Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements

dojenrdThe Justice Department’s (DOJ) policing of class-action settlements in recent months has the potential to serve as a significant check on the plaintiffs’ bar. While DOJ has had the right to express its view of proposed class-action settlements since 2005 pursuant to the Class Action Fairness Act (CAFA), only recently has the department’s Consumer Protection Branch exercised its authority to oppose such settlements. Washington Legal Foundation certainly applauds these efforts to intervene in and oppose frivolous, unfair, or inequitable class settlements, but what DOJ has done recently in several environmental citizen suits may be even more significant. Continue reading “Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements”

Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach

sboxermanFeatured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP

In a recent decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 (4th Cir. Apr. 12, 2018), a panel of the U.S. Court of Appeals for the Fourth Circuit held that federal Clean Water Act (“CWA” or “Act”) jurisdiction extended to pollutants released into soil that then migrated through groundwater to a water of the United States.  Last, week the full court denied rehearing en banc, clearing the way for a petition for certiorari to the U.S. Supreme Court.

Indeed, with this ruling, it seems ever more likely the Supreme Court will weigh in on this question of the scope of Clean Water Act jurisdiction.  In Upstate, the Fourth Circuit panel joined the Ninth Circuit, which recently ruled that the Act did extend to a release of pollutants through groundwater to a water of the United States, Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) (click here for my analysis of that decision), but those rulings conflict with two earlier rulings by the Fifth and Seventh Circuits.  See Rice v. Harken Exploration Co., 250 F.3d 264, 271 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).  Continue reading “Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach”

Environmental Enforcement Implications from Recent DOJ and EPA Guidance

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP

Last month, the U.S. Department of Justice (DOJ) and the Environmental Protection Agency (EPA) separately issued informal guidance documents that could have a major impact on businesses enterprises’ environmental law and regulatory compliance. DOJ’s guidance relates to civil enforcement activities generally, while EPA’s involves environmental law enforcement at the state level under the rubric of cooperative federalism. Each document is explained below. Continue reading “Environmental Enforcement Implications from Recent DOJ and EPA Guidance”

D.C. Circuit Once Again Reminds EPA Which Governmental Branch Enacts Laws

Featured Expert Column – Environmental Law and Policy

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

In recent years, either when Congress has chosen not to act on certain matters—or arguably does so without sufficient clarity—the Executive Branch has asserted the power to address issues through regulation. These agency actions, of course, run headlong into one of the core separation of powers under the Constitution—that Congress is empowered to enact laws while the Executive is tasked with implementing them.

Hence, not surprisingly, the judiciary has increasingly been asked to answer whether an agency had the statutory authority to issue a particular regulation—or whether the agency exceeded the power it had been granted by the Congress.

A recent decision of the U.S. Court of Appeals for the D.C. Circuit adds to that jurisprudence. On August 8, 2017, a three-judge panel ruled in Mexichem Fluor, Inc. v. EPA that the U.S. Environmental Protection Agency (“EPA”) exceeded its authority under the Clean Air Act (“CAA” or Act) when it issued a 2015 rule eliminating the use of hydrofluorocarbons (HFCs) in certain products (the “2015 HFC Rule”). Continue reading “D.C. Circuit Once Again Reminds EPA Which Governmental Branch Enacts Laws”

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

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

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