On July 30, Sens. Cory Booker (D-NJ), Kamala Harris (D-CA), and Tammy Duckworth (D-IL) unveiled the “The Environmental Justice for All Act.” The bill proposes a finding that communities of color, low-income communities, tribal communities, and other vulnerable populations, such as children, elderly, and persons with disabilities, are disproportionately burdened by environmental hazards. The premise of the bill is that all people have a right to breathe clean air, drink clean water, and…

On July 27, 2020, the U.S. Department of Justice (DOJ) issued a policy memorandum designed to stay the federal government’s hand in enforcing the Clean Water Act where states have initiated a civil judicial penalty proceeding under analogous state laws on the same core of operative facts. The policy, “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” relies heavily on principles of federalism and efficiency – and the…

On July 16, 2020, the Federal Energy Regulatory Commission (FERC or the Commission) approved a Final Rule revising the Commission’s regulations implementing the Public Utility Regulatory Policies Act of 1978 (PURPA) (See a prior GT Alert for more details on PURPA and FERC’s overhaul). The Final Rule will take effect 120 days after its publication in the Federal Register. PURPA, among other things, requires electric utilities – private and public – to purchase power from…

On July 15, 2020, President Trump’s administration finalized a significant overhaul of the regulations governing the administration of the National Environmental Policy Act (NEPA). In January 2020, when the regulatory overhaul was announced, we observed that rolling back 50 years of precedent in an administrative action could trigger judicial challenges to the rule and result in greater regulatory uncertainty for federal projects. The final rule, while making some relatively minor modifications, hews closely to its…

The Department of Justice, in the last year, has altered its guidance related to supplemental environmental projects (SEPs), first prohibiting their use in settlements with state and local governments, then extending that prohibition to settlements with private parties. The Department of Justice is now targeting settlements that include similar projects agreed to by two private parties. Under prior guidance, parties settling with the United States could undertake SEPs, which are community-benefiting projects that…

A curious appellate court decision has Pennsylvania environmental law practitioners scratching their heads about the status of certain waterways. No, we do not reference the U.S. Supreme Court’s latest Clean Water Act decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, __ U.S. __ (2020) from May, where six of the nine justices held that permits are required for discharges from a point source that travel through the “functional equivalent” of a conveyance through…

“Configuration of terrain is an aid to the army. Analyzing the enemy, taking control of victory, estimating ravines and defiles, the distant and near, is the Tao of the superior general.” Sun-tzu, The Art of War 214 (Ralph D. Sawyer trans., Westview Press 1994). While the use of Sun-tzu’s strategy dramatizes a litigator’s role, the principles apply. Where and how a litigation takes place matters. Consequently, parties will seek the advantages of the terrains and…