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The Week Ahead

Democrats Ready Oversight Agenda As Election Day Looms; High Court Eyes CWA's Reach

This week's midterm elections may have major consequences for environmental policy at the state and federal level, with Democrats poised for major gains in the House and key gubernatorial races. Meanwhile, a criminal defendant is set to petition the Supreme Court to finally decide which waters are subject to the Clean Water Act (CWA) and resolve competing rulings on the issue.

Midterm Elections

The Nov. 6 elections could either create a new roadblock for the Trump EPA if Democrats win control of the House -- as polls predict -- or reinforce its agenda should the GOP retain its majorities in both chambers of Congress. Democratic leaders are planning an oversight-heavy environment agenda for 2019, accepting that they would have limited policy leverage in a divided Congress while readying committee work that would lay a foundation for the 2020 campaigns on issues like climate change.

Meanwhile, Republicans campaigning for key Senate seats and in gubernatorial races are seeing only limited benefit from their records of opposition to the Obama EPA, including the attorneys general of Michigan and West Virginia -- each of whom successfully sued to block EPA power plant rules but are now trailing in the polls for governor and Senate, respectively.

The sustainable business group Ceres and law firm K&L Gates will host a Nov. 8 webinar on the election results' implications for climate and energy policy.

CWA Jurisdiction

Nov. 7 is the deadline for a Supreme Court petition in United States v. Joseph Robertson, a closely watched CWA enforcement case that could end up as the vehicle for a new nationwide standard on the water law's reach. The petitioner, a defendant convicted of criminal CWA violations for filling wetlands without a permit, is asking courts to reject former Justice Anthony Kennedy's “significant nexus” test for jurisdiction, which industry and conservative groups have long argued is overbroad.

So far the high court has rejected all requests to clarify its precedent on CWA jurisdiction since it split 4-4-1 on the subject in 2006's Rapanos, et al., et ux., v. United States -- the case that produced Kennedy's significant-nexus standard. But the retrenched conservative majority on the court might be more optimistic about finding five votes for a single opinion following the confirmation of new Justice Brett Kavanaugh -- though they might also opt to wait for EPA's pending rule setting out its own, narrower interpretation of the law.

Ozone NAAQS

Nov. 5 is the last in a series of EPA webinars to gather input from “subject matter experts” on its integrated science assessment for the next ozone national ambient air quality standard (NAAQS), which synthesizes new science made available since the last review of the standard. Agency air chief Bill Wehrum has called for major streamlining of the NAAQS process, but has yet to spell out how that will affect the next round of ozone rulemaking.

Coal Ash

The D.C. Bar is hosting a Nov. 8 panel discussion on the state of EPA's Resource Conservation & Recovery Act policy for coal ash disposal, including the newly-filed suit over recent revisions to the 2015 rule, and the Trump EPA's agenda for reworking the policy further in order to comply with a decision that held the Obama-era policy to be unlawfully lax.

Toxicology

The Society of Environmental Toxicology & Chemistry is holding its annual meeting Nov. 5-8 in Sacramento, CA. EPA scientists will be presenting on an array of scientific and policy topics, mainly related to the agency's use of computational toxicology in chemical assessments.

CWA Permitting

The Association of Clean Water Administrators, which represents state clean-water regulators, is holding a workshop on nutrient permitting Nov. 6-8 in Gulfport, MS. The agenda includes presentations from EPA officials on nutrient limits and translating waterbody-level cleanup plans into enforceable permit limits.

Climate Change

The American Bar Association is hosting a Nov. 5 webinar on local governments' use of zoning policy to promote resiliency as a response to climate change.

Regulatory Costs

The Environmental Law Institute will hold a Nov. 6 workshop in Washington, D.C., titled “Paying For Tomorrow” focused on the institute's publication of a book on the likely costs of policies needed to mitigate climate change and other environmental problems.

Environmental Justice

EPA is hosting a Nov. 8 webinar on building resilience in environmental justice communities, including through its Urban Waters Partnership model.

Great Lakes

EPA has set a Nov. 7 webinar to highlight research by Michigan's Office of the Great Lakes into the economic value of restoring water quality there.

Oceans

George Washington Law School is hosting a Nov. 9-10 seminar at its Washington, D.C., campus on legal issues related to oceans policy, including offshore energy exploration and sustainability.

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