The Nickel Report

On June 24, 2024, the Supreme Court granted a petition for writ of certiorari in Seven County Infrastructure Coalition v. Eagle County, CO, (23-975), a case challenging the scope of an environmental review conducted by the Surface Transportation Board (“Board”) pursuant to the National Environmental Policy Act ("NEPA”) for an 88-mile rail line project in Utah. The question before the Court is whether NEPA requires federal agencies to study the environmental impacts of proposed projects beyond the proximate effects of the action that an agency has no authority to regulate.

The Chevron doctrine – the bedrock principle of administrative law under which courts afforded deference to administrative agency interpretations in the face of statutory ambiguity – is no more.  On June 28, 2024, the U.S. Supreme Court issued a long-anticipated decision that addresses the authority of regulatory agencies to dictate policy and the extent to which courts will exercise their own judgment as to the meaning of a statute and how that may bound agency decisions. 

On May 1, the Council on Environmental Quality (CEQ) published the final Phase 2 rule overhauling the National Environmental Policy Act (NEPA) implementing regulations. The final rule, titled the “Bipartisan Permitting Reform Implementation Rule” (Phase 2 Rule), will apply to all actions starting the NEPA processes beginning after July 1, 2024, and the agencies have discretion to apply to NEPA reviews that are currently underway.

On October 13, 2023, the US Department of Justice (DOJ) published its first annual report detailing the implementation of its Comprehensive Environmental Justice Enforcement Strategy (EJ Strategy). As we reported, in mid-2022, DOJ established an Office of Environmental Justice (OEJ), and the US Environmental Protection Agency (EPA) established a new Office of Environmental Justice (EJ) and External Civil Rights. DOJ’s OEJ is housed in the Environmental and Natural Resources Division (ENRD). DOJ intended its EJ Strategy to extend throughout the Department, in that OEJ’s mandate is to engage all DOJ bureaus, components, and offices in the collective pursuit of environmental justice. DOJ’s new report cites two main executive branch agencies involved in environmental protection and community development: EPA and the Department of Housing and Urban Development (HUD). The report touts efforts that DOJ views as EJ-related “successes” and details a number of authorities DOJ has relied upon in EJ-focused enforcement, including Title VI of the Civil Rights Act, the Clean Air Act, the Safe Drinking Water Act, and the Affordable Care Act. Building on these highlighted successes, DOJ states that it will continue its focus on enforcement proceedings where there is a nexus with environmental justice and will seek EJ-focused mitigation to resolve such proceedings. 

On September 8, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (together, the Agencies) published a final rule in the Federal Register to amend the Agencies’ January, 2023 “waters of the United States” (WOTUS) definition (Amended Rule). 88 Fed. Reg. 61,964 (Sep. 8, 2023).[i] According to the Agencies, these amendments conform that definition to the Supreme Court’s Sackett decision. 

On June 3, 2023, President Biden signed the bipartisan Fiscal Responsibility Act of 2023 (FRA) to suspend the United States’ debt limit until January 2025. The legislation also imposes changes to the environmental review process for infrastructure projects. Most notably, the FRA amends key provisions of the National Environmental Policy Act (NEPA), a touchstone environmental statute that imposes procedural requirements for the approval of major federal actions. The amendments to NEPA are the first major changes to the statute in almost 40 years. These changes signal Congress’s intent to streamline the environmental review of projects and improve the federal permitting process for energy projects. The amendments to NEPA will likely influence (and may delay) the Council on Environmental Quality’s (CEQ) Phase 2 revisions to NEPA’s implementing regulations which are currently undergoing interagency review. The FRA also expedites the approval process for all permits for the Mountain Valley natural gas pipeline project in West Virginia.

On April 27, 2023, the Environmental Protection Agency (EPA) published a Proposed Rule to grant Louisiana primacy to administer and enforce the Class VI Underground Injection Control (UIC) program within its borders. EPA approval of Louisiana’s primacy application would authorize the Louisiana Department of Natural Resources (LDNR) to issue UIC permits for Class VI geologic carbon sequestration facilities and undertake compliance enforcement for such facilities located within the state. EPA has determined that Louisiana’s application meets the necessary requirements for approval and is soliciting public comments on the proposal. One of the major sticking points in EPA’s approval of Louisiana’s program has been the approach to incorporating environmental justice (EJ) into the Class VI permit process. LDNR has agreed to implement a number of EJ-focused elements into the permitting process, including robust EJ analysis and public participation.

President Biden signed a new Executive Order (E.O.) to advance environmental justice (EJ) late last week, just in time for Earth Day. E.O. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, aims to carry out its title through a bevy of actions, including requiring agencies to create EJ strategic plans, directing research on EJ issues, expanding notifications for toxic chemical releases, and increasing coordination on EJ by establishing a new EJ Interagency Council and White House Office of Environmental Justice. The new E.O. builds on the Biden Administration’s “whole-of-government” approach to EJ, making clear that the obligation to consider and address EJ applies across federal agencies. The E.O.’s directives are likely to guide federal agency permitting, funding grants, and other authorizations for projects or activities that may have implications for EJ communities. On the same day as the E.O. was signed, the administration also announced a handful of other steps to further its EJ priorities.

Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA).  This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS.  The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR).  In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test).  The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters.  The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.

The Biden-Harris administration is taking new steps to put some teeth into its emphasis on addressing environmental justice (EJ). Two recent developments are worth noting given the potential impact on projects and communities. 

One, EPA announced on September 24, 2022 that it is launching its new Office of Environmental Justice and External Civil Rights (OEJECR or EJ Office). Establishing the EJ Office on par with other key EPA offices, such as the Office of Air and Radiation, the Office of Enforcement and Compliance Assurance, and the Office of Land and Environmental Management, signals the emphasis that the Biden-Harris administration is placing on EJ.

Two, in August 2022, EPA’s Office of General Counsel (OGC) issued a guidance document entitled Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (EJ FAQs) that outlines EPA’s current views as to how federal, state, and local permitting agencies can meet the requirements of civil rights laws when they are administering environmental permitting requirements. The FAQs document signals greater focus on environmental justice in permitting, even noting that denial of permits based on environmental justice or civil rights concerns may be appropriate in some cases.

This week the US District Court for the Northern District of California overturned three Endangered Species Act (ESA) rules issued in 2019 that address: (1) listing species and designating critical habitat, (2) extending take prohibitions to threatened species, and (3) § 7 interagency consultation. Center for Biological Diversity v. Bernhardt, 19-05206 (N.D. Cal. July 5, 2022). The three rules were issued by the US Fish and Wildlife Service and National Marine Fisheries Service (together, the Services) in August 2019 and together represented the first comprehensive revisions to the ESA regulations in 33 years. The order has a number of important regulatory and caselaw implications. 

In line with the Biden administration’s focus on expanding offshore wind energy, the Bureau of Ocean Energy Management (BOEM) is seeking public review and comments on the draft Morro Bay Wind Energy Area (WEA) environmental assessment (EA) by Friday, May 6, 2022. The EA for the Morro Bay WEA “considers potential environmental and socioeconomic effects from issuing offshore wind energy leases and related site characterization and assessment activities.” Written comments may be filed or shared virtually at the April 14 or April 19 meeting.

Two recent actions by the Biden Administration will identify areas of focus for environmental justice (EJ) and therefore influence environmental enforcement priorities, federal permitting and licensing, and federal spending, among other actions. On February 18, the White House Council on Environmental Quality (CEQ) released the beta (or draft) version of its Climate and Economic Justice Screening Tool (CEJST), a key component of President Biden’s Justice40 Initiative and mandated by the same Executive Order 14008. As we described last year, the Justice40 Initiative set the goal of “delivering 40 percent of the overall benefits of relevant federal investments” to disadvantaged communities. The CEJST serves a specific purpose: to help agencies identify disadvantaged communities in order to direct federal benefits and help agencies measure whether 40 percent of benefits are being received by those communities.

On the heels of the November 2021 Tribal Nations Summit, a flurry of memoranda was signed by the White House and many government agencies. These memoranda seek to further the Biden administration’s promises of consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking.

Center stage in the ongoing discussion is Indigenous Traditional Ecological Knowledge (ITEK), and the need for including and consulting with Tribal communities on the front end of planning as part of the environmental review process under the National Environmental Policy Act (NEPA)—something that inconsistently occurred in the past. Stakeholders from developers and investors to Tribes and regulators, among other parties, should expect increased focus and guidance from the Biden administration in 2022 on these issues. The additional focus on these issues will present opportunities, but also challenges, as it adds another step in the already time-consuming NEPA process.

On January 11, the Bureau of Ocean Energy Management (BOEM) announced the beginning of a scoping period to prepare a draft environmental assessment (Draft EA) for the Gulf of Mexico (GOM) Call Area to assess potential impacts associated with offshore wind leasing. The area includes approximately 30 million acres of federal lands on the outer continental shelf (OCS) in the GOM, and covers areas in what is commonly known as the Western and Central Planning Areas of the GOM. This is the same area described in the Call for Information and Nominations published in the Federal Register on November 1, 2021. Comments will be received through February 9, 2022. BOEM anticipates completing the Draft EA this summer.

The American Bar Association published an article, Navigating Environmental Justice Issues in Federal Permitting, which discusses Environmental Justice in federal permitting by Hunton Andrews Kurth attorneys Kerry McGrath, Andrew Turner, John Bobka, and Mayer Brown attorney Lauren Bachtel.

To continue reading this article, originally published by the American Bar Association, please visit the ABA website here or download a PDF version of the article here. 

Published in Natural Resources & Environment Volume 36, Number 2, Fall 2021. © 2021 by the American Bar ...

As a top priority for the Biden Administration and a key component of energy transition plans, offshore wind energy development is front and center and receiving a lot of attention.  The Biden Administration has announced a commitment to create 30 gigawatts of electricity via US offshore wind by 2030. Congress provided a boost to offshore wind development late last year via a 30% investment tax credit to projects that start construction before 2026.  And just last week, Interior Secretary Deb Haaland announced plans to spur that development by offering a slate of offshore wind lease sales by 2025 in federal waters off the East, Gulf, and West Coasts.

Last month, EPA announced a planned update of the Toxics Release Inventory (TRI) reporting program, incorporating several additions.  The updates would expand the TRI program by adding new chemicals, facilities, and tools to increase accessibility of data.  The goal, according to EPA’s statement, is “to advance Environmental Justice, improve transparency, and increase access to environmental information.”

A discussion of the National Environmental Policy Act and related regulations and their implications for project development.

Under the National Environmental Policy Act (NEPA), federal agencies must determine if their proposed major federal actions (including permit authorizations for projects sponsored by private entities) will significantly affect the human environment and consider the environmental and related social and economic effects. This means that virtually any project that requires a federal permit or authorization may be required to undergo a NEPA review. Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that may trigger NEPA review.

Among the flurry of executive actions signed by President Biden last week on inauguration day was a presidential memorandum aiming to revise the regulatory review process.  Titled “Modernizing Regulatory Review,” the memo is directed at the heads of executive departments and agencies and has dual focuses that show the Biden Administration’s commitment to strengthening key tenets of regulatory review while enhancing the focus on equitable and other considerations in the process.  Though it garnered less attention than other actions issued simultaneously, this memo signals President Biden’s ambitious regulatory agenda and may have far-reaching effects that pervade the regulatory process.

One of the most frequent terms heard in conjunction with President-Elect Biden’s energy and environmental agenda is “environmental justice,” which is often described as an overarching objective as well as a key component of the incoming administration’s climate agenda.  This post looks at how the Biden Administration may translate environmental justice principles into concrete executive actions, and how project proponents can prepare for increased focus on environmental justice in their permitting.

In this article, the authors discuss the National Environmental Policy Act (“NEPA”) and environmental justice review requirements for federal agency actions, recent challenges and court decisions showcasing the increased scrutiny and focus on environmental justice reviews for project permitting, recent NEPA regulation and other environmental justice developments, and what the recent cases and other recent regulatory and political developments may mean for project permitting and environmental justice.

As we have previously reported, in July 2020, the Council on Environmental Quality (CEQ) published its highly anticipated final rule to improve its National Environmental Policy Act (NEPA) regulations, the first comprehensive revision of the NEPA implementing regulations in over forty years.  The final rule, which has generated much controversy and spurred numerous lawsuits, goes into effect today.  This post provides a brief update on the pending litigation and implementation of the new rule.

On July 16, 2020, the Council on Environmental Quality (CEQ) published its highly anticipated final rule to improve its National Environmental Policy Act (NEPA) regulations.  The update, which largely mirrors the proposed rule, is the first comprehensive amendment to the regulations since their original publication in 1978.  The final rule is designed to streamline the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. 

The Novel Coronavirus Disease (COVID-19) outbreak is affecting virtually every sector of society and the economy. The healthcare sector and government agencies are on the front lines of the response. Providing support to these critical response activities as well as striving to maintain the strength of the overall economy by continuing regular business operations is vitally important. The private sector has important roles to play. The purpose of this blog post is to briefly outline some practical and legal tools available to help provide both direct support and maintain broader economic activities while ensuring environmental protection and compliance with natural resource laws.

This blog post will be updated as new or relevant information becomes available.

The reach of the CWA is “notoriously unclear.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring). It can be difficult for a landowner to understand whether wetlands or a small creek on his or her parcel, for example, are federal waters that require a Clean Water Act (CWA) permit before the landowner can begin work to build a home, develop the property, or cultivate the land. Last week, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (together, the Agencies) issued a new, long-awaited final rule, titled the “Navigable Waters Protection Rule,” which seeks to streamline and clarify the geographic scope of federal CWA jurisdiction.

On January 9, 2020, the Council on Environmental Quality (CEQ) released its highly anticipated proposed rule to improve its National Environmental Policy Act (NEPA) regulations. The proposed changes would be the first comprehensive amendment of the NEPA regulations since their original publication in 1978. CEQ’s proposed changes are designed to streamline and speed the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. CEQ’s Proposal is informed by comments it received on last year’s Advanced Notice of Proposed Rulemaking.

NEPA requires that federal agencies analyze the environmental effects of their proposed federal actions. This means that virtually any project that requires a federal permit or authorization could be required to undergo a NEPA review. Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that could trigger NEPA. A NEPA review can take significant agency and applicant resources, can substantially delay permits and can provide a basis for a federal court challenge to the project.

On November 4, 2019, the US Court of Appeals for the Eleventh Circuit upheld the Clean Water Act (CWA) section 404 permit issued by the US Army Corps of Engineers (Corps) for the extension of an existing phosphate mine in central Florida. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 18-10541 (11th Cir. Nov. 4, 2019). The Corps permit authorizes the discharge of dredged or fill material into waters of the United States that comprise a small portion of the mining extension. Opponents challenged the permit in the Middle District of Florida, claiming the issuance of the permit violated the CWA, the National Environmental Policy Act (NEPA) by not considering “downstream” effects, and the Endangered Species Act (ESA). The district court rejected all of the claims, and the Eleventh Circuit affirmed.

Which Waters of the US (WOTUS) rule applies to my project? For four years, that has been a recurring question with a complicated, ever-changing answer. The 2015 WOTUS Rule promulgated by the Obama administration was challenged almost immediately, and, because of various district court injunctions, only 22 states are operating under the 2015 WOTUS Rule, while 27 states are subject to the pre-2015 Rule regime; the status of the rule in New Mexico is unclear. Yesterday, EPA and the US Army Corps of Engineers (together, the Agencies) signed a pre-publication version of the highly anticipated repeal of the 2015 WOTUS Rule, which will place the entire country under the pre-2015 Rule regime while the Trump administration works to complete its replacement WOTUS definition.

On August 12, 2019, the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) (together, the Services) signed final rules instituting the first comprehensive revisions to the Endangered Species Act (ESA) regulations in 33 years. The Services made substantial and broad revisions to their regulations concerning the process and standards for listing species and designating critical habitat, the scope of protections for threatened species and the process for consultation with federal agencies.

The Endangered Species Act increasingly plays a larger role in environmental law and the federal permitting process for infrastructure projects. Hunton Andrews Kurth Partner Kerry McGrath and Associate Brian Levey give an inside look at the complex process of obtaining federal authorization for “take” of endangered species.

Last week, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) (together, the Agencies) issued a long-awaited proposal to redefine the “waters of the US” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). The reach of the CWA is notoriously unclear, but knowing which areas on your property are jurisdictional and will require permits is critical to project planning and timelines. If finalized, the proposed rule would replace the Obama administration’s contentious 2015 WOTUS Rule and eliminate the regulatory patchwork that currently exists as the 2015 WOTUS Rule is being implemented in only certain parts of the country.

The U.S. Court of Appeals for the Second Circuit in July issued a long-awaited decision in the case Cooling Water Intake Structure Coalition v. U.S. Environmental Protection Agency (EPA), upholding the EPA’s 2014 Rule establishing requirements pursuant to Clean Water Act (CWA) section 316(b) for cooling water intake structures (CWIS) at existing facilities. The court also upheld the biological opinion (BO) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) on the 2014 Rule.

The Second ...

As the Trump administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act (ESA) and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services), the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations.

When Congress enacted the Endangered Species Act (“ESA”) to protect and recover imperiled species and the ecosystems on which they depend, it emphasized the need to strike the proper balance between protecting species and allowing productive human activities. Widespread concern that this balance has been lost has sparked movement within the Trump Administration and Congress to improve the ESA and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services). Many of these reform efforts are focused on ensuring earlier and increased involvement of states and other regulated entities and on improving the listing/delisting process to make certain that the extraordinary protections of the ESA are imposed, where warranted, and lifted, as appropriate.

Today, EPA and the Corps released a highly anticipated proposal to rescind the Obama Administration’s controversial 2015 Clean Water Rule. The June 2015 rule, which has been stayed since October 2015, would broadly define the scope of “waters of the U.S.” (WOTUS) subject to federal regulation and permitting requirements under the CWA. The proposed rescission is the first step of a two-step process to repeal and replace the 2015 Clean Water Rule with a new WOTUS rule. With today’s proposal, EPA and the Corps are proposing to officially rescind the 2015 rule and continue to implement the regulatory definition in place prior to the 2015 rule while they work to promulgate a new rule to define WOTUS.

There has been much controversy in recent weeks surrounding the Dakota Access Pipeline (DAPL), a 1,172-mile line proposed to carry crude oil from North Dakota to Illinois. Although only 3 percent of the DAPL requires federal approval, much of the pipeline has already been constructed In particular, the DAPL has raised issues regarding the scope and adequacy of the US Army Corps of Engineers’ (Corps’) consultation with federal tribes in authorizing segments of oil and gas pipelines crossing federal waters, and has caused the administration to consider reforms for how tribes weigh in on infrastructure reviews.