Articles Posted in Environmental

An unusual Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, known also as Superfund) remedial action has resulted in a broad ruling that Environmental Protection Agency (EPA) remedial actions and their implementation by EPA contractors may be entitled to broad protection from liability insofar as the Federal Tort Claims Act (FTCA) is involved. The case is Gadsden Industrial Park LLC v. United States of America, CMC Inc., and Harsco Corporation, an unpublished opinion released by the court on November 30, 2018.

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On December 3, the Environmental Protection Agency (EPA) published a Federal Register notice advising the regulated community that EPA’s controversial Clean Air Act (CAA) stationary source Risk Management Program (RMP) rules are effective as of December 3, 2018 – the Final Rule: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act (83 FR 62268). The initial package of the RMP rules was promulgated in 1996, but a series of chemical explosions prompted the development of new rules, whose process safety, third party auditing, emergency response, preparedness and information sharing provisions were designed to confront these challenges.

The latest iteration of these rules was published on January 13, 2017, or only a few days before the new administration took office. The new administration took various administrative steps to delay them for a while. However, the U.S. Court of Appeals for the District of Columbia Circuit, in its August 17, 2018 decision in Air Alliance Houston, et al., v EPA, held that the arguments made to delay the effective date of these rules were not consistent with the relevant provisions of the CAA. The Court of Appeals also stated that EPA retains authority under the CAA to ”substantially amend the programmatic requirements of the Chemical Disaster Rule, and pursuant to that authority, revise its effective and compliance dates, subject to arbitrary and capricious review.”

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On November 23, the latest National Climate Assessment, Fourth National Climate Assessment (NCA4), was released by the U.S. Global Research Program, as required by the Clean Air Act. The Assessment, comprising three volumes and 1600 pages, contains some rather bleak findings which the Report usefully summarizes. Here’s a description of these findings.

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On November 27, 2018, the U.S. Supreme Court issued a ruling vacating and remanding the U.S. Court of Appeals for the Fifth Circuit’s decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The Court of Appeals had affirmed the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) properly designated, under the Endangered Species Act (ESA), a large tract of land located in Louisiana as a critical habitat suitable for the endangered Dusky Gopher Frog, which currently is only found in Mississippi. This is an important ruling under the ESA, and it will be very interesting to see what happens when the case is returned to the Fifth Circuit.

The Louisiana land is owned by the Weyerhaeuser Company and a group of family landowners, who have challenged these decisions of the Service and the lower federal courts. Weyerhaeuser Company v. United States Fish and Wildlife Service was argued on October 1, 2018. Justice Kavanaugh did not participate because he was not on the Court at the time of the oral argument. Continue Reading ›

On November 7, the Office of the Attorney General issued a Memorandum re: Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities. This Memorandum is based largely on federalism concerns. It is anticipated that the policy on consent decrees with state and local governments is likely to have an impact on environmental enforcement actions.

On October 30, in Sinnok, et al. v. State of Alaska, et al., the Superior Court, sitting in Anchorage, AK, granted the state’s motion to dismiss the plaintiffs’ (a “group of Alaska youth ages 5 to 20”) complaints that the state has contributed to climate change through its actions with respect to fossil fuels and carbon emissions. The plaintiffs sought injunctive relief in the form of a court order to the state to prepare an accounting of carbon emissions and to create a climate recovery plan. They also sought a declaratory ruling that the state’s actions violated their fundamental rights to a “stable climate system.”

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On September 30, the U.S. District Court for the District of Massachusetts issued a ruling dismissing claims that the operation of a municipal waste landfill violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) provisions making actionable any “substantial endangerment to human health and the environment.” The case is Toxics Action Center v. Casella Waste Sys., Inc., et al..

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On October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina.

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