Project Siting and Approval

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The Court’s decision has prompted the US Army Corps of Engineers to freeze jurisdictional determinations for permitted activities pending additional guidance.

By Michael G. Romey, Lucas Quass, and Peter R. Viola

On May 25, 2023, by a narrow 5-4 majority, the US Supreme Court ruled in Sackett v. EPA that the Clean Water Act (CWA) only extends to wetlands that have a “continuous surface connection” with “waters of the United States” (WOTUS) — the term in the CWA’s definition of “navigable waters” that determines the jurisdiction of the US Army Corps of Engineers (the Corps) and the Environmental Protection Agency (EPA) (together, the Agencies) over projects and other activities requiring permits to dredge, fill, or discharge into federally protected waters.[1]

Decision concludes a permit is required if such discharges are the “functional equivalent” of a direct discharge to navigable waters.

By Janice Schneider, Maria Hoye, and Ethan Prall

On April 23, 2020, the Supreme Court of the United States issued an opinion in County of Maui, Hawai’i v. Hawai’i Wildlife Fund, holding that the Clean Water Act (CWA) requires a permit for certain discharges through groundwater. Specifically, a permit is required if there is a “direct discharge” from a point source to navigable waters, or if a given discharge is the “functional equivalent” of a direct discharge when that discharge passes through groundwater before reaching navigable waters.[1]

In establishing this new functional equivalence test, the Court rejected both the argument that allowing any regulation of discharges through groundwater would expand the CWA’s scope without warrant, and the contrary argument that every discharge that is “fairly traceable” from a point of discharge to navigable waters must be regulated under the CWA. When applying the test, the Court explained that several factors — most centrally, time and distance — are relevant to determining whether a discharge through groundwater is the functional equivalent of a direct discharge.

Wildfires, ride-sharing, community choice aggregation, and more bring increased regulatory risk.

By Marc T. Campopiano, Charles C. Read, and Brian F. McCall

The California Public Utilities Commission (CPUC) has tremendous influence on public utility regulation in California and beyond. The CPUC has the biggest staff of any state utilities commission and has issued fines and penalties well in excess of US$2 billion. The CPUC has been very active with new rulemakings and proceedings that will impact utilities and a range of industries. Because of the CPUC’s outsize influence, many of these new regulatory developments may well be adopted by public utilities or public service commissions in other states. Below are summaries of five key developments at the CPUC.

The proposed federal permitting regime includes some surprising provisions, including no permit expiration and no proposed application deadline for most units.

By Claudia M. O’Brien and Stacey L. VanBelleghem

On December 19, 2019, the US Environmental Protection Agency (EPA) released a proposed rule to establish a federal permitting program under the Resource Conservation and Recovery Act (RCRA) for the disposal of coal combustion residuals (CCR), also known as coal ash, in surface impoundments and landfills. EPA’s 2015 CCR rule established self-implementing requirements for the management of CCR. In 2016, Congress passed the Water Infrastructure Improvements for the Nation (WIIN) Act, which authorized states to submit for EPA approval state CCR permit programs to implement the federal CCR rule requirements. The WIIN Act also required EPA to implement a federal CCR permit program in Indian country and in states that do not have an approved permitting program.

The proposed rule, titled Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Federal CCR Permit Program (Proposed CCR Permitting Rule), would establish this federal permitting backstop.

A local air district is developing a rule that would require both existing and proposed warehouses to reduce trucking emissions or pay a mitigation fee.

By Joshua T. Bledsoe

The South Coast Air Quality Management District (SCAQMD or District) is developing a so-called Indirect Source Rule (ISR) that would require Southern California warehouses to reduce emissions associated with trucking activity and on-site equipment. Proposed Rule 2305, recently released by the District in discussion draft form, would establish the Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program — which would apply to owners and operators of warehouses located in the South Coast Air Basin (Basin) with greater than 100,000 square feet of indoor space in a single building. If the SCAQMD’s development timeline holds, Proposed Rule 2305 will phase in on July 1, 2020.

A new webcast reveals the latest trends and approaches to CEQA compliance as the development and environmental communities react to changing law.

By Marc T. Campopiano, Christopher W. Garrett, and Jennifer K. Roy

On July 24, 2019, Latham & Watkins’ Project Siting & Approvals Practice hosted a 60-minute webcast, “Friant Ranch: Impact of California Supreme Court’s Landmark Decision on CEQA Compliance,” to zero in on the landmark decision and its ramifications. Seven months on from the Court’s decision…

MEE Opinions aim to clarify application of laws, expand the scope of illegal behaviour, and introduce new administrative penalties.

By Paul A. Davies and R. Andrew Westgate

The Department of Laws, Regulations, and Standards of China’s Ministry of Ecology and Environment (MEE) recently issued a notice of Public Consultation for the Opinions on Several Issues on the Application of Laws concerning Administrative Penalties for the Illegal Activities of “Production before Final Acceptance” (the 2019 Public Consultation).

This blog will discuss the background to the 2019 Public Consultation, and the MEE Opinions that aim to clarify application of laws, expand the scope of illegal behavior, and introduce new Administrative Penalties.

The Directive aims to reduce the impact of plastic products and therefore help protect the environment and human health.

By Paul A. Davies and Michael D. Green

On June 12, 2019, a new directive was published that aims to help protect land and marine environments, as well as human health. The mandate — Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment (Single-Use Plastics Directive, or the Directive) — introduces measures to prevent and reduce the impact of certain plastic products, and promote transition to a circular economy.

The Directive encourages the prioritization of “sustainable and non-toxic re-usable products and re-use systems”. This approach aims to reduce plastic waste, drive the promotion and development of alternative materials, and promote the design and production of plastics and plastic products that are re-usable, repairable, and recyclable.

The Directive contains a number of substantive measures that will impact Member States, which are explored in this post.