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On December 22, 2017, the Office of the Solicitor of the Department of the Interior issued a  Memorandum re: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, which substantially modifies the Department’s policy regarding the criminal enforcement of the Migratory Bird Treaty Act’s (MBTA) prohibition against the incidental taking or killing of migratory birds. In addition, this Memorandum withdraws a contrary opinion of the Solicitor’s Office that was issued on January 10, 2017 – Memorandum re: Temporary Suspension of Certain Solicitor M-Opinions Pending Review. This could be a very important change for the energy industry.

The opinion concludes by stating that:

“The text, history and purpose of the MTBA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control… Interpreting the MTBA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principal that ambiguity in criminal statutes must be resolved in favor of defendants.” Continue reading

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On December 18, 2017, the U.S. Court of Appeals for the Sixth Circuit employed recent U.S. Supreme Court Administrative Procedure Act (APA) rulings to decide whether the fans of the “Insane Clown Posse” group known as Juggalos could maintain an APA lawsuit against the federal government’s listing of the fans as “a loosely-organized hybrid gang.” The case is Parsons, et al,. v. U.S. Department of Justice, et al. The Sixth Circuit affirmed the District Court’s decision dismissing the lawsuit.

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On December 18, 2017, the U.S. Court of Appeals or the Second Circuit decided the case of Secretary of Labor v. Cranesville Aggregate Companies, Inc., dba Scotia Bag Plant. In this case, the Secretary of Labor sought review of an Administrative Law Judge’s (ALJ) decision that vacated a number of Occupational Safety and Health Administration (OSHA) workplace violations lodged against Cranesville’s mine facility located in Scotia, NY, in particular, working conditions at a unit known as the “Bag House.” The ALJ was persuaded that this unit was subject to the Secretary of Labor’s authority under the Mine Safety and Health Act, and not the Occupational Safety and Health Act, since the Bag House was principally engaged in milling operations which could be classified as mining activities. The ALJ’s ruling was appealed to the Occupational Safety and Health Review Commission, which could not render a decision because the two sitting members of the Commission were deadlocked, and so the ALJ’s determinations became final.

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On December 22, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous opinion upholding most of the Occupational Safety and Health Administration’s (OSHA) 2016 revised workplace standard for respirable crystalline silica, 29 C.F.R § 1910.1053(a)(1). The case is North America’s Building Trades Unions v. OSHA. The new rule lowers by half the permissible exposure level (PEL) of a worker’s exposure during the workday for all covered industries including the foundry, brick, construction and hydraulic fracturing industries.

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On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit granted a petition seeking a writ of mandamus to compel the Environmental Protection Agency (EPA) to promptly commence and conclude a long-promised rulemaking to consider reducing the existing household lead-dust levels that primarily affect children. Judge Schroeder determined that the Ninth Circuit has jurisdiction to consider this petition under both the Toxic Substances Control Act (TSCA) and the Administrative Procedures Act (APA), since EPA in October 2009 granted a petition to begin such proceedings. EPA has been ordered to issue a proposed rule within 90 days of the date this decision becomes final, and to promulgate a final rule within one year after the promulgation of the proposed rule. The case is In re A Community Voice, et al., v. EPA.

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Last March, the U.S. Court of Appeals for the Tenth Circuit revered the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) could not subject the Utah Prairie Dog to Endangered Species Act-protected status because it was an intrastate species found only in Utah and not on federal land, and thus the Commerce Clause in the U.S. Constitution did not empower the Service to regulate its “take.” The Court of Appeals reasoned that extending protection to the Utah prairie dog was only part of the ESA’s broader regulatory scheme regulating takings of protected species, which, in the aggregate, affects interstate commerce. The case is People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service. The Solicitor General advised the U.S. Supreme Court against taking review, and on January 8, 2018, the Court agreed.

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On December 29, 2017, the Montana Supreme Court decided an important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known also as Superfund, case involving the application of Montana state law in an ongoing federal CERCLA cleanup effort. The case is Atlantic Richfield Company v. Montana Second Judicial District Court. Atlantic Richfield Company (ARCO) petitioned the Montana Supreme Court for a writ of supervisory control, seeking a reversal of several orders of the trial court presiding over the case of Christian, et al. v. ARCO, filed in 2008, in which a group of private property owners in and around the town of Opportunity, MT are seeking restoration damages, based on Montana common law, for their properties that had been adversely affected by the operations of the Anaconda Smelter which operated for nearly 100 years before it was shut down in 1980.

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In late December 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued two significant administrative law decisions in the cases of Safari Club Int’l and Nat’l Rifle Assoc. of Am. v. Zinke (decided December 22, 2017) and Clarian Health West, LLC, v. Hargan (decided December 26, 2017). The unanimous rulings in both cases were written by Senior Circuit Judge Edwards, and involved the application of the procedural strictures of the Administrative Procedure Act (APA) to actions taken by two very different departments: The Department of the Interior and the Department of Health and Human Services.

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Public notice of some very significant regulatory actions has been provided in the waning days of 2017.

  1. On December 28, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ADPRM) at 82 FR 61507 soliciting comments from the public as it considers proposing new state guidelines for greenhouse gas emissions (GHG)  from existing electric utility generating units.  The ADPRM states that it “focuses on considerations pertinent to a potential new rule establishing emission guidelines for GHG (likely expressed as carbon dioxide CO2 ) from existing [electric utility generating units (EGUs)]. In this ANPRM, the EPA sets out and requests comments on the roles, responsibilities, and limitations of the federal government, state governments, and regulated entities in developing and implementing such a rule, and the EPA solicits information regarding the appropriate scope of such a rule and associated technologies and approaches.” Further, “this ANPRM solicits comment on what the EPA should include in a potential new existing-source regulation under the [Clean Air Act (CAA)] section 111(d), including comments on aspects of the States’ and the EPA’s role in that process, on the Best System of Emission Reduction in this context under the statutory interpretation contained in the proposed repeal of the [Clean Power Plan(CPP)], 82 FR 48035 (October 16, 2017).”  EPA lists a number of available systems of GHG emission reduction, the role, if any, on carbon capture and storage (CCS)technologies, and potential interaction with other regulatory programs such as New Source Review and New Source Performance Standards.  Comments must be received on or before February 26, 2018. Continue reading

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The Office of Information and Regulatory Affairs Office of Management and Budget(Administration) has posted the Fall 2017 Agency Statements of Regulatory Priorities, and what follows is a selection of future environmental regulatory actions a number of departments and agencies are proposing to take.

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