The reach of the CWA is “notoriously unclear.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring). It can be difficult for a landowner to understand whether wetlands or a small creek on his or her parcel, for example, are federal waters that require a Clean Water Act (CWA) permit before the landowner can begin work to build a home, develop the property, or cultivate the land. Last week, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (together, the Agencies) issued a new, long-awaited final rule, titled the “Navigable Waters Protection Rule,” which seeks to streamline and clarify the geographic scope of federal CWA jurisdiction.
On January 9, 2020, the Council on Environmental Quality (CEQ) released its highly anticipated proposed rule to improve its National Environmental Policy Act (NEPA) regulations. The proposed changes would be the first comprehensive amendment of the NEPA regulations since their original publication in 1978. CEQ’s proposed changes are designed to streamline and speed the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. CEQ’s Proposal is informed by comments it received on last year’s Advanced Notice of Proposed Rulemaking.
On January 9, 2020, conservation groups filed a second phase of litigation in the DC District Court challenging the Bureau of Land Management’s (BLM) issuance of over 2,000 oil and gas leases across five western states citing climate change concerns. The groups are requesting that the court, among other things, vacate all 2,000 leases and require the BLM to conduct additional climate change impact analysis for each lease.
A Texas judge has ruled that Hunton Andrews Kurth is entitled to coverage from Great Northern Insurance Co., a unit of Chubb, Ltd. (Chubb), for losses its predecessor firm suffered when Hurricane Harvey closed its Houston office and disrupted business in 2017.
The court agreed with Hunton’s position that the policy, written specifically for a law firm, covered its business income loss until the firm’s operations were restored to their pre-loss levels. The court rejected in its entirety Chubb’s argument that coverage lasted only until the physical damage that closed the building had been repaired. Rather, siding with Hunton, the court found that the policy language affords, in addition to ordinary business income coverage during the damage period, “extended period” coverage that commences after the damaged property is repaired and after the firm’s operations resume.
Last week, Annie Kuster (D-NH) along with four other Democratic members of Congress introduced a proposed Natural Gas Act (NGA) amendment aimed at banning the use of eminent domain for construction or expansion of interstate natural gas pipeline infrastructure through lands subject to conservation restrictions in favor of, or owned by, non-profit entities or local governments. The proposed legislation is “The Protecting Our Conserved Lands Act of 2019.” Continue Reading Proposed Legislation Seeks to Block Pipelines From Vaguely-Defined “Conservation” Lands without Considering Adverse Impacts of Re-Routes
Over the past few years, certain states have relied on ambiguities in the Clean Water Act (CWA) Section 401 water quality certification process to block the construction of significant energy infrastructure projects (e.g., oil and gas pipelines, coal export facilities, and liquid natural gas [LNG] terminals) determined by federal agencies to be in the public interest of individual states, regions, and the nation as a whole. Consistent with the cooperative federalism structure of the CWA—and the important role of states in protecting water quality within their borders—Section 401 requires applicants for a federal license or permit anticipated to result in discharges to navigable waters to obtain a certification from the relevant state that the discharge will comply with applicable state water quality standards. States can waive this requirement, and if they do not act within “a reasonable period of time (which shall not exceed one year) after receipt” of the request for the certification, waiver is automatic. 33 U.S.C. § 1341(a). Continue Reading EPA Proposes to Increase Predictability and Timeliness of Water Quality Certification Process
Yesterday, EPA and the US Army Corps of Engineers (together, the Agencies) signed and made available a pre-publication version of the highly anticipated repeal of the 2015 WOTUS Rule, which will place the entire country under the pre-2015 Rule regime while the Trump administration works to complete its replacement WOTUS definition. Continue Reading Long-Awaited Repeal Rule Ends Patchwork of WOTUS Implementation
Over the last year or so, anti-pipeline forces have increasingly used “tree sitting” to obstruct natural gas infrastructure projects. The tactic involves individuals who climb trees slated for removal in a proposed pipeline project and stay there—sometimes for months and often aided by family, friends or others—forcing project developers to take various countermeasures.
Earlier this month a Virginia federal district judge rejected a novel effort by Mountain Valley Pipeline, LLC (MVP) to join certain unnamed tree sitters (“Tree Sitter 1” and “Tree Sitter 2”) as defendants in a pending Natural Gas Act (NGA) eminent domain action to condemn easements over land in southwestern Virginia for construction of the Mountain Valley Pipeline. In addition to interfering with its use of the easements being condemned, MVP alleged that the “tree sitters” or their supporters had assaulted a security officer who was part of a tree clearing crew on the project. Notably, though it declined to join the “tree sitters” as parties, the court observed that MVP still had other available remedies against them. Continue Reading Pipeline Company Can’t Join “Tree Sitters” in NGA Condemnation Action, But Still Has Other Remedies Against Them, Virginia Federal Court Says
On August 12, 2019, the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) (together, the Services) signed final rules instituting the first comprehensive revisions to the Endangered Species Act (ESA) regulations in 33 years. The Services made substantial and broad revisions to their regulations concerning the process and standards for listing species and designating critical habitat, the scope of protections for threatened species and the process for consultation with federal agencies. Continue Reading FWS and NMFS Complete Long-Awaited, Comprehensive Revision of ESA Regulations
The Trump administration’s recent executive order, Promoting Energy Infrastructure and Economic Growth (April 10, 2019), signals potentially significant changes to the regulatory landscape for domestic energy infrastructure generally and LNG in particular. Among the notable features of the order (in addition to directives to EPA regarding Clean Water Act water quality certifications) are the provisions directing US DOT to (1) update its 49 C.F.R. Part 193 regulations for LNG facility safety and (2) issue regulations allowing LNG to be transported in approved rail tank cars. The order sets an ambitious deadline for these actions, requiring both to be completed by May 10, 2020. Continue Reading LNG a Focus of Recent Executive Order