Administrative Law

The Texas Supreme Court ruled on March 23 that coating manufacturer AC Interests LP should be allowed to proceed with its appeal TCEQ decision, saying that the law left the consequences of delay ambiguous. The majority found that, since the TCAA did not spell out how to interpret the time limit for providing notice, the proper interpretation is the time limits are directory and not mandatory. That is, the suit should not be dismissed even if notice was served late.

After years of protests over the Dakota Access Pipeline by the Standing Rock Sioux tribe,  indigenous rights activists and environmental groups, the Trump Administration granted final construction approval to Energy Transfer Partners (ETP) in January 2017. The approval was the culmination of a hard fought battle that required the advice and counsel of experienced energy and environmental attorneys.

Texas Supreme Court justices on Wednesday October 11 tried to figure out an appropriate penalty for a coating manufacturer that missed a statutory deadline to serve the Texas Commission on Environmental Quality with a lawsuit challenging an agency ruling on pollution emissions credits.
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The 2016 Lautenberg amendments to the Toxic Substances Control Act (TSCA) require EPA to designate chemical substances on the TSCA Chemical Substance Inventory as either “active” or “inactive” in U.S. commerce. To accomplish that, EPA is establishing a retrospective electronic notification of chemical substances on the TSCA Inventory that were manufactured including imported for nonexempt commercial purposes during the 10-year period ending on June 21, 2016, with provision to also allow notification by processors. EPA will use these notifications to distinguish active substances from inactive substances.

The Trump administration intends to unveil this week a plan to trim regulations it believes constrain U.S. manufacturing growth, potentially affecting environmental permits, worker safety and labor rules, an administration official said. The U.S. Commerce Department's regulations "hit list" recommendations follow more than three months of study and consultation with industry on ways to streamline regulations and ease burdens on manufacturing firms. A Trump administration official with knowledge of the recommendations to be sent to the White House said the Environmental Protection Agency's complex permitting rules will be a key focus, echoing comments to Reuters by Commerce Secretary Wilbur Ross last month. The 171 public comments submitted by companies and industry groups offer a strong hint to priorities for Commerce's streamlining efforts, with numerous industry groups and firms complaining that EPA air quality permit rules for new facilities are often redundant. The report will analyze the submissions and "will identify a lot of problems and lay out ways to take responsible actions," said the official, who declined to be identified by name.

I.  Analysis of Federal Executive Orders (“EO”) 13771 and 13777

A. Executive Order (“EO”) 13771 Summary

1. Overview of EO 13771

On January 30, President Donald Trump issued EO 13771, which requires executive branch agencies to repeal two rules for every one issued. Entitled “Reducing Regulation and Controlling Regulatory Costs,” EO 13771 also directs that all new agency regulations promulgated promulgated during fiscal year 2017 should not impose a net increase in costs.