On March 8, 2019, the Environmental Protection Agency, Department of the Army, and Army Corps of Engineers petitioned the U.S. Courts of Appeals for the 4th and 9th Circuits to voluntarily dismiss their appeals of the Suspension rule. This is yet another development in the litigation surrounding the 2015 Waters of the United States Rule (WOTUS). Our previous blog posts on this topic can be accessed here. Continue Reading EPA & Army Corps Request Voluntary Dismissal of Their WOTUS-Related Appeal
Today the Supreme Court issued its order list from its February 15 Conference during which it considered whether to grant certiorari in two pending petitions regarding discharges of pollutants to groundwater that is hydrologically connected to surface water. The Court granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al. only as to the question of “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”
The Court did not take action on the other pending petition regarding this issue in Upstate Forever v. Kinder Morgan. However, the Supreme Court has shown interest in the Upstate Forever case as well, asking the Solicitor General to file a brief expressing the views of the United States. The Solicitor General filed its brief on January 3, 2019 stating that Supreme Court review is warranted in the case but asking the Court to hold the petition in Upstate Forever until the Court’s disposition of the Count of Maui petition, which is the course the Supreme Court has now taken. For now, the Supreme Court will hear at least one case on this issue which is not unexpected given the Circuit split between the Fourth, Sixth, and Ninth Circuits.
EPA recently released its FY 2018 Enforcement Results highlighting the environmental benefits reaped from its enforcement and compliance assurance actions over the past year. This year’s report shows a marked shift away from previous years’ reports, which focused on the number of cases initiated and resolved and the amount of penalties imposed. Overall enforcement numbers declined over previous years, with a continuing decline in inspections from 10,612 in FY 2018 compared to 11,941 in FY 2017, fewer cases initiated and concluded, and few penalties imposed from $69.4 million in FY 2018 compared to $1.67 billion in FY 2017. To contextualize the penalty reduction, EPA notes that annual penalty totals are often skewed by one or two large cases in a particular year, such as the Volkswagen mobile source defeat device enforcement with $1.45 billion in penalties in FY 2017 and the $5.7 billion in penalties assessed in FY 2016 for the BP oil spill. Despite other reductions, the report shows an increase in enforcement of environmental crimes for FY 2018.
The Trump Administration’s proposed rule regarding the definition of Waters of the United States under the Clean Water Act (“WOTUS Rule”) was published yesterday in the Federal Register. The EPA and U.S. Army Corps of Engineers will receive comments on the proposal until April 15, 2019. As covered in a previous blog post, a pre-publication version of the proposed rule was initially released in December 2018, which is substantively the same as the version published yesterday.
On February 6, 2018, David Ross, EPA’s Assistant Administrator for the Office of Water issued a new guidance memorandum updating the Agency’s Water Quality Trading Policy. The new guidance strongly supports and promotes trading and flexibility and clarifies EPA’s previous guidance, stating, for example, that its 2003 Water Quality Trading Policy “may be too prescriptive to be widely effective and implementable.” The guidance announces six “Market-Based Principles” designed to encourage and promote the development and implementation of market-based pollutant reduction programs. The six principles include:
On January 23, 2019 and February 6, 2019, OSHA and EPA, respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. Continue Reading EPA and OSHA Publish Annual Inflation Adjustments to Civil Penalty Amounts
EPA recently released the pre-publication version of its proposed National Compliance Initiatives for FY 2020-2023. Notably, consistent with Susan Bodine’s August 21, 2018 Memorandum “Transition from National Enforcement Initiatives to National Compliance Initiatives,” EPA has extended the cycle from two years to four years, moved away from sector targeting, and updated its focus for FY 2020-2023 from enforcement to compliance initiatives. EPA believes this adjusted focus will “better convey the overarching goal of increased compliance and the use of not only enforcement actions, but the full range of compliance assurance tools.”
Last Thursday, in South Carolina Coastal Conservation League v. Pruitt, South Carolina Federal District Court Judge Norton issued an order which made the Waters of the United States (WOTUS) Rule take effect in twenty-six states. As background, the CWA prohibits discharges to WOTUS without a permit, but does not define the term. In 2015, the Obama Administration finalized the WOTUS Rule, which applied an expansive meaning to the term to broaden federal jurisdiction. In October 2015, the Sixth Circuit delayed the effective date of the WOTUS Rule pending judicial review. In January 2018, the Supreme Court concluded its review and ordered that the Sixth Circuit, among other actions, lift its stay of the Rule. In order to delay the implementation of the WOTUS Rule, the Trump Administration responded with yet another rulemaking – referred to as the “Suspension Rule” – which delayed the effective date of the WOTUS Rule by two years while the Administration considered a replacement for the Obama-era WOTUS Rule.
The Supreme Court has declined to review the U.S. Court of Appeals for the Second Circuit’s January 2017 decision in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. U.S. EPA reinstating the U.S. Environmental Protection Agency’s (the “EPA”) Water Transfers Rule, meaning the Second Circuit’s decision reinstating the Rule will stand. The Water Transfer Rule, issued by EPA in 2008, formalized EPA’s historic practice of excluding water transfers between water basins from the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permitting requirements after years of legal battles over EPA’s informal policies regarding interbasin transfers.
Attorney General Jeff Sessions recently issued a memorandum rolling out a new policy prohibiting settlement payments to third parties. The policy, which is effective immediately, prohibits DOJ attorneys from entering into settlement agreements that include payments to non-governmental organizations or third-party organizations that were not parties to the dispute. The memorandum aims to ensure that settlement funds are used to compensate victims, redress harm, or punish and deter unlawful conduct.