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The U.S. Supreme Court issued its opinion in the consolidated cases U.S. Forest Service v. Cowpasture River Preservation Assn. and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Assn. addressing the U.S. Forest Service’s authority to issue authorization for the Atlantic Coast Pipeline to cross beneath the Appalachian Trail. Reversing the Fourth Circuit’s December 2018 decision, the Court held that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way on lands within the George Washington National Forest owned by the Forest Service over which the trail crosses.
Continue Reading U.S. Supreme Court Reverses Fourth Circuit, Holds U.S. Forest Service Has Authority to Grant Right-of-Way Beneath Appalachian Trail

On June 1, 2020, the Environmental Protection Agency (“EPA”) released a final rule establishing procedural requirements for water quality certifications under section 401 of the Clean Water Act (“CWA”).  EPA’s August 2019 notice of proposed rulemaking (“NOPR”) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping changes to its section 401 regulations in conformance with its interpretation.  EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in promulgating new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (“TAS”) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.
Continue Reading EPA Overhauls Clean Water Act Section 401 Regulations

Since the Trump Administration took office, oil and gas industry stakeholders have questioned whether pending PHMSA rulemakings will move forward, whether the rate of PHMSA enforcement will continue, and whether agency priorities will change.  The API conference held in San Antonio last week provided a rare opportunity in recent months for the industry to hear from key PHMSA personnel and industry practitioners on the status of agency priorities, rulemakings, enforcement and leadership vacancies.  As explained below, while the Agency currently lacks key leadership positions and is analyzing executive directives on rulemaking, it intends to move forward with proposed rules and continue enforcement.
Continue Reading Insights to PHMSA Enforcement and Rulemaking under the Trump Administration

Last December, PHMSA issued an interim final rule (IFR) to establish—for the first time ever—minimum federal standards for underground natural gas storage facilities.  The IFR imposes significant new requirements in a short timeframe for “downhole facilities,” including wells, wellbore tubing and casings at underground natural gas storage facilities.  Those rules became effective in late January and most recently, PHMSA finalized user fees to fund a training program for inspectors with oversight of underground storage facilities and other guidance materials.  While PHMSA moves forward in regulating these facilities, the State of Texas, INGAA, and AGA have challenged the rule and commenters have criticized the rule as rushed, poorly drafted, and unrealistic.
Continue Reading Underground Natural Gas Storage: Regulations and Fees Move Forward Despite Appeal and Criticism

President Trump signed an Executive Order requiring EPA and the U.S. Army Corps of Engineers to review the final “Clean Water Rule,” also known as the Waters of the United States (WOTUS) Rule. The Order requires that the review ensure that the WOTUS Rule is consistent with a new policy to keep the Nation’s navigable waters free from pollution “while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Although implementation of the Rule was stayed by the U.S. Court of Appeals for the Sixth Circuit pending further court review, the Executive Order also requires EPA and the Corps to review all orders, rules, regulations, guidelines, or policies implementing the Rule and to revise or rescind such rules consistent with the Executive Order.
Continue Reading Trump Order Compels EPA and Corps Review of Waters of the US Rule

On Friday, February 24, 2017, President Trump signed another Executive Order (EO) aimed at identifying and eliminating federal regulations that burden businesses. The EO states that “[i]t is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.”
Continue Reading Executive Order Focuses on Deregulation

During the campaign, President Trump promised to remove two regulations for every new one enacted. On Monday, January 30, 2017, he sought to make good on that promise by signing an Executive Order (EO), titled Reducing Regulation and Controlling Regulatory Costs.
Continue Reading Agencies Instructed to Withdraw 2 Regulations for Every 1 Proposed in Executive Order