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Gathering Storm: SEC v. Jarkesy and Implications for Environmental Enforcement

The U.S. Environmental Protection Agency’s (EPA’s) enforcement program has long been the backbone of environmental enforcement in the United States. That program may now be bound for dramatic change. This Article analyzes the threats posed to the Agency’s program by the U.S. Supreme Court’s forthcoming decision in Securities and Exchange Commission v. Jarkesy, in which three constitutional questions presented cut to the core of administrative enforcement.

Clearing the Air on Supplemental Environmental Projects

Supplemental environmental projects (SEPs) have received a growing amount of attention in recent years, from the Donald Trump Administration banning their use in settlements, to regulation and guidance from the Joseph Biden Administration reversing the ban, to legislative proposals prohibiting them altogether. This Article examines SEPs’ legality under existing law, focusing on claims that they violate the Miscellaneous Receipts Act and the Antideficiency Act. It begins with a brief history of SEPs’ policy evolution and the limitations on the U.S. Environmental Protection Agency’s and U.S.

89 FR 35442

CEQ finalized its “Bipartisan Permitting Reform Implementation Rule” to revise its regulations for implementing the procedural provisions of NEPA.

89 FR 34074

DOE revised its NEPA implementing procedures to add a categorical exclusion for certain energy storage systems and modify categorical exclusions for upgrading and rebuilding powerlines and for solar photovoltaic systems, as well as to make conforming changes to related sections of the Department’s NEPA regulations.

89 FR 31796

The Federal Transit Administration announced the availability of a programmatic assessment of greenhouse gas emissions from transit projects.

89 FR 31772

The National Aeronautics and Space Administration (NASA) adopted the Department of the Air Force's categorical exclusion for supersonic flying operations over land and above 30,000 feet mean sea level, or over water and above 10,000 feet mean sea level and more than 15 nautical miles from land under NEPA to use in NASA’s program and funding opportunities.

89 FR 30916

BLM revised its oil and gas leasing regulations by implementing provisions of the Inflation Reduction Act pertaining to royalty rates, rentals, and minimum bids; updating the bonding requirements for leasing, development, and production; and revising some operating requirements.