Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Clean Water Act, Eighth Circuit, Enforcement, EPA, Federal Procedure, Informal Agency Action, Permits, Procedure, Rapanos, Supreme Court, Water, Wetlands

The U.S. District Court for the Middle District of Louisiana recently ruled that an U.S. Army Corps of Engineers’ approved jurisdictional determination finding wetlands subject to the Clean Water Act (CWA) is not a final agency action within the meaning of the Administrative Procedure Act (APA). The court further held that its holding was not impacted by the U.S. Supreme Court’s recent decision in Sackett v. EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Due Process, Procedure, Real Estate, Wetlands

Last week, the United States District Court for the Western District of Washington, in Trident Seafoods Corp. v. Bryson, No. C12-134 MJP (Nov. 30, 2012), sent litigants a reminder about the necessity of proper standing in rulemaking challenges.  Indeed, standing is often one of the most difficult aspects of these cases, and often result in early case dismissal, as it did in Trident. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Federal Procedure, Procedure, Rulemaking, Standing

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit published two decisions in cases involving environmental groups’ challenges to EPA’s efforts to regulate certain classes of hazardous air pollutants (“HAPs”).  Both cases concerned Section 112(c)(6) of the Clean Air Act, a provision enacted by Congress in 1990 that requires EPA to (1) complete a list of sources of seven specified HAPs that accounts for at least ninety percent of the total emissions of each of the seven HAPs and (2) subject these listed sources to emissions standards.  42 U.S.C. § 7412(c)(6).  Section 112(c)(6) gives EPA a choice among two emission standards:  (1) a stringent standard known as “maximum achievable control technology” (“MACT”) or (2) a standard based on health thresholds.  See § 112(c)(6), (d)(2) and (d)(4).  The cases decided last Friday highlight both procedural and substantive aspects of regulating air pollution. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Air, Clean Air Act, D.C. Circuit, Decisions of Note, HAPs, Hazardous Air Pollutants, Mercury, Rulemaking

One of the very first things I was told by the senior partner when I started practicing law was that there isn’t an honest mistake that can’t be fixed, except blowing the statute of limitations. As a result, my calendar has limitations periods blocked out weeks, months and in some cases years in advance, and if there’s ever a question of when it runs, I use the earliest date. The Tenth Circuit’s decision in Impact Energy Resources, LLC v. Salazar, Nos. 11-4043 & 11-4057 (Sept. 5, 2012 10^th Cir.), is a cautionary tale to those who may not be as conservative. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Exploration, Federal Procedure, Interior, Leases, Mineral Leasing Act, Oil and Gas, Procedure, Public Lands, Statute of Limitations, Tenth Circuit, Tolling

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands

On Monday, the United States District Court for the District of Columbia issued an opinion in Sierra Club v. Jackson, No. 11-1278 (D.C.D.C. Jan. 9, 2012), that has much to chew on with respect to judicial review of agency actions, particular those involving stays.  For those not following this long-running saga, a brief background is in order. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Air, Boiler MACT, Cases to Watch, CISWI, Clean Air Act, Decisions of Note, Delay Notice, EPA, Federal Procedure, Procedure, Rulemaking

On September 23, the Petitioners filed their opening brief  in the case of Sackett v. Environmental Protection Agency (10-1062), one of two environmental cases on the United States Supreme Court’s docket for the upcoming term.  Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Clean Water Act, Due Process, Enforcement Action, Real Estate, Wetlands