On September 14, the U.S. Fish and Wildlife Service (FWS) issued a proposal to list the tricolored bat (Perimyotis subflavus) as an endangered species.
Continue Reading Fish and Wildlife Service Proposes to List Tricolored Bat as Endangered
Environmental Groups Target Texas Air Permitting Program on Environmental Justice Grounds
On June 28, a coalition of 11 environmental groups petitioned the U.S. Environmental Protection Agency (EPA) under the Administrative Procedure Act and the Clean Air Act to address the alleged failure of Texas Commission for Environmental Quality (TCEQ) to comply with and properly implement public participation and environmental justice requirements in its air permitting program. Specifically, the petition alleges that TCEQ violates the Clean Air Act and Title VI of the Civil Rights Act by: (1) restricting public participation in air permitting by limiting judicial review of permits; (2) allowing applicants to withhold public information during the permitting process; and (3) allowing facilities to operate under the state’s permits by rule (PBR) program, which provides no meaningful opportunity for public participation.
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Trump ESA Rules Vacated
The Endangered Species Act (ESA) regulations promulgated by the Trump administration (Trump ESA Rules) were challenged by environmental groups. While that challenge was pending, the Biden administration announced that those regulations would be revised. On July 5, the U.S. District Court for the Northern District of California vacated the Trump ESA regulations, not on the merits of the regulations but because they are in the process of being rewritten. This decision disregards the Biden administration’s request that the regulations remain in effect to preserve consistency and order during the revision process. Instead, the pre-Trump regulations (which were issued in the mid-1980s) have been reinstated and are now in effect until the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) finalize new regulations.
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Changes to Migratory Bird Treaty Act Program Announced
On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental take” — the harming or killing that results from, but is not the purpose of, carrying out an otherwise lawful activity — is prohibited by the MBTA, and persons that cause incidental take can be prosecuted criminally. FWS’s final rule represents a reversal of a Trump-era interpretation of the MBTA, which narrowly interpreted liability under the statute to apply only to those actions specifically “directed at” migratory birds that “reduce animals to human control.” See previous post covering the prior rule.
Continue Reading Changes to Migratory Bird Treaty Act Program Announced
Notice of Proposed Rulemaking for NEPA Revisions Announced
On October 7, the Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations implementing the National Environmental Policy Act (NEPA), which requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The NOPR is focused on revisions the July 2020 rulemaking completed by the Trump administration, which was the first significant overhaul of the NEPA regulations since their initial promulgation in 1978. The Trump rulemaking included provisions to streamline the NEPA review process, as well as substantive changes to the scope of the review. CEQ’s NOPR follows an announcement early in 2021 by the incoming Biden administration that it planned to review the July 2020 rulemaking. In the NOPR, the Biden administration outlines the aspects of the rule it plans to change: the purpose and need of a proposed agency action, agency procedures for implementing CEQ’s regulations, and the definition of “effects” of a proposed action.
Continue Reading Notice of Proposed Rulemaking for NEPA Revisions Announced
Troutman Pepper Environmental Attorneys Author Articles in ABA’s Natural Resources & Environment Summer 2021 Edition
In their article “Are We There Yet? The Challenges of Litigating Clean Air Act Rules,” Mack McGuffey and Melissa Horne discuss the difficulties of getting final answers from the courts in the increasingly polarized political environment of Clean Air Act rulemaking.
Continue Reading Troutman Pepper Environmental Attorneys Author Articles in ABA’s Natural Resources & Environment Summer 2021 Edition
Washington Adopts Two Ambitious Environmental Justice Laws
Last week, Washington became the latest state to address environmental justice (EJ) through legislation by adopting the Healthy Environment for All (HEAL) Act and the Climate Commitment Act into law. The HEAL Act, which is the more comprehensive of the two passed laws, was based on recommendations of a state-funded environmental task force issued in fall of 2020 and seeks to remedy the effects of past disparate treatment of vulnerable communities. The Climate Commitment Act is a more targeted law that establishes a greenhouse gas (GHG) emissions cap-and-invest program with the goal of reducing GHG and criteria pollutants in overburdened communities highly impacted by air pollution. Although the laws become effective on July 25, their major EJ-related requirements take effect at later dates.
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Preparing for a More Aggressive Federal Environmental Enforcement Regime
The Biden administration has already taken several actions that signal its intention to shift to a more federally focused environmental enforcement approach. Although the Trump administration generally adopted a “hands off” approach that afforded states broad deference in deciding when to initiate and prosecute environmental enforcement actions, the new administration appears to be moving toward a more robust federal role in environmental enforcement.
Continue Reading Preparing for a More Aggressive Federal Environmental Enforcement Regime
FWS Finalizes Rule for Excluding Areas from Critical Habitat Designations
The U.S. Fish and Wildlife Service (FWS) continues its push to finalize pending rules before the new administration takes office next year. Following a publication of a final rule defining “habitat” under the Endangered Species Act (ESA) earlier this week, today the agency published a final rule establishing the agency’s process for excluding certain lands from critical habitat designations.
Continue Reading FWS Finalizes Rule for Excluding Areas from Critical Habitat Designations
Final Rule Defining “Habitat” under the Endangered Species Act Issued
In a case involving the question of when unoccupied habitat may be designated “critical habitat” under the Endangered Species Act (ESA), the U.S. Supreme Court held that critical habitat land must first be habitat before it could be “critical habitat.” Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018). Given that neither the ESA nor its implementing regulations define habitat, the Court remanded the case for further consideration. In response to this opinion, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) issued a final rule defining habitat on December 16, 2020. The rule becomes effective on January 15, 2021.
Continue Reading Final Rule Defining “Habitat” under the Endangered Species Act Issued