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Environmental Policy and Litigation in 2023: Key Policy Developments and Future Outlook

August 1, 2023

Brian Israel, chair of the firm’s Environmental practice, and partner Ethan Shenkman were featured in Law360's midyear environment and energy coverage, where they provided insights on the regulatory developments thus far in 2023 and highlighted upcoming cases to watch through the remainder of the year.

Israel discussed the recently issued proposed rules from the U.S. Environmental Protection Agency (EPA) on greenhouse gas emissions standards for power plants, which present the Biden administration with an interesting policy challenge. While the Biden administration views the rules as an “essential tool for achieving its climate ambitions and mitigating the impacts from climate change,” Israel told Law360 that some in the “environmental justice community are … skeptical of the administration's reliance on carbon capture and storage (CCS) technology.” Because the Biden administration has indicated its commitment to deploying carbon capture storage technology, Israel said he expects the EPA to continue its efforts to achieve both of these goals.

Shenkman discussed the U.S. Supreme Court’s upcoming fishing industry case that could jeopardize the future of so-called Chevron deference. The case involves the requirement that the fishing industry pay for federal inspectors to be onboard boats. The case’s challenge to Chevron deference is legally significant and could directly impact the EPA’s proposed rules on greenhouse emissions, Shenkman said.

The EPA’s proposed rules appear to be specifically written to avoid a major questions issue that the Supreme Court highlighted in West Virginia v. EPA, Shenkman told Law360. In a situation like that, it raises the question of whether Chevron would still apply. "There's still some statutory interpretation involved,” he said.

» Read “The Biggest Enviro Policy Moves Of 2023: Midyear Report” (subscription required).
» Read “Energy Litigation To Watch In The Second Half Of 2023” (subscription required).