Litigation

Subscribe to Litigation via RSS

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.
Continue Reading Trump ESA Rules Vacated

On April 3, representatives of the hydropower industry, Native American tribes, and conservation organizations provided a package of proposed legislative reforms to the Federal Power Act (FPA) to the ranking members of the U.S. Senate’s Energy and Natural Resources Committee and the U.S. House of Representatives’ Energy and Commerce Committee. The package, which was developed as part of the Stanford University Uncommon Dialogue on hydropower and river conservation, is the result of year-long intense negotiations between a variety of hydropower stakeholders.
Continue Reading Hydropower Industry Teams With Tribes, Conservation Organizations to Develop Legislative Package for Licensing Reform

On January 19, the last full day of the Trump administration, a three-judge panel of the D.C. Circuit Court of Appeals vacated the Affordable Clean Energy (ACE) rule, the Trump EPA’s replacement rule for the Clean Power Plan. The Clean Power Plan was a cornerstone of the Obama EPA’s efforts to address climate change and would have required electric utilities to shift generation from fossil fuels to renewable resources. That aggressive rule was halted by an unprecedented stay of the rule by the Supreme Court, but a decision on the merits has never been issued because the Trump administration took office and put the litigation on hold. In its January 20 opinion, the D.C. Circuit has now issued the first decision on the merits of the legal issues underlying both ACE and the Clean Power Plan.
Continue Reading Affordable Clean Energy (ACE) Rule Vacated, But Appeal Still Possible

A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al.,[1] a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.
Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional

In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.
Continue Reading Federal Courts Reach Opposite Conclusions Regarding Implementation of the Navigable Waters Protection Rule