Administrative Law

Developments in Regulation of PFAS

Per- and poly-fluoroalkyl substances (PFAS) continue to emerge, so to speak, as a focus of regulatory attention on many levels: health, environmental remediation, and manufacturing. Below, we discuss some of the more recent developments affecting this ubiquitous class of chemicals. Nicknamed “forever chemicals,” PFAS are a family of chemical compounds with a wide range of…

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SCOTUS Invokes Major Questions Doctrine to Restrict EPA Regulation of Greenhouse Gases

On June 30, 2022, the U.S. Supreme Court restricted the Environmental Protection Agency’s ability to regulate greenhouse gas (GHG) emissions in its 6-3 decision for West Virginia v. EPA. The majority for the Court held that EPA’s “generation shifting” objectives found in the Obama Administration’s Clean Power Plan fell outside the meaning of the “best…

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EPA Releases Enforcement Discretion Guidance in Response to COVID-19

These days, it seems as though COVID-19 is leaving no aspect of government untouched, and federal environmental regulation is no exception. The U.S. Environmental Protection Agency (EPA) issued a memorandum on Thursday, March 26th outlining “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” This temporary guidance explains how EPA plans to exercise enforcement discretion…

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Clean Water Act Update: EPA Repeals WOTUS Rule in Favor of Pre-2015 Rule

On September 12, 2019, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (the “Corps”) (together, the “Agencies”)  announced a final rule (the “Repeal Rule”) rescinding the 2015 Clean Water Rule (the “2015 Rule”) that defined “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”). This Repeal Rule is…

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Clean Water Act Update: The Latest Twists and Turns on the Path to Defining the Statute’s Jurisdiction

Debates over the reach of the Clean Water Act (“CWA”) have been ongoing for decades. At stake is whether a discharge of a pollutant from a point source to a “navigable water,” defined as “waters of the United States” (“WOTUS”), requires the discharger to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit. The first…

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EPA Cooling Water Intake Rule Upheld in Second Circuit

By: Nathaniel Eisen On July 23rd, 2018, the Second Circuit rejected multiple challenges to the Environmental Protection Agency’s (“EPA’s”) final rule setting technological standards to prevent aquatic organism deaths in the cooling systems of power plants and manufacturing facilities  (the “Cooling Water Intake Rule” or “Rule”). The 2014 Cooling Water Intake Rule, the culmination of 40…

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