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Predicting How a “Justice” Gorsuch Would Impact Environmental Law

April 3, 2017

Judge Neil Gorsuch of the Tenth Circuit is presently being considered by the U.S. Senate for confirmation of his appointment to the U.S. Supreme Court. Appointed by President Trump shortly after taking office, Judge Gorsuch would take the now long-vacant seat formerly held by Justice Antonin Scalia. More

Emerging Contaminants Cause Regulatory Uncertainty for Water Suppliers and Landowners

March 9, 2017

Water suppliers and landowners are increasingly contending with a new generation of persistent contaminants, particularly perflourinated compounds. Perfluorinated compounds are chemicals that have historically been used in a variety of industrial and consumer products. They are now found worldwide in the environment, wildlife, and even humans. More

Predicting the Future of the Future: ESA, Climate Change, and the Evolving Contours of “Best Available Science”

January 17, 2017

Recent cases involving imperiled species present interesting case studies of the tensions inherent in the Endangered Species Act [ESA] in dealing with science, uncertainty, and the politics of climate change. The first of these cases addresses the ESA listing of the wolverine; the second, of the Beringia bearded seal. More

EPA Issues Proposed Rule Requiring Financial Responsibility Requirements for Hardrock Mining Industry

January 9, 2017

Under a proposed Superfund regulation set to be published in the Federal Register any day, the Environmental Protection Agency (EPA) would require hardrock mines[1] to provide a financial guarantee covering estimated future cleanup costs at their facilities. More

Trumping Obama’s Interior Department

December 5, 2016

President-elect Donald J. Trump made clear on the campaign trail that he intends to roll back regulations affecting domestic oil and gas and coal production on public lands. More

The Legacy of Sackett v. EPA: Supreme Court Allows Challenges to Wetland Jurisdictional Determinations under the Clean Water Act in U.S. Army Corps of Engineers v. Hawkes Co.

November 28, 2016

In March 2016, the U.S. Supreme Court decided in United States Army Corps of Engineers v. Hawkes Co., Inc. (“Hawkes”),[1] that a party is entitled to judicial review of an approved jurisdictional determination (“JD”) by the U.S. Army Corps of Engineers (“Corps”). More

Recent California Supreme Court Decision Shakes Up Analysis of Modified Projects Under CEQA

November 7, 2016

The California Supreme Court’s most recent California Environmental Quality Act decision has produced a flurry of debate among commentators. Friends of the College of San Mateo Gardens v. San Mateo County Community College District, __ Cal. 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