Key Contacts
Practice Areas
Supreme Court Decisions
The past year was a busy one for followers of decisions by the United States Supreme Court that impact environmental and energy laws and policies, and the current session has already provided, and is likely to continue to provide, more opinions of significance.
Sheetz v. County of El Dorado, California
On April 12, 2024, in Sheetz v. County of El Dorado, California, 601 U.S. 267, 144 S.Ct. 893, 218 L.Ed.2d 224 (2024), the Supreme Court unanimously held that county-level legislation that imposes conditions on the issuance of building permits may amount to a taking under the Constitution’s Fifth Amendment when the conditions do not have an “essential nexus” to the government’s land use interest and a “rough proportionality” to the proposed development’s impact on that interest. In the case at bar, the issue was traffic impact fees, but the ruling is applicable well beyond that scope. For example, a court in New York recently invalidated a zoning requirement that conditioned conversion of certain properties from mixed use to residential ones on payment of a fee into an Arts Fund. Thus, we are likely to see similar challenges to various environmental impact and stormwater fees.
Ohio, et al. v. Env’t Prot. Agency
In a 5-4 decision, a divided Supreme Court stayed the enforcement of the EPA’s Federal Implementation Plan (FIP) to effectuate the Clean Air Act’s good neighbor provision, holding that it was likely the Petitioners would prevail on the merits as EPA’s failure to reasonably explain the emission control measures set to be used in upwind states to improve ozone levels in downwind states rendered the FIP arbitrary and capricious. Ohio et al. v. Env’t Prot. Agency, 603 U.S. 279, 144 S. Ct. 2040, 219 L. Ed. 2d 772 (2024). The Court reasoned that EPA’s FIP rested on the assumption that all upwind states would adopt emission-reduction measures to ensure effective downwind air quality improvements. EPA, however, failed to reasonably explain if the FIP would be operable if some upwind states fell out of the plan. Although the ruling only stayed enforcement of the FIP, particularly in light of the incoming administration’s intention to reduce regulatory burdens, it is unlikely that the FIP will survive further review.
Loper Bright Enterprises v. Raimondo
On June 28, 2024, the United States Supreme Court decided Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2247, 219 L. Ed. 2d 832 (2024), overruling Chevron U.S.A., Inc. v. Natural Resources Defense Council to the extent that the earlier decision had instructed federal courts to defer to agencies’ reasonable interpretations of ambiguous statutes. In the 6-3 decision, the Court’s conservative majority interpreted the Administrative Procedure Act to foreclose such deference. Thus, for example, in United States Sugar Corp. v. Env't Prot. Agency, 113 F.4th 984, 1002 (D.C. Cir. 2024), the Court partially set aside a 2022 rule promulgated under the Clean Air Act, relying on Loper Bright to hold that EPA misinterpreted the Clean Air Act’s definition of “new source.”
Corner Post, Inc. v. Board of Governors of the Federal Reserve System
While the Court in Loper Bright stated that its decision did not necessarily “call into question prior cases that relied on the Chevron framework,” the ruling in Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 144 S. Ct. 2440, 219 L. Ed. 2d 1139 (2024) effectively did just that. In Corner Post, the Supreme Court held that the six-year statute of limitations for challenging a final agency action under the Administrative Procedure Act runs not from the time of the action but instead when the plaintiff first suffers harm. Thus, the Court allowed a 2018 facial challenge to a 2011 rule because the plaintiff was not subject to the rule (and in fact didn’t even exist) when the rule was promulgated. Practically speaking, this allows agency rules to be facially challenged at almost any time as long as there is a party who was only affected by it within the preceding six years.
SEC v. Jarkesy
In SEC v. Jarkesy, 144 S. Ct. 2117, 219 L. Ed. 2d 650 (2024), the United States Supreme Court held that the SEC’s imposition of civil penalties administered to punish or deter conduct entitled the defendant to a jury trial under the Seventh Amendment, upholding a decision from the Fifth Circuit that vacated a decision by an administrative law judge imposing a $300,000 penalty for certain SEC violations. As Jarkesy relied in part on a 1987 case in which the Court found a right to a jury trial for certain civil penalties under the Clean Water Act, Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365, it can reasonably be expected that this decision will have similar implications for other penalties assessed under other environmental laws.
Cases to be Decided – 2024-25 Term
City and County of San Francisco v. Environmental Protection Agency (No. 23-753)
The issue presented in City and County of San Francisco is whether the Clean Water Act allows imposition of generic prohibitions in NPDES permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform. In the permit at issue, San Francisco is prohibited from discharges that “cause or contribute” to pollution in the ocean. The Supreme Court heard oral argument on the case on October 16, 2024. Based on questioning at argument and the conservative composition of the Court, the narrative limitations may be invalidated, possibly on the ground that they are too ambiguous to give regulated parties notice of conduct that would lead to a violation.
Seven Cnty. Infrastructure Coalition v. Eagle Cnty., Colorado (No. 23-975)
In Eagle County, the Court will decide whether NEPA requires an agency to study environmental impacts beyond the proximate effects of the action at issue if those effects go beyond the agency’s regulatory authority. Presently, there is a Circuit split with respect to this issue, with the Third, Fourth, Sixth, Seventh, and Eleventh Circuits holding that agency review is limited, while the Second and D.C. Circuits have held that agency review is broader and should include all effects that are reasonably foreseeable. Thus far, the United States’ position in the litigation has been consistent with this latter, broader view, but we anticipate this may shift following the change in presidential administration this month. However, oral argument in the case took place on December 10, 2024. It will be interesting to see the scope of the Justices’ ruling in the case, in particular whether the Court decides to issue a new or modified test to resolve how agencies should implement their NEPA responsibilities and evaluate the “effects” of proposed actions.
Environmental Protection Agency v. Calumet Shreveport Refining, LLC (No. 23-1229) & Oklahoma v. Environmental Protection Agency (No. 23-1067)
In these two cases, the Supreme Court is set to take up whether the D.C. Circuit is the proper venue for EPA actions under the Clean Air Act that may be “nationally applicable” or are “based on a determination of nationwide scope or effect” (Calumet Shreveport Refining) and EPA actions taken with respect to a single state that affect other states or regions because EPA has claimed to use a consistent analysis for the issue (Oklahoma). The cases were consolidated in October and briefs of petitioners and amici were filed earlier this month. Respondents’ briefs are due on January 17, 2025.
Diamond Alternative Energy LLC v. Environmental Protection Agency (No. 24-7)
The issue before the Court in Diamond Alternative Energy is a prudential one: whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties. This issue arises out of automobile fuel producers’ challenge to EPA’s waiver to California to set its own emissions standards for new motor vehicles under Section 209 of the Clean Air Act. The fuel producers argued that the waiver was improper under the statutory text, but the D.C. Circuit rejected their challenge before reaching the merits, concluding that their alleged injury was not redressable because they had failed to link vacating EPA’s waiver with any effect on automobile manufacturers. The Court granted the Petition with respect to this redressability question only on December 13, 2024.
Pending Petitions for Certiorari
Port of Tacoma v. Puget Soundkeeper Alliance (No. 24-350)
The issue presented by this petition is whether Section 505 of the Clean Water Act authorizes citizens to invoke the federal courts to enforce conditions of state-issued pollutant-discharge permits adopted under state law that mandate a greater scope of coverage than required by the Act. Below, the Ninth Circuit held that Section 505 did authorize enforcement in the Article III courts, even those adopted under broader state-law authority, a holding that is in conflict with the Second Circuit’s determination with respect to the Act’s citizen-suit provision. The petition was distributed for the Court’s conference on January 10, 2025.
Protect Our Parks v. Buttigieg (No. 24-311)
This petition seeking review of a Seventh Circuit decision presents a number of issues for review arising out of the planned development of areas of Jackson Park in Chicago, located next to Lake Michigan, for the Obama Presidential Center. At its core, the petition raises whether the planned project is a major federal action under NEPA, though it also raises issues of agency deference after Loper Bright. The petition was distributed for the Court’s conference on January 10, 2025.
