Stoel Rives Summer Associate Jessica Wright co-authored this post.
In a landmark decision on July 1, 2024, the Supreme Court ruled that the six-year statute of limitations for facial challenges to agency regulations under the Administrative Procedure Act (APA) begins when the final agency action injures a plaintiff, not when the regulation is issued. This
Why do environmental professionals need to know about a recent securities case? Read on for details. In response to the Wall Street Crash of 1929, Congress passed the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940 to combat securities fraud and increase market transparency. The Securities and Exchange Commission (SEC) is the agency that delegated enforcement of these acts, which until 2010, had to occur in a court of law. In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) which allowed the SEC to impose penalties through in-house proceedings. These in-house proceedings look similar to those of other agencies, and typically take place in front of an Administrative Law Judge (ALJ) who is employed by the agency but swears to remain impartial. Sound familiar? This framework is much like the Environmental Protection Agency’s (EPA) ALJ and Environmental Appeals Board (EAB) paradigm.
Continue Reading SEC v. Jarkesy: In-House Adjudicators are Out and the Jury is InStoel Rives Summer Associate Jessica Wright co-authored this post.
We want to bring to your attention a recent development involving the Environmental Protection Agency’s (EPA) regulation of air pollutants. In the case Ohio v. EPA, the Supreme Court issued a stay on the enforcement of the EPA’s Federal Implementation Plan (FIP), halting the EPA’s ability
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 InIntroduction
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 CreationOriginally 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