Category Archives: Environmental Law

Guest Blogger Benjamin Miller: Suggestions to help EPA Successfully Implement Retrospective Reviews

On June 13th, the Environmental Protection Agency (EPA) issued an advanced notice of proposed rulemaking soliciting comments on how to improve the consistency and transparency of the cost benefit analyses that guide EPA’s regulatory decision making. Both are praiseworthy goals, particularly because executive orders issued by the Trump administration last year resulted in cost benefit analysis being used not only for determining the appropriateness of individual regulations, but also for choosing between regulations when deciding which to implement. In its solicitation for comments, EPA has hinted at a key part of the answer: retrospective reviews. Many of the questions on which EPA is seeking feedback are in the weeds of policy analysis, such as how to grapple with the realities of inadequate data, model limitations, and uncertainty about how to weight various factors. As will always be the case, implicit or explicit decisions will be made to address….. To continue reading this legal news please click Read full information...

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WOTUS: Legal Issue or Scientific Issue?

Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected, it asks what are the jurisdictional limits in the Clean Water Act. It’s cynical, because, by failing to take on the science behind the 2015 rule, which seemed fairly persuasive to me, EPA and the Corps avoid the hard regulations necessary to protect our waters while clothing themselves in feel-good words about the integrity of the statute and the important role given to states under the Clean Water Act. Part of the beauty of the SNPR is the way it carefully navigates between whether the broader jurisdictional interpretation taken by the 2015 rule….. To continue reading this legal news please click Read full information...

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Challenging EPA NPDES Permitting Decisions Is Really An Uphill Battle.

The decision last week in City of Taunton v. EPA did not break any new ground, but it is certainly a reminder of just how much of an uphill battle it is to challenge an NPDES permit. The City of Taunton challenged EPA’s decision to include a numeric limit for nitrogen in Taunton’s renewed permit.  The Court rejected all of Taunton’s challenges in a tone that, while not explicitly disdainful, certainly gives one the impression that it wished that the City had not wasted so much of the Court’s precious time. Here are just some of the reasons why such challenges are so difficult: Deference is given both to EPA’s permitting decision and to the EAB’s affirmance of that decision. The “scientific and technical nature of the EPA’s decisionmaking” increases the level of deference. The courts (for now!) grant Chevron deference to EPA’s interpretation of the statute and Auer deference to its interpretation of its….. To continue reading this legal news please click Read full information...

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USDA Amends Guidelines For Designating Biobased Products

By Lynn L. Bergeson On July 10, 2018, the U.S. Department of Agriculture’s (USDA) Office of Procurement and Property Management announced it was amending the Guidelines for Designating Biobased Products for Federal Procurement to add 12 sections that designate product categories within which biobased products will be afforded federal procurement preference by federal agencies and their contractors via a final rule.  83 Fed. Reg. 31841.  The Federal Register publication states that this final rule “designates the proposed product categories within which biobased products will be afforded Federal procurement preference” and that “USDA has determined that each of the product categories being designated under this rulemaking meets the necessary statutory requirements; that they are being produced with biobased products; and that their procurement will carry out the following objectives of section 9002:  to improve demand for biobased….. To continue reading this legal news please click Read full information...

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EPA Announces Public Hearing And Publishes Proposed Rule On Renewable Fuel Standard Program

By Lynn L. Bergeson On July 3, 2018, the U.S. Environmental Protection Agency (EPA) announced it was holding a public hearing for the proposed rule “Renewable Fuel Standard Program:  Standards for 2019 and Biomass-Based Diesel Volume for 2020” on July 18, 2018, at 9:00 a.m. in Ypsilanti, Michigan.  83 Fed. Reg. 31098.  The proposed rule was published in the Federal Register on July 10, 2018.  83 Fed. Reg. 32024.   The notice states that the public hearing will provide interested parties the “opportunity to present data, views, or arguments concerning the [proposed rule],” and “EPA may ask clarifying questions during the oral presentations but will not respond to the presentations.”  Parties wishing to testify at the hearing should notify Julia MacAllister at (734) 214-4131 or via e-mail at RFS-Hearing@epa.gov by July 13, 2018.  EPA will be posting a complete set of documents related to the….. To continue reading this legal news please click Read full information...

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