On April 26, 2018, the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum addressing the need for an incidental take permit (“ITP”) under the Endangered Species Act (ESA) for the modification of listed species’ habitat (“ITP Memo”). As background, under the ESA, the “take” of an endangered species is prohibited. This prohibition has been extended to threatened species through a blanket 4(d) rule. In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.
On April 2, 2018, the U.S. Fish and Wildlife Service (“USFWS”) submitted three proposed rules to the Office of Management and Budget (“OMB”), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register. These proposals, if implemented, will significantly change USFWS’ implementation of the Endangered Species Act (“ESA”).
EPA published a proposed rule (83 Fed. Reg. 11654) today that would ease the management standards for aerosol cans. Stakeholders, particularly the retail sector, has pushed for this addition for some time. Currently, once a waste, aerosol cans must often be managed as hazardous waste under the Resource Conservation and Recovery Act (RCRA), generally because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal. Today’s proposal would add aerosol cans to the existing federal list of universal wastes.
On February 1, 2018, the Ninth Circuit published Hawai’i Wildlife Fund v. County of Maui, which applied Clean Water Act (CWA) permitting requirements to well wastewater injections that migrate to the Pacific Ocean through groundwater.
The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject. In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades. Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation. Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species. Thus, the outcome of this case has significant implications for these 2016 rules.
Earlier this week, the Supreme Court ruled that federal district courts, rather than appellate courts, are the proper venue to challenge the “Waters of the United States” (“WOTUS”) Rule (discussed in a previous blog post here), an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction. Following the Supreme Court decision, the Eleventh Circuit on Wednesday vacated its 2015 decision which held the opposite. In doing so, it also remanded a challenge to the WOTUS Rule brought by a coalition of states (led by Georgia) in 2015 in the federal district court in Brunswick, Georgia.
Today, in a much-anticipated decision, the Supreme Court unanimously held that district courts are the proper courts to hear challenges to the “Waters of the United States” (“WOTUS”) Rule, an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction. The decision overturns a Sixth Circuit ruling that federal appeals courts maintain the proper jurisdiction to hear such challenges. Writing for the Court, Justice Sotomayor found that “Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts.”
On January 8, the Supreme Court denied Murray Energy’s petition for appeal of a Fourth Circuit decision that had rejected its efforts to obtain judicial enforcement of Section 321 of the Clean Air Act (“CAA”). Section 321(a) requires EPA to evaluate the potential for plant closures and job losses resulting from regulation and/or enforcement under the Act. The decision marks the end of a legal challenge brought by Murray Energy and 15 states in October 2016, in which the Northern District of West Virginia strongly rebuked EPA’s failure to comply with the statute (as previously reported here). In a 27-page opinion, the district court took EPA to task, finding that the Agency’s longstanding failure to comply with § 321 evidenced a “continued hostility” to the provision. The district court required the Agency to establish a system by the end of 2017 for conducting the evaluations.
On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation.
On November 7, EPA filed a motion asking the D.C. Circuit to remand certain provisions of the CCR Rule for the Agency’s reconsideration. As background, on September 13, EPA granted USWAG’s and AES Puerto Rico’s petitions for reconsideration of the CCR Rule stating that it was “appropriate and in the public interest” for the Agency to reconsider parts of the regulation. EPA’s decision was largely based on the Water Infrastructure Improvements for the Nation (WIIN) Act, which alters the self-implementing nature of the Rule to one implemented through enforceable permit programs.