In January 2017, the outgoing Solicitor of the Department of the Interior issued a memorandum which reaffirmed the Department’s “long-standing interpretation of the Migratory Bird Treaty Act that the MBTA prohibits the incidental taking of migratory birds.” In December 2017, following the change in administrations, the Department’s Primary Deputy Solicitor, exercising the authority of the Solicitor, issuing a new memorandum which withdrew and replaced the January 2017 interpretation. In response to this change in policy, the Fish and Wildlife Service issued new guidance as to what now constitutes a “prohibited take.” This change in policy has been challenged by several states, the National Audubon Society and the National Resource Defense Council. On July 31, 2018, the U.S. District Court for the Southern District of New York consolidated these challenges and denied the bulk of the Government’s motion to dismiss these petitions for review. This decision is National Resources Defense Council, et al. v,. U.S. Department the Interior.
On July 26, 2019, the U.S. Supreme Court ruled that the Trump administration can access $2.5 billion in Defense Department funds to replace and enhance sections of barrier along the southern border in Arizona, California and New Mexico. The Court’s 5-4 decision in Trump v. Sierra Club stayed an injunction and let the administration access funds that were frozen by decisions of a federal district court in California in May and the Ninth Circuit Court of Appeals (agreeing with the district court) on July 3. The significance of the decision is that the administration can now move forward with the work—for which contracts have already been awarded, but not finalized—while litigation brought by environmental groups proceeds in lower courts, a process that will take several months.
In a decision that will likely be welcomed by the electrical power, chemical manufacturing, and petroleum and coal products manufacturing industries, on July 19, 2019, the U.S. Court of Appeals for the District of Columbia Circuit held in the case of Idaho Conservation League et al., v. Wheeler, that EPA acted reasonably in deciding not to issue CERCLA financial responsibility regulations for the hardrock mining industry. CERCLA (a.k.a., Superfund) was enacted in 1980 and amended in 1986, and Section 108(b) of CERCLA provides that EPA shall promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility “consistent with the degree and duration of risk” associated with the production, transportation, treatment, storage or disposal of hazardous substances. However, no action was taken to implement Section 108(b) until 2009, and then only as the result of litigation challenging EPA’s failure to act. EPA and the petitioners agreed to a schedule by which the agency would propose financial responsibility rules for the hardrock mining industry—which was the initial class of industry facilities selected for the possible application of these rules—and the DC Circuit approved this schedule in 2016, which contained the court’s caveat that EPA retained the discretion not to issue any rule at the conclusion of the rulemaking.
Even as tax incentives provided by the opportunity zone program in 2017’s Tax Cuts and Jobs Act offer the possibility of significant tax benefits when investing gains in Qualified Opportunity Funds (QOFs), such funds must comply with a wide variety of significant federal and state securities laws and regulations. In “Securities Law Guidance for Qualified Opportunity Funds (QOFs),” colleagues Ellen C. Grady and Robert B. Robbins discuss the joint statement recently issued by the Securities and Exchange Commission (SEC) and the North American Securities Administrators Association (NASAA) summarizing federal and state securities law considerations that may be applicable to QOFs.
On July 2, 2019, the U.S. Court of Appeals for the District of Columbia Circuit decided the case of California Communities Against Toxics, et al. v. EPA. In this decision, the court rejected the latest petition to strike or vacate EPA’s 2018 revisions to the Resource Conservation and Recovery Act (RCRA) hazardous waste recycling rules. In 1985, EPA promulgated a new regulatory definition of “solid waste,” which is the linchpin of the agency’s very stringent hazardous waste management rules. (See the rules located at 40 CFR Sections 260-268.) Unless a material is a “solid waste” as defined by the rules, it cannot also be a hazardous waste.
The availability of broadband internet service in multiple tenant environments (MTE) is always a bit of a balancing act between promoting competitive access to tenants and preserving adequate incentives for the initial service providers to deploy, maintain, and upgrade infrastructure. In “FCC Seeks Comment on Accelerating Broadband Deployment in Multi-Tenant Buildings and Preempts Wire-Sharing Requirement in San Francisco Ordinance,” colleagues Glenn S. Richards and Joseph A. Cohen examine the FCC’s recent Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling on the subject.
With estimates that sea levels could rise two to six feet over the next century, states are incorporating adaptation and coastal resiliency into their planning and permitting regimes. In “INSIGHT: States Shift From Seawalls to Living Shorelines,” colleagues Eric Moorman, Norman Carlin and Ashleigh Acevedo examine the different strategies being considered and deployed by coastal states.
As usual, the last month of the Supreme Court’s term generated significant rulings on all manner of cases, possibly presaging the new directions the Court will be taking in administrative and regulatory law. Here’s a brief roundup:
On June 21, 2019, the White House Council on Environmental Quality (CEQ) issued draft guidance clarifying the treatment of greenhouse gas (GHG) emissions in environmental impact reviews of federal projects under the National Environmental Policy Act (NEPA). Those wishing to comment on the draft must submit comments within 30 days after it is published in the Federal Register.