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DOI

16 March 2021

Fifth Circuit Rejects Challenge to Texas LNG Project

On March 10, 2021, the U.S. Court of Appeals for the Fifth Circuit rejected a challenge to an opinion by the Fish and Wildlife Service (FWS) allowing a South Texas liquified natural gas (LNG) pipeline project to proceed. Sierra Club, et al. v. U.S. Department of Interior, et al. involved a proposed LNG pipeline that would pass through Cameron, Willacy, Kenedy, and Kleburg counties in south Texas. (more…)

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03 November 2020

U.S. Department of Interior Joins EPA in Revising Guidance Procedures

On October 26, 2020, the U.S. Department of the Interior (“DOI” or “The Department”) issued an interim final rule, which revises its guidelines for the development, review, and clearance of guidance documents.  The Department’s rule follows the U.S. Environmental Protection Agency’s promulgation of a similar rule last month.  Both rules implement the October 2019 Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents directing Federal agencies to finalize regulations that set forth procedures for issuing guidance documents.

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18 September 2020

U.S. Fish and Wildlife Service Proposes Framework for Endangered Species Act Critical Habitat Exclusion Analysis

On September 8, 2020, the U.S. Fish and Wildlife Service (FWS) issued a proposal under the Endangered Species Act (ESA) addressing how FWS will conduct discretionary analyses to determine whether to exclude land that otherwise would be constrained from use due to a critical habitat designation. (more…)

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03 January 2018

Incidental Take of Migratory Birds No Longer Prohibited by the Migratory Bird Treaty Act

On Dec. 22, 2017, the U.S. Department of the Interior (DOI) issued Memorandum M-370501, which concludes that the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703, does not prohibit the incidental taking of migratory birds. DOI now reads the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing or attempting to do the same as applying only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests or their eggs. The opinion is significant because it reverses DOI’s prior interpretation of the MBTA as prohibiting incidental taking or killing of migratory birds. Because the MBTA is a strict liability criminal statute, meaning that a violation can occur regardless of whether the violator acted with intent, Memorandum M-37050 is also significant because it likely will reduce potential criminal exposure on project developers and operators.

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