28.
The case, Kentucky Waterways Alliance, et al., v. Kentucky…
December 19, 2017
On November 22, 2017, in one of many ongoing challenges to pipeline construction, a three-judge panel of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in a 2-1 decision, granted an emergency stay of pipeline construction within the city of Green, Ohio (“Green”) pending a decision on the merits of Green’s petition seeking review of the Clean Water Act (“CWA”) §401…
September 6, 2017
On August 23rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…
May 18, 2017
|
In 2013 and 2014, we previously wrote about EPA's efforts to regulate the disposal and use of coal combustion ash. Those efforts culminated in a late 2014 decision by EPA not to regulate coal combustion residuals (CCR) (ash) as a hazardous waste, but nonetheless to place specific restrictions on its disposal as a solid waste. By a petition dated May 12, 2017, a group representing coal fired… |
February 7, 2017
I have written previously (“Deciding Who Will Decide” January 18) about the complicated developments in the litigation over the “waters of the United States” rule (WOTUS) rule promulgated by the Corps of Engineers and EPA in 2015. The Sixth Circuit granted a motion by one of the parties in the case, the National Association of Manufacturers, on January 25 to suspend the…
January 26, 2017
The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president. Thus, while Congress voted to disapprove several rules under the Obama administration,…
