In a brief ceremony yesterday, President Trump signed an Executive Order requiring EPA and the U.S. Army Corps of Engineers to review the final “Clean Water Rule,” also known as the Waters of the United States (WOTUS) Rule to ensure it is consistent with a new policy also laid out in the order to keep the Nation’s navigable waters free from pollution “while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Although implementation of the Rule has been stayed by the U.S. Court of Appeals for the Sixth Circuit pending further court review, the Executive Order also requires EPA and the Corps to review all orders, rules, regulations, guidelines, or policies implementing the Rule and to revise or rescind such rules consistent with the Executive Order.
The U.S. Circuit Court of Appeals for the Fourth Circuit recently upheld the U.S. District Court for the Southern District of West Virginia’s decision that a West Virginia coal mine was not shielded from Clean Water Act violations where its National Pollutant Discharge Elimination System (NPDES) permit includes a boiler plate provision requiring compliance with applicable water quality standards. In Ohio Valley Environmental Coalition (OVEC) v. Fola Coal, the Court held that the mining company did not comply with this term of its permit and therefore was not shielded from enforcement under the Clean Water Act’s section 402(k) “permit shield.”
Recent comments from Assistant Attorney General John C. Cruden, head of the U.S. Department of Justice’s Environmental and Natural Resources Division (“ENRD”), regarding DOJ’s increased use of criminal prosecutions to enforce environmental laws suggest the heightened role the ENRD’s Environmental Crimes Section could play in future enforcement actions regarding violations of environmental laws. Continue Reading DOJ Shines New Light on Environmental Criminal Prosecutions
In a significant win affirming the ongoing validity of long-issued permits, United States District Judge Sam A. Lindsay of the Northern District of Texas dismissed all of the claims brought by two groups challenging the National Pollutant Discharge Elimination System (NPDES) permit issued to Georgia-Pacific LLC’s Crossett, Arkansas, paper mill. The Court’s opinion dismissing the case in full was issued January 19, 2016, and is available here. Continue Reading Texas Federal Court Dismisses Novel Challenge to NPDES Permit
In a memo directed to all federal law enforcement officials, including the Assistant Attorney General for the Environment and Natural Resources Division, the U.S. Department of Justice (DOJ) outlined a new policy that prioritizes the prosecution of individuals for corporate misconduct. Traditionally, DOJ has pursued companies — not individual corporate officials and managers — for alleged corporate wrongdoing. In its new policy, DOJ makes it clear that law enforcement officials will also target the individuals responsible for alleged company misconduct. Notably, these changes will be implemented in DOJ’s U.S. Attorneys Manual (USAM). This formal revision to the USAM reflects a concerted effort to fully implement the new policy outlined in the memo in future investigations. Because violations of environmental laws may lead to both civil and criminal enforcement by EPA and DOJ, this shift will have a direct impact on corporations and the individuals within those corporations that are responsible for environmental management decisions. Continue Reading New DOJ Policy Targets Individuals (Not Just Companies) For Alleged Violations of Environmental Law
The Sixth Circuit today issued an order staying the applicability of the EPA and Army Corps’ recently promulgated Clean Water Rule. The stay applies nationwide.
A coalition of private parties, industry groups, and more than 30 states challenged the Rule asserting that it unlawfully expanded the jurisdictional reach of the Clean Water Act. A coalition of state petitioners asked the Court to enter a stay with the Court today concluding that a stay was appropriate because, among other things, there was a likelihood that the petitioners would succeed on the merits. Continue Reading Sixth Circuit Issues Stay of WOTUS Rule
On August 21, 2015, EPA issued a final rule revising its regulations governing the development, review and approval of state water quality standards (“WQS”) (40 CFR Part 131). The revisions were prompted by requests from the states for increased clarity in the existing rule, as well as the need for greater flexibility. The rule includes changes that expand EPA’s authority to review state WQS in several ways. Continue Reading EPA Revises Rule Governing State Water Quality Standards Review and Approval Process