In a dispute over a traffic impact fee imposed on a residential building permit by El Dorado County, the U.S. Supreme Court unanimously rejected the long-standing position of California and other state courts that the Takings Clause of the U.S. Constitution applies differently when permit conditions are imposed legislatively rather than administratively.

The final rule on the National Primary Drinking Water Regulation for per- and polyfluoroalkyl substances was announced by the U.S. Environmental Protection Agency on April 10, 2024. This update summarizes the rule and analyzes its implications for regulated entities.

California Independent System Operator released its draft 2023-2024 Transmission Plan on April 1, 2024. As expected, the 2023-2024 Plan incorporates projections for significant new generation of renewable energy and plans for major new transmission projects to carry the additional energy.

Andrea Driggs, Janet Howe, and Ben Longbottom authored an article for Law360* titled "What Nevada 'Superbasin' Ruling Means For Water Users" examining the recent case filing, Sullivan v. Lincoln County Water District and the implications for water users throughout Nevada and the West.

The Bureau of Ocean Energy Management announced on March 18, 2024, the identification of a final Wind Energy Area of 2,000,902 acres for commercial leasing and potential development of floating wind on the Outer Continental Shelf in the Gulf of Maine, offshore Maine, New Hampshire, and Massachusetts.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on March 21st, at 10:00 a.m. ET.

After nearly two years of public comments and deliberation, the U.S. Securities and Exchange Commission adopted a Final Rule on Mandatory Climate Disclosures. Most notably, the Final Rule requires companies to report certain greenhouse gas emissions and material climate impact information in their registration statements and annual reports.

In support of the Biden administration’s goal of 15 gigawatts of floating wind by 2040 and Oregon’s goal of 3 GW of offshore wind by 2030, the Bureau of Ocean Energy Management recently announced its selection of two final Wind Energy Areas for leasing and potential development of floating wind on the Outer Continental Shelf offshore Oregon.

U.S. Environmental Protection Agency Administrator Michael Regan signed two proposed rules related to per- and polyfluoroalkyl substances and the agency’s corrective action authority under the Resource Conservation and Recovery Act on January 31, 2024. These proposed rulemakings align with EPA’s Strategic Roadmap, announced in 2021 as a “whole-of-agency” approach to addressing PFAS.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on February 15th, at 10:00 a.m. ET.

The U.S. Bureau of Land Management announced in January 17, 2024, the publication of its draft Programmatic Environmental Impact Statement to help streamline and accelerate utility-scale solar energy development on public lands throughout the West.

The 28th United Nations Climate Change Conference of the Parties wrapped up in Dubai in mid-December 2023. This Article summarizes key takeaways and describes the potential implications for businesses and investors.

The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

The Bureau of Ocean Energy Management published on December 20, 2023, its notice of intent to prepare a Programmatic Environmental Impact Statement of reasonably foreseeable impacts of floating offshore wind energy development activities on the five leased areas offshore Humboldt County and Morro Bay, California.

The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

The U.S. Department of Energy proposed to amend its National Environmental Policy Act procedures on November 16, 2023, to include a new categorical exclusion for certain energy storage systems and to expand its categorical exclusions for certain transmission lines and solar photovoltaic systems.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on November 16th, at 10:00 a.m. ET. The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

Amid the rapidly increasing pace of nonsynchronous resources being added to the electric grid, the Federal Energy Regulatory Commission issued Order No. 901 on October 19, 2023.

The U.S. Department of Energy Office of Clean Energy Demonstrations, recently announced the project recipients selected for negotiation to develop seven regional clean hydrogen hubs across the United States.

The U.S. Environmental Protection Agency published a final reporting rule under the Toxic Substances Control Act on October 11, 2023, which requires manufacturers of per- and polyfluoroalkyl substances and PFAS-containing products to report information on PFAS dating back to 2011.

California Governor Gavin Newsom signed two climate disclosure bills into law on October 7, 2023. They will impose significant reporting obligations on thousands of companies doing business in California.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on October 19th, at 10:00 a.m. ET.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on September 21st, at 10:00 a.m. ET.

Jeffrey Hunter, Andrea Driggs, and Sara Cloon's update as part of the Summer Sustainability Series was republished by Packaging Digest. The article examines current state law developments in regulating PFAS chemicals in consumer products and food packaging.

The Washington Department of Ecology recently announced rulemaking intended to clarify a key cost containment provision of the Climate Commitment Act, the state’s carbon emissions cap-and-trade program.

Ted Boling and Kerensa Gimre wrote an article for the Center for American Progress on how the National Environment Policy Act (NEPA) process of environmental review is crucial to the success of infrastructure projects. It details five clean energy infrastructure examples that span a range of recent projects nationwide and demonstrate best practices for improving infrastructure projects.

In Maine Lobstermen’s Ass’n v. National Marine Fisheries Service, the U.S. Court of Appeals for the D.C. Circuit ruled that section 7 of the Endangered Species Act mandates using the “best scientific and commercial data available,” preventing the NMFS from making speculative, worst-case assumptions about whether a fishery is “not likely” to jeopardize a protected whale species’ survival.

The Council on Environmental Quality has proposed further amendments to its National Environmental Policy Act implementing regulations as part of its phased rulemaking initiated in 2021.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s open meeting to be held on July 27, 2023, at 10:00 a.m. ET. The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

This Update examines current state law developments in regulating PFAS chemicals in consumer products and food packaging, summarizes recent litigation against product manufacturers, and outlines next steps that manufacturers, retailers, and distributors of consumer products should consider to minimize their potential liability and risk.

The U.S. Court of Appeals for the District of Columbia Circuit’s decision in Maine Lobstermen’s Association v. State of Maine Dep’t of Marine Resources, 2023 WL 4036598 (D.C. Cir. June 16, 2023), stands as a warning that courts may show greater skepticism to statutory interpretations by agencies that reflect policy rather than empirical judgments (at least where they are not acknowledged as such).

Over the last decade, carbon offsets have gained popularity within the retail and consumer products industry as a voluntary tool to mitigate their Scope 1, 2, and 3 greenhouse gas emissions.

After much debate, a bipartisan Congress suspended the public debt ceiling until 2025 by passing the Fiscal Responsibility Act of 2023, which President Joe Biden signed on June 3.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on June 15, 2023, at 10:00 a.m. ET.

The Fiscal Responsibility Act, colloquially known as the Debt Ceiling Bill, was signed into law by President Joe Biden over the weekend and contains several amendments to the National Environmental Policy Act. These are the most substantive amendments to NEPA since the statute was enacted more than 50 years ago.

On May 30, 2023, the Bureau of Ocean Energy Management announced its final environmental assessment considering the effects of site characterization and site assessment activities associated with the leasing of federal waters in the Gulf of Mexico for offshore wind development. BOEM’s issuance of the final environmental assessment is one of the last steps before it holds the first-ever offshore wind lease auction in the Gulf of Mexico, which is anticipated to occur in fall 2023.

On May 11, 2023, the U.S. Environmental Protection Agency issued a proposed rule that would adopt new GHG emissions standards for certain coal and natural gas-fired power plants. The Proposed Rule aims to drive down GHGs in the electric generation sector significantly by requiring certain new and existing fossil generation to use CCS by 2035 or co-fire with hydrogen by 2032. Questions remain, however, whether this approach will fare any better than the Clean Power Plan on judicial review.

The U.S. District Court for the District of Massachusetts granted the government’s motion for summary judgment on May 17, 2023, in a case seeking to invalidate agency approvals of the first utility-scale offshore wind project in the United States.

The U.S. Supreme Court, on May 25, 2023, narrowed the reach of the Clean Water Act, in the latest judicial effort to define the “waters of the United States” that Congress intended to regulate. Sackett v. Environmental Protection Agency (No. 21-454).

The U.S. Supreme Court has accepted review of a case taking direct aim at “overregulation” by federal administrative agencies. Any client that routinely deals with federal administrative agencies—especially those who have experienced administrative overreach—should pay attention and consider weighing in.

Governor Gavin Newsom announced an ambitious and wide-ranging plan on May 19 to expedite the development of important infrastructure projects across the state, with the twin goals of building California’s clean energy future to meet its bold climate goals while at the same time creating hundreds of thousands of jobs.

On May 12, 2023, the U.S. Department of the Treasury issued Notice 2023-38, which contains the first rules concerning the domestic content bonus credits for renewable electricity, renewable natural gas, energy storage, hydrogen storage, and some hydrogen facilities pursuant to Code Sections 45, 48, 45Y, and 48E.

The U.S. Department of Energy published a combined Notice of Intent and Request for Information on May 9, 2023, that proposes a new applicant-driven, route-specific process to designate National Interest Electric Transmission Corridors.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on May 18, 2023, at 10:00 a.m. ET.

On May 10, 2023, the Biden administration announced its support for permitting reforms contained in Joe Senator Manchin’s Building American Energy Security Act of 2023. The administration also announced its support for the inclusion of eleven priorities in any bipartisan permitting reform package, including accelerated deployment of critical electrical transmission, improved permitting efficiency and predictability, and robust community engagement.

On April 26, 2023, the New Jersey Board of Public Utilities formally requested that PJM Interconnection, L.L.C. incorporate New Jersey’s increased offshore wind goals into the PJM transmission planning process via the “State Agreement Approach.”

The Internal Revenue Service published guidance on April 17, 2023, in the form of a Notice of Proposed Rulemaking, detailing the critical minerals and battery components requirements under Section 30D, enacted by the Inflation Reduction Act of 2022.

Below are brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on April 20, 2023, at 10:00 a.m. ET.

The Maryland General Assembly passed the Promoting Offshore Wind Energy Resources Act on April 10, 2023, committing the state to develop 8.5 gigawatts of offshore wind by 2031.

Critical infrastructure companies should expect substantial new federal cybersecurity requirements based on the National Cybersecurity Strategy that President Biden announced on March 2, 2023. After the Administration announced the Strategy, the EPA released a memorandum addressing cybersecurity in public water systems and TSA released an aviation cybersecurity amendment.

All Member States of the United Nations Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction reached an agreement on March 4, 2023, regarding an international treaty governing the sustainable use and conservation of the “high seas”—areas of the ocean that lie beyond any single nation’s jurisdiction. The treaty represents a culmination of nearly two decades of negotiations and meetings. It is a crucial step toward achieving the recent UN 30x30 Agreement to protect 30% of the planet’s lands and oceans by 2030.

For the first time and after much anticipation, the Environmental Protection Agency proposed National Primary Drinking Water Regulations for key "forever chemicals."

Last week, the Bureau of Ocean Energy Management issued a Proposed Sale Notice for the first offshore wind energy leases in the Gulf of Mexico. BOEM has dramatically reduced the proposed lease areas from the identified Wind Energy Areas, and there’s a chance that the ultimate lease areas will be even smaller. Similar to the California and Carolina Long Bay lease sales, BOEM is proposing to use a multiple-factor auction format and is newly proposing a fisheries compensatory mitigation fund bidding credit. Comments on the lease areas, auction format, proposed lease stipulations, and other issues will be accepted through April 25, 2023.

Sustainability remains a top priority for corporate boards this year as industries field growing demand from investors, consumers, and governments for more accountability, transparency, and responsiveness.

The Washington State Legislature kicked off its 2023 legislative session with a big focus on affordable housing initiatives. Five significant affordable housing bills were introduced this session that propose major changes ranging from eliminating local design review boards for housing development permits to modifying the multifamily tax exemption to creating a “housing benefit district” within city boundaries to boost the acquisition and development of affordable housing.

The Federal Energy Regulatory Commission issued a notice of proposed rulemaking to update its regulations governing backstop siting authority for electric transmission projects.

When you put it that way, California’s new plan to phase out gas-powered cars by 2035 hits differently—the transition is real and will accelerate soon.

The Internal Revenue Service published a fact sheet clarifying changes in federal clean vehicle tax credits enacted through the Inflation Reduction Act in August 2022.

The U.S. Environmental Protection Agency and the U.S. Department of the Army jointly announced on December 30, 2022, the latest final rule that attempts to define “waters of the United States” under the Clean Water Act. The Rule will take effect 60 days after its publication in the Federal Register.

The Council on Environmental Quality published guidance on how to evaluate greenhouse gas emissions and climate change under the National Environmental Policy Act.

The 27th United Nations Climate Change Conference of the Parties was held in Sharm el-Sheikh, Egypt, in November 2020. While much was discussed during the conference, this Update includes key takeaways that may be of greatest interest to business leaders.

Secretary of the Interior Deb Haaland announced on December 5, 2022, that the U.S. Bureau of Land Management (BLM) will develop an updated Solar Programmatic Environmental Impact Statement (PEIS) to help guide solar energy development on public lands throughout the West.

In mid-November, the U.S. Department of the Interior announced that it can acquire lands in trust for Alaska’s 231 federally recognized tribes and establish Indian reservations. On the heels of this announcement, the department published proposed changes to its regulations that would make it easier for tribes to place lands in trust.

On December 6–7, 2022, the Bureau of Ocean Energy Management (BOEM) held its third offshore wind lease sale this year—and the first of its kind for floating wind—bringing in $757.1 million from five lease areas off the central and north coasts of California.

The Biden-Harris administration launched Version 1.0 of its Climate and Economic Justice Screening Tool on November 22, 2022.

On November 17, 2022, the Federal Energy Regulatory Commission issued an order approving the surrender of the FERC license for the Lower Klamath Project.

FERC announced clarifications regarding what constitutes a change of control of a public utility or public utility holding company under the Federal Power Act and how it will assess the presumption that investors who own less than 10% of the voting securities of a FERC Regulated Entity are not affiliated with that entity.

As the Bureau of Ocean Energy Management has ramped up offshore wind development to meet the Biden-Harris administration’s goal of generating 30 gigawatts of offshore wind by 2030, the expansion of offshore wind energy could affect the North Atlantic right whale.

Partner Ted Boling authored “NEPA Means Better Agency Decisions” published in the The Environmental Forum regarding the National Environmental Policy Act (NEPA) and its regime for environmental impact assessment and framework for a transparent, evidence-based public process for agency decisions.

The Bureau of Ocean Energy Management (BOEM) issued its Final Sale Notice (FSN) on October 18, 2022, for the first offshore wind energy leases on the west coast of the United States.

In what has become a near-annual ritual, California Governor Gavin Newsom has signed into law a large package of bills aimed at addressing the state’s glaring housing shortage.

The U.S. administration’s goal of generating 30 GW of power through offshore wind by 2030 has spotlighted the Bureau of Ocean Energy Management (BOEM) to rapidly ramp up offshore wind development.

Five New England states recently issued a Request for Information seeking comment by October 14, 2022, on changes and upgrades to the regional electric transmission system to integrate renewable energy resources, particularly offshore wind. Through the RFI, the five states seek to improve the grid’s reliability, resilience, and affordability for the region’s electricity customers by integrating renewables and leveraging federal funding for transmission investments. Information received during the comment period will inform the states’ decisions to procure or facilitate transmission investment, inform planning activities, and further inform efforts to secure federal funding, including under the Infrastructure Investment and Jobs Act and the Inflation Reduction Act, and otherwise support infrastructure investment decisions.

President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act of 2022 on March 15, 2022. CIRCIA solicits public comment for 60 days, beginning September 12, 2022.

Governor Gavin Newsom announced a revamped water strategy on August 11, 2022, in response to updated projections that California could witness a 10% reduction in water supply by 2040 due to the accelerated impacts of climate change.

President Biden signed into law the Inflation Reduction Act on August 16, 2022, which, among other things, uses the tax code to slow the effects of climate change by significantly investing in clean energy and reducing of greenhouse gas emissions by 40% by 2030.

The $437 billion Inflation Reduction Act, signed into law on August 16, 2022, by President Biden, makes historic investments in clean energy. The IRA allocates $369 billion toward energy security, carbon emissions reduction, and climate resilience.

Governor Hochul announced the release of New York’s third competitive Offshore Wind Renewable Energy Certificate solicitation on July 27, 2022.

Stacey Bosshardt and Christopher Thomas co-authored State of WOTUS: Have you seen Bill Murray in Groundhog Day? the July/August 2022 issue of Trends, a publication from the ABA Section of Environment, Energy, and Resources.

Laura Morton and Ted Boling contributed a book chapter titled “Building the Plane While We’re Flying It – Should We Reform the Offshore Wind Leasing and Permitting Process During Liftoff for a New Industry?” to 68th Annual Institute Proceedings.

The Washington State Department of Ecology recently released a focus sheet that provides Ecology’s recommended soil and groundwater cleanup levels for a group of chemical compounds known as per- and polyfluoroalkyl substances.

The Bureau of Ocean Energy Management published its notice of intent on Friday, July 15, 2022, to prepare a programmatic environmental review to analyze the potential impacts of wind energy development activities in the New York Bight—offshore New York and New Jersey.

Gov. Newsom signed AB 205 into law on June 30, 2022, a legislative effort that significantly expands the California Energy Commission’s jurisdiction and encourages the development of new clean energy projects.

The U.S. Supreme Court’s recent decision in West Virginia v. Environmental Protection Agency curtailed the agency’s authority to regulate emissions from power plants through rules shifting electricity generation from coal to more renewable sources.

Partner Ted Boling co-authored “Transforming Institutions to Connect Land and Water for Healthy Communities” published in the Journal of the American Water Resources Association (JAWR).

In a notable decision interpreting the California Endangered Species Act, a California court of appeal ruled that insects are eligible for listing as threatened, endangered, or candidate species under the act.

As leaders gather for the first in-person celebration of Capitol Hill Ocean Week in two years, we have a proposal for how to bridge the chasm between America’s offshore wind energy ambition and current capacity.

The Bureau of Ocean Energy Management published its Proposed Sale Notice on May 31, 2022, for what would be the first ever offshore wind energy leases on the west coast of the United States.

Stacey Bosshardt and Megan McLean co-authored Climate Change and the Biden Energy Agenda Part I: Infrastructure, the first article in two-part series in the PLI Chronicle about the Biden Administration’s climate change agenda.

The Bureau of Indian Affairs has proposed preliminary revisions to the regulations that govern the acquisition of land into trust for Indian tribes. The proposed revisions would streamline the fee-to-trust process and eliminate many important checks and balances that protect third-party interests.

The Bureau of Ocean Energy Management (BOEM) held its second offshore wind lease sale of 2022 off the East Coast on May 11, bringing in $315 million from two lease areas in the Carolina Long Bay.

Ocean Conservancy and Perkins Coie partnered to outline actionable recommendations that, if implemented, would significantly increase the effectiveness, efficiency, and regulatory certainty of U.S. offshore wind.

Seemingly every other week, another company pledges to reduce greenhouse gas emissions, and to achieve net-zero emissions by 2050 or sooner. These efforts are to be applauded.

On April 14, 2022, the Federal Energy Regulatory Commission accepted a “State Agreement Approach” Agreement between PJM Interconnection, LLC and the New Jersey Board of Public Utilities effective April 15, 2022.

President Biden, on March 31, 2022, invoked the Defense Production Act to secure reliable supply chains for minerals essential to a clean energy transition.

In January, a New Jersey-based nonprofit organization, Save Long Beach Island, and its president sued the U.S. Department of the Interior in the U.S. District Court for the District of Columbia. The complaint in Save Long Beach Island v. U.S. Department of the Interior asserts that the Bureau of Ocean Energy Management violated the National Environmental Policy Act and the Endangered Species Act.

The Bureau of Ocean Energy Management (BOEM) released its final sale notice (FSN) for two lease areas totaling 110,091 acres in the Carolina Long Bay Area on March 25, 2022.

Nowhere is change more certain than when it comes to Clean Water Act (CWA) rulemakings, leaving floundering regulated entities and litigation in their wake.

Offshore wind energy development received a huge dose of momentum at the end of February, as the Bureau of Ocean Energy Management (BOEM) held the largest offshore wind lease sale ever in the United States.

The U.S. Securities and Exchange Commission on March 21, 2022, proposed detailed and wide-ranging requirements for publicly traded companies to disclose their greenhouse gas (GHG) emissions and climate risks in their registration statements and annual or other periodic reports.

The U.S. Environmental Protection Agency, on March 14, 2022, issued both a final rule incorporating revised ASTM International standard practices, ASTM International’s E1527–21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,’’ and a proposed rule soliciting comment on this action.

Offshore wind development in the United States continues to draw opposition from coastal landowners, businesses, organizations, and other users of ocean waters, as it has since the industry first emerged here.

President Biden signed an executive order on December 8, 2021, directing the federal government to use its scale and procurement power to slash its carbon emissions by 65% by 2030 and achieve net-zero emissions by 2050

President Biden signed an executive order on December 8, 2021, directing the federal government to use its scale and procurement power to slash its carbon emissions by 65% by 2030 and achieve net-zero emissions by 2050.

The Infrastructure Investment and Jobs Act, signed into law by President Biden on November 15, 2021, has the potential to transform the surface transportation sector in the United States.

The 26th United Nations Climate Change Conference of the Parties, wrapped up earlier this month in Glasgow, Scotland, after two weeks of negotiations. This update discusses how international agreements and U.S. policy announcements coming out of COP26 will affect businesses and provide opportunities in the months and years ahead.

The $1.2 trillion Infrastructure Investment and Jobs Act, which President Biden signed into law today, and the proposed $1.75 trillion Build Back Better Act (H.R. 5376) each set aside historic investments in clean energy.

After a lengthy committee process, ASTM International revised its standard practice for Phase I environmental site assessments (ASTM E1527) for the first time since 2013.

On November 3, 2021, the Washington Department of Ecology published its final PFAS Chemical Action Plan, which provides a roadmap for addressing uses and releases of those chemicals in Washington State to protect human health and the environment.

The Infrastructure Investment and Jobs Act, which President Biden is expected to sign into law, contains some important changes to the federal environmental review process for surface transportation projects.

In response to a petition from New Mexico Governor Michelle Lujan Grisham, the U.S. Environmental Protection Agency announced on October 26, 2021, that it will take steps toward regulating per- and polyfluoroalkyl substances commonly referred to as “PFAS,” under the Resource Conservation and Recovery Act (RCRA).

Under the new leadership of Director Jigar Shah, the U.S. Department of Energy’s Loan Programs Office (LPO) has announced that more than $40 billion is available in loans and loan guarantees to fund innovative energy infrastructure projects.

The Council on Environmental Quality has proposed amendments to its 2020 NEPA implementing regulations, adopted during the waning days of the Trump administration.

The U.S. Fish and Wildlife Service revoked its January 7, 2021, rule defining the scope of the Migratory Bird Treaty Act as it applies to conduct that results in the injury or death of protected migratory birds.

Governor Gavin Newsom signed a $15 billion legislative package on September 23, 2021, funding efforts to combat climate change in California over the next three years.

California Governor Gavin Newsom recently signed into law several bills intended to accelerate local approval of housing projects and increase housing production.

Title VIII of the Infrastructure Investment and Jobs Act (H.R. 3684), the infrastructure bill recently passed by the U.S. Senate, includes several important amendments to Title 41 of the Fixing America’s Surface Transportation (FAST) Act, or FAST-41, which have the potential to significantly reform the federal environmental review and permitting process for covered infrastructure projects.

Environment, Energy, and Resources Law: The Year in Review 2020

Environment, Energy, and Resources Law: The Year in Review 2020

The American Bar Association released the third edition of Endangered Species Act: Law, Policy, and Perspectives. 

The Federal Energy Regulatory Commission recently signaled potential wide-reaching reforms to regional electric transmission planning, cost allocation, and generator interconnection processes. Nearing the tenth anniversary of its landmark Order No. 1000, FERC issued an Advanced Notice of Proposed Rulemaking, which examines whether existing approaches adequately account for the transmission needs of a changing resource mix. The ANOPR probes a wide range of topics and appears likely to generate specific proposals for fundamental reform to how we plan and pay for the grid.

The recent ransomware attack on Colonial Pipeline—one of the largest oil pipelines in the United States that delivers nearly 45% of the fuel consumed on the East Coast—has put a spotlight on a regulatory gap in reliability standards for pipeline infrastructure. This update reviews the current status of federal regulation of pipeline reliability as well as several legislative fixes under consideration.

The U.S. Fish and Wildlife Service has issued a proposed rule to revoke its January 7, 2021, final rule, which had determined the Migratory Bird Treaty Act prohibits only the intentional take of migratory birds, and not incidental and unintentional take associated with development activities or project operations. 

The U.S. Senate passed the Drinking Water and Wastewater Infrastructure Act of 2021 by a nearly unanimous vote in its first significant legislative step towards fulfilling the goals of the Biden administration’s American Jobs Plan with respect to water infrastructure. The Act both reauthorizes existing funds and creates new programs to support drinking water and wastewater infrastructure projects. Most funds are allocated to the existing Environmental Protection Agency (EPA)-administered Drinking Water State Revolving Fund (DWSRF) and the Clean Water State Revolving Fund (CWSRF). A significant proportion of authorized funds specifically target water systems and infrastructure needs of disadvantaged populations, including low-income communities, rural areas, and tribal lands.

The secretary of the interior issued two Secretarial Orders on April 16, 2021, that provide early indications of the Biden administration’s approach to the environmental review process for infrastructure projects under the National Environmental Policy Act.

President Biden’s Build Back Better initiative includes extensive investment in drinking water, wastewater, and stormwater systems with the hope of upgrading aging infrastructure, making it more resilient in the face of climate change, and addressing historical inequities.

On March 22, 2021, FERC took a step toward reforming the way in which it analyzes greenhouse gas (GHG) emissions for purposes of natural gas pipeline certificates. However, FERC did so via a certificate order rather than a revised policy statement, as many had anticipated, and garnered sharply dissenting opinions from two commissioners as a result.

On March 22, 2021, the U.S. Supreme Court denied certiorari in a case that upheld President Obama’s designation under the Antiquities Act of the Northeast Canyons and Seamounts Marine National Monument in the northern Atlantic Ocean

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions.

Over the past few weeks, the U.S. Securities and Exchange Commission has taken several actions that put climate change front and center, reflecting the importance to many investors of climate change related disclosures. 

In May of 2019, the Clean Energy Transformation Act (CETA) became law in Washington state and set bold decarbonization and renewable energy mandates for electric utilities

The Federal Energy Regulatory Commission held its first monthly meeting of 2021 on January 19, welcoming new Commissioner Mark Christie to his first meeting and taking on a packed agenda.

The Regulations contain important clarifications regarding the taxpayers eligible to claim Section 45Q tax credits.

The U.S. Army Corps of Engineers published in the Federal Register changes to its Clean Water Act Nationwide Permits (NWPs).

The Washington Department of Commerce released its 2021 State Energy Strategy this month.

This article explores the legal and practical issues associated with the oncoming increase in solar energy, how solar projects are developed and financed, and the risks and opportunities solar energy presents for landowners, energy developers, regulated utilities, local communities, and the state as a whole.

The Arizona Department of Environmental Quality updated stakeholders on December 15, 2020, regarding the final elements of its proposed state Surface Water Protection Program and solicited feedback on the draft legislation for the program.

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service on December 16, 2020, jointly adopted a final regulation providing a one-sentence definition for the term “habitat” under the Endangered Species Act.

The Biden administration’s “Clean Energy Revolution” includes a wide range of legislative and executive priorities to reach its net-zero emissions target by 2050.

Nearly five years after it was established, the Federal Permit Improvement Steering Council has proposed adding the mining sector to the list of infrastructure sectors covered by Title 41 of the Fixing America's Surface Transportation Act, or FAST-41.

The Federal Permit Improvement Steering Council on November 27, 2020, proposed to add mining to the list of infrastructure sectors that are covered by Title 41 of the Fixing America’s Surface Transportation Act (FAST-41).

The U.S. Department of Transportation has proposed comprehensive changes to update its procedures under the National Environmental Policy Act in response to the Council on Environmental Quality’s July 16, 2020, overhaul of the regulations implementing NEPA.

The Arizona Department of Environmental Quality, on November 6, 2020, introduced a proposed Protected Surface Water Program, which would regulate certain state surface waters that are newly excluded from the regulatory scope of the federal Clean Water Act.

The U.S. Forest Service has released narrowly tailored changes to update its procedures under the National Environmental Policy Act, in the wake of the Council on Environmental Quality’s recent overhaul of the NEPA regulations.

The U.S. Environmental Protection Agency (EPA) recently adopted a final regulation governing the issuance of guidance documents, which the agency historically has used to provide direction to agency staff, other governmental agencies, the regulated community, and interested stakeholders on a wide variety of technical and regulatory matters under its purview.

With the coal era winding down and renewable energy sources rapidly growing, Arizona offers an attractive market for renewable energy facilities, with plenty of sunshine and even a bit of wind up north.

The Energy Facility Site Evaluation Council (EFSEC) is continuing its efforts to develop a streamlined process for permitting solar energy facilities in Washington State

The Energy Bar Association held a very well-attended virtual Fall Forum last week. Perkins Coie Partner Jane Rueger, who is president of the EBA this year, opened the Fall Forum with an address that built on the event theme of “Commit, Engage, Ignite.”

The Federal Energy Regulatory Commission issued Order 2222 on September 17, 2020.

The Supreme Court’s decision in County of Maui disrupted long-settled understandings of the scope of the Clean Water Act and has created uncertainty for the mining industry and others.

For the first time in fifteen years, the Federal Energy Regulatory Commission (FERC) significantly revamped key aspects of its regulations implementing the Public Utility Regulatory Policies Act of 1978 (PURPA).

Deciding where federal environmental authority should give way to state and local jurisdiction—“baking the marble cake of federalism,” as administrative law scholars put it—is admittedly a difficult task.

The U.S. Supreme Court delivered near-term relief to project developers on June 6, reinstating one of the U.S. Army Corps of Engineers’ key nationwide Clean Water Act permits. 

In April 2019, the Washington legislature amended the Model Toxics Control Act (MTCA) to allow the Washington State Department of Ecology to create an expedited version of the existing Voluntary Cleanup Program (VCP).

The U.S. Environmental Protection Agency on June 22, 2020, released the prepublication version of final regulations establishing “significant new use rules” for long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances, a subset of per- and polyfluoroalkyl substances (PFAS).

On June 30, 2020, in an en banc review, the U.S. Court of Appeals for the D.C. Circuit concluded that the Federal Energy Regulatory Commission cannot delay judicial review of its decisions by issuance of tolling orders.

Across the country, the COVID-19 pandemic has profoundly affected the ability of businesses to fulfill their environmental compliance obligations.

The California Public Utilities Commission (CPUC) on June 17, 2020, issued its Decision Adopting Short-Term Actions to Accelerate Microgrid Deployment and Related Resiliency Solutions in California.

The Internal Revenue Service on May 28, 2020, introduced proposed regulations detailing how companies can qualify for carbon capture tax credits under Section 45Q of the Internal Revenue Code.

Pressing ahead on his efforts to reduce delays in federal approvals necessary for major infrastructure projects, President Donald Trump on June 4 called for more streamlining in another executive order, Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.

The U.S. Environmental Protection Agency issued a final rule on June 1, 2020, intended to limit the ability of states and tribes to block or delay projects requiring a water quality certification under Section 401 of the Clean Water Act.

American Bar Association
Environment, Energy, and Resources Law: The Year in Review 2019
Endangered Species chapter

American Bar Association
Environment, Energy, and Resources Law: The Year in Review 2019
Forest Resources chapter

The Washington Department of Ecology initiated the process of developing regulations governing greenhouse gas assessments for major projects by issuing a CR-101 Preproposal Statement of Inquiry on April 30, 2020.

Governor Gavin Newsom issued an executive order on April 22 suspending for a period of 60 days (1) the filing, posting, notice, and public access requirements related to certain notices under the California Environmental Quality Act, and providing for electronic posting; and (2) certain aspects of the consultation process with Native American tribes.

Uncertainty has long reigned over the reach of the federal Clean Water Act, which applies to “navigable waters,” defined by statute only as “waters of the United States.”

The U.S. Supreme Court, on April 20, stepped into the long-simmering debate about the rights of residential homeowners affected by Superfund response actions, ruling that they are indeed bound by the federal statute’s ban against potentially responsible parties taking additional, unauthorized remedial actions.

The U.S. Centers for Disease Control is now recommending that everyone consider wearing facemasks or other face coverings to help prevent the spread of COVID-19 in public settings where social distancing measures are difficult to maintain, which would include many workplaces.

Debtors facing regulatory fines and penalties want to shed them in bankruptcy and emerge without paying them.

The Federal Energy Regulatory Commission (the commission) took numerous actions on April 2, 2020, to ease regulatory burdens across the electricity, natural gas, and oil pipeline industries in response to the COVID-19 pandemic.

Washington state’s Pollution Control Hearings Board ruled on February 26 that the Washington Department of Ecology exceeded its Clean Water Act authority by inserting a permit condition in the Aquatic Mosquito Control General Permit, which required compliance with the Endangered Species Act.

Companies should be aware that Supplemental Environmental Projects (SEPS)—voluntary environmental or public health benefit projects in lieu of payment of civil penalties for violation of federal environmental laws—will no longer be available in discussions to resolve and reduce liability for environmental law violations as of March 12, 2020.

Recognizing the high volume of COVID-19 content being published, Perkins Coie developed a one-stop, integrated resource page that addresses key legal and business considerations for companies across essential business areas, from insurance coverage and labor and employment, to privacy and security, corporate governance, tax, construction, supply chain, and more.

In the wake of coronavirus (COVID-19), businesses are finding themselves in situations where facilities need to shut down, staff are sent home, laboratories that test monthly samples are temporarily closed, or outside contractors scheduled to complete required performance testing have canceled.

As the widespread economic impacts of the coronavirus (COVID-19) worsen, Governor Gavin Newsom issued Executive Order N-28-20 on March 16, 2020, to assist Californians experiencing financial hardship.

During the public health emergency brought on by the 2019 novel coronavirus (COVID-19), food processors and manufacturers must continue to be vigilant in protecting the health and safety of their workers and the foods they produce and distribute.

In response to the COVID-19 (coronavirus) global pandemic, seven counties in California—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Santa Cruz—issued orders requiring residents to shelter in place and mandating closure of many businesses.

The U.S. Fish and Wildlife Service issued a proposed rule on January 30, 2020, that narrowly interprets the protections afforded by the Migratory Bird Treaty Act.

The past year saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies. Click here to read the full report.

Concluding their administrative efforts to narrow federal jurisdiction under the Clean Water Act, the U.S. Environmental Protection Agency and Army Corps of Engineers on Jan. 23 released their final regulations interpreting the term “waters of the United States."

The Clean Water Act applies by its terms to “navigable waters,” which the act defines merely as “waters of the United States.”

New Jersey Governor Phil Murphy signed landmark legislation (S2252/A4819) on January 17, 2020 that is poised to dramatically accelerate the electrification of New Jersey’s transportation sector.

In a split decision issued on January 16, 2020 the Washington State Supreme Court ruled that the Department of Ecology lacks authority under the state’s Clean Air Act (CCA) to cap greenhouse gas emissions from indirect emitters like natural gas and petroleum product distributors.

Continuing its efforts to expedite federal approvals for projects subject to the National Environmental Policy Act, or NEPA, the White House Council on Environmental Quality, or CEQ, published proposed revisions to its NEPA-implementing regulations on Jan. 10. The proposed rule, released a week after NEPA’s 50th birthday, would comprise the first substantial revisions to the CEQ’s agencywide regulations since 1978.

Taking the next step in its efforts to streamline the environmental review process for projects under federal jurisdiction, the White House Council on Environmental Quality (CEQ) published proposed regulations on January 10 that would revamp the rules implementing the National Environmental Policy Act.

The concept of the "national park" is an American innovation that has led to the preservation of thousands of historic sites and millions of acres of parkland in the United States and its territories for the enjoyment and education of the American public and future generations.

The United States and the world face multisystemic environmental problems that threaten our quality of life.

California Governor Gavin Newsom signed into law yesterday a major set of restrictions on the actions California cities and counties may take to impede housing development. Senate Bill 330 broadly aims to prevent local agencies from putting up new barriers to housing production.

Governor Gavin Newsom signed into law the Tenant Protection Act of 2019, AB 1482, (now California Civil Code Section 1946.2 and 1947.12), on [DATE], joining only Oregon in enacting a statewide rent control law.

The Ninth Circuit Court of Appeals has upheld the approval of a utility-scale wind facility in California, rejecting claims that the Bureau of Indian Affairs violated the National Environmental Policy Act and the Bald and Golden Eagle Protection Act in approving the project.

A new final regulation issued on September 12, 2019 by the Environmental Protection Agency and the Army Corps of Engineers repeals the Obama administration’s 2015 “Clean Water Rule,” but does little to clear up the longstanding confusion over the scope of federal authority and jurisdiction under the Clean Water Act.

The San Francisco Mayor’s Office of Housing and Community Development released its much-awaited Community Opportunity to Purchase Act (COPA) Program Rules on Monday, September 3, 2019. (The mayor signed COPA on May 3, 2019. More information about the legislation can be found in our previous update.)

A decision by the U.S. District Court for the Southern District of Georgia issued on August 21, 2019, highlights the continuing confusion over the definition of “waters of the United States” under the Clean Water Act.

The U.S. Court of Appeals for the D.C. Circuit has issued an important decision that narrowly interprets the types of governmental decisions that may be challenged in court as “final agency action.”

A growing number of U.S. cities, including Las Vegas, Minneapolis and Chandler, Arizona, are re-examining their zoning, land use, and transportation regulations to ease the way forward for AVs.

The Environmental Protection Agency issued a 163-page proposed rule on August 9, 2019, to clarify the substantive and procedural requirements for water quality certifications under Section 401 of the Clean Water Act.

In a recent decision, the U.S. Court of Appeals for the D.C. Circuit struck down key portions of a 2018 order by the Federal Communications Commission that would have exempted certain small wireless facilities from environmental and historic preservation review.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a set of three new final rules on August 12, 2019, that substantially revise the regulations implementing the Endangered Species Act.

The U.S. Supreme Court rejected a decades-old legal standard for companies that wish to shield their business information from disclosure to the public under the Freedom of Information Act (FOIA).

The Environmental Protection Agency issued a final rule June 26, 2019, revising the agency’s Freedom of Information Act regulations.

The Council on Environmental Quality published draft guidance June 26, 2019, on how to assess greenhouse gas emissions under the National Environmental Policy Act, the law that requires environmental impact assessment for projects that receive federal funding or federal approvals. 

The U.S. Supreme Court overturned a 34-year-old precedent established by Williamson Planning Comm’n v. Hamilton Bank, holding that landowners pursuing takings claims do not need to seek redress in state courts before pursuing a federal claim. 

The Washington Legislature narrowly passed SB 5993, which increases the tax on petroleum that primarily funds the state’s contaminated site cleanup program, protects the funds from being used for other purposes and amends the state’s cleanup law, the Model Toxics Control Act, to expand the Washington State Department of Ecology’s authority to issue cleanup grants.

American Bar Association
Environment, Energy, and Resources Law: The Year in Review 2018
Forest Resources chapter

Two midwestern states are taking up the issue of how to address the expansion of electric vehicles (or EVs) in their jurisdictions.

Electric vehicles (or EVs) cumulatively consume large amounts of electricity, which means regulated utilities have a natural interest in the expansion of EVs and in managing the impacts to the electric grid from that increased electric demand.

Federal environmental law governing coal ash ponds used by many regulated electric utilities remains uncertain after a flurry of recent activity at the Environmental Protection Agency and in the courts.

EPA is currently reviewing comments on its November 14, 2018 proposed rule to exempt livestock farms from reporting routine farm air emissions under the Emergency Planning and Community Right-to-Know Act (EPCRA) and intends to issue a final rule this spring.

A federal court recently prohibited the U.S. Department of the Interior from approving any plans or permits for offshore fracking off the California coast until it complies with the Endangered Species Act (ESA) and the Coastal Zone Management Act (CZMA).

New regulations took effect last month governing the federal environmental review process for highway, public transit and some railroad projects.

Electric utilities across the country are laying the groundwork—sometimes literally—to keep up with the growing popularity of electric vehicles (EVs).

The Environmental Protection Agency and the Army Corps of Engineers announced a proposed rule to redefine the term “waters of the United States” under the Clean Water Act on December 11, 2018.

The California Department of Fish and Wildlife and the California attorney general have jointly issued an advisory regarding California’s state law protections for migratory birds.

The SEC recently adopted amendments to modernize the rules relating to property disclosure requirements for mining registrants, and Industry Guide 7, under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended.

In a unanimous decision with immediate repercussions for the administration of the Endangered Species Act (ESA), the U.S. Supreme Court held that an area is eligible for designation as critical habitat under ESA only if it is also “habitat” for the species within the meaning of the statute.

In three recent decisions, the U.S. Courts of Appeal for the Fourth Circuit and Sixth Circuit have signaled the courts’ refusal to allow environmental plaintiffs to use the federal Clean Water Act to address coal ash pollution from unlined storage ponds at coal fired power plants.

Thanks to better technology and lower costs, fuel efficient electric vehicles (EVs) are on the move in nearly every state in the country.

The U.S. Court of Appeals for the District of Columbia Circuit, on August 21, 2018, vacated much of U.S. EPA’s final rule regulating the disposal of “coal combustion residuals” (CCR) at coal-fired power plants. 

A federal jury last week returned a $473.5 million verdict against the world’s largest pork producer for nuisances caused by three industrial-scale hog farms.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service published three proposed rules last week that would revise the regulations implementing portions of the Endangered Species Act.

Approximately 17 months into this administration, we can better assess the consequences of the administration’s dual—and sometimes dueling—agendas of deregulation and deconstruction, and forecast how these priorities may affect agency action going forward.

The Council on Environmental Quality yesterday issued an advance notice of proposed rulemaking inviting input on potential changes to the CEQ regulations under the National Environmental Policy Act, the federal law that requires environmental impact assessment for projects involving federal funding or other federal approvals.

Every administration brings disruption. For one thing, a host of new political appointees arrives to take the helm of a vast federal bureaucracy of some three million civilian employees, and comprised of fifteen Cabinet-level departments and hundreds of agencies, boards, bureaus, and commissions. In this sense, the Trump Administration was not unique.

In a decision issued last month, the Washington Supreme Court narrowed “owner or operator” liability under the Model Toxics Control Act.

The U.S. Fish and Wildlife Service issued a guidance memorandum addressing when an incidental take permit may be needed under Section 10(a)(1)(B) of the Endangered Species Act for projects that modify habitat of federally listed species.

On April 9, 2018, the heads of a dozen federal agencies executed a memorandum of understanding on implementation of Executive Order 13807, which directed federal agencies to expedite environmental review and permitting for major infrastructure projects.

The Federal Communications Commission recently adopted an order containing sweeping regulatory changes to speed the deployment of advanced wireless services to provide connectivity for innovative Internet of Things, augmented reality, unmanned vehicles, and artificial intelligence-driven devices, services, and systems.

The $1.3 trillion Consolidated Appropriations Act of 2018, passed March 23, 2018, includes bipartisan measures to fundamentally change how the U.S. Forest Service and other agencies pay for wildfire suppression.

An importer of natural gas from Canada filed suit on February 23, 2018, alleging that U.S. Customs and Border Protection unlawfully denied preferential treatment for its imports under NAFTA.

On February 12, 2018, the White House released a set of proposals to streamline the federal environmental review process for infrastructure projects.

The Washington Post last week reported a leaked White House document that revealed a far-reaching set of proposals to streamline the environmental review process for infrastructure projects.

In a unanimous decision on January 22, the U.S. Supreme Court ruled that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts rather than directly in the courts of appeals.

Last week, three U.S. Department of Transportation agencies issued requests for comment on ways to update federal regulations and policies to allow for the safe testing and deployment of autonomous vehicles.

The United States District Court for the Northern District of California held that the owners of an industrial park may be liable under the Clean Water Act for illegal stormwater discharges by their tenants, even if the owners played no role in generating or adding to the discharges.

In an order issued Monday, January 8, 2018, the Federal Energy Regulatory Commission unanimously terminated the rulemaking proceeding it previously initiated in response to a directive issued last fall by U.S. Department of Energy Secretary Rick Perry. 

Reversing a district court decision that had delayed work on the $2.4 billion Purple Line light rail transit project in Maryland, the D.C. Circuit has held that the FTA and MTA fully complied with the National Environmental Policy Act when approving the project. 

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37050, on December 22, 2017, which adopts the position that the Migratory Bird Treaty Act (MBTA) prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts intended to take a migratory bird.

The Ninth Circuit recently ruled that the Resource Conservation and Recovery Act’s (RCRA) anti-duplication provisions under 42 USC § 6905 do not apply in the absence of a stormwater discharge permit issued under the Clean Water Act.

The Trump administration took its first major step to facilitate the deployment of automated vehicles with the Department of Transportation’s release of “Automated Driving Systems 2.0: A Vision for Safety,” an update to the 2016 Federal Automated Vehicle Policy.

The U.S. Court of Appeals for the District of Columbia last week vacated and remanded a 2016 Order by the Federal Energy Regulatory Commission that had authorized construction and operation of the Southeast Market Pipelines Project.

President Donald J. Trump issued Executive Order 13807, on August 15, 2017, which is intended to accelerate the environmental review and permitting for infrastructure projects that require an environmental impact statement under the National Environmental Policy Act.

The California Supreme Court has issued its decision in Friends of the Eel River v. North Coast Railroad, an important case regarding preemption of state environmental law by the Interstate Commerce Commission Termination Act, which contemplates a unified national system of railroad lines subject to federal, not state, regulation.

Title 41 of the Fixing America’s Surface Transportation Act (FAST-41) includes measures to streamline environmental reviews for certain infrastructure projects.

The House Subcommittee on Digital Commerce and Consumer Protection reached bipartisan agreement on July 19, 2017, regarding major aspects of legislation to address the testing and deployment of autonomous vehicles.

The Environmental Protection Agency and the U.S. Army Corps of Engineers released a proposed rule on June 27, 2017, that will rescind the Obama administration’s 2015 Clean Water Rule and recodify the pre-2015 regulations that it replaced.

In Defenders of Wildlife v. Zinke, the U.S. Court of Appeals for the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.

The U.S. Department of Transportation (USDOT) announced today that it has initiated a review of its existing policies, guidance documents and regulations to identify “unnecessary obstacles to” transportation infrastructure projects.

In July 2016, the U.S. Court of Appeals for the Ninth Circuit held that the state of Washington violated tribal treaty obligations by building and maintaining barrier culverts that block 1,000 linear miles of streams suitable for salmon habitat.

A forest products trade association has standing to challenge the critical habitat designation for the northern spotted owl, the U.S. Court of Appeals for the District of Columbia Circuit held in Carpenters Industrial Council v. Zinke, No. 15-5304 (April 11, 2017).

In a 2-1 decision, the California Court of Appeal, Third Appellate District, upheld the California Air Resource Board’s cap-and-trade program for greenhouse gas allowances.

President Donald Trump recently signed Executive Order 13783, an omnibus executive order aimed at reducing burdens on further development of domestic energy resources, with “particular attention” to oil, natural gas, coal and nuclear energy resources.

The Supreme Court of California recently ruled that under the California Endangered Species Act (CESA), plaintiffs may use a delisting petition, supported by new evidence, to challenge a prior decision by the California Fish and Game Commission to list an endangered species.

The U.S. Fish and Wildlife Service has formally approved the long-awaited, 30-year eagle take rule, which will allow renewable energy companies and other developers of large projects to obtain a 30-year permit (as opposed to the previous five-year permit) for the incidental take of bald and golden eagles.

In the latest chapter of the seemingly never-ending controversy over the Clean Water Act’s reach, on February 28, 2017, President Trump signed an executive order directing the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers to rescind or revise the Obama administration’s 2015 Clean Water Rule.

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37041 on January 10, 2017, arguing that incidental take is prohibited under the Migratory Bird Treaty Act (MBTA).

The U.S. Court of Appeals for the Second Circuit upheld the U.S. Environmental Protection Agency’s Water Transfers Rule last week.

The Washington State Court of Appeals recently held the Department of Natural Resources liable as an operator or owner of a contaminated site under the Model Toxics Control Act, RCW 70.105D, in Pope Resources, LP v. Wash. Dept. of Natural Resources.  

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction that sought to block the nationwide implementation of the new Occupational Safety and Health Administration’s anti-retaliation rule, “Improve Tracking of Workplace Injuries and Illnesses.”

This Update was republished in Law360 on 12.05.2016, "How Employers Can Prep For New OSHA Injury Reporting Rule."

California Governor Jerry Brown signed into law last week two controversial anti-climate change bills that will tighten greenhouse gas (GHG) limits by 40% and increase legislative supervision of the California Air Resources Board (CARB)—the agency responsible for reducing GHG emissions.

The Washington State Department of Ecology recently rolled out significant changes to its Voluntary Cleanup Program.

The U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all reasonable alternatives for reducing deaths to the endangered Indiana bat.

In NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of doubt to marine mammal species.

The Environmental Protection Agency issued a decision on July 5, 2016, that declined to regulate discharges from forest roads for regulation under Section 402 of the Clean Water Act.

Since the beginning of 2015, at least 77 companies in the oil and gas industry have sought bankruptcy relief in the United States.

Republished in Law360, "Section 363 Is No Magic Bullet For Environmental Liability," on 08.03.2016.

A majority panel of the U.S. Court of Appeals for the District of Columbia Circuit recently dismissed the State of Alaska’s challenge to the U.S. Secretary of the Interior’s authority to acquire land in trust for Alaska tribes on the ground that the state’s challenge is moot.

Last week, the U.S. Court of Appeals for the Ninth Circuit held that the state of Washington violated tribal treaty obligations by building and maintaining barrier culverts that block 1,000 linear miles of streams suitable for salmon habitat.

President Obama signed HR 2576, the Frank Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), into law on June 22, 2016.

The Washington State Court of Appeals, Division III, ruled on June 14, 2016 that the Three Fingers Fill on Lake Chelan, placed in shoreline areas prior to December 4, 1969, was authorized by a “savings clause” contained in the Shoreline Management Act and therefore did not violate the Public Trust Doctrine or otherwise create a public nuisance.

Recently, John C. Cruden, DOJ’s Assistant Attorney General in charge of the Environmental and Natural Resources Division, which oversees DOJ’s environmental litigation, voiced a heightened commitment to enforcing environmental laws through criminal prosecution.

The U.S. Supreme Court ruled on May 31, 2016 that an approved jurisdictional determination issued by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review.

On May 6, 2016, the Fish and Wildlife Service published a proposed rule that would substantially change how the Service administers its conservation and management program under the Bald and Golden Eagle Protection Act.

The U.S. Court of Appeals for the Ninth Circuit last week rejected a claim under the National Environmental Policy Act that the Navy did not adequately consider the environmental consequences of a potential terrorist threat with respect to the redevelopment of a military complex near downtown San Diego.

The U.S. Supreme Court recently rejected the Ninth Circuit’s interpretation of § 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA).

The U.S. Fish and Wildlife Service announced an updated Native American policy on January 27, 2016, which provides a framework for government-to-government relationships to further the federal government’s trust responsibility to federally recognized tribes to protect, conserve and use tribal resources.

The U.S. Fish and Wildlife Service (FWS) published draft revisions on March 8, 2016 to its 1981 Mitigation Policy for mitigating the impacts of development projects to natural resources.

In a decision that could result in significant new restrictions on development activities in the Arctic as well as set important Endangered Species Act (ESA) precedent in the Western United States, the U.S. Court of Appeals for the Ninth Circuit recently reversed an Alaska district court’s judgment vacating the designation of critical habitat in Alaska for the polar bear.

The U.S. Department of Justice issued a Memorandum to all U.S. Attorneys and entered into a Memorandum of Understanding (MOU) with the U.S. Department of Labor on December 17, 2015 to bolster the federal government’s arsenal to hold employers criminally liable for worker safety and health violations.  

The senior-most U.S. Supreme Court Justice, Antonin Scalia, passed away on February 13, 2016 just days after the Supreme Court, by a slim 5 to 4 majority, stayed the EPA’s enforcement of the Clean Power Plan.  

On February 11, 2016, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service jointly published final regulations and a final policy addressing critical habitat under the Endangered Species Act.

On Tuesday, February 9, 2016, only a few weeks after the U.S. Court of Appeals for the District of Columbia Circuit denied a multistate plea to stop the U.S. EPA’s Clean Power Plan, the United States Supreme Court issued a highly unusual judicial stay on the EPA’s implementation of the Clean Power Plan.

The Arizona Supreme Court, in Arizona Department of Water Resources v. Hon Crane McClennen in and for the county of Maricopa, No. CV-15-0223-SA, reversed a ruling from Judge McClennen of the Superior Court of Maricopa County on November 12, 2015, vacating the Arizona Department of Water Recourses’ (ADWR) approval of Freeport Minerals Corporation’s (Freeport) application to sever water rights it owned which were appurtenant to Planet Ranch in Mohave County and to transfer such rights to other areas.

Congress enacted the Surface Transportation Reauthorization and Reform Act of 2015, also known as the Fixing America’s Surface Transportation Act (the FAST Act) on December 4, 2015.

This panel discussed a broad range of diverse views on the state of play in the reform of federal permitting laws by legislation and rulemaking.

A 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.

Commercial Renewable Energy Project Development program hosted by The Foundation for Natural Resources & Energy Law in Westminster, CO.

Offshore wind is a critical part of a rapid transition to a carbon-free electrical grid. The industry faces significant barriers, however, in the planning, leasing, and permitting process. This panel examined potential legal and policy reforms that could provide more certainty for offshore wind projects.

Ted Boling co-presented “Best Practices for NEPA Implementation in a Dynamic Regulatory Environment” at the National Association of Environmental Professionals (NAEP) Conference in Fort Lauderdale, Florida.

Jane Carmody presented “Deep Sea Mining 101” to the ABA’s Section of Environment, Energy, and Resources Mining Committee.

Ted Boling  presented “NEPA beyond 50: EIA for Renewable Infrastructure Investment” to the International Association for Impact Assessment Conference.

A 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.

During its 2020–21 Session, the Virginia General Assembly enacted the Virginia Clean Energy Act and a host of bills impacting various aspects of renewable energy resource development.

Matt Rojas and Ted Boling participated in a panel entitled “The Future of NEPA—the Status and Future of New NEPA Rules” on a recent ABA-sponsored webinar.

This presentation discussed the major issues in the Council on Environmental Quality's (CEQ) 2020 final rule updating the National Environmental Policy Act (NEPA) Implementing regulations, the CEQ process to "consider suspending, revising, or rescinding," the 2020 rule under Executive Order 13990, and recommendations on which provisions from the 2020 rule should be retained or modified.

Perkins Coie attorneys present at the HalfMoon Education, Inc. virtual program, “Environmental Issues in Energy Project Development”.

A 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.

A panel presentation on state and local responses to the housing crisis at the AEP State Virtual Conference 2020.

Join us for a discussion of the State Environmental Policy Act (SEPA) during which we will provide an overview of SEPA, the processes to follow for compliance, and tips and tactics useful for school districts to successfully navigate working within the requirements of SEPA.

2017 has been another eventful year in the development of land use and planning law in California.

This presentation addressed the following questions: Where does federal Clean Water Act jurisdiction stand after the Trump Administration’s cancellation of the WOTUS Rule? Is there an increased risk of citizen suit? What state regulations are there for protection of wetlands and critical areas?

2016 has been another dynamic year in the development of land use and planning law in California.

On May 16, 2016 Perkins Coie and Associated Oregon Industries welcomed AOI members and other interested parties to a seminar/webinar presentation addressing questions and issues arising from DEQ's recent announcement to investigate sources that may emit metals.