The Nickel Report

The U.S. Supreme Court is not the only one keen on taking a closer look at deference to agency interpretations. Just as the Supreme Court will have an opportunity “to rein in a particularly aggressive use of agency deference” later this year, the House of Representatives is also set to take aim at judicial deference to agency interpretations through the recently proposed Regulatory Accountability Act (the Act) — a compilation of several earlier reform bills. A similar act was proposed last July and passed the House, but was ultimately not considered by the Senate. With the new incoming administration, however, the Act may have an increased chance of success.

Just before Christmas, the U.S. Environmental Protection Agency (EPA) released controversial regulations, titled Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act; Prepublication Final Rule, that EPA states will “modernize” the Clean Air Act Section 112(r)(7) Risk Management Program (RMP) regulations. These 1990s-era regulations, covering about 12,500 facilities across the country, require that facilities storing certain amounts of specified chemicals develop risk management plans to prevent the accidental release of those substances into the air and mitigate impacts of accidental releases that do occur. EPA initiated these RMP rule revisions under the directive of President Obama’s August 1, 2013, Executive Order (EO) 13650, Improving Chemical Facility Safety and Security. After proposal on March 14, 2016, EPA received more than 44,000 comments, making rule issuance in just over six months’ time remarkable, especially given that the final rule and response to comments total about 600 pages.

[caption id="attachment_154" align="alignnone" width="300"] Photo by Alfonso Cuchi[/caption]

From the look of things, California is gearing up for a fight.

During the campaign, President-Elect Trump promised to redirect EPA’s focus away from climate change, with a greater emphasis on clean air and clean water. As part of this pledge, he vowed to dismantle the Obama Administration’s Clean Power Plan (CPP) and roll back EPA regulations, which he sees as hampering U.S. competitiveness.

California sees things differently. On January 4, California’s Legislature announced it had hired Eric H. Holder Jr., President Obama’s former U.S. Attorney General, as outside counsel to lead the state’s legal challenges to the incoming administration on a number of fronts, including the environment. In a joint statement, the Legislature explained, “With the upcoming change in administrations, we expect that there will be extraordinary challenges for California in the uncertain times ahead. . . . This is a critical moment in the history of our nation. We have an obligation to defend the people who elected us and the policies and diversity that make California an example of what truly makes our nation great.”

Executive Branch agencies write vague rules.  Then they give them meaning through interpretation.  That meaning may change over time through re-interpretation.  Indeed, it is not hard to find examples of rules that meant one thing one day and the opposite the next.  See, e.g.,  Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).  This is a problem for regulated entities that face penalties for failure to comply.  Reflecting such concerns, the deference doctrine has eroded slowly over the past two decades, with pronounced critical commentary from conservative Justices.  In October 2016, the Supreme Court granted review  in a case from the Fourth Circuit -- GG v. Gloucester County School Board (cert. granted Oct. 28, 2016)—where the court gave “controlling weight” to a staff interpretation of a Department of Labor (“DOL”) regulation.  In Gloucester County, the Court will have an opportunity to rein in a particularly aggressive use of agency deference.  Does this case presage more comprehensive review of the Court’s deference jurisprudence?  And what does it portend for the Trump Administration’s efforts to reverse Obama Administration regulatory priorities?

Recently, several of the environmental attorneys in our Washington office gathered together to sign holiday cards. During the festivities, the song “Hard Candy Christmas” by Dolly Parton played, leading to a spirited discussion of what did the words “a hard candy Christmas” mean? Was this type of Christmas good or bad? Was this song happy or sad?

A pteropod is not a winged dinosaur. It is a category of marine life that includes sea snails and sea slugs, both of which serve as forage for other marine species. According to the Center for Biological Diversity (CBD), ocean acidification is endangering some pteropods, such as sea snails, by eroding their shells. The sea snail is not the only threatened species—the CBD posits that most marine calcifying organisms (including oysters, clams and coral) are at risk of damage from ocean acidification.

On Monday, December 19, the US Environmental Protection Agency released its enforcement and compliance annual results for fiscal year 2016 (FY 2016). The results compile environmental enforcement statistics for the final year of the Obama administration.

You may well not have noticed when the US Fish and Wildlife Service (Service) issued a proposal back in September to list the Kenk’s amphipod (Stygobromus kenki) as an endangered species. 81 Fed. Reg. 67270 (September 30, 2016). Even the Center for Biological Diversity, which pushed for the listing, concedes that this small, eyeless, shrimp-like creature “may be one of the most uncharismatic species considered for protection under the [Endangered Species] Act.” This proposal is worthy of note, however, for at least a couple of reasons.

As the presidential transition draws nearer, many have asked what the change in administration will mean for the enforcement of our nation’s environmental laws. The Environmental Protection Agency, Department of Interior, Army Corps of Engineers, US Coast Guard and other agencies are all tasked with enforcement responsibilities under the major federal environmental statutes. The future of environmental enforcement under the incoming Trump administration thus depends on the future of each of these agencies.

On November 30, 2016, the US Fish and Wildlife Service (the Service) published a notice in the Federal Register announcing its finding that a September 2016 petition filed by several environmental groups “presents substantial scientific or commercial information” indicating that listing of the lesser prairie-chicken (LPC) under the Endangered Species Act (ESA) “may be warranted.” The Service has initiated a 12-month status review to determine whether listing the LPC is warranted. The Service has requested that information relevant to the status review be submitted by January 30, 2017, in order to be considered during the status review.