Revisiting CERCLA Pre-Enforcement Review
As a private practitioner and former trial attorney at the U.S. Department of Justice, I have advocated for timely and cost-effective cleanups that protect public health and the environment....
View ArticleDispute Resolution for CERCLA Sediment Investigations
In my last blog entry, I advocated for the amendment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to eliminate the bar on pre-enforcement review as one step...
View ArticleEPA Gets the Black Flag on Clean Air Act Racing Exemption
In auto racing, the black flag is the ultimate sanction, signaling that a competitor has been disqualified and has to leave the race. That’s what happened to EPA recently, when it withdrew a...
View ArticleRoger Goodell and EPA Administrative Orders
You do not have to be a football fan to be aware of the legal battles between NFL Commissioner Roger Goodell and the star quarterback, and perpetual winner, Tom Brady arising out of Brady’s use of...
View ArticleD.C. Circuit: Save Us Sinners Who Fail to Object When There Is Nothing to...
Clean Power Plan (CPP) groupies are beside themselves over the D.C. Circuit’s surprise “straight-to-en banc” move for CPP judicial review. The buzz is mostly over the survivability of the CPP’s...
View ArticleClik here to view.
Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review
On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. The industry challenges were a complete washout. The environmental petitioners won one significant victory and a number of smaller...
View ArticleDoes It Matter That Air Quality Is Improving?
The Environmental Protection Agency is expected to announce its final Cross State Air Pollution Rule (CSAPR) update by the end of summer 2016. But does the update account for the fact that several new...
View ArticleTaking Colin to the Limit One More Time
This post started as a piece about a recent Fifth Circuit decision: Texas v. EPA. In that case, the state of Texas (and others) challenge EPA’s disapproval of Texas’s (and Oklahoma’s) plans for...
View ArticleEPA’s Mighty Power
In Mingo Logan Coal Company v. EPA, the D.C. Circuit recently upheld EPA’s use of its “veto” authority over an Army Corps of Engineers permit to fill jurisdictional waters for the Spruce Mine in West...
View ArticleA SEP in the Right Direction: The Path Toward Win-Win Scenarios
One of the interesting questions that emerged in the strategic planning process for the Environmental Law Institute is whether ELI could offer more support in the development and/or administration of...
View ArticleClik here to view.
Be Vewy, Vewy Quiet – EPA’s Noise Program Might Be Coming Back!
Many, many years ago, when I was a staff lawyer at EPA headquarters, my duties included advising the program that implemented and enforced the Noise Control Act of 1972. My last involvement, though,...
View ArticleClik here to view.
A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT...
Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the...
View ArticleClik here to view.
EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort...
On Monday, EPA promulgated amendments to its “Exceptional Events” Rule. The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of...
View ArticleOne Certain Thing: Water Should Be Clean
The Environmental Protection Agency’s use of its Clean Water Act 404(c) authority has received a fair amount of attention of late. Congressional hearings, court cases, media attention and, of course,...
View ArticleIs You Is Or Is You Ain’t Transformative?
More about that title later, but first let me set the stage. On September 27, 2016, the D.C. Circuit, sitting en banc, heard argument in West Virginia v. EPA, in which state, industry, and labor...
View ArticleWhy You Should Pay Attention to ECOS
ECOS – the Environmental Council of States – I suspect that most of you have heard of it, but what do you really know about ECOS? And, why should you care? As the current Past President of ECOS, I...
View ArticleClik here to view.
Trump’s Impact on Environmental Law? Let the Speculation Begin!
What will a Trump Presidency mean for environmental law? I’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:It’s still going to be difficult to amend the key...
View ArticleMUSINGS ON THE FUTURE OF EPA ENFORCEMENT – WILL IT GET TRUMPLED?
Speculation about the environmental implications of the impending Trump presidency is running rampant. That was the case as well when Ronald Reagan was elected President. I served as an attorney in...
View ArticleAN ANTIDOTE TO INERTIA?
Let’s face it – most seasoned bureaucrats (I confess I am one) often don’t react well to change. Over time, there just seems to be an intrinsic inertia that builds in all bureaucracies. Federal and...
View ArticleClik here to view.
“What’s past is prologue” —William Shakespeare, The Tempest
I first began to focus on the need to protect our environment in the 1960’s, starting with Rachel Carson’s indictment of one particular pollutant, the pesticide DDT in her seminal work, “Silent...
View Article