Insights

Following a directive from President Trump,[1] and in the wake of two court decisions concluding the Council on Environmental Quality (“CEQ”) had no authority to promulgate them in the first place, CEQ’s National Environmental Policy Act (“NEPA”) regulations are being removed from the Code of Federal Regulations.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

On February 4, 2025, U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency’s Powering the Great American Comeback Initiative, signaling five pillars that will guide EPA’s work in the short term, which are summarized below:

President-elect Donald Trump has proposed to expedite federal approvals and permits for any investments worth more than $1 billion.[1] To date, details of Trump’s current proposed fast-tracking initiative have not been articulated. If put into action, however, infrastructure megaprojects will certainly be among the investments covered by any such initiative, with such fast-tracking potentially enhancing disputes risks before projects commence and throughout the lifecycle of the project.

On November 24, 2020, the United States District Court for the District of Columbia denied the Small Business Administration’s (SBA) motion to stay the release of the names, addresses, and precise loan amounts for borrowers that had obtained loans approved pursuant to the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loans (EIDL) program, and the Court ordered SBA to release this information by December 1, 2020. This gives SBA just one week to notice its appeal and seek an administrative stay in the United States Court of Appeals for the District of Columbia Circuit. Unless SBA obtains a stay from the D.C. Circuit, the District Court’s ruling could result in the release of the loan information, which was requested by various media organizations through the Freedom of Information Act (FOIA), as soon as December 1, 2020.

On July 16, 2020, the Trump administration’s Council on Environmental Quality (CEQ) published a final rule revising the regulations implementing the National Environmental Policy Act (NEPA) – the first substantial rewrite to the regulations guiding how the Executive Branch is to consider the environmental impacts of federal actions since the rules were first issued more than four decades ago. 

As part of our continuing commitment to help our clients address the effects of COVID-19, we are providing the initial, anonymized, and aggregated results from our benchmarking questionnaire. We continue to gather information and update the responses, but given the rapidly changing environment, we wanted you to have this information sooner than later.

Many businesses face mounting disruption and, in some cases, temporary shutdown as a consequence of the ongoing coronavirus (COVID-19) pandemic. As owners and operators confront these challenges, they face the added challenge of continuing to satisfy applicable federal, state, and local environmental laws and regulations. Unprecedented obstacles to maintaining routine compliance include, for example, the lack of staff to collect water samples, the inability to obtain physical signatures of documents such as air permits and compliance reports, and difficulty constructing, repairing, upgrading, and maintaining emissions controls and monitoring systems because of disruptions to the supply chain or work force.

We thank our clients for your input on our effort to help trade associations benchmark what they are doing as part of COVID-19 contingency planning. Please use the survey link below to access the brief benchmarking questionnaire. Assuming we have a sufficient number of responses, we will aggregate and share responses (on an anonymous basis).

In recent months, environmental groups have ramped up their legal campaign against the petrochemical industry and have sued the U.S. Environmental Protection Agency (EPA) to impose stricter regulations on the manufacturers of plastic and sources of marine pollution.

In Hawai’i Wildlife Fund v. County of Maui, the U.S. Court of Appeals for the Ninth Circuit held that a Clean Water Act (CWA) permit is required when pollutants in more than de minimis amounts are “fairly traceable from a point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” By requiring a permit under this test for pollutants that eventually reached navigable waters via groundwater migration, the County of Maui decision threatens to significantly expand the scope of the Act’s National Pollutant Discharge Eliminations System (NPDES) permit program, potentially incorporating an array of discharges — from all manner of industry — that did not formerly require CWA permits.

Introduction  Nearly eight months into the Trump administration, the Executive Branch continues to roll back Obama-era regulations and policies. As we have discussed, this process is more onerous than one might expect. And recently, in addition to the already burdensome administrative process, the D.C. Circuit has been making the administration’s job considerably harder. Below we highlight three such opinions from that court:

In the latest podcast for Crowell & Moring’s “Trump: The First Year” series, David Chung, partner in the firm’s Environment & Natural Resources Group, and Carlton Greene, partner in the International Trade Group, sit down to discuss the future of Chevron deference and how that doctrine relates to the Trump administration's goal of deconstructing the administrative state. Prior to joining the firm in 2015, Carlton served as chief counsel of FinCEN and also worked for OFAC at the Dept. of the Treasury. David’s practice focuses on litigation and regulatory counseling involving natural resources development and environmental issues.

For decades, courts have adjudicated claims alleging that Clean Water Act Section 402 requires a permit for discharges of pollutants to groundwater, where those discharges ultimately reach waters of the United States. In recent years, courts have seen a considerable uptick in cases involving such claims. For instance, last month, a federal district court in South Carolina dismissed a case alleging that petroleum products that leaked from a pipeline into groundwater are slowly migrating toward streams and wetlands. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 16-cv-4003 (D.S.C. Apr. 20, 2017). 

In the first of what promises to be a series of reversals of Obama-era EPA regulations, President Trump (through an executive order) and EPA and the Army Corps of Engineers (through a Federal Register notice) last week each announced the intention to rescind or revise the Obama Administration’s controversial and embattled Clean Water Rule.  The 2015 rule, which is currently stayed nationwide under an order from the United States Court of Appeals for the Sixth Circuit, codified EPA’s and the Army Corps of Engineers’ Clean Water Act jurisdiction over a wide array of water bodies, including normally dry landscape features that rarely contain water.  The White House has indicated its intention to implement a much more restrictive vision of Clean Water Act jurisdiction.  The move to undo the 2015 rule may well succeed in killing it, but what will replace it is unclear.

On March 1, 2017, the U.S. Senate voted to confirm Congressman Ryan Zinke as the new Secretary of the Interior, by a vote of 68 to 31. Zinke is a fifth generation Montanan, a former State senator, and a 23-year U.S. Navy SEAL veteran. Re-elected to his second term as Congressman at Large from Montana, he recently served on the U.S. House Armed Services Committee and the U.S. House Natural Resources Committee.

The U.S. Senate voted 52 to 46 today to confirm Scott Pruitt as the new Administrator of the Environmental Protection Agency. Pruitt is an attorney by trade and until his confirmation had served as the Attorney General of Oklahoma since 2010. Prior to his tenure as Attorney General, Pruitt served for several years in the Oklahoma State Senate.

In the second podcast of Crowell & Moring’s “First 100 Days” series, Partner Tom Lorenzen and Counsel David Chung of the firm’s Environment & Natural Resources Group sit down to discuss what environmental regulation might look like under president-elect Trump’s new administration. Tom served in the U.S. DOJ’s Environment & Natural Resources Division for more than 15 years, experiencing first-hand the transition between two presidential administrations – from President Clinton to President Bush, and from President Bush to President Obama.

On August 18, the U.S. Court of Appeals for the Fifth Circuit denied rehearing and upheld its May decision rejecting a district court’s ruling that had denied most of plaintiffs’ Clean Air Act (CAA) enforcement claims and refused to award any civil penalties or injunctive relief. In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., a case involving thousands of alleged CAA violations from Exxon’s operation of a refinery and two petrochemical plants in Texas, the Fifth Circuit held that the district court erred in its assessment of Exxon’s liability by conflating two distinct, but overlapping, claims of permit violations and by taking an overly restrictive view of what constitutes “repeated” or “ongoing” violations under the CAA’s citizen suit provision. The Fifth Circuit also found that the district court abused its discretion when analyzing three of the Act’s civil penalty factors (economic benefit of noncompliance; duration of the violation; and seriousness of the violation). The extensive and detailed decision breaks some new ground on these topics and should be reviewed by those subject to CAA citizen enforcement.

In U.S. Army Corps of Engineers v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), the Supreme Court ruled, 8-0, that parties can immediately challenge Corps determinations of federal Clean Water Act (CWA) jurisdiction under the Administrative Procedure Act (APA). Read narrowly, the Court’s decision simply makes it easier for landowners to achieve regulatory certainty and allows them to challenge adverse affirmative jurisdictional determinations without having to undergo an “arduous, expensive, and long” permitting process. Read more broadly, however, the decision may also signal recognition by the Court that practical impacts may justify judicial review of some agency decisions that have their own legal consequences and serious practical effects, although they are but intermediate steps in a longer administrative process.