Executive Summary

The decision by the United States Supreme Court (“SCOTUS”) on June 28, 2024, in Loper Bright Enterprises v. Raimondo, 603 U. S. ____ (2024) (“Loper”) reads simply: “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”[1] Chevron cannot be reconciled with the Administrative Procedure Act (“APA”) by presuming that statutory ambiguities are implicit delegations to agencies. Chevron was decided in 1984. The APA was adopted in 1946.

Moving forward, courts are no longer required to defer to a federal agency’s interpretation of the federal statute it administers when that statute is silent or ambiguous, unless the statute expressly grants discretionary authority to the federal agency. The Court’s ruling will only apply moving forward and prior cases decided using the Chevron doctrine will not be affected by the Court’s ruling.Continue Reading SCOTUS Speaks: Agency Deference is Out, Judicial Independence is In

Introduction

On May 1, 2024, the Council on Environmental Quality (“CEQ”) promulgated the Bipartisan Permitting Reform Implementation Rule (“Final Rule”), 89 Fed. Reg. 35,442 (May 1, 2024), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement

On April 19, 2024, the United States Environmental Protection Agency (EPA) issued a pre-publication notice regarding its designation of two per- and polyfluoroalkyl substance (“PFAS”) compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. EPA’s rule, for the first

On April 4, 2024, the U.S. Securities and Exchange Commission (SEC) published an Order Issuing Stay of rules promulgated on March 6, 2024 requiring registrants to provide certain climate-related information in future registration statements and annual reports (Final Rule). The stay responds to litigation filed in the Fifth and Eighth Circuit Courts of Appeals seeking

The National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“USFWS”) (together, the “Services”) have released three final rules related to implementation of the Endangered Species Act (ESA). The rules are available on USFWS’s website and are expected to be published in the Federal Register in the coming days.

The Services have

UPDATE [4/5/2024]:  The Commission has determined to exercise its discretion to stay the Final Rules pending the completion of judicial review of the consolidated Eighth Circuit petitions.  Click here for more information.

The U.S. Securities and Exchange Commission (SEC or Commission) finalized its climate change disclosure rule on March 6, 2024, reducing the final disclosure obligations from the initial proposal after thousands of comments from stakeholders. The final rule requires comprehensive and standardized climate-related disclosures, including disclosure on governance, business strategy, targets and goals, GHG emissions, risk management, and the effects of climate change on financial metrics. This additional disclosure is intended to help investors assess material risks in climate-related reporting and facilitate comparisons across firms and over time with respect to climate-related metrics. 

For issuers subject to the new disclosure requirements, compliance with the final rule will present practical challenges, such as coordination among internal and external subject matter experts in the legal, accounting, science, and environmental, social, and governance (ESG) fields; data tracking, collection, and verification; reconciliation of data reported to satisfy mandatory disclosure requirements and voluntary reporting commitments, like those covered by sustainability reports; and oversight to ensure disclosures satisfy both the new SEC rules and the increasing non-regulatory scrutiny from investors and watchdogs, like International Shareholder Services (ISS). These challenges will necessitate significant additional costs to prepare compliant disclosures.Continue Reading The New SEC Climate Disclosure Rule Will Drive Risk Mitigation and Value Creation

Originally posted by the American College of Environmental Lawyers, November 9, 2023.

On November 3, 2023, the White House Council on Environmental Quality (CEQ) released a playbook for federal agencies to develop their Environmental Justice Strategic Plans, Strategic Planning to Advance Environmental Justice. This tool provides a ‘how to guide’ for federal agencies working

California has enacted two new laws on corporate disclosure of direct and indirect greenhouse gas (GHG) emissions and climate-related financial risks.  Senate Bill (SB) 253, the Climate Corporate Data Accountability Act, expands state GHG emissions reporting requirements to large U.S. companies doing business in California.  SB 261 requires biennial disclosure of climate-related financial risks.Continue Reading California’s New Climate-Related Disclosure Laws

The U.S. Environmental Protection Agency (EPA) has announced a new rule concerning per- and polyfluoroalkyl substances (“PFAS”). Companies that have made or brought products containing these chemicals into the U.S. since 2011 need to report certain information to the EPA. This rule mainly affects those who make or import items that have PFAS in them.

Introduction

On July 31, 2023, the Council on Environmental Quality (“CEQ”) proposed the Bipartisan Permitting Reform Implementation Rule (“Proposed Rule”), 88 Fed. Reg. 49,924 (July 31, 2023), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement that does not mandate outcomes, only informed decision making. Despite its procedural nature, NEPA is one of the primary mechanisms for project opponents to challenge projects and is the most litigated federal statute. CEQ describes the changes in the Proposed Rule as promoting efficient and effective environmental review while increasing regulatory certainty. Given the history of NEPA litigation, and the significant changes in the Proposed Rule, it is likely that these changes will open new pathways for litigation and require courts to interpret the changes before providing regulatory certainty.

Background Leading to the Proposed Rule

Prior to 2020, the regulations implementing NEPA, 40 C.F.R. §§ 1500-1508, had not been meaningfully updated since 1978. In 2020, CEQ finalized significant changes to the regulations, which were designed to speed up project review and limit agency discretion in considering impacts beyond the immediately proposed project. In 2021 CEQ started a phased process to revise the NEPA regulations. In April 2022, CEQ issued its Phase I Rule, 87 Fed. Reg. 23,453 (April 20, 2022), which restored the 1978 regulations’ provisions on the purpose and need statement, defined “effects of the action,” and restored agency discretion to adopt procedures beyond those contained in the CEQ regulations.Continue Reading Phase 2 NEPA Revisions: Significant Changes Proposed by CEQ in the Proposed Bipartisan Permitting Reform Rule