News & Updates from WAGLAC
August 23, 2021
UPCOMING WAGLAC MEETINGS
2021 North Dakota Energy Summit
 
CWAG and the Attorney General Alliance are pleased to partner with co-hosts and Immediate Past Chairs Attorneys General Wayne Stenehjem of North Dakota and Hector Balderas of New Mexico for the 2021 North Dakota Energy Summit to be held from August 30 - September 1 in Medora, North Dakota.
 
For more information on event registration and sponsorships, please contact Ale Stephens at AStephens@AGAlliance.org.
The WAGLAC Fall meeting will be held on October 10 - 12 at the Westin in Seattle, WA. An in person/online attendance format will be used for this meeting. There will be an Endangered Species Act seminar in addition to the traditional roundtable.

To register, please fill out the attached registration form at the bottom of the below meeting announcement and email directly to Joy Orr at Joy.Orr@cwagweb.org if you plan to attend the meeting in person or via Zoom. 
The WAGLAC Winter meeting will be held in San Diego, CA during the week of President's Day, 2022. Meeting details to follow.
ENVIRONMENT
EPA and CORPS Sign Joint Memorandum Regarding Implementation of 2020 CWA Section 401
 
The EPA and Corps of Engineers signed a joint memorandum on August 19th that addresses how the federal agencies will offer states and tribes more flexibility under the 2020 CWA Section 401 rule to address impacts of proposed projects. The memorandum states that it “provides guidance on one area that states and tribes have expressed concerns – Section 401 certifications related to the 41 Nationwide Permits (NWPs) proposed in September 2020 which have not yet been finalized. In addition, further guidance is provided in an Enclosure related to the Section 401 certification process associated with Corps permits, in general, to promote improved implementation of EPA’s 2020 Rule in the field and address additional implementation challenges which have been identified.”  

“Th[e] memorandum is limited to the Corps’ implementation of the EPA’s 2020 Rule [and] does not apply to other federal agencies or stakeholders.”  “Th[e] memorandum concerns EPA’s 2020 Rule; it does not directly interpret CWA Section 401.” 
E.P.A. to Block Pesticide Tied to Neurological Harm in Children
The New York Times
August 18, 2021

"The Biden administration announced that it is banning a common pesticide, widely used since 1965 on fruits and vegetables, from use on food crops because it has been linked to neurological damage in children.

The Environmental Protection Agency said this week it would publish a regulation to block the use of chlorpyrifos on food. One of the most widely used pesticides, chlorpyrifos is commonly applied to corn, soybeans, apples, broccoli, asparagus and other produce.

The new rule, which will take effect in six months, follows an order in April by the Ninth Circuit Court of Appeals that directed the E.P.A. to halt the agricultural use of the chemical unless it could demonstrate its safety."
Court Rejects CWA Challenge, Tees Up Supreme Court Showdown
E&E News
August 16, 2021

"The 9th U.S. Circuit Court of Appeals denied Mike and Chantell Sackett’s arguments that EPA erred when it determined that their property near Priest Lake, Idaho, contained wetlands covered by the Clean Water Act.

Their case has already reached the Supreme Court once, and today’s ruling cuts to the heart of a key legal dispute about the Clean Water Act: which opinion from the Supreme Court’s confusing 2006 Rapanos decision controls EPA’s definition of which wetlands and streams fall under the Clean Water Act’s jurisdiction.

The Ninth Circuit ruled “that former Justice Anthony Kennedy’s ‘significant nexus’ test is the controlling precedent, not former Justice Antonin Scalia’s more limited definition, which the Sacketts’ espoused.”
Uncertainty Dominates New NEPA Approach
E&E News
August 18, 2021

"The Biden White House recently acted to defang one of President Trump's
signature environmental actions, but the former president's legacy may endure in what some activists call "an era of confusion" on environmental reviews.

This month, the Council on Environmental Quality advanced what will become a three-step plan to revamp the 2020 changes to National Environmental Policy Act rules. CEQ rarely conducts environmental reviews itself; rather, the council coordinates action across dozens federal agencies."
United States v. Ameren Missouri
Electric Utility violated Clean Air Act by failing to secure permits for improvement to coal-fired generating units at one power plant but district court erred in imposing remedy that imposed compensatory emission limitations on another power plant’s operations

Missouri has a state implementation plan under the CAA approved by the Environmental Protection Agency. Its plan incorporates the agency’s prevention-of-significant-deteriorations regulations in 40 C.F.R. § 52.21. That section contains the two alternative tests for determining when modifications to existing emitting sources (such as coal-fired power plants) are “major” and therefore subject to a permit setting forth permissible emission limits. One is the actual-to-projected-actual applicability test under which baseline actual emissions are first calculated and then measured against projected emissions of a regulated pollutant (such as sulfur dioxide) at any point during a five- or ten-year period, depending upon design capacity, after the improved unit begins operation. The EPA regulation also provides for an exclusion from the projected emission calculation for “‘that portion of the unit’s emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions ... and that are also unrelated to the particular project, including any increased utilization due to product demand growth.’” Id. § 52.21(b)(41)(ii)(c). Finally, the CAA Title V “‘require[s] each covered facility to obtain a comprehensive operating permit setting forth all CAA standards applicable to that facility.’” Missouri, as an adjunct to its SIP, issues these permits subject to EPA review and veto.
TRIBAL LAW
AG Ferguson Announces Formation of Team to Facilitate Missing and Murdered Indigenous Women and People Task Force
August 12, 2021

"Attorney General Bob Ferguson announced the team that will facilitate the Washington State Missing and Murdered Indigenous Women and People (MMIW/P) Task Force. Legislative appointments to the task force are expected later this month.

The task force will assess systemic causes behind the high rate of disappearances and murders of indigenous women and people. The team announced it will support the 21-member task force, and produce two reports to the Governor and Legislature in August 2022 and June 2023 to report the task force’s findings. The task force will include tribes and tribal organizations, as well as state and local policy makers."
FEDERAL AGENCIES
Solicitor General’s Office Adjusts as Prelogar Steps Back
Bloomebrg Law
August 13, 2021

"Elizabeth Prelogar must step away from the U.S. solicitor general’s office while the Senate considers her nomination to lead the office permanently with a new Supreme Court term on the horizon featuring guns and abortion.

Moving from an acting role to a permanent one as the so-called Tenth Justice will force the appellate specialist to find a home somewhere else in the Justice Department for the time being. In the interim, Brian H. Fletcher, an appellate litigator who has helped lead the Stanford Law School Supreme Court Litigation Clinic, will serve as acting solicitor general, according to the Justice Department."
ENERGY
Federal Judge Rejects Trump-Era Permits for Major Alaska Oil Project
The Washington Post
August 19, 2021

"A federal judge threw out the permits for a controversial oil project planned for Alaska’s North Slope, faulting the way the federal government had assessed its environmental impact, including how it might harm polar bears.

ConocoPhillips’s Willow project had been backed by both the Trump and Biden administrations, despite a host of concerns environmentalists and others raised about how the large operation might affect wildlife and Indigenous communities.

The decision is a major blow to the project, which has been touted by Alaska’s congressional delegation and industry as an important source of jobs for the state. The project, west of Prudhoe Bay in the Alaskan Arctic, could produce up to 160,000 barrels of oil per day."
FISH & WILDLIFE
Biden Backs End to Wolf Protections but Hunting Worries Grow
Associated Press
August 20, 2021

"President Joe Biden's administration is sticking by the decision under former President Donald Trump to lift protections for gray wolves across most of the U.S. But a top federal wildlife official on Friday told The Associated Press there is growing concern over aggressive wolf hunting seasons adopted for the predators in the western Great Lakes and northern Rocky Mountains."
WATER
California Enacted a Groundwater Law 7 Years Ago. But Wells are Still Drying Up — and it’s Spreading
Mercury News
August 18, 2021

“During the height of the state’s last drought, thousands of Californians in the Central Valley ran out of water as their wells went dry. So much water was pumped from underground, mostly by growers, that the earth collapsed, sinking up to two feet per year in parts of the San Joaquin Valley.

Alarmed, the California Legislature in 2014 enacted a package of new laws that aimed to stop the over-pumping.

But seven years later, little has changed for Californians relying on drinking water wells: Depletion of their groundwater continues. Pumping is largely unrestricted, and there are few, if any, protections in place.”
INDIAN LAW DESKBOOK
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Editions of the Deskbook are published annually by Thomson Reuters, and the 2021 Edition was issued during the week of July 19, 2021. It is available on Westlaw in the Secondary Sources/Texts & Treatises category and in hard copy.

Please reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.
Indian Law Case Summaries
All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
Backcountry Against Dumps v. U.S. Bureau of Indian Affairs, ___ F. Supp. 3d ___, 2021 WL 3611049 (S.D. Cal. Aug. 6, 2021): Judicial review proceeding alleging that BIA violated NEPA and two species protection statutes by approving a wind farm development lease on reservation trust lands was dismissed under Fed. R. Civ. P. 12(b)(7) because the lessor tribe was a necessary party and could not be joined as a matter of equity and good conscience.
Hartsell v. Schaaf, ___ F. Supp. 3d ___, 2021 WL 3620064 (N.D. Ind. Aug. 16, 2021)Action under 42 U.S.C. § 1983 seeking compensatory and punitive damages against a tribe’s police officers was not barred by tribal immunity from suit.
Larson v. United States, ___ F. Supp. 3d ___, 2021 WL 3634149 (D.S.D. Aug. 17, 2021)The Bureau of Indian Affairs’ alleged failure to prevent non-permittees from grazing on permitted land and to provide administrative remedies concerning the permit’s termination was not actionable under the Federal Tort Claims Act.
AG Alliance Cannabis Newsletter

If you are interested in following cannabis law developments, please sign up for the AG Alliance cannabis newsletter by emailing Cole White at CWhite@AGAlliance.org.
About WAGLAC
Western Attorneys General Litigation Action Committee

CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 40 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
Contributions For WAGLAC Newsletter
We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to Clive Strong. For a complete database of all previously published WAGLAC newsletters, please follow the link below.