• Posts by William L. Penny
    Bill Penny
    Partner

    As the chair of the firm’s Environmental Group, Bill Penny has a wide range of experience at the state and federal levels, including natural resource law, mining, remediation, negotiation with regulatory agencies in ...

On December 30, 2022, EPA and the U.S. Army Corps of Engineers (Corps) (together the Agencies) issued a prepublication version of the latest definition of Waters of the United States (WOTUS). It will become effective when published in the Federal Register in 60 days. The Preamble to the new Rule describes a somewhat monumental comment period, including a review of more than 120,000 comments and listening sessions with various groups, and virtual calls with state governments. Yet, after all of that, the Agencies decided that what they had been doing for the past 45 years was quite fine ...

On June 29, 2022, the U.S. Supreme Court ruled that an arcane portion of the Clean Air Act (“CAA”), infrequently used by the EPA, could not serve as appropriate delegation of legislative authority to regulate greenhouse gas. West Virginia v. EPA (No. 20-1530, June 2022). In the 6-3 decision, the Court found the EPA had no congressional authority to require the United States power sector to reallocate its power generation from existing power plants to newer cleaner sources of energy, such as wind, solar and natural gas, to achieve “best system of emission reduction (“BSER).” ...

Posted in: Climate Change

The U.S. Department of Justice issued new guidelines on May 5, 2022, for supplemental environmental projects (SEPs) as part of a settlement in civil matters. The Trump administration halted nearly all SEPs in 2017 because of the concern that settlements involving payments to third parties were not reasonably related to the violation, and were a tool for third parties to obtain funding and other benefits they could not get but for the SEP. In 2020, Attorney General Barr clarified the policy by saying payments to non-governmental third-parties “if properly structured,” do not ...

On January 23, 2020, the Environmental Protection Agency and the United States Army Corps of Engineers (the “Agencies”) issued the “Navigable Waters Protection Rule” as the latest attempt to define the phrase “waters of the United States” (“WOTUS”) in the Clean Water Act.  The rule, also referred to as the “Replacement Rule,” will be effective sixty (60) days after its publication in the Federal Register.  The Replacement Rule is the second step of a two-step process identified by the Agencies to address the Obama administration’s much litigated 2015 Rule, or ...

Posted in: EPA

The commissioners of the Tennessee Department of Environment and Conservation (TDEC) and the Tennessee Department of Agriculture (TDA) recently responded to EPA Administrator Scott Pruitt's request to States for comments regarding the definition of waters of the United States (WOTUS). In particular, the Administrator sought input as to how to define "relatively permanent" waters and "wetlands with continuous surface connections" consistent with the Plurality Opinion by Justice Scalia in Rapanos v. U.S. The request by Administrator Pruitt is consistent with President ...

Posted in: EPA, Tennessee

The Tennessee Department of Environment and Conservation ("TDEC") is soliciting comments on its new Antidegradation Guidance Document. The document, dated July 19, 2016, was made public January 5, 2016. TDEC is requesting comments by February 17, 2016. The Guidance Document was prepared by a Massachusetts company, Industrial Economics, Incorporated.

The Guidance Document is not developed or promulgated by the Board of Water Quality, Oil and Gas ("Board"), which is the entity charged with establishing rules governing water quality standards. The Board promulgated the ...

EPA is increasing civil penalties for all statutes it administers that call for the assessment of civil penalties. These increases are not recommendations or proposed statutory amendments, but are the result of perhaps the little known 2015 amendment to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended through 2015 ("the 2015 Act"). This Act applies to all federal agencies that have authority to assess civil penalties and not just EPA. EPA's interim final rule adjusting the level of statutory civil monetary penalties was issued June 23, 2016. It will be ...

Can you appeal a U.S. Army Corps of Engineers' jurisdictional determination ("JD") that a water feature constitutes waters of the United States? The Administrative Procedures Act allows such an appeal if it is determined that no further action is available in court. However, the Corps has historically taken the position that its jurisdictional determination is not appealable and it is only when a permit is denied that one can challenge the jurisdictional determination. On December 11, 2015, the Supreme Court granted certiorari in United States Army Corps of Engineers v. Hawkes ...

The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the controversial EPA/Corps of Engineers Clean Water Rule which was effective August 28, 2015. A copy of the decision is HERE. Some 30 states, industry and environmental groups had petitions pending in a number of circuit courts and all were consolidated in the Sixth Circuit. In what appears to be an interesting ruling, the three judge panel essentially expressed a desire to have the rule fully litigated before enforcing it. According to the Court:

A stay temporarily silences the whirlwind of confusion that ...

Today, the State of Tennessee joined in one of the many lawsuits filed by States challenging the EPA and Corps of Engineers Final Rule that defines of Waters of the United States under the federal Clean Water Act. See prior blog post on July 2, 2015. The federal agencies stated in their Final Rule that they had actually narrowed the definition but most agricultural and industry groups believe the Final Rule will do the opposite. Tennessee joined the lawsuit already filed in the United States District Court of Ohio by the States of Ohio and Michigan. Tennessee's foray into the litigation ...
The Environmental Protection Agency ("EPA") and U.S. Army Corps of Engineers ("Corps") published their Final Rule defining "waters of the United States" on June 29, 2015. The rule becomes effective on August 28, 2015. The rule was pre-published on May 27, 2015 by EPA and the Corps (the "Agencies"), and it has already received unprecedented attention. The Clean Water Act's jurisdiction relates to "navigable waters" which is defined by Congress only as "Waters of the United States or the territorial seas." This vague definition has created substantial confusion to ...
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