Gravel2Gavel Construction & Real Estate Law Blog
Noting that “Summer’s lease hath all too short a date,” it is still surprising to learn how many notable court rulings and administrative law determinations are made in late summer. Here are some instances.
Federal Courts of Appeal
Brown v. Federal Communications Commission
On August 25, 2026, the U.S. Court of Appeals for the Fourth Circuit held that a controversial ruling, made on delegated authority could still be reviewed by the courts although the Commissioners themselves had not made the final internal review. The FCC has responsibility for literally thousands of communications licenses (i.e., radio, television, cable TV and common carrier entities), and grants substantial authority to its bureaus to handle the workload in an efficient and timely basis. The issue in was a delicate matter involving broadcast campaign advertising rates for political campaigns. Believing that the Mass Media Bureau’s disposition of the matter by public notice was erroneous, a divided panel of the court held that the matter was still appealable to the courts. However, an emergency appeal by the petitioners to the Supreme Court was granted on September 4, 2026, because the Fourth Circuit did not have jurisdiction over this matter because a requested review was still pending at the FCC. The Supreme Court’s ruling was made in National Republican Congressional Committee v. Brown.
State of Texas v. United States Department of Energy
On September 11, 2026, the D.C. Circuit issued a unanimous opinion that the Department’s use of its Section 202 (c) of the Federal Power Act to keep a local coal power plant operating was illegal because DOE did not establish that an “emergency” existed as required by 10 CFR Section 205.371. In addition, all local clearances and approvals had been obtained.
Sterling v. City of Jackson, Mississippi
On September 4, 2026, the Fifth Circuit, in reviewing an appeal of the lower court’s dismissal of a “Section 1983 Action,” held that there is no constitutional right under the 14th Amendment to be free from exposure to contaminated water or a constitutional right to receive accurate information from local officials. The Supreme Court has counseled that the substantive due process guarantee of the 14th Amendment cannot be stretched that far. This matter arose from the notorious drinking water controversy in Jackson, Miss. The court also noted that the Sixth Circuit reached a different conclusion in a remarkably similar situation. The Sixth Circuit held that the Supreme Court’s bodily integrity rulings suggested that a different result would obtain.
East Fork Enterprises, et al, v. U.S. Environmental Protection Agency
On September 15, 2026, the Fifth Circuit vacated EPA’s Methylene Chloride rule (see 40 CFR Section 751) because the agency’s determination made errors of law and violated the substantial evidence standard set forth in TSCA. Judge Edith Jones’ opinion is very impressive in its scope and clarity.
Texas v. U.S. Department of Interior
On September 11, 2026, the Fifth Circuit decided a “Lesser Prairie Chicken” case regarding the species’ protected status under the Endangered Species Act. At the trial court, that court ruled that some of the purported intervenors lacked appellate standing to challenge the vacatur and remand of the LPS listing denial. The Fifth Circuit agreed with the lower courts standing rulings and remanded the matter to the Trial Courts.
Chamber of Commerce v. EPA
On August 18, 2026, the D.C. Circuit upheld EPA’s determination that chemical substances PFOS and PFOA are CERCLA hazardous substances for purposes of remedial action cleanups under Superfund. The unanimous ruling supported all of the decisions EPA made in coming to this conclusion.
Federal District Court Rulings
On August 31, 2026, the U.S. District Court of the Northern District of New York held that New York State’s New York Climate Change Superfund Act, which purports to provide local New York communities with a civil remedy to recover their costs to respond to threats created by the sale of oil and gas, was preempted by federal law, namely the Clean Air Act. An important local case, City of New York v. Chevron Corp., 993 F3d 81 (2021) was cited with approval by the Second Circuit.
On September 2, 2026, the U.S. District Court for the District of Columbia granted a preliminary injunction to the State of California, which argued the EPA’s use of the Congressional Review Act (CRA) to overturn a series of special waivers granted to the State under the Clean Air Act because of the unique environmental conditions obtaining in California when the Clean Air Act was enacted in the early 1970s was erroneous. The CRA establishes a procedure by which Congress can disapprove an agency’s new rules. California argued that EPA had treated these waivers as “rules” whereas a waiver cannot be considered a rule subject to the CRA process. Judge Howell was very critical of EPA, describing its actions as being inconsistent with its duty to take care that the laws be faithfully executed. The Judge enjoined EPA from allowing the reclassified actions from going into effect. A few days ago, EPA announced that it would appeal these rulings to the D.C. Circuit.
State of Louisiana v. EPA
On September 15, 2026, the U.S. District Court for the Western District of Louisiana issued a “universal vacatur” against EPA’s environmental justice rules because their reliance on “disparate impact” creates a race-based decision. The EPA rules are located at 40 CFR Section 7.35(b) and (c); 28 CFR Section 42.104(b)(2).
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