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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Tag Archives: Army Corps of Engineers

Monday Morning Regulatory Review 3/6/17: Reconsidering WOTUS; Transgender Guidance Appeal Ignominious End & Proposed Rules to Delay Rules

Posted in Judicial Review & Remedies, Regulatory Process

The current Administration continued its undoing of prior the Administration’s priorities, but with more finesse.  The definition of Waters of the United States that garnered so much attention during the last Administration was put on the sideline for an extended period last week, with ramifications for several court cases.  The direct challenge to the rescinded… Continue Reading

Monday Morning Regulatory Review – 1/16/17: WOTUS Jurisdiction & Venue; Arbitration Bars; Deference without Deference; Mandatory Duties & Remedies; Regulatory Accountability Act Reprise; Expedited Removal and Cubans; Good Cause Overdose & Communicable Disease Incaution

Posted in Judicial Process, Judicial Review & Remedies, Legislation, Regulatory Process

The United States Supreme Court (SCOTUS) added to its argument calendar Friday, including several that could implicate future regulatory practice – including jurisdiction to review regulations and the potential scope of arbitration-limiting regulations.  In lesser lights, a Court of Appeals determined that an agency’s interpretation was correct without the agency, while a district court imposed… Continue Reading

Presidential Regulatory Transition: A Post-Election Monday Morning Review – 11/14/16

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

Understanding the regulatory significance of the 2016 Presidential election focuses on both the authority of the current President of the United States (POTUS) and the President-elect of the United States.  The current POTUS, quite naturally, will seek to institutionalize his legacy while the incoming POTUS will seek to undo his predecessor’s regulatory actions that are… Continue Reading

Monday Morning Regulatory Review – 8/22/16: Tobacco Products Guidance Vacatur; Waters Abeyance; Swaps Remand Response & Medium and Heavy Duty Emissions

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

A hodgepodge of actions occurred in regulatory practice last week, including a district court decision vacating part of an agency guidance and a court of appeals decision to hold in abeyance litigation on regulatory efficacy to avoid possible conflicts with a sister circuit.  One agency published a final response to a remand that raises old… Continue Reading

SCOTUS Review – 2015 Term Ramifications for Regulatory Practice

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) declined or was unable to resolve several regulatory issues in the Term just ended, but its few substantive decisions set in motion significant changes in the regulatory process.  Three cases made key points: Congress may not expand the scope of injury necessary to sue in federal court. While agencies… Continue Reading

Monday Morning Regulatory Review – 7/11/16: A Regulatory Litigation Snapshot

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies, Regulatory Process

The shortened holiday week generated few regulatory events and no real highlights, creating an opportunity to survey the major regulatory litigation as this Administration enters its final six months.  This post highlights major litigation over the Administration’s priorities – particularly those stayed or preliminarily enjoined, and those at risk.  The extent of this litigation risk… Continue Reading

SCOTUS Affirms “Waters of the United States” Jurisdictional Determination is Final Agency Action Subject to Judicial Review

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) today unanimously (with concurrences) held that in United States Army Corps of Engineers v. Hawkes Co., Inc. that the Armey Corps of Engineers’ decision to assert Clean Water Act (CWA) jurisdiction over a parcel of land is a final agency action subject to judicial review under the Administrative Procedure… Continue Reading

Monday Morning Regulatory Review – 3/28/16: SCOTUS on WOTUS Jurisdiction & Finality; Privilege & Persuader Agreements; and Respirable Crystalline Silica, Morbidity & Mortality Values

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

This week, the United States Supreme Court (SCOTUS) will hear argument over a thorny issue of finality when the determination imposes a draconian choice.  The Department of Labor (DOL) took center stage in the regulatory practice last week with the publication of two long anticipated final rules:  exposure limitations on one of the most common… Continue Reading

Monday Morning Regulatory Review – 3/7/16: Clean Water Rule Complicated; MATS Stay Rejected; Airport Screening Legalized; OPT STEM Revision to Avoid Vacatur; COOL Handful of Nothin’ & De-Vaporizing Airplanes

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies, Regulatory Process

Legal minutiae often drives the greatest of issues and last week proves that point with a petition for rehearing en banc over jurisdiction and the denial of a stay. Logistically, compliance with detailed court orders can prove a challenge for agencies, exhibited by action on two judicially-required rules. In addition, even the nondiscretionary rulemaking and… Continue Reading

Monday Morning Regulatory Review – 2/29/16: WOTUS Functional Jurisdiction; MATS Remand, Vacatur & Post Hoc Rationalization; and Flying Lithium Batteries

Posted in Judicial Process, Judicial Review & Remedies

Litigation updates deserve attention this morning with clarification of court jurisdiction over Clean Water Act (CWA) regulations and a new request that the short-handed United States Supreme Court (SCOTUS) intervene in lower court petitions for review. At the operational level, a longstanding regulatory debate took on new meaning as an international regulatory body banned lithium… Continue Reading

Monday Morning Regulatory Review – 2/15/16: Scalia Passing; Clean Power Plan Stayed; Mandamus, Compulsion, Deadlines, and Escalations; & Light Bulb and Computer Efficiency

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

No event in regulatory practice last week comes near in importance to the sudden passing of Justice Antonin Scalia. The United States Supreme Court (SCOTUS) did take the unusual step of granting a stay of the Administration’s signature environmental efforts pending resolution of litigation in the court of appeals and potentially before it. The United… Continue Reading

Monday Morning Regulatory Review – 1/4/16: Regulatory Priorities in an Administration’s Final Year

Posted in Agency Authority, Executive - OMB Review, Judicial Process, Judicial Review & Remedies

The end of 2015 warranted a review of Congressional regulatory interventions and limitations, and the beginning of 2016 warrants a review of expectations for the coming (Presidential election) year – the final year of an Administration, a final chance to establish its regulatory legacy. Do not confuse this review with the Unified Agenda, a mere… Continue Reading

Monday Morning Regulatory Review – 12/28/15: A Regulatory Appropriation

Posted in Agency Authority, Legislation

This last column of the year takes a different approach to regulatory practice – a survey of some of the realities of Congressional “review” in the omnibus Consolidated Appropriations Act, 2016 (CAA16), signed into law December 18, 2015. This massive appropriation includes many different styles of Congressional oversight and intervention – from outright prohibition, to… Continue Reading

Monday Morning Regulatory Review – 12/14/15: Water, Jurisdiction, Finality; Mineral Extraction Payments; Hours of Service Reporting; & Renewable Fuel Standards

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

The United States Supreme Court (SCOTUS) returned to one of the thorniest of briar patches of statutory imprecision and jurisdictional delegation, the Clean Water Act (CWA). Another regulatory issue likely to eventually reach SCOTUS revolves on the scope of First Amendment rights and forced corporate speech, currently joined in one agency’s proposed rule. Two other… Continue Reading

Monday Morning Regulatory Review – 11/16/15: Food Safety Rules Up; Energy Efficiency Removal; Conflict Minerals Review Denial; & WOTUS Forward

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies

The most significant agency action in regulatory practice last week may have been the release of three long-delayed Food Safety Modernization Act (FSMA) final rules. Courts took a number of small steps toward resolving challenges to Administration priority regulations, but no particular signal from these actions appears evident, except for the affirmance of the preliminary… Continue Reading

Monday Morning Regulatory Review – 10/19/15: WOTUS Unconsolidated; Orphan Drug Misinterpretation; Optional Practical Training Proposed Extension-Extension; & OMB Benefit / Cost Report

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

Some regulatory litigation settled slightly last week as the multitude of district court cases challenging the Waters of the United States (WOTUS) rule will remain where they were filed. Administrative agencies continue to amend regulations in responses to litigation with varying success, including skirting the issues that lead to a prior regulatory vacatur and a… Continue Reading

Monday Morning Regulatory Review – 10/12/15: WOTUS Stayed Nationwide & Vacatur Remedies – Shepherds Wages or Optional Practical Training

Posted in Judicial Process, Judicial Review & Remedies

Regulatory practice events of the past week focused on judicial review and agency response. On one hand, the Administration lost a major skirmish in the tangled litigation over the regulatory definition of waters of the United States. On the other hand, two interim regulatory events illustrate the effect of judicial delayed vacatur orders and agency… Continue Reading

Monday Morning Regulatory Review – 9/14/15: Human Research; Food Safety Rules; Extraordinary Writs Declined; Finality Petition & Obamacare Coverage Regulation Enjoined

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

New food safety rules and a proposed common rule on protection of human subjects in research deserve attention in the regulatory process. An unsurprising denial of an extraordinary writ and an unsurprising petition for certiorari deserve as much attention as a surprising injunction against an insurance coverage regulation in the judicial process.

Monday Morning Regulatory Review – 9/7/15: Inter-agency Sub-delegation; WOTUS Injunction Limited & Mineral Payments Disclosure Reset

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

Regulatory highlights from the last week could fill pages, but only three receive attention here. First, another court of appeals weighed in against one agency subdelegating authority to another agency. Second, a following up on last week’s Waters of the United States preliminary injunction clarified application to the plaintiff States. And third, a district court… Continue Reading

Monday Morning Regulatory Review – 8/31/15: WOTUS Dammed, but How Much?

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

One highlight from the last week in regulatory practice overshadowed all else: confusion over fundamental administrative law and judicial review issues far beyond the confines of environmental law became evident in conflicting court decisions and the damming of the Environmental Protection Agency (EPA) and Army Corps of Engineers’ Clean Water Rule: Definition of Waters of… Continue Reading

Monday Morning Regulatory Review – 8/17/15: Clean Power Plan Litigation Preview; WOTUS Litigation Update; STEM Extension Vacatur Stay & Delayed Effective Date

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

Highlights from last week in regulatory practice include commencement of litigation over the Administration’s Clean Power Plan in an unusual form while the usual form continued in judicial review of the Administration’s Waters of the United States (WOTUS) final rule. Application of “good cause” exceptions to Administrative Procedure Act (APA) requirements led one district court… Continue Reading

Monday Morning Regulatory Review – 8/3/15: WOTUS Litigation IV; Cross-State / Transport Rule Remanded; Refrigeration Standards Settlement; Labor Elections Upheld Again; Tax Court Vacates IRS Rule & Clean Power Plan

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

Litigation dominated regulatory affairs last week. Procedural posturing continued in the Waters of the United States (WOTUS) litigation while gaining some clarity and the Clean Air Act (CAA) “good neighbor” regulations returned to the Environmental Protection Agency (EPA) for further refinement. Litigants asked the courts to partially vacate and remand efficiency standards for walk-in refrigerators,… Continue Reading

Monday Morning Regulatory Review – 7/27/15: WOTUS Litigation Joined; CFPB Recess Appointment Challenge Revived; Contraceptive Insurance Exception & Immigration Executive Action Regulation

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

Litigation dominated regulatory practice last week. New filings in the Waters of the United States litigation clarified, as expected, some issues and process in nearly a dozen different district courts, and two court of appeals standing decisions will require the Administration to respond to a recess appointment challenge and an individual exception to the Obamacare… Continue Reading

Monday Morning Regulatory Review – 7/20/15: More WOTUS Litigation; Contraceptive Coverage Uncovered & Employee / Independent Contractor Guidance

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

As Washington swelters, the regulatory docket remains relatively cool. Among last week’s highlights, litigants further challenged the regulatory jurisdictional definition of “Waters of the United States” and the current, now published final iteration of Obamacare contraceptive coverage rules generate more issues for potential litigation. On a less-than-regulatory front, new guidance on the distinction between employees… Continue Reading