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Key Regulations Under California’s Sustainable Groundwater Management Act Will Be Finalized June 1

April 27, 2016

As controversy abounds over exactly what effect this winter’s El Niño rains have had on the longstanding drought in California, efforts to develop comprehensive state groundwater regulation continue to advance. More

FERC and the Supreme Court, Part Two: Court Decides Hughes v. Talen Energy Marketing, Clarifying Lines Between Federal and State Jurisdiction Over Electric Power Markets

April 27, 2016

As the Supreme Court has recently explained, under the Federal Power Act (“FPA”),[1] “no electricity transaction can proceed unless it is regulable by someone.”[2] The FPA empowers the Federal Energy Regulatory Commission (“FERC”) to oversee “the transmission of electric energy in interstate commer More

U.S. District Court Denies Spotted Frog Injunction

April 20, 2016

The U.S. Fish and Wildlife Service (“USFWS”) issued its Final Rule listing the Oregon Spotted Frog as a “Threatened Species” under the Endangered Species Act (“ESA”) in 2014.[1] A Final Rule designating areas of critical habitat for the Oregon Spotted Frog is expected in spring 2016. More

Supreme Court Evaluates Judicial Review of Clean Water Act Jurisdictional Determinations

April 20, 2016

The current eight members of the Supreme Court recently heard argument in a case regarding whether a party is entitled to judicial review of a jurisdictional determination (“JD”) by the U.S. Army Corps of Engineers (“Corps”). More

Ninth Circuit Upholds Polar Bear Critical Habitat Designated In Alaska and Arctic Waters

March 23, 2016

The Ninth Circuit Court of Appeals has upheld the designation of 187,000 square miles of the Arctic Ocean, the Bering Sea, and Alaska’s northern coast as critical habitat for the polar bear. The designation includes Deadhorse, the hub of Alaska’s North Slope oil and gas industry, and existing North Slope oil fields.[1] U.S. More

FERC at the Supreme Court: Drawing the Line Between Federal and State Jurisdiction Over Electric Power Markets

March 23, 2016

In its current term, the Supreme Court has taken on two cases (one already decided[1] and the other argued on February 24, 2016[2]) involving the increasingly unclear lines between the jurisdiction of state public utility commissions and the Federal Energy Regulatory Commission (“FERC”) over electric power rates and marke More

Oregon Enacts Phase-out of “Coal by Wire” and Doubles Renewable Portfolio Standard

March 15, 2016

Although the U.S. Supreme Court on February 9 stayed the implementation of President Obama’s Clean Power Plan,[1] development of climate policy at the state level has not ceased. More

Not Ready for Roundup™ — The Regulation of Glyphosate Under California’s Proposition 65

March 8, 2016

Last September, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a notice of its intent to list glyphosate as a chemical “known to the state” to cause cancer.[1] Listing glyphosate as a known carcinogen would subject the chemical to new consumer warnings and other requirements under California More

Not Ready for Roundup™ — The Regulation of Glyphosate Under California’s Proposition 65

March 8, 2016

Last September, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a notice of its intent to list glyphosate as a chemical “known to the state” to cause cancer.[1] Listing glyphosate as a known carcinogen would subject the chemical to new consumer warnings and other requirements under California More

Got Mold? A Brief Guide to Liability and Notice Requirements

March 5, 2008

Thousands of mold-related lawsuits have been filed in the United States during the last decade. Prior to 2000, most mold claims were routinely settled for relatively nominal amounts of $5,000 or less. Today, mold claims by commercial developers and homeowners routinely exceed $100,000, and some are resolved for much higher amounts. More

Does the Clean Water Act Regulate Discharges of Pollutants to Hydrologically Connected Groundwater? Federal Courts Disagree

January 27, 2016

The Clean Water Act (“CWA”) prohibits the discharge of pollutants into “waters of the United States”[1] without a valid National Pollutant Discharge Elimination System (“NPDES”) permit.[2] The statute offers notoriously scant guidance as to what “waters of the United States” actually means. More

Supreme Court Evaluates Judicial Review of Clean Water Act Jurisdictional Determinations

April 20, 2016

The current eight members of the Supreme Court recently heard argument in a case regarding whether a party is entitled to judicial review of a jurisdictional determination (“JD”) by the U.S. Army Corps of Engineers (“Corps”). More

The Western Governors’ ESA Initiative

March 8, 2016

The U.S. Congress has not reauthorized the Endangered Species Act since 1992. Despite many attempts to both amend and reauthorize the Act, a 1997 bi-partisan bill introduced by Idaho’s then-Senator Dirk Kempthorne came the closest.[1] More

Oregon Enacts Phase-out of “Coal by Wire” and Doubles Renewable Portfolio Standard

March 15, 2016

Although the U.S. Supreme Court on February 9 stayed the implementation of President Obama’s Clean Power Plan,[1] development of climate policy at the state level has not ceased. More

Water Rights Settlements in Oregon’s Klamath Basin Facing Uncertain Future

February 22, 2016

Oregon’s Klamath Basin has long been known as a hotbed of conflict over water rights, but over the past few years, a series of settlements among a diverse group of stakeholders have been hailed as a model for collaborative conservation. More

Consensus and Conflict in Oregon’s Troubled Waters – a Tale of Four Basins

February 22, 2016

Much has been made of the need to balance protection of species and habitats with consumptive water needs, and the importance of patient collaboration among stakeholders to strike an equitable balance among competing water resource demands. There have been notably mixed results in these endeavors in the state of Oregon in recent months. More