On November 5, the U.S. House of Representatives passed the more than $1.2 trillion Infrastructure Investment and Jobs Act, also known as the bipartisan infrastructure framework (BIF). The Senate had already approved the bill back in August, and it now heads to the president’s desk for signature. The BIF represents a core piece of
Environmental Law & Policy Monitor
Analysis and commentary on developments in environmental and natural resources law
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Army Corps Halts Coverage Under Nationwide Permits
Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause…
Biden EPA Decides to Keep a Trump EPA NSR Rule … For Now
The Biden EPA just did something unexpected — it decided to keep a Trump EPA rule, at least for the time being. The rule, known as “project emissions accounting” under the “New Source Review” (NSR) air permitting program, allows sources of air emissions to avoid permitting by using emission decreases to offset an increase that…
EPA Announces New “Strategic Roadmap” for PFAS
Today, the U.S. Environmental Protection Agency (EPA) announced a new “Strategic Roadmap (Roadmap),” describing a suite of ongoing and future agency actions to address per- and polyfluoroalkyl substances (PFAS). While many of these actions were previously presented in EPA’s 2019 PFAS Action Plan, or in more recent announcements, the Roadmap provides additional…
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…
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…
Changes to Migratory Bird Treaty Act Program Announced
On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental take” — the harming or killing that results from, but is not the purpose of, carrying out an otherwise lawful…
EPA and Army Corp’s Joint Section 401 Guidance Walks Back Regulatory Certainty
By Anna Wildeman & Dave Ross
This blog post was republished by Law360 on September 14, 2021.
On August 19, EPA and the Army Corps of Engineers (Corps) issued a joint guidance document concerning implementation of EPA’s 2020 Water Quality Certification Rule. The agencies explain that the guidance applies specifically to 41 Clean Water Act Section 404 Nationwide Permits (NWPs) proposed…
Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?
The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the…
Biden EPA Rescinds Trump’s Cost-Benefit and Guidance Document Rules
Although the Biden administration has yet to issue many new substantive air quality regulations, Biden’s EPA recently issued two rules revoking Trump-era procedural regulations that should pave the way for a more aggressive regulatory agenda. On May 13, EPA rescinded the “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act…