This week, the Fourth Circuit issued a decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P. that addresses three key issues arising in many federal Clean Water Act (CWA) cases: How, as a legal matter, courts treat “historic” contamination under the CWA; Whether good-faith remedial efforts undertaken under the supervision of relevant agencies by themselves strip federal jurisdiction over citizen suits under similar legal authority; and Whether CWA-regulated “pollutants” need to discharge directly into CWA-regulated “navigable waters” to violate the CWA. View Full Post
Two NGOs and a labor union recently filed an action in federal court to challenge the Trump Administration’s Executive Order 13771, officially entitled “Reducing Regulation and Controlling Regulatory Costs,” but commonly known as the “Two-for-One” order because it requires two regulations to be eliminated for every regulation added. View Full Post
We have discussed deference in past posts and, this past month, the Supreme Court granted certiorari in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, Case No. 17-71. The case may focus the Court’s attention on deference and other issues. View Full Post
The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them. View Full Post
In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months,  see here and here. View Full Post