Environmental Law Matters Blog | Burr & Forman LLP

Eleventh Circuit Rejects Environmental Groups’ Effort to Challenge Alabama NPDES Permitting Program Authority

Schuyler K. Espy — Thu, 12 Sep 2019 09:00:01 -0400

The Alabama Department of Environmental Management can finally breathe a sigh of relief, as the Court of Appeals for the Eleventh Circuit issued an opinion today affirming the U.S. EPA’s January 11, 2017 decision not to commence proceedings to withdraw the State’s NPDES permitting program authority and ending nearly a decade of uncertainty for the agency.

The process began in January 2010, when several environmental groups filed a petition with EPA alleging twenty-six grounds for withdrawal of Alabama’s program authorization. EPA issued an interim response to the ...

EPA Speaks On Groundwater Permitting Issue

Schuyler K. Espy — Wed, 17 Apr 2019 09:00:02 -0400

On April 15, 2019, the U.S. Environmental Protection Agency (“EPA”) released a much-anticipated Interpretative Statement on Releases of Pollutants from Point Sources to Groundwater. Last February, EPA received public comments on whether the Agency should revise or clarify its position on whether National Pollutant Discharge Elimination System permits are required for releases of pollutants to groundwater. Since then, both regulators and the regulated have been waiting to see how EPA would respond. EPA’s Statement concludes “releases of pollutants to groundwater ...

EPA Administrator Nomination Confirmed by Senate While EPA Defends Recent Analysis Showing Decline in Enforcement

Mon, 04 Mar 2019 09:00:03 -0500

The Senate narrowly confirmed Andrew Wheeler as Administrator of the Environmental Protection Agency on Thursday, February 28, 2019, by a vote of 52-47. No Democrats supported the nomination and one Republican also opposed. (The Hill). Interestingly, Senator Joe Manchin (D-W.Va.) voted against Wheeler after having been the only Democrat to support his earlier nomination as Deputy Administrator. Manchin explained that Wheeler has not demonstrated a desire or will to make progress in standards for drinking water and has worked to roll back certain clean air standards, both of ...

SCOTUS Will Decide Scope of Clean Water Act Jurisdiction

Schuyler K. Espy — Wed, 20 Feb 2019 09:00:04 -0500

On February 19, 2019, the Supreme Court of the United States issued an order granting review of the Ninth Circuit’s decision in County of Maui v. Hawaii Wildlife Fund, setting the stage for a landmark decision on Clean Water Act jurisdiction. The particular issue under consideration is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. In January, the U.S. Solicitor General filed a brief – at the Court’s request – urging the Justices to decide the question ...

EPA Enforcement Actions Down Substantially

Mon, 04 Feb 2019 09:00:05 -0500

EPA enforcement actions as reflected by the amount of assessed civil penalties have dropped substantially during the first two years of the Trump Administration. (Washington Post, January 24). According to an analysis reported there, EPA's civil fines averaged more than $500 million a year when adjusted for inflation during the twenty years prior to the beginning of the Trump Administration. The total for 2018 was approximately 85% below that amount. This continues but expands a trend initiated in 2017 when penalty amounts apparently dropped by half (Reuters, 2/15/2018

Solicitor General Urges SCOTUS to Resolve Groundwater Circuit Split

Schuyler K. Espy — Fri, 11 Jan 2019 09:00:06 -0500

On January 3, 2019, the U.S. Solicitor General filed a brief urging the Supreme Court to grant certiorari in County of Maui v. Hawaii Wildlife Fund to decide the question of whether a "discharge of a pollutant occurs when a pollutant is released through a point source, travels through groundwater, and ultimately migrates to navigable waters." The brief suggests review is warranted to resolve the issue conflicting with the Fourth, Sixth, and Ninth Circuits, as well as the "numerous district courts" that have confronted cases involving claims of unpermitted discharges to waters of the ...

EPA Proposes Revising Mercury and Air Toxics Standards for Power Plants

Tue, 08 Jan 2019 09:00:07 -0500

On December 27, EPA proposed to revise the cost finding associated with the Mercury and Air Toxics Standards (MATS) along with the risk and technology review required by the Clean Air Act. (EPA Announcement). The action is taken as a result of a 2015 Supreme Court decision, Michigan v. EPA. The case involved EPA's interpretation of a section of the Clean Air Act (42 U.S.C. §7412(n)(1)(A)), which requires the agency to regulate power plants when "appropriate and necessary," The Court held that the agency had interpreted the provision unreasonably when it deemed cost irrelevant to the ...