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

Tag Archives: Environmental Protection Agency

SCOTUS Rejects EPA Refusal to Consider Costs in Power Plant Rules — Remand for Further Analysis

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

A deeply divided United States Supreme Court (SCOTUS), in Michigan v. EPA, today held that the Environmental Protection Agency (EPA) “strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.” SCOTUS reversed the decision of the United States Court of Appeals… Continue Reading

Monday Morning Regulatory Review – 06/29/15: Fracking Rule Stayed; Gainful Employment Passing Grade; Waters of the United States; & ACUS Recommendation

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

Aside from the United States Supreme Court (SCOTUS)’s end of Term fireworks (covered previously and later today), a few highlights in regulatory practice from the last week included a stay of the Department of the Interior (DOI)’s hydraulic fracturing rule for federal and Indian lands and summary judgment in favor of the Department of Education… Continue Reading

Monday Morning Regulatory Review – 6/22/15: Truck Emissions Standards & Orphan Drugs Revisited

Posted in Agency Authority, Regulatory Process

While we await the major decisions of the year by the United States Supreme Court (SCOTUS), the regulatory process was relatively quiet last week. The most significant activity focused on proposed emission standards for heavy duty trucks and a proposed rethinking of the orphan drug program, both of which deserve critical review for regulatory process… Continue Reading

Monday Morning Regulatory Review – 6/15/15: Final Rules, not Proposed; Open Internet Unstayed & Effective; Complete Agency Rulemaking Records; Aircraft Engine Endangerment; & Food Safety Returns

Posted in Agency Authority, Judicial Process, Regulatory Process

Federal courts reminded by agencies and litigators of lessons they should have previously learned last week, while agencies banked more fuel for future regulatory fires. The United States Court of Appeals for the District of Columbia Circuit reiterated that only final rules, not proposed rules, are subject to judicial review, and it also denied a… Continue Reading

Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation

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

This week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union… 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 – 5/11/15: Wholesale & Retail Electricity; FLSA Overtime Regulations; and Renewable Fuel Standards

Posted in Agency Authority, Executive - OMB Review, Regulatory Process

Three different and recurring intersections of regulations and litigation highlight the past week. The United States Supreme Court (SCOTUS) added another case to the oral argument calendar with potentially significant regulatory implications. The Department of Labor (DOL) finally submitted a proposal to revise the executive and administrative exemptions under the Fair Labor Standards Act (FLSA)… Continue Reading

Monday Morning Regulatory Review – 5/4/15: SCOTUS Statutory Standing; Emergency Generators; & H-2B Regulations Again

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

Three unrelated highlights from last week in regulatory practice: The United States Supreme Court (SCOTUS) agreed last Monday to consider a case of private causes of action that has potentially stunning constitutional and regulatory implications. The United States Court of Appeals for the District of Columbia Circuit “reversed” an Environmental Protection Agency (EPA) regulation that… 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

Monday Morning Regulatory Review – 3/9/15: H-2B Regulations Vacated – Again; Immigration Executive Action Litigation IV; and Aircraft Engines & Greenhouse Gases

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

Last week’s highlights in regulatory practice were few and tread familiar ground, but have much meaning. The Department of Labor (DOL) suffered another loss in the jurisdictional kerfuffle over the non-agricultural workers visa program when a district court vacated its 2008 regulations, just as it had previously done with more recent regulations, and contrary to… Continue Reading

Monday Morning Regulatory Review – 2/2/15: OMB Review Substance, Process, Docket & Issues

Posted in Regulatory Process

Last night, the Department of Transportation (DOT) Federal Aviation Administration (FAA) banned drones (and nearly all other flight) from within 30 nautical miles (34.5 miles) and under 18,000’ mean sea level of Super Bowl XLIX in a Notice to Airmen (NOTAM), while its proposed rule to regulate the use of drones – technically known as… Continue Reading

Monday Morning Regulatory Review – 1/26/15: Florescent Lights & Analytical Balance; NESHAP & Affirmative Defenses; and WOTUS Supporting Documents & Public Comments

Posted in Judicial Review & Remedies, Regulatory Process

Focus recently on the courts does not mean that the agencies have been silent, and while they have been relatively quiet, they continue to raise some interesting issues.  For example, the Department of Energy (DOE) today published the latest in a long series of energy efficiency rulemakings and one that will affect every consumer.  The… Continue Reading

Monday Morning Regulatory Review – 1/19/15: Judicial Review of Agency Standards of Discretion; Regulatory Takings Standards; FLSA Home Care Regulations II; NLRB Elections Rule Litigation IIA; Be Sued & Settle

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

The United States Supreme Court (SCOTUS) granted review in several cases with significant regulatory implications last Friday – neither of which is the case that has drawn all the press attention and both of which should be decided early this summer.  In one case, SCOTUS may be approaching the twilight zone of judicial review of… Continue Reading

Monday Morning Regulatory Review – 1/5/15: Ozone Standards Authority; Toxic Spent Munitions; FLSA Home Care Regulations; Medicaid Hospital Limits FAQ; & Immigration Executive Action

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

Welcome to 2015, the fourth year of the Federal Regulations Advisor.  Two short holiday workweeks are compiled today in one loaded post.  The agencies may have been (largely) quiet, but the courts provided grist for the mill.  The United States Court of Appeals for the District of Columbia Circuit vacated parts of the Environmental Protection… Continue Reading

Monday Morning Regulatory Review – 12/22/14: H-2B Visa Regulation Vacated; Immigration Executive Action Dicta; Agency Regulatory Plans & OMB Completions; EPA Coal Ash Rules; Uniform Grant Rules; Trucker Hours of Service; & ACUS Recommendations

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

The penultimate Monday of the year, when many federal workers are using rather than losing annual leave, is hardly the time to believe that the regulatory machine is slowing down.  Quite to the contrary, after Congress has left town, both the courts and the agencies remain at full throttle.  Judicial highlights of the past week… Continue Reading

Monday Morning Regulatory Review – 12/8/14: Immigration Executive Action; H2B Wage Rates; Regulations & Non-Discretionary Duties; and Waters of the United States

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

The immigration “executive action” became much clearer with the Department of Homeland Security (DHS) rolling out a variety of memoranda implementing the President (POTUS)’s priorities, but there was no, and many not have ever been, an “Executive Order.”  Nonetheless, the first legal challenge has been filed and the state of affairs deserves review.  On another… Continue Reading

Monday Morning Regulatory Review – 12/1/14: Electric Generating Hazardous Emissions & Costs; Quintennial Ozone Standard; Calorie Counting; and Election Financing Disclosure

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

The very short Thanksgiving workweek was punctuated by a significant new United States Supreme Court (SCOTUS) grant of review of requirements for the Environmental Protection Agency (EPA) in regulating hazardous air pollutants – this time by electric utilities.  The day before Thanksgiving has traditionally been a day for rolling out controversial actions to reduce adverse… Continue Reading

Monday Morning Regulatory Review – 11/24/14: POTUS Immigration Reform; Obamacare Subsidies Docket Clearing; Conflict Minerals Redux; Drones Predux; Renewable Fuel Standards Exdux; and Unified Agenda

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

President Obama (POTUS) finally moved last week to alter immigration policy by signing an executive order and issuing two memoranda, and amid all the political debate over the action, some legal questions need serious answers.  Also last week, several docket changes helped clear different regulatory issues to be ultimately decided by the United States Supreme… Continue Reading

Monday Morning Regulatory Review – 11/10/14: SCOTUS to Review Obamacare Subsidy Rule; Final Rule Statute of Limitations; Gainful Employment Metrics Litigation; Incorporation by Reference; and WOTUS Comments

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

Last week in regulations was entirely expected – it was all just a matter of time.  The United States Supreme Court (SCOTUS) agreed that it will decide this Term whether the Internal Revenue Service (IRS) may, by regulation, extend Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies to participants in federally-operated health care… Continue Reading

Monday Morning Regulatory Review II – 11/3/14: Gainful Employment; WOTUS Science; and OMB Reviews

Posted in Executive - OMB Review, Regulatory Process

The agencies began to get busy in the two weeks running up to tomorrow’s mid-term elections.  Among key events, the Department of Education (ED) published yet another chapter in the gainful employment saga.  The Environmental Protection Agency (EPA) released the results of a scientific advisory board opining on the Waters of the United States.  The… Continue Reading

Monday Morning Regulatory Review – 10/13/14: Hobby Lobby Implementation; Jumping the Gun on a Final Rule; Extended Waters of the United States; and EPA Rules to Watch

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

Two highly technical cases from the past week illustrate the complexity of invoking federal jurisdiction to challenge administrative action:  one, a failure to sufficiently allege that the harm was imposed by the governmental action and is redressable by the court, and the other an attempt to enforce an interpretation of potentially conflicting statues that would… Continue Reading

Monday Morning Regulatory Review – 8/25/14: Poultry Inspection; HAZMAT Harmonization; & OMB Reviews

Posted in Executive - OMB Review, Regulatory Process

The Administration’s release last Friday of new Obamacare contraceptive mandate rules in light of recent adverse United States Supreme Court (SCOTUS) decisions overshadowed other agency actions last week, but some are noteworthy.  The Department of Agriculture (DOA) published controversial poultry inspection regulations and the Department of Transportation (DOT) proposed harmonization of hazardous materials regulations with… Continue Reading