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California Stalls Joshua Tree Endangered Species Act Determination to Consider Up-Front Take Authorization

On 20 August 2020, the California Fish and Game Commission (Commission) again postponed its decision whether to designate the western Joshua tree (yucca brevifolia) as a candidate species under the California Endangered Species Act (CESA). The Commission, however, left no doubt that it will so designate the species when it meets again sometime between 17 and 23 September 2020. When the Commission does so, it will have one year to formally consider whether to list the western Joshua tree as threatened.
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Is To Kill a Mockingbird Good Authority? Federal Court Sets Aside Administration’s Interpretation of the Migratory Bird Treaty Act

On 11 August 2020, the U.S. District Court for the Southern District of New York issued an opinion setting aside the U.S. Department of Interior’s (DOI) interpretation of the Migratory Bird Treaty Act of 1918 (MBTA) as contrary to law pursuant to the Administrative Procedure Act. The decision deepens a circuit split over an issue of importance to industrial and wind energy installations across the United States.
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Supreme Court Reinstates Army Corps’ Nationwide Permit 12 Except As Applied to the Keystone XL Pipeline

On 6 July 2020, the U.S. Supreme Court lifted a nationwide vacatur on the use of the Army Corps of Engineers’ (Corps) Nationwide Permit 12 (NWP 12) for the construction of new oil and gas pipelines. However, the Court declined to lift the vacatur as it applies to the Keystone XL Pipeline from which the original order arose. The decision is a blow to Keystone XL but a relief to other oil and gas pipeline developers who may once again employ NWP 12 to permit pipeline crossings over jurisdictional waters of the United States.
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Emergency Relief or Business as Usual? Trump’s Latest Executive Order Aims to Streamline Environmental Permitting on Questionable Grounds

On 4 June 2020 the White House issued an Executive Order (EO) directing federal agencies to invoke emergency procedures under the National Environmental Policy Act (NEPA), the Endangered Species Act, the Clean Water Act, and other environmental statutes in order to expedite infrastructure projects as a means of accelerating the nation’s economic recovery from the COVID-19 emergency. While this directive is consistent with previous executive guidance aimed at speeding up the environmental review and permitting timelines for major infrastructure projects, we question the efficacy of this order in particular and the impact it will have on project developers going forward.
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California Dreaming? Offshore Wind on the West Coast

Offshore wind energy development is in its infancy in the United States compared to Europe. The nation’s first operational project came online in 2016 off the coast of Rhode Island. A few other projects have since gained traction up and down the Eastern seaboard. Deep, crowded waters and technological barriers have largely kept the West Coast out of the discussion. But, as floating turbine technologies become commercially feasible and open up the potential for massive amounts of wind power in California waters, recent inter-agency cooperative efforts have begun to clear a path, and developers are lining up.

This article surveys the current regulatory status of offshore wind development in California and the primary federal and state permitting processes to which it will be subject.
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CEQA Update: A Bridge Too Far – Seeking and Accepting a Permit to Implement an Approved Project is Not a “Project” Under CEQA

On 18 May 2020, California’s Sixth District Court of Appeal unsurprisingly confirmed that a lead agency’s seeking and accepting a discretionary approval from a responsible agency to implement an approved project is not a CEQA event in its own right. The decision, Willow Glen Trestle Conservancy v. City of San Jose, involves an interesting fact pattern and creative arguments from the project’s opponents, but ultimately does not break new ground.
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Court Reconsiders Nationwide Permit 12 Overturn, Limits to Pipelines Only

On 11 May 2020, the federal district court in Montana partially walked back its 15 April 2020 order vacating U.S. Army Corps of Engineers’ (Corps) Nationwide Permit 12 (NWP 12), allowing renewable energy developers and other non-pipeline projects to continue using NWP 12 while the Corps conducts further environmental review.
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Does the Supreme Court’s New “Functional Equivalent” Test Clear the Way for Trump’s Clean Water Act Rule?

April was a busy month for the Clean Water Act (“CWA”).

On April 21, 2020 the Environmental Protection Agency (“EPA”) and U.S. Corps of Engineers (“Corps”) formally published their Navigable Waters Protection Rule, which limits the scope of the CWA by redefining “waters of the United States.”

Just two days later, the Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, holding that the CWA applies not just to discharges directly from point sources to waters of the United States, but also to the “functional equivalent” of direct discharges.

Prior to the Court’s decision, the lower courts had been split as to whether discharges from point sources that reach waters of the United States by indirect means, such as through groundwater, require CWA permits. In Maui, the Court answered with a resounding: “Maybe.”

While the Court’s new test is hardly a model of clarity, it is consistent with Justice Scalia’s plurality opinion in the Court’s 2006 Rapanos case. This is good news for the Trump Administration’s new Navigable Waters Protection Rule, whose more limited definition of “waters of the United States” draws heavily on Justice Scalia’s Rapanos opinion.  

Indeed, in recent days a number of states and environmental groups have already filed lawsuits challenging the rule, arguing that the agencies erred in relying on the Rapanos plurality instead of Justice Kennedy’s “significant nexus” test. While none of the recently filed complaints address Maui, we expect the Court’s decision will feature prominently in those cases going forward. 
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How Will Nationwide Permit 12’s Overturn Affect Renewable Energy Projects?

On 15 April 2020, a federal district court in Montana issued a sweeping decision to vacate the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit 12 (NWP 12) authorization in response to a challenge to the Keystone XL Pipeline.

The ruling has broad implications for energy project developers across the country that rely on NWP 12 to extend utility lines and related facilities across waterbodies regulated by Section 404 of the Clean Water Act (CWA), but renewable energy projects may have unique alternatives to NWP 12 available while the decision is pending likely appeal.
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Trump’s NEPA Overhaul

On January 10, 2020, the Council on Environmental Quality (CEQ) published a proposal to comprehensively overhaul regulations adopted over forty years ago to implement the federal government’s flagship environmental impact disclosure statute known as the National Environmental Policy Act of 1969 (NEPA).

The proposed rule would update and clarify many aspects of the existing NEPA regulations, and would improve the NEPA process in many respects. However, some elements of the new rule pertaining to cumulative impacts, alternatives, and categorical exclusions are highly controversial and may not survive inevitable legal challenges.
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