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

Tag Archives: Clean Water Act

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

Monday Morning Regulatory Review – 12/12/16: Administration’s Litigation Twilight; Delay, Haste, Explanation & Air, Cell, Wi-Fi

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

The twilight of an Administration brings out some haste to institutionalize policy through regulations and also complex litigating postures driven by policy and institutional concerns, reflected last week in several procedural motions and decisions.  Curiously, a final rule was promulgated to respond to a remand over a decade old, raising a fundamental question of timeliness. … 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

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 – 11/9/15: Obamacare Contraceptive Non-Profit Sequel; Crowdfunding Uncrowded; & Electric Water Effluents

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

The United States Supreme Court (SCOTUS) granted certiorari in seven Obamacare contraceptive coverage cases signaling the return of an agency regulatory compliance issue, not a constitutional or “rights” issue. Still noteworthy, however, are two other recent actions: the Securities and Exchange Commission (SEC) adoption of crowdfunding rules and the Environmental Protection Agency (EPA) publication of… 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 – 10/05/15: Fracking Rule Enjoined, Rule Withdrawal Judicial Review & Environmental Push

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

Environmental versions of administrative law issues dominate this week’s review of regulatory practice. In different district courts, a hydraulic fracturing rule was preliminarily enjoined pending final resolution of litigation, while another district court rejected a challenge to a rule withdrawal. The Environmental Protection Agency (EPA) contributed all of the rules of interest, including ozone standards,… Continue Reading

Monday Morning Regulatory Review 9/28/15: Two Midnight Rule Remand; Final Rules Respond & Proposed Rules Review

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

Judicial vacaturs and remands, and agency responses to them, dominated the past week in regulatory practice. In a new case, a court found that the balancing of equities warranted only a remand for notice and comment rulemaking. Two final rules respond to a prior vacatur and impact present litigation. In addition, two agencies respond to… 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 – 8/3/15: 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 – 6/1/15: Final Waters of the United States; Proposed RFS Returns; SCOTUS in June; & Immigration Executive Action Non-Action

Posted in Agency Authority, Judicial Review & Remedies

This week’s review focuses on two significant environmental regulations by the Environmental Protection Agency (EPA): preliminary release of a final definition of “waters of the United States” and release of a proposed rule to establish multiple years of volume requirements for renewable fuels, at least in part in response to a proposed consent decree. On… Continue Reading

Tuesday Morning Regulatory Review – 5/26/15: Tailoring Snakes; COOL Trade; Spring 2015 Unified Agenda; & Approaching WOTUS Storm

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

Welcome back from the Memorial Day holiday with a slightly delayed review of last week’s highlights in regulatory practice. As expected, the United States District Court for the District of Columbia entered a tailored preliminary injunction of the Department of the Interior (DOI)’s regulation of interstate transfers of certain harmful snakes. The World Trade Organization… Continue Reading

Monday Morning Regulatory Review – 5/18/15: Snakes in the Interior; Traditional Waters of the United States; Retirement Account Fiduciary Standards; & Upcoming Discussions of Interest

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

A most interesting opinion from the United States District Court for the District of Columbia preliminarily enjoined the Department of the Interior (DOI) from enforcing regulations that prohibited the interstate transportation of two species of reptiles found to be “injurious” under the Lacey Act. United States Court of Appeals for the District of Columbia Circuit… Continue Reading

Monday Morning Regulatory Review – 4/13/15: Waters of the United States; Renewable Fuels Consent Decree; Open Internet Utility Rule; Shepherd’s Wages; Immigration Executive Action Litigation VII; and Religious Workers & Legal Status

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

Half a dozen highlights from regulatory practice last week – from environmental to communications, to labor to immigration. The Environmental Protection Agency (EPA) and Army Corps of Engineers (Engineers) submitted a controversial Waters of the United States (WOTUS) final rule for executive and interagency review, and EPA also proposed resolution of the long delayed Renewable… Continue Reading