Christopher D. Thomas Partner

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 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.

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. 

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.

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.

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."

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 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.

It has now been more than 45 years since Congress decided to regulate the “waters of the United States” in the Clean Water Act without defining the term. Those left to fill in the void are getting understandably cranky. “Waters of the United States,” or “WOTUS,” is the term of art that governs the scope of the act. Most obviously, a typical industrial facility cannot discharge its treated wastewater (i.e., pollutants) into a river without first obtaining a permit from the U.S. Environmental Protection Agency (EPA) or a state or tribal authority with delegated authority.

Many an experienced neutral with an otherwise stellar record of resolving complex disputes has found multiparty environmental cases to pose particularly thorny challenges. Most challenging, perhaps, are pollution cases arising under the federal Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and its state law counterparts.

Signaling at least the appearance of progress in a 55-year-old saga nearly as glacially paced as The Hobbit, the Supreme Court has scheduled oral argument on October 11 in the latest case to address the jurisdictional reach of the Clean Water Act.

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.

Especially in the arid West, where “waters of the United States” are frequently not, well, wet, trying to define jurisdictional waters under the Clean Water Act (the Act) has always been a challenge. Sloppy drafting of the Act in 1972, inconsistent and confusing Supreme Court rulings, and opaque guidance have contributed to years of dysfunction.

Few statutes bedevil experienced litigators as often as the federal Superfund act, the Comprehensive Environment Response, Compensation, and Liability Act (CERCLA). Although CERCLA practice is now into its third decade, the statute’s chronic drafting flaws and the absence of definitive judicial resolution of numerous fundamental issues continue to create uncertainty.