The beginning of 2021 has seen major developments in several ongoing issues involving environmental laws and regulations. Many of these developments are the result of transitioning from the Trump Administration to the Biden Administration. The following is a non-exclusive overview of recent activity involving environmental law issues that have the potential to impact the agricultural industry.
The Migratory Bird Treaty Act (“MBTA”), one of the oldest wildlife protection laws in the United States, has experienced a lot of activity during the first two months of 2021. Originally passed in 1918, the MBTA helps implement the 1916 “Convention Between the United States and Great Britain for the Protection of Migratory Birds.” It states that “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird, [or] any part, nest, or egg of any such bird.” 16 U.S.C. § 703(a). Violating the MBTA is a criminal offense that can result in a fine of up to $15,000 and one to six months in prison.
For decades, the Department of the Interior (“DOI”) has interpreted the MBTA to cover both intentional and incidental takes. In other words, the MBTA has long been considered to outlaw deliberate, knowing harm to migratory birds, as well as accidental harm that occurred as a byproduct of an unrelated action. However, in late 2017 the DOI issued an opinion memo concluding that only deliberate acts were prohibited under the MBTA. In January 2020, the United States Fish and Wildlife Service (“FWS”) published a proposed rulemaking to codify the MBTA interpretations provided in the 2017 memo. The final rule determining that incidental takes were not prohibited by the MBTA was issued January 7, 2021 and was set to take legal effect February 8, 2021.
Upon taking office, the Biden Administration issued an Executive Order directing the heads of all federal agencies to review all regulations passed during the Trump Administration. The Order included a non-exclusive list of regulations for review, including the final MBTA rule. Following that executive action, there have been several developments concerning the final MBTA rule. On March 2, 2021, the DOI withdrew its appeal of Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D. N.Y. 2020), a decision from the Southern District of New York vacating the DOI’s 2017 MBTA memo. In that case, the court concluded that the 2017 memo concluding that incidental takes of migratory birds were not prohibited by the MBTA was contrary to the “plain language” of the Act. According to the court, the 2017 memo conflicted with the MBTA’s “clear language making it unlawful at any time, by any means or in any manner, to . . . kill . . . any migratory bird protected” under the Act. Following the court’s decision, the DOI had filed a notice of appeal with an intent to dispute the lower court’s decision in the Second Circuit Court of Appeals. The DOI has now withdrawn that request, meaning that the decision vacating the 2017 memo will stand as-is.
Along with deciding not to appeal the district court’s decision in Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, the Biden Administration has taken steps to walk back the 2021 final rule that would codify the 2017 MBTA memo. On February 5, 2021, FWS delayed the date when the 2021 final rule would take legal effect to March 8, 2021 and reopened public comment on whether the rule should be altered, rescinded, or further delayed. Most recently, on March 8, 2021 the DOI withdrew the 2017 memo in accordance with the district court decision vacating the memo. Currently, it seems likely that the Biden Administration will not interpret the MBTA to allow incidental take of protected birds.
WOTUS Injunction Overturned
On March 2, 2021 the Tenth Circuit Court of Appeals issued a decision concluding that the government should not be blocked from implementing the Navigable Waters Protection Rule (“Navigable Waters Rule”) in the state of Colorado. According to the Tenth Circuit, the lower court had “abused its discretion” by issuing an injunction to prevent the Navigable Waters Rule from being implemented in Colorado.
The Navigable Waters Rule, issued in April 2020, defines the Clean Water Act (“CWA”) term “waters of the United States” (“WOTUS”). The definition is essential to administering the CWA because only those waters that fall under the category of WOTUS are protected by the Act. The term is not defined in the text of the CWA itself, therefore it has been left up to the Environmental Protection Agency (“EPA”) to define the term through regulations. In the decades since the CWA was initially passed, there have been several attempts to define WOTUS. The Navigable Waters Rule is the most recent regulation defining WOTUS.
Although there are currently several ongoing cases challenging the Navigable Waters Rule, only one has resulted in an injunction. The district court in State of Colorado v. U.S. Envt’l Prot. Agency, No. 20-cv-1461 (D. Colo. 2020) issued a preliminary injunction on June 19, 2020 preventing the Navigable Waters Rule from taking effect in Colorado. The injunction was limited to section 404 of the CWA, the section under which the United States Army Corps of Engineers issues permits for the discharge of dredged or fill materials into waters protected by the CWA. According to the district court, allowing the Navigable Waters Rule to take effect would have irreparably harmed the state of Colorado by requiring it to spend its own resources enforcing the Rule.
On appeal, the Tenth Circuit disagreed. In its decision, the court concluded that Colorado had failed to show it would suffer an “irreparable injury” without a preliminary injunction, and that the lower court should not have granted the state such relief. While the lower court determined that spending its own resources to enforce the Navigable Waters Rule would have injured Colorado, the Tenth Circuit concluded that there was “at most, the mere possibility of the potential for a small increase in Colorado’s enforcement burden at some point in the future.” The “mere possibility” of a possible future enforcement burden was not enough to justify issuing an injunction while the underlying challenge to the Navigable Waters Rule was ongoing.
Following the Tenth Circuit’s decision, the Navigable Waters Rule is now in effect in every state in the nation.
Biofuels Before Supreme Court
In a change from its previous position, EPA announced on February 22, 2021, that it now agrees with the Tenth Circuit Court of Appeals’ 2020 decision which threw doubt onto a program that granted oil refiners exemptions to certain biofuel blending laws. This change in position from EPA may indicate that the agency will be limiting the number of exemptions it issues going forward.
The Renewable Fuel Standard (“RFS”) program requires a certain volume of renewable fuel, typically in the form of biofuel, to either replace or reduce the amount of non-renewable petroleum-based fuel in use. Refiners or importers of gasoline or diesel fuel are required to participate in the RFS program’s biofuel mandate unless the refiner or importer falls into one of the program’s exemptions. The exemption program has been controversial, with biofuel producers and corn farmers arguing that the program reduces demand for their products.
In January 2020, the Tenth Circuit issued a decision in Renewable Fuels Ass’n v. U.S. Envtl. Prot. Agency, No. 18-9533, 2020 WL 401800 (10th Cir. Jan. 24, 2020), revoking exemptions granted by EPA to three small refineries, and concluding that exemptions granted to small refineries after 2010 should only be granted as extensions of already existing exemptions. The Tenth Circuit’s decision has been appealed, and is expected to be heard by the United States Supreme Court sometime this year. Initially, EPA appeared to support appealing the Tenth Circuit’s opinion, but has now changed course.
In EPA’s announcement on its change in position, the agency references an increase in granting small refinery exemptions that began in 2017, noting that the increase “represents a significant decline in the required use of renewable fuel volumes, which in turn decreased the incentives for the production and use of renewable fuels.” EPA goes on to state that it “agrees with the [Tenth Circuit] that the exemption was intended to operate as a temporary measure and, consistent with that Congressional purpose, the plain meaning of the word ‘extension’ refers to continuing the status of an exemption that is already in existence.”
Whether EPA’s change in position will influence the Supreme Court has yet to be seen. Ultimately, the issue will remain unresolved until the Supreme Court hears the case.
As 2021 goes on and these issues continue to develop, each has the potential to impact agriculture, possibly on a national level. These three issues are all unique and concern different statues and areas of the law, however each is impactful. The National Agricultural Law Center will provide updates for each situation.
To read, the court’s decision in Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, click here.
To read the Tenth Circuit’s decision in State of Colorado v. U.S. Envt’l Prot. Agency, click here.
To read the Tenth Circuit’s decision in Renewable Fuels Ass’n v. U.S. Envtl. Prot. Agency, click here.
For more National Agricultural Law Center information on the CWA, click here.
For more National Agricultural Law Center resources on the RFS program, click here.