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Newsletter Articles

APA: The Scorecard So Far on the Supreme Court’s Sackett Decision

June 24, 2013

Just over a year ago, the U.S. Supreme Court decided Sackett v. EPA,[1] which struck down the ban on “pre-enforcement review” of EPA orders issued under the Clean Water Act (“CWA”). More

Clean Water Act: EPA Has After-The-Fact Veto Authority Over Corps of Engineers’ Water Quality Permit

June 21, 2013

A three-judge panel of the D.C. Circuit Court of Appeals, reversing a lower court, has held for the first time that EPA has express authority under the Clean Water Act (CWA)[1] to veto a Section 404 dredge and fill permit that the U.S. Army Corps of Engineers (Corps) had issued years earlier. More

Clean Air Act: EPA Proposes to Update Performance Standards for Kraft Pulp Mills

June 13, 2013

The Environmental Protection Agency has proposed an update to the new source performance standard (“NSPS”) applicable to the approximately 100 kraft pulp mills operating in the United States.[1] The proposed rule would set more stringent emissions standards for chemical recovery combustion sources at the mills that are constructed, modified or reconstructed More

Clean Water Act: Sixth Circuit to Decide Whether NPDES General Permit Shields Wastewater Dischargers from Suits for Pollutants Not Specifically Identified

June 13, 2013

An appeal before the Sixth Circuit, Sierra Club v. ICG Hazard, addresses whether an entity in compliance with a general permit under the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) program may yet be subject to a citizen suit or enforcement action for discharges of any pollutants that are not explicitly covered by the permit. More

Stricter Water Quality Standards for Temperature May Be Coming to Oregon

May 23, 2013

After rejecting revisions to Oregon’s water quality standards last year, a federal court has now approved two related settlements reached among EPA, the Oregon Department of Environmental Quality (ODEQ), and an environmental group that effectively amend the existing standards. More

Ninth Circuit Chides Agencies for Using Consent Decree to Circumvent Rulemaking

May 23, 2013

A recent Ninth Circuit decision calls into question the government’s practice of using consent decrees in a judicial proceeding to set policy for parties nationwide in environmental matters. In Conservation Northwest v. Sherman (Conservation Northwest II), No. 11-35729, 2013 WL 1760807 (9th Cir. Apr. More

Proposition 65 – Will California’s Toxics Warning Law Finally Be Reined in?

May 16, 2013

Over 25 years ago, voters in the State of California approved a relatively obscure ballot initiative known as the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as “Proposition 65.”[1] At the time, both advocates and opponents of the initiative described it primarily as an environmental protection law, aimed at preventing the discharge More

Private California Enforcement Groups Target Flame Retardants in Furniture, Mattresses, and Related Products

May 16, 2013

In the last several months, private enforcement groups have sent a number of notices alleging violation of Proposition 65 in connection with a range of furniture and other products incorporating foam cushioning materials.[1] The notices specifically allege that use of these products will result in exposures to certain chemical flame retardants (Tris (1,3 More