Christian Termyn Counsel

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.

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.

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

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

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.

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

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.

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 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 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 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.

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 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. 

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

In the twilight of his presidency, Barack Obama made sev­eral announcements withdrawing federal land from devel­opment. These executive actions were protective measures taken under longstanding authorities of the Antiquities Act of 19061 and the Outer Continental Shelf Lands Act2 (OCSLA), which delegate a portion of Congress’ primary Constitutional authority over federal lands to the executive branch.

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.

Most American Indian rights to water trace their origins to 19th century treaty negotiations with the United States. The 1908 Supreme Court case Winters v. United States established that the federal statutes and treaties setting aside land for Indian reservations also impliedly reserved sufficient water to fulfill the purpose of those reservations. 

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 $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.

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

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.