ISSUE: Water Policy Report

Lawyers Warn DOE Loan Office’s Plan To Skip NEPA Raises Legal Risks

Lawyers are warning that a plan from the Energy Department’s (DOE) Loan Programs Office to decline to conduct National Environmental Policy Act (NEPA) reviews for projects that it finances raises substantial legal risks, and that it could ultimately jeopardize some projects that the Trump administration supports. The administrative effort to streamline permitting comes as Trump officials recently reoriented the LPO to include fossil fuel projects rather than focus on low-carbon energy. “There are a number of potential legal risks with...

EPA Resumes Normal Operations After Lengthy Government Shutdown

EPA is resuming its normal operations after President Trump signed a short-term funding bill, ending the 43-day government shutdown that included several aggressive moves by the Trump administration such as threatening to fire staff or withhold back pay from furloughed workers, and the use of “carryover” funds to continue deregulatory activities. The continuing resolution (CR), which Trump signed into law late Nov. 12, will fund EPA at fiscal year 2025 levels until Jan. 30. The CR includes a ban on...

EPA’s Brownfields Office Advancing Criteria To Locate AI Data Centers

EPA’s brownfields office is developing criteria for locating data centers needed for President Trump’s push to bolster artificial intelligence (AI), with agency officials saying upcoming guidance will refrain from pinpointing particular sites while still likely giving weight to areas with access to power and water. The agency’s Office of Brownfields and Land Revitalization, as well as some staff in the newly formed Office of Superfund and Emergency Management (OSEM), is developing criteria “that we’ll use to identify what may be...

Left-Leaning Group Says EPA Grants Ruling Would ‘Astonish’ Framers

A left-leaning group is urging the D.C. Circuit to reverse a lower court’s dismissal of a high-profile challenge to EPA’s freeze of environmental justice (EJ) grants, arguing that the decision would have “astonished the founding generation” because “no tenet was more central to the preservation of liberty than” Congress’ appropriations power. A Nov. 3 amicus brief by the Constitutional Accountability Center (CAC) leans heavily on tactics traditionally used by conservative groups that rely on the positions of the country’s...

EPA Weighs Expanded AI Uses In Response To White House Directive

EPA is considering expanding pilot projects to develop generative artificial intelligence (AI) models for various agency functions to assist and augment the agency’s shrinking staff, according to documents recently released in response to a White House directive that federal agencies explore how the technology can aid “workforce operations.” The documents provide a high-level snapshot of EPA’s progress in adopting AI technologies, including details on its internal structure to oversee the safety of AI uses as well as listing the statutes...

Environmentalists Doubt EPA Claim Of ‘Energy Crisis’ To Justify ELG Delay

Environmental advocacy groups are raising significant doubts over the existence of an “energy crisis” that EPA is using to justify its plan delaying compliance deadlines with Biden-era effluent limits for coal-fired power plants, charging in part the argument is “especially arbitrary” given officials’ efforts to shutter renewable energy projects. Environmental Protection Network (EPN), which represents former agency officials, filed Nov. 3 comments on EPA’s proposal to extend compliance deadlines in the Biden-era rule establishing tough effluent limitation guidelines (ELGs) for...

Groups Seek To Apply CWA Permit Case To 401 Certification Conditions

Groups representing wastewater plants are arguing that a discharge permit for a San Diego, CA, plant conflicts with a recent Supreme Court holding that EPA cannot set Clean Water Act (CWA) permit restrictions that achieve an “end result” in receiving waters, seeking to apply the high court’s precedent to CWA section 401 certifications. The National Association of Clean Water Agencies (NACWA) and the California Association of Sanitation Agencies (CASA) outline their arguments in Oct. 13 joint comments on proposed revisions...

OMB Completes Review Of EPA’s WOTUS Proposal, Teeing Up Release

The White House Office of Management and Budget (OMB) has completed its review of EPA’s draft proposal that seeks to revise the Biden-era “waters of the United States” (WOTUS) rule to align with the Supreme Court’s decision in Sackett v. EPA , a plan expected to narrow the scope of waters subject to federal Clean Water Act (CWA) protections. OMB finished review of EPA’s proposed WOTUS rule on Nov. 7, teeing the measure up for release. The agency’s plan is...

New York’s Hochul Grants CWA Permit For Controversial Gas Pipeline

New York Gov. Kathy Hochul (D) is granting a Clean Water Act (CWA) section 401 water quality certification for a controversial natural gas pipeline amid pressure from the Trump administration, a move that is almost certain to draw legal challenges from environmentalists and help justify EPA plans to narrow states’ authority on such reviews. The New York State Department of Environmental Conservation (DEC) on Nov. 7 announced its approval of required permits, including a CWA section 401 certification, for Transcontinental...

Rejecting Industry, 4th Circuit Backs Novel Standing Test In Monitoring Suit

The 4th Circuit is rejecting industry defendant and business groups’ petition to rehear a landmark panel ruling that plaintiffs in a class action suit seeking medical monitoring for ethylene oxide (EtO) exposures satisfied Article III injury and standing when citing past exposures. The U.S. Court of Appeals for the 4th Circuit issued a Nov. 4 order denying industry defendants’ petition for rehearing en banc in the suit Lee Ann Sommerville v. Union Carbide Corp,; Covestro LLC , simply saying...

EPA Sends CWA 401 Rule Revisions To OMB For Interagency Review

EPA has sent to the White House Office of Management and Budget (OMB) for review its proposed rule that would revise the Biden administration’s Clean Water Act (CWA) section 401 water quality certification rule, a measure that would narrow the scope of states’ certification and provide clarity given regulatory uncertainty with the 2023 rule. EPA’s sent its proposed CWA 401 certification rule to OMB on Nov. 5, and the agency’s Unified Agenda details plans to issue the proposal sometime in...

Utilities Press EPA To Boost WIFIA Support Amid Loan-Closure Slowdown

A coalition of wastewater and drinking water groups is urging EPA to boost its support for its Water Infrastructure and Innovation Act (WIFIA) loan program given key financial aid it provides for water infrastructure projects amid fears over significant slowdowns in WIFIA loan closings over the past year. Led by the Water Environment Federation, the groups sent an Oct. 27 letter to EPA Administrator Lee Zeldin, urging EPA to “continue growing this important source of financing for locally- and regionally-...

Georgia Plaintiffs Seek To Consolidate PFAS Suits Amid Judge’s Doubts

Georgia citizens and environmentalists are urging a federal district court to consolidate their respective PFAS contamination suits against utility and industry defendants, arguing that their cases are largely similar and consolidation would save judicial resources, but the judge has previously signaled her skepticism at such efforts. The pair of suits , pending in the U.S. District Court for the Northern District of Georgia, test whether the Superfund law or the Clean Water Act (CWA) should govern the cleanup of land...

Environmentalists Reassess NEPA Strategy After String Of Court Losses

Environmentalists are reassessing their strategy when bringing new cases under National Environmental Policy Act (NEPA) following mounting court losses in the wake of the Supreme Court’s landmark Seven County ruling bolstering agency deference and narrowing the scope of reviews. Environmentalists say they are still determining how best to move forward while conceding that they can no longer bring cases alleging that broad downstream climate impacts must be considered in NEPA reviews. “We’re more cautious about the litigation we’re bringing...

FERC Faces Suit Over Gas Pipeline As New York Weighs 401 Certification

Environmental and nonprofit groups are suing the Federal Energy Regulatory Commission (FERC) over its August reissuance of a certificate approving a natural gas pipeline in New York and New Jersey, the latest challenge to the project as New York officials weigh whether to grant a high-profile Clean Water Act (CWA) section 401 certification. Groups filed an Oct. 30 joint petition for review to the U.S. Court of Appeals for the District of Columbia Circuit, urging the court to review and...

Lawyers See More Legal Uncertainty Amid Aggressive Push To Ease NEPA

Attorneys are expecting continued uncertainty and delays regarding National Environmental Policy Act (NEPA) reviews amidst the Trump administration’s aggressive push to streamline them, arguing that the blizzard of policy changes combined with federal agency staff cuts is heightening complications. “I wish that [executive branch NEPA reform] was being done . . . in a more, maybe, thoughtful way,” said Andrea Driggs, a partner at Holland & Hart, during an Oct. 24 event hosted by the American Bar Association (ABA). Driggs,...

Corps Approves First 404 Permit On Expedited Track, Spurring Warnings

The U.S. Army Corps of Engineers has issued a Clean Water Act (CWA) section 404 dredge-and-fill permit for rerouting portions of the controversial Line 5 oil pipeline in Wisconsin, the first such permit issued under the expedited process created by President Trump’s energy “emergency” executive order (EO), though environmentalists are warning of legal challenges. The Corps on Oct. 29 issued a CWA section 404 permit to Enbridge, Inc., for construction-related effects to federally regulated waters for its Line 5 reroute...

Group Disputes Chemours’ Charge Of Broad Impact From PFAS Injunction

Environmentalists are urging the 4th Circuit to preserve a lower court injunction that requires chemical manufacturer Chemours to comply with its PFAS permit limits when discharging into the Ohio River, pushing back on the defendants’ argument that the Clean Water Act (CWA) allows plaintiffs to obtain injunctive relief automatically for every violation. “Chemours insists that the district court improperly assumed that a CWA permit violation automatically establishes sufficient harm for standing,” West Virginia Rivers Coalition (WVRC) says in an Oct...

Environmentalists Find LNG Terminals Repeatedly Violated Air, Water Limits

Update appended The Environmental Integrity Project (EIP) is outlining claims that all seven liquified natural gas (LNG) export terminals operating in the country last year violated their Clean Air Act (CAA) permits, and that five of the facilities violated their Clean Water Act (CWA) permits. The findings , released Oct. 29, are prompting environmentalists to urge EPA and state agencies to step up enforcement and to more closely scrutinize planned expansions of the facilities or new terminals in the...

Judge Extends Block On Shutdown Firings, Citing ‘Political Retribution’

A federal judge has extended a block on reductions in force (RIFs) at EPA and other agencies during the government shutdown, saying unions are likely correct that the Trump administration’s firing plans are illegally haphazard, politically motivated and based on the false notion that the shutdown allows for the elimination of statutorily required functions. The order means that EPA must not conduct planned firings in the waste and chemical offices -- in addition to any other RIF plans that may...

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