Gravel2Gavel Construction & Real Estate Law Blog
This is a brief review of recent significant environmental and administrative law rulings and developments. With the change in presidential administrations, the fate of at least some of the newly promulgated rules is uncertain.
Articles Posted in Environmental
A Court-Side Seat: “Inholdings” Upheld, a Pecos Bill Come Due and Agency Actions Abound
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Here are some significant environmental and regulatory rulings and administrative actions from December 2020.
A Court-Side Seat: Appeals and Agency Developments at the Close of 2020
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THE FEDERAL APPELLATE COURTS
The U.S. Court of Appeals
On November 23, 2020, the court, in a 2-to-1 vote, rejected the plaintiff’s request for an emergency injunction pending appeal in the case of Manzanita Band of Kumeyaay Nation, et al. v. Wolf. The majority held the requirement for such relief did not meet the requirements set forth in Winter v. NRDC, 555 US 7 (2008). Here, the plaintiffs allege that that the government’s construction of a border wall violates several environmental laws that were illegally waived by the Secretary of the Interior. Judge Millett dissented in part because the plaintiffs demonstrated a likelihood of success on the merits. She pointed to the argument that the authority of the Secretary—or Acting Secretary—to take these actions has been successfully challenged in several federal district courts. An expedited pleading schedule was established by the court.
The “Climate 21 Project” Prepared for the New Administration
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This is a brief review of the recently released “Climate 21 Project” policy memo. It is the work of many former members of the Obama Administration who are deeply concerned about climate change and what steps the new administration can take in the first 100 days to confront a problem. Offering “actionable advice” rather than a policy agenda, the group recognizes that Congress must do its part by providing new statutory authorities within the early days of the new administration, and the President must be prepared to aggressively exercise the powers of his office. As the members of the Group see it, there are four interlocking crises facing the President: (a) the COVID-19 pandemic; (b) the economic devastation visited upon many people by the pandemic; (c) racial injustice; and (d) accelerating threats posed by climate change.
A Court-Side Seat: An OSHA PSM Case, State Litigation Unmoved, New EPA Funding and Special Safety Standards for New Passenger Rail
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This roundup of recent environmental and regulatory law rulings and rulemakings includes an EPA deadline extended, a NEPA exclusion and PSM application upheld, and an unsuccessful appeal to the federal officer removal doctrine.
OIRA Best Practices for Administrative Enforcement and Adjudicative Actions
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On March 2, 2020, the Environmental Protection Agency revised its “On-Site Civil Inspection Procedures” in accordance with Executive Order 13892 . (The rules are located at 40 CFR Part 31.) These rules set forth the components of an appropriate inspection procedure. Briefly, the rules require that, after the inspector’s credential are made available, the object of the inspection will be discussed (and most inspections will be held during regular working hours), consent to enter must be obtained, there should be an opening and a closing conference with facility representatives, safety protocols must be observed, confidential business information must be protected, and there will be an opportunity for split sampling. Once the report is completed, it will be shared with the facility.
Join Us 11.12 for an Energy Transition Virtual Fireside Chat with Paul Browning
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Pillsbury partner and Global Co-Head of the Energy & Infrastructure Projects team, Mona Dajani, talks #ChangeInPower with Paul Browning, President and CEO of Mitsubishi Power Americas.
Join us on November 12, 2020, for a 45-minute conversation, where Mona and Paul discuss the power sector’s role in the energy transition, the growing prominence of hydrogen and energy storage, collaborating with customers and stakeholders and setting a path toward a decarbonization of the power grid.
To attend this exclusive fireside chat, register here.
A Court-Side Seat: Butterflies, Salt Marshes and Methane All Around
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Our latest summary of some recent developments in the courts and the federal agencies includes a unique case involving salt marshes adjacent to San Francisco Bay.
A Court-Side Seat: A FACA Fight, a Carbon Pledge and Some Venue on the SCOTUS Menu
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In this summary of recent developments in environmental and regulatory law, venues are challenged, standing is upheld, statutory exemption is disputed and more.
THE U.S. SUPREME COURT
Change Must Come from Within … Maryland?
As the new term begins, the Court has agreed to review BP PLC v. Mayor and City Council of Maryland, a decision of the U.S. Court of Appeals for the Fourth Circuit which held that a climate change damages case filed against many energy companies must be heard in the state courts of Maryland and not the federal courts. The petitioners argue that the federal office removal statute authorizes such removal, and the Fourth Circuit’s contrary decision conflicts with rulings from other circuit courts.
No Vacatur, No Protection, No Deference and No Discretion: Important End-of-Summer Environmental Decisions
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As the end of summer approaches, the courts have provided a potpourri of relevant environmental decisions.
FEDERAL COURTS OF APPEAL
Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection (MDEP)
On August 31, 2020, the U.S. Court of Appeals for the First Circuit issued an opinion revising the mandate of its earlier June 3, 2020, ruling in the case. In the earlier ruling, the court vacated the grant by the MDEP of an air permit to Algonquin Gas Transmission to build and operate an air compressor station, ordering the agency to “redo” its Best Available Control Technology analysis within 75 days. Algonquin asked the court to reverse without vacatur because the agency could not comply within the time limits established by the court. The First Circuit agreed, and established a new deadline for the agency of January 19, 2021.