On January 15, 2026, the Environmental Protection Agency (EPA) published the long-awaited proposed rule Updating the Water Quality Certification Regulations (Proposed Rule), which, if adopted, would largely reinstate the previous Trump administration’s 2020 Clean Water Act Section 401 Certification Rule (2020 Rule). EPA’s proposal seeks to limit the scope of state-issued water quality certifications (WQCs) under Section 401 of the Clean Water Act (CWA) to water quality impacts associated with discharges authorized by federal agency actions. The Proposed Rule also addresses concerns raised by applicants for federal licenses and permits (including for hydroelectric projects, natural gas pipelines, and other energy and infrastructure projects) that certain states have overstepped their Section 401 authority to impose onerous terms and conditions unrelated to water quality and artificially extended the statutory time limits for issuing WQCs.
One-Track Mind: Unanimous SCOTUS Decision on Rail Line Approval Further Narrows Scope of NEPA
On May 29, the Supreme Court issued a unanimous opinion in Seven County Infrastructure Coalition v. Eagle County, Colorado that dramatically changes the way courts scrutinize federal agencies’ environmental reviews under the National Environmental Policy Act (NEPA). Justice Brett Kavanaugh, writing for a five-justice conservative majority (with Justice Neil Gorsuch abstaining), held that (a) courts must afford federal agencies “substantial judicial deference” regarding both the scope and contents of their environmental analyses; and (b) courts do not need to consider the effects of the action to the extent they are “separate in time or place” from the proposed project. The ruling gives federal agencies permission to greatly streamline their NEPA analyses at a time when those agencies are rapidly being drained of their resources and facing increasing pressure to expedite lengthy permitting processes.
Driving Change: Scaling Up EVs in the U.S.
We are pleased to publish our latest white paper, entitled “Driving Change: Scaling Up EVs in the U.S.” The report highlights the challenges of expanding electric vehicles (EVs) and EV battery manufacturing in the U.S. Outdated infrastructure and divergent state and federal environmental regulatory structures are identified as key hurdles.
FERC to Increase Focus on Environmental Justice
Addressing environmental justice (EJ) concerns highlighted during the campaign is an important priority for the Biden Administration. Within a week of taking the oath of office, President Biden issued a sweeping executive order with a number of EJ initiatives, including creation of a White House Environmental Justice Interagency Council consisting of the heads of each Cabinet-level and independent federal agency. The order also directed federal agencies to “make achieving environmental justice part of their missions” through development of programs and policies aimed at addressing disproportionately high adverse environmental impacts on disadvantaged communities.
FERC Establishes Water Quality Certification Waiver Period for Natural Gas Projects
On March 18, 2021, FERC issued a Final Rule amending its regulations to establish a one-year period for states, tribes, or other certifying authorities (“Certifying Agencies”) to act on a Clean Water Act (“CWA”) Section 401 water quality certification request for proposed natural gas and liquefied natural gas projects.
Addressing Environmental Justice: FERC Holds Virtual Listening Sessions and Accepts Public Comments on Development of the Office of Public Participation
On March 5, 2021, FERC issued a Notice of Virtual Listening Sessions and Public Comment Period soliciting input on how it should establish and operate its Office of Public Participation (OPP) pursuant to section 319 of the Federal Power Act (FPA). Commission staff, led by Commissioner Clements, held the first public listening session on March 17, and additional listening sessions and a Technical Workshop are scheduled for the coming weeks.
Significant Hydro-Related Federal Legislation Pending
On February 6, U.S. Rep. Mike Simpson (R-Idaho) introduced a proposal that would attempt to restore northwest salmon populations by breaching four dams managed by the Bonneville Power Administration (BPA) on the Lower Snake River in Idaho.
Council on Environmental Quality Proposes Long-Awaited NEPA Regulations Overhaul
On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA). The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts