The Center for Biological Diversity and the Natural Resources Defense Council submitted a petition for rule-making to the Secretary of the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention and submitted a similar petition to the Secretary of the U.S. Department of the Interior and the U.S. Fish
District Court Vacates Navigable Waters Protection Rule
A recent decision by the U.S. District Court for the District of Arizona vacated and remanded the 2020 Navigable Waters Protection Rule (NWPR) issued by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (together, “Agencies”) that clarified the scope of federal jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Before the promulgation of the NWPR, there had been several rulemakings and much litigation on this complicated issue, causing nationwide confusion on the application of a uniform standard. In 2015, the Obama administration promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”). The NWPR sought to provide certainty as to which waterbodies meet the features of WOTUS by creating clear categories of jurisdictional waterbodies.
EPA Reissues Temperature TMDL for Columbia and Lower Snake Rivers
On August 13, the Environmental Protection Agency (EPA) reissued the Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load (TMDL), which reflects revisions to EPA’s May 18, 2020 Draft TMDL, following a public comment period.
White Paper Finds No Evidence of Elevated Threat to Human or Crop Safety from Use of Oil Field Produced Water to Irrigate Crops
Last month, the California Regional Water Quality Control Board, Central Valley Region (“Central Valley Water Board”) published a Food Safety Project White Paper (“White Paper”) on the use of oil field produced water for food crop irrigation. The White Paper did not find any evidence that using produced water for irrigation creates an elevated threat to human or crop safety.
Penalizing Unavoidable Air Emissions: The Fight Over SSM Continues
At the end of September, the Environmental Protection Agency (EPA) issued yet another memorandum regarding emissions resulting from startup, shutdown, and malfunctions (SSM) at stationary sources of air pollutants, such as refineries, manufacturing facilities, and power plants. This newest memo announces a return to the policy EPA announced in 2015, when it asked 45 states and local jurisdictions to change their locally written and previously EPA-approved rules. EPA’s goal in 2015 was to eliminate state rules that allow relief from penalties for “SSM” emissions. In 2020, the Trump EPA issued a memo allowing such rules under certain circumstances, but the newest EPA memo puts those rules back on the chopping block. This post provides a brief recap of the long-running debate over SSM emissions and a look forward into what is to come under EPA’s latest policy shift.
DC Circuit Directs FERC to Consider Environmental Impacts of LNG Facilities
In an August 3 opinion in the case of Vecinos para el Bienestar de la Comunidad Costera et al. v. FERC, Case No. 20-1093, the U.S. Court of Appeals for the District of Columbia Circuit determined that the Federal Energy Regulatory Commission (FERC or Commission) failed to adequately review the impacts of two proposed liquefied natural gas (LNG) export facilities on greenhouse gas emissions and environmental justice communities. The court remanded the proceedings to FERC for further consideration and explanation of these issues. Though the decision focused on FERC’s authorization of natural gas facilities, it signaled that the court will carefully scrutinize an agency’s obligations under the National Environmental Policy Act (NEPA), a statute that has far-reaching applicability in the hydropower context.
Agricultural Law Weekly Review – Week Ending October 8, 2021
Biofuels: Biofuel Advocacy Group Files Supreme Court Petition for Review of E15 Vacatur On October 7, 2021, biofuel advocacy group Growth Energy filed a petition for writ of certiorari in the U.S. Supreme Court, asking the court to review the U.S. Court of Appeals for the District of Columbia Circuit’s July 2021 vacatur of the…
Animal Exhibitor Alert: Follow-Up to Animal and Plant Health Inspection Service’s (APHIS) Controls Over Licensing of Animal Exhibitors
According to the USDA OIG Audit Report 33601-0003-23, previously available online, APHIS Animal Care (AC) had agreed that it would review barrier issues and may require reporting of escapes and attacks. However, Audit Report 33601-0003-23, originally published on March 12, 2021, has been removed from the website, and is reportedly “undergoing a review pursuant…
New Funding Available to Combat Harmful Algal Blooms
On September 24, 2021, Governor Murphy signed a new law, effective immediately, that will allocate $10 million for lakes in New Jersey impacted by harmful algal blooms (P.L.2021, c.225). The law calls for the New Jersey Department of Environmental Protection (“NJDEP”) to make a supplemental appropriation of $10 million for grants for lake management for…
Ohio Court of Appeals determines due diligence to find heirs under Marketable Title Act and service by publication were sufficient to uphold default judgment
The Ohio Court of Appeals for the Seventh District recently affirmed the entry of default judgment on a Marketable Title Act claim in 4 Quarters, LLC v. Hunter, finding that the due diligence to locate heirs was sufficient and service by publication was appropriate.