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On May 1, President Trump signed an executive order on “Securing the United States Bulk-Power System” (the “Order”) that gives the Department of Energy new authorities under the International Emergency Economic Powers Act to block or mitigate certain transactions involving bulk-power system electric equipment designed, developed, manufactured or supplied by a “foreign adversary.”  The Order declares a national emergency with respect to “the unrestricted foreign supply of bulk-power system electric equipment” and asserts federal oversight over private utility purchases of certain equipment from suppliers deemed to be controlled or influenced by foreign adversaries.
Continue Reading President Signs Executive Order on Securing Bulk Power System Equipment

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.
Continue Reading SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

The wheels continue to turn with the National Highway Traffic Safety Administration’s (“NHTSA”) efforts to modernize vehicle safety standards, including for connected and automated vehicles (“CAVs”).  Most recently, NHTSA issued a Notice of Proposed Rulemaking (“NPRM”), seeking public comment on its endeavors “to improve safety and update rules that no longer make sense” for certain CAVs, “such as requiring manual driving controls on autonomous vehicles.”  According to NHTSA, the NPRM is a “[h]istoric first step for the agency to remove unnecessary barriers to motor vehicles equipped with automated driving systems” (“ADS”).
Continue Reading IoT Update: NHTSA Continues to Ramp Up Exploration of Automated Driving Technologies

EPA on February 28 released a web portal containing links to “all of EPA’s active guidance documents,” as required by last year’s Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” In total, EPA’s portal contains over 9,100 guidance documents, from EPA’s various Headquarters offices and each of its 10 Regions. EPA also notes that it withdrew a number of guidance documents “that were determined to be no longer relevant,” but has not provided a listing of such documents.
Continue Reading EPA Releases Comprehensive Guidance Database, With Significant Ramifications for Auer Deference

This month, situated among foldable tablet computers and flying taxis, the U.S. Secretary for Transportation, Elaine Chao, unveiled at the Consumer Electronics Show (“CES”) the U.S. Department of Transportation’s (“DOT”) long-anticipated fourth round of automated vehicles guidance, “AV 4.0.”  Formally entitled, “Ensuring American Leadership in Automated Vehicle Technologies,” AV 4.0 is less regulatory guidance and more regulatory aggregator.  The document lists in great detail the various Administration efforts—across 38 federal departments and agencies—geared toward promoting, supporting, and providing accountability for users and communities with respect to autonomous mobility.
Continue Reading IoT Update: DOT Introduces Fourth Round of Automated Vehicles Guidance (AV 4.0)

On December 20, 2019, the Supreme Court of the Netherlands confirmed the judgements of a District Court and an Appeal Court requiring the Dutch Government to achieve a reduction of greenhouse gas (“GHG”) emissions of 25% by 2020 compared to 1990, instead of the 20% reduction that the government had envisioned since 2011. The case was brought by the Urgenda Foundation — a Dutch NGO — and has resulted in a landmark decision that may influence climate change litigation in other countries across Europe, such as the lawsuit filed by NGOs in Germany on January 15, 2020.
Continue Reading The Dutch Supreme Court holds that the Netherlands Has a Human Rights Obligation to Mitigate Climate Change: The Urgenda Case

Electronic devices and their components marketed in the European Union and European Economic Area are subject to a morass of environmental and product safety requirements that is only likely to increase with the EU’s implementation of its Circular Economy Strategy in the near future.  The requirements apply to all types of equipment, from sophisticated information technology equipment, to military equipment, aircraft components, electronic medical devices, household electronics, consumer devices, and industrial tools.
Continue Reading Environmental and Safety Requirements Affecting the Marketing of Electronic Devices and their Components in the European Union and European Economic Area

Companies seeking approval for pipelines got some encouraging news from a Trump Administration proposal to cut back on states’ authority to block pipelines by withholding state water quality approvals, but environmentalists and states continue to express skepticism and are likely to sue. On August 22, the EPA proposed its Updating Regulations on Water Quality Certification  (“Proposed Rule”) to replace and update the existing water quality certification process under Section 401 of the Clean Water Act (“CWA”). The EPA’s Proposed Rule comes in response to Executive Order 13868, Promoting Energy Infrastructure and Economic Growth, issued on April 10, 2019 to “reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.” To ensure “the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce,” the Administration directed the EPA to update Section 401 for purposes of achieving a more “efficient permitting process.”
Continue Reading The Environmental Protection Agency’s (EPA) Proposed Changes to State and Tribal Certification Authority under Clean Water Act Section 401

The Supreme Court’s much-awaited decision in Kisor v. Wilkie will have significant ramifications for the Environmental Protection Agency (“EPA”) and environmental law.  While the decision upheld the concept of Auer deference, which instructs courts to defer to agencies’ interpretations of their own regulations, it also imposed a number of limitations and restrictions on when Auer deference applies.  The decision leaves open many questions about what EPA guidance will qualify for Auer deference, and whether any statements that do qualify for deference are subject to immediate challenge as final agency action.  The decision thus presents opportunities for regulated parties to challenge EPA interpretations, but also challenges in that regulated parties may not necessarily rely on EPA’s interpretations as controlling.
Continue Reading Kisor v. Wilkie Creates Significant Uncertainties Regarding Deference to EPA

The Supreme Court’s June 24 decision in Food Marketing Institute v. Argus Leader Media has significantly expanded the confidential commercial information protected from disclosure under the Freedom of Information Act (“FOIA”)—an issue that recurs repeatedly with respect to information submitted to EPA and other environmental regulatory agencies. 
Continue Reading Supreme Court Decision Expands Scope of FOIA’s Exemption for Confidential Information, with Significant Implications for EPA