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- The "Zone of Reasonableness" A pair of recent decisions from the US Supreme Court and the Fifth Circuit Court of Appeals signals a trend by the judiciary to closely scrutinize agency rulings where, in the past, courts have traditionally maintained a laissez-faire approach. In Ohio v. EPA, the Supreme Court ruled that an agency action qualifies as arbitrary or... Continue Reading...
- Federal Court Doesn't Buy EPA's Argument that eBay is a Seller; Marketplace Websites are Immune from Environmental Liability Under the Communications Decency Act Late last month, the U.S. Eastern District of New York dismissed a suit by the U.S. Environmental Protection Agency ("EPA") against eBay claiming that it sold products that are prohibited under federal environmental statutes.[1] The Court held that eBay is not a "seller" of prohibited products under either the Clean Air Act ("CAA") or the... Continue Reading...
- Energy & Environmental Highlights of the 2024 Louisiana Legislative Session The 2024 Regular Session of the Louisiana Legislature ended on June 3, 2024. The first regular session of the new term saw legislation on several hot-button issues, including criminal justice reform, reorganization of state governmental entities, insurance reform, education, public access to government records, public libraries, protection of the Louisiana seafood industry, and improvements to... Continue Reading...
- RIP Chevron Deference: 1984-2024 On June 28, 2024, the U.S. Supreme Court's decision in Loper Bright Enterprises v. Raimondo[1] definitively overturned Chevron deference[2], and held that, when reviewing agency action under the Administrative Procedure Act, courts "must exercise their independent judgment" and "may not defer to an agency interpretation of the law simply because a statute is ambiguous."[3] Chevron... Continue Reading...
- New Federal Rule Expands Exemption for Solar Farms from Certain Environmental Permitting Requirements Today, April 30, 2024, the U.S. Department of Energy (DOE) revised its National Environmental Policy Act (NEPA) implementing procedures to revise categorical exclusions for upgrading and rebuilding powerlines and for solar photovoltaic systems. Under the new rulemaking, environmental reviews will not automatically be required for projects related to solar installations. The rulemaking also adds a... Continue Reading...
- Louisiana Department of Natural Resources to Assume Primacy for Issuance of Permits for Carbon Capture and Sequestration in Louisiana On December 28, 2023, the United States Environmental Protection Agency ("EPA") signed a final rule delegating primacy over the issuance and enforcement of permits for Class VI Underground Injection Control ("UIC") wells under the Safe Drinking Water Act to the Louisiana Department of Natural Resources ("LDNR").[1] This decision came after a lengthy review process lasting... Continue Reading...
- The Supreme Court Agrees to Hear a Second Case Challenging Chevron Deference & Multiple Third-Party Groups File Amicus Briefs Asking the Court to Overrule Chevron Deference Kean Miller is closely following the recent challenges to the Chevron Deference standard established by the Supreme Court in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). As applied by federal courts for the last four decades, the Chevron Deference standard first requires that a court determine whether a statute... Continue Reading...
- Clarifying Contra Non Valentem: The Fifth Circuit Weighs in on Latent-Injury Cases Most litigants in Louisiana know that the usual tort claim has a prescriptive period (i.e., statute of limitation) of one year. This one-year clock begins ticking from the day injury or damage is sustained.[1] But when exactly someone sustains an injury can be a tricky question to answer. If I am unknowingly exposed to a... Continue Reading...
- EPA, Corps Release New WOTUS Rule After Sackett, but More Regulatory Uncertainty for Louisiana and Texas Until Litigation is Resolved The recent U.S. Supreme Court decision in Sackett v. EPA significantly narrows the definition of "waters of the United States" ("WOTUS") as applicable to wetlands and other adjacent bodies of water under the Clean Water Act ("CWA"). By extension, Sackett has broad impacts to wetlands delineation and mitigation requirements for section 404 permits issued by... Continue Reading...
- Defining America's Wetlands: The Supreme Court's Decision in Sackett v. EPA On May 25, 2023, the United States Supreme Court ruled in favor of landowners seeking to build a modest home on "wetlands" in Sackett v. EPA. This ruling represents not only a clarification of a major law relevant to companies seeking to develop land near water bodies, but also a significant limitation on the EPA's... Continue Reading...
