President Trump’s SCOTUS Nominee, Judge Neil Gorsuch, Suggests a Weakening of the Chevron Doctrine With Less Deference to Rulemaking Efforts from EPA, DOI and Other Federal Agencies

On January 31, President Donald Trump selected Judge Neil Gorsuch as his nomination for the United States Supreme Court seat left open by the death of Justice Antonin Scalia nearly a year ago. From an environmental law perspective, it is most notable that the decisions penned by Judge Gorsuch have called for the reassessment and potential revocation of Chevron deference to agency interpretation of its own statutes, a doctrine Justice Scalia championed in his early days before exhibiting a degree of flexibility about it later in his tenure on the bench. Because most environmental regulations...

Reflections from Acting Chairman Cheryl LaFleur: A Look at FERC in its Final Days of a Quorum and in the Upcoming Non-Quorum Period

Earlier today, Acting Chairman Cheryl LaFleur participated in a podcast to provide some initial guidance about how the Federal Energy Regulatory Commission (“FERC” or the “Commission”) will operate in the final days of a quorum and during the upcoming non-quorum period, in light of Commissioner Norman Bay’s pending departure in early February. [1] Among other things, Chairman LaFleur says FERC is working on a potential expansion of Staff’s delegated authority during the period of non-quorum, drawing from the experiences of other agencies during similar periods of non-quorum. We expect there...

President Trump Directs Federal Agencies to Solicit Input from the Manufacturing Sector on Streamlined Permitting and the Reduction of Regulatory Burdens

In his first week in office, President Trump has signed several Presidential Memoranda and Executive Orders aimed at encouraging domestic infrastructure development. Many of these executive actions direct federal agencies to adhere to a pair of central tenets, i.e., expedited review for high priority infrastructure projects and the use of U.S. materials and equipment. The “Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing” signed on January 24, 2017, expands on these themes and directs federal agencies to undertake a notice and comment...

In Line With Recent Precedent, Trump Administration Directs Federal Agencies to Halt New Regulations

As expected, one of President Trump’s first actions after being sworn in to office was to issue a memorandum outlining his administration’s plans for managing new or pending federal regulations. As shown in the Table below, the memorandum from President Trump’s Chief of Staff, Reince Priebus, to the heads of executive departments and agencies falls generally in line with the initial actions of several recent new Presidents, from Reagan to Obama. With a goal of allowing those in the Trump Administration an opportunity to review midnight regulations, the memorandum orders federal agencies to,...

PHMSA Proposes Plans to Revise Volatility Standard for the Transport of Crude Oil

Today, PHMSA released an advanced notice of proposed rulemaking (ANPRM), announcing that it is considering revising the Hazardous Materials Regulations (HMR) to establish vapor pressure limits for the transportation of crude oil and potentially all Class 3 flammable liquid hazardous materials. The ANPRM is in response to a petition for rulemaking from the New York Attorney General that requested PHMSA establish a nationwide vapor pressure standard for the transportation of crude oil by rail. Going beyond the scope of the NY AG’s petition, the ANPRM asks stakeholders whether any future...

Federal Court Sets Timeline for EPA to Reconsider Regulation of Oil and Gas Waste Under RCRA

In yet another example of the U.S. Environmental Protection Agency (EPA’s) “sue and settle” approach to regulation, in late December 2016, EPA entered into a Consent Decree with an environmental group and agreed to reconsider the Agency’s current treatment of oil and gas wastes under the federal Resource Conservation and Recovery Act (RCRA). See Consent Decree, Civil Action No. 16-842. With the D.C. District Court’s approval of this Consent Decree, EPA is now bound to a court-imposed timeline for determining (1) how oil and gas wastes should be regulated under RCRA Subtitle D; and (2) whether...

Renewable Energy Tax Incentives – Potential Clues To An Uncertain Future

BACKGROUND After President Obama was sworn into office, the renewable energy industry saw a boom in temporary tax incentives with the passage of the American Recovery and Reinvestment Tax Act of 2009. Almost 8 years later, the fate of renewable energy tax incentives under the Trump administration is uncertain. Trump’s transition team, his advisors, and President-Elect Trump have given mixed signals on their views on tax incentives for renewable energy. While some advisors have indicated that the credits will remain in place, others have called for a full repeal. Trump himself has reportedly...

Strategies to Survive and Thrive in a Low Oil Price Environment

Adapting business strategies to navigate a prolonged period of lower oil and gas prices is a challenge that many companies throughout the Middle East and wider world are currently facing up to. While surviving such a volatile commodity cycle is the main priority for some, other corporates are using sub $50 a barrel oil as an opportunity to innovate and recalibrate their businesses. This was certainly the key takeaway from the recently held Abu Dhabi International Petroleum Exhibition and Conference (ADIPEC), where the overall mood amongst major companies at the industry symposium was upbeat...

EPA Seeks to Require Natural Gas Processing Facilities to Annually Report Emissions to National Database; A Classic Example of Sue and Settle

If the current EPA has its way, natural gas processing facilities will soon be required to report release and waste management data in accordance with Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), otherwise known as the Toxics Release Inventory (TRI). On January 6, 2017, EPA published in the federal register a proposal to add natural gas processors to the list of industries that are subject to TRI annual reporting. EPA’s decision arose out of an Administrative Procedure Act (APA) petition filed by an environmental group in 2012 and is a classic example of the...

Down to the Wire, the U.S. Army Corps of Engineers Reissues Nationwide Permits

On January 6, 2017, the U.S. Army Corps of Engineers (“Corps”) published the final rule reissuing 50 nationwide permits (“NWPs”) and issuing two new NWPs. The NWPs will take effect on March 19, 2017, and will replace the existing NWPs that are set to expire on March 18, 2017 (“2012 NWPs”). States and industry groups had previously expressed concern that if the NWPs were not finalized in early January, there would be inadequate time for mandatory state coordination under Section 401 of the Clean Water Act and the coastal consistency provisions of the Coastal Zone Management Act, resulting in...

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