30 January 2018

Sidley Environmental Trends

Topics discussed this week include:

  • U.S. Supreme Court sends “waters of the U.S.” case back to the federal district courts.
  • “Critical habitat” dusky gopher frog case to be heard by U.S. Supreme Court.
  • Florida coastal waters will continue to be analyzed for oil and gas leases.
  • EPA announces it will revisit 2017 Regional Haze Rule.

U.S. Supreme Court sends “waters of the U.S.” case back to the federal district courts. Last week, the U.S. Supreme Court decided that challenges to the Obama administration’s “waters of the United States” rule (Rule) had to be filed in federal district court. The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) published the Rule in 2015 to clarify the geographic extent of “waters of the United States” under the Clean Water Act (CWA). Numerous challenges to the Rule were filed in both district and appellate courts, including challenges by 30 states. Before addressing the merits, however, the courts had to decide whether the Rule fell within one of seven categories under the CWA for which primary jurisdiction rests with the courts of appeals. Challenges outside of those specific actions fall under the Administrative Procedure Act and would be heard in district court. The government had argued that the courts of appeal should have jurisdiction as an action “approving or promulgating any effluent limitation” under the CWA and that placing these types of challenges in the courts of appeal would be more efficient. Writing for a unanimous Court, Justice Sonia Sotomayor held that the Rule was not an effluent limitation but instead clarified the meaning of a statutory term and thus properly left to the district courts to address in the first instance. A court may never reach the merits of the Rule, as the Trump administration is in the process of reconsidering it. However, the ruling provides clarity on the appropriate court to hear challenges to any similar future rules.

“Critical habitat” dusky gopher frog case to be heard by U.S. Supreme Court. The U.S. Supreme Court will take up the question of whether the U.S. Fish and Wildlife Service (FWS) can designate a private landowner’s property as a “critical habitat” for the dusky gopher frog, a threatened or endangered species under the Endangered Species Act (ESA). In a pair of closely watched cases that will be consolidated before the Court, Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., U.S. 17-71 and Markle Interests LLC v. U.S. Fish and Wildlife Serv., U.S. 17-74, plaintiff landowners have argued that because the frog does not yet reside on the land and have not in many decades, the critical habitat designation is an impermissible expansion of FWS’ authority under the ESA. In addition, landowners argue that the frog cannot live on the land in question, based on its current physical features and use for commercial timber harvesting. FWS has asserted that because the land is within the historical range of the species and contains specific ponds needed for the frogs’ survival, it is appropriately classified as a critical habitat. A divided panel of the U.S. Court of Appeals for the Fifth Circuit ruled for the government in 2016. The cases are expected to be heard during the Court’s next term.

Florida coastal waters will continue to be analyzed for oil and gas leases. As reported in the last Sidley Environmental Trends report, the U.S. Department of the Interior (DOI) announced on Jan. 9 that it was removing the entire Florida coast from the list of oil and gas leases proposed in its 2019-24 Outer Continental Shelf and Gas Leasing Program. The program would open approximately 90 percent of the nation’s offshore reserves to development by private companies. However, the announcement to exclude Florida, made by Secretary of the Interior Ryan Zinke on Twitter and to reporters on Jan. 9, will not stop a formal process to evaluate whether to sell Florida coast drilling rights, according to the Bureau of Ocean Energy Management (BOEM). At a hearing before the U.S. House of Representatives Natural Resources Committee last week, BOEM acting director Walter Cruickshank reported that there has been no formal decision on Florida’s inclusion in the analysis for the five-year leasing program. For regulatory action such as excluding a particular state, the Outer Continental Shelf Lands Act requires formal notice and comment. In addition to Florida, at least 11 state governors have asked DOI to remove their states from the plan.

EPA announces it will revisit 2017 Regional Haze Rule. In a series of letters published on Jan. 17, EPA indicated that it will begin a notice and comment rulemaking to reexamine certain aspects of the 2017 Regional Haze Rule finalized by the Obama administration. The regional haze program addresses air quality and visibility in national parks and wilderness areas. EPA will reconsider several parts of the rule, including the reasonably attributable visibility impairment provision, under which federal managers in charge of protected areas can require states to control pollution sources that contribute to regional haze. EPA will also finalize and issue additional guidance documents to assist states with regional haze State Implementation Plan revisions, due in 2021. The announcement follows three petitions for administrative reconsideration and a number of lawsuits brought by states, industry groups and environmental groups regarding the revised regulations.

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