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In the two months since the failures of the Edenville Dam and the downstream FERC-licensed Sanford Dam (Project No. 2785) in central Michigan, there has been a flurry of correspondence between the Federal Energy Regulatory Commission (Commission or FERC) and the licensee, including a series of directives and the warning of potential enforcement actions from the Commission, as well as discussion of possible harm to protected species following the dam breaches.
Continue Reading Aftermath of the Michigan Dam Failures: Licensee Delays and Possible ESA Concerns

On Thursday, July 9, 2020 the Supreme Court, in a 5-4 decision, held that a large swath of northeastern Oklahoma, including most of the city of Tulsa, remains part of the Muscogee (Creek) Reservation and, as a result, that the state lacks jurisdiction to prosecute a major crime involving a tribal member within the reservation. Justice Gorsuch delivered the opinion for the Majority, confirming the durable principle of tribal sovereignty, despite significant efforts throughout history to dismantle tribal reservations and governments.  Chief Justice Roberts filed a dissenting opinion, in which Justices Alito and Kavanaugh joined, and in which Justice Thomas joined, except as to one footnote.  Some analyses have raised the possibility that this decision could have a significant impact on taxation and natural resources management in Indian Country throughout the United States, as discussed more fully below.  However, because the direct holding of the Court is quite narrow, the full impact of this decision remains to be seen. 
Continue Reading Supreme Court Determines that Area in Northeastern Oklahoma Constitutes a Reservation

On June 4, 2020, President Trump issued an Executive Order directing federal agencies to take all reasonable measures to speed infrastructure investments and requiring the heads of all federal agencies to identify projects that can be exempted from the requirements of the National Environmental Policy Act (“NEPA”), Endangered Species Act (“ESA”), or the Clean Water Act (“CWA”), pursuant to the emergency procedures within each act, among other requirements.
Continue Reading President Trump Issues Executive Order Directing the Expedition of NEPA Reviews

On May 1, 2020, the U.S. Department of Energy (“DOE”) issued a Notice of Proposed Rulemaking (“NOPR”) to update its National Environmental Policy Act (“NEPA”) implementing regulations concerning applications to import to, or export from, liquid natural gas (“LNG”) terminals. In particular, DOE has previously determined that the transportation of natural gas by marine vessels normally does not pose the potential for significant environmental impacts, and accordingly, exports of LNG should be considered a “categorical exclusion” from NEPA review.  Comments are due June 1, 2020. 
Continue Reading DOE Proposes to Limit NEPA Review for LNG Export Applications

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 of certain proposed projects, but…