High Court Must Review ESA Decision that Endangers Ability to Appeal Agency Actions

st_tammany_navA group of Louisiana landowners is asking the Supreme Court to review a US Court of Appeals for the Fifth Circuit decision that dramatically expands the scope of the Endangered Species Act (ESA).  Weyerhaeuser Co. and Markle Interests, L.L.C.. v. U.S. Fish and Wildlife Service.  Their concerns are well-justified; the appeals court upheld land-use restrictions imposed by the Fish and Wildlife Service (FWS) for the purpose of protecting an endangered species of frog—even though the frog does not exist in Louisiana and could not live on the Petitioners’ land unless they substantially modified it.

But Supreme Court review is warranted for an additional and perhaps more important reason: the Fifth Circuit agreed with FWS that the Service’s refusal to undertake a cost-benefit analysis of its actions was not subject to judicial review.  As Judge Edith Jones stated in dissent, that decision plays havoc with administrative law and significantly undercuts the “strong presumption” that the actions of federal administrative agencies are subject to judicial review.

Worse still, the appeals court established a double-standard.  It permits environmental groups to seek judicial review when FWS invokes cost considerations as a reason not to impose land-use restrictions, but it denies landowners the right to go to court when FWS reaches the opposite conclusion.  That denial is particularly troubling, given that FWS’s own studies indicated that its land-use restrictions could cost landowners up to $34 million while providing no discernable benefit to the endangered frog. Continue reading

DC Circuit’s “Aneurysm of Activism”: EPA Temporary Stay of Air Rule Is Final Agency Action

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

On July 3, 2017, in a 2-1 per curium decision, the US Court of Appeals for the DC Circuit vacated a three-month stay that the United States Environmental Protection Agency’s (“EPA”) had issued while the agency reconsiders its 2016 New Source Performance Standard (NSPS) for the oil and gas sector.  See Clean Air Council v. Pruitt, No. 17-1145, (D.C. Cir. July 3, 2017).  In a well-reasoned dissent, Judge Brown argued neither the agency’s decision to grant a temporary stay nor reconsider aspects of its own regulation were final agency action.  Relying on the dissent, intervening states and industry stakeholders have sought rehearing en banc and that request is pending.  However, regardless of the outcome of that request, the panel ruling indicates that EPA may face an activist DC Circuit that will scrutinize the agency’s process as it reconsiders regulations promulgated during the previous Administration.     Continue reading

Update: Justice May Yet be Served in 30-Year-Old EPA Wetlands Case Against Small Erie, PA Farmer

Guest Commentary

By Lawrence A. Kogan*

An April 20, 2017 WLF Legal Pulse post on the need for a new strategy for federal wetlands regulation presented a long-running enforcement action against a small Erie, Pennsylvania farmer as indicative of the harm wrought by the government’s deeply flawed current approach to “waters of the United States” (WOTUS). Two recent developments—an order by a federal magistrate judge in the US District Court for the Western District of Pennsylvania and the filing of three Federal Tort Claims Act (FTCA) claims by the targeted farmer, Robert Brace—might significantly change the course of this 30-year law-enforcement misadventure.

The US Environmental Protection Agency (EPA) first initiated a lawsuit under § 404 of Clean Water Act (CWA) against Brace in 1990 (United States v. Brace). The suit claimed Brace unlawfully failed to obtain a US Army Corps of Engineers (Army Corps) dredge-and-fill permit for drainage-tilling activities undertaken on government-designated wetlands.  The suit came after Brace, a well-known property rights advocate, had endured three years of being served with EPA, Corps, and US Fish & Wildlife Service (FWS) administrative-violation notices. Continue reading

Federal Court Rules Local Oil and Gas Development Ban Violates 1st and 14th Amendments

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In a twist on the typical case addressing local oil and gas bans, the Western District of Pennsylvania struck down a Grant Township, PA ordinance finding the law impermissibly stripped Pennsylvania General Energy Co. (PGE) of its constitutional rights. The decision, Pennsylvania General Energy Co. v. Grant Township, is an important and unique precedent for the rights of a corporation to conduct a lawful business in the face of local opposition. Continue reading

Federal Court Properly Defers to Oklahoma Oil and Gas Oversight, Rejects Sierra Club Bid for Federal Regulation

Guest Commentary

Robeck_MarkBy Mark R. Robeck, Kelley Drye & Warren LLP. Mr. Robeck is a Partner in the firm’s Washington, DC office and a contributor to its Fracking Insider blog.

In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity.  Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.

In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection. Continue reading

US Food Security and Farmers’ Livelihoods at Stake in “Waters of the US” Rule Rewrite

Lawrence KoganGuest Commentary

By Lawrence A. Kogan*

For decades, federal agencies have incrementally extended their control over agricultural lands by expanding the definition of “waters of the US” (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent “wetlands.” Those efforts triggered intense legal conflicts, facilitated the CWA’s growth into a “regulatory hydra,” and caused a “reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland.”1

President Trump recently issued Executive Order 13778 as the first step aimed at curtailing this government juggernaut.  The order directs the heads of the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (the Corps) to review for substantial revision or rescission their jointly issued 2015 CWA regulation that expanded the definition of “WOTUS.”  Presumably, EPA’s review of this regulation will be undertaken while the October 9, 2015 federal court-issued stay of its implementation remains in place.2 Continue reading

Vigorous Dissent from Fifth Circuit’s Denial of Rehearing Should Help ESA Frog-Habitat Case Leap to Supreme Court

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

A fractured US Court of Appeals for the Fifth Circuit rejected a request seeking rehearing en banc of the court’s decision in Markle Interests, LLC, et al v. U.S. Fish and Wildlife Service, et al. The February 13 decision is the latest in the ongoing legal saga regarding the endangered dusky gopher frog and the designation of private property in Louisiana as “critical habitat”—even though this “shy frog” does not reside on the land and the land does not currently feature the characteristics needed to support the frog.

On June 5, 2016, a majority panel for the Fifth Circuit upheld the district court’s opinion that nearly 1,500 acres of private land in Louisiana (“Unit 1”) is critical habitat for the frog and therefore subject to the requirements of the Endangered Species Act.  In order to be designated as critical habitat, land must meet strict criteria: it must contain physical or biological features essential to conservation of the species. The land in question contains only one of three features considered necessary to support the dusky gopher frog—five ephemeral ponds—and more significantly, is covered with closed canopy pine that make the land uninhabitable by the species. Designation of the land as critical habitat comes at a cost of nearly $34 million in economic impact to the landowners. Despite these facts, the majority held that the land was critical habitat and furthermore, that the US Fish and Wildlife Service’s decision not to carve out Unit 1 from the critical-habitat decisions was judicially unreviewable. Continue reading