Articles Posted in Environmental

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On June 1, the U.S. Court of Appeals for the First Circuit decided the case of Potvin v. Speedway, Inc., a personal injury case subject to the laws of Massachusetts. In Massachusetts, environmental rules require the installation of “positive limiting barriers” at gasoline service stations to contain gasoline spills of up to 5 gallons. At a self-service station now owned by Speedway, Inc., the plaintiff, a passenger in a car being serviced, exited the car but tripped on these barriers and was injured. She sued Speedway in state court, and the case was removed to federal court. Affirming the District Court’s ruling in favor of the defendant, the Court of Appeals notes that Massachusetts law provides that property owners are relieved of any duty to warn a visitor or invitee of an open and obvious condition since it is logical to expect that a lawful visitor would exercise reasonable care to avoid the obvious and open danger these positive limiting barriers around the gasoline pump may present. Therefore, the Court of Appeals found that speedway, Inc., had no duty to warn the plaintiff and there was no triable negligence claim.

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Municipalities wield considerable power over local businesses as a recent Colorado Supreme Court decision demonstrates.On May 21, the Colorado Supreme Court decided the case of Colorado Union of Taxpayers Foundation v. City of Aspen. The Court held, in a 4 to 3 ruling, that a City of Aspen ordinance imposing a charge of $0.20 on the right to use a paper bag at a grocery store was not a tax, subject to Colorado’s Taxpayer Bill of Rights (TABOR), which was enacted in 1992.

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The following notices were published yesterday:

1.  The Federal Energy Regulatory Commission (FERC) will be taking another look at its implementation of FAST Act Section 61003 regarding the security and resilience of energy infrastructure in the face of emergencies. EEI asked that FERC reconsider the rules it promulgated in November 2016 or at least clarify certain provisions with respect to Critical Energy/Electric Infrastructure Information (CEII). A clarification has been issued, effective July 30, 2018. (83 F.R. 24656)

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On May 22, the U.S. Court of Appeals for the Fifth Circuit, in an unpublished ruling, affirmed the District Court’s dismissal of a complaint that the actions and inactions of a City of Houston tax reinvestment zone, as well as the City of Houston, resulted in multiple serious flooding incidents that damaged their properties. The case is Residents Against Flooding, et al., v. Reinvestment Zone Number Seventeen, et al.

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Recently, our colleagues Matt Morrison and Brendan Hennessey published their Client Alert titled A New Path to Managing Risks from Upstream Oil and Gas Transactions, EPA incentivizes new owners to conduct compliance audits by offering penalty forgiveness for violations found. Takeaways include:

  • The Environmental Protection Agency’s (EPA) newest enforcement proposal offers companies in the oil and gas production sector a valuable opportunity to reduce compliance risks inherent in the purchase of facilities
  • EPA remains focused on ensuring storage tanks and associated equipment are properly sized and designed to prevent emission leaks
  • EPA’s draft agreement recognizes that the timing of audits and corrective action should depend on the number of acquired facilities and the scope of the audit

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On May 15, the U.S. District Court for the Northern District of California held that the City of Oakland’s attempt to apply a new “coal ban” ordinance to a coal handling terminal was invalid. The District Court concluded that the record evidence placed before the City Council did not satisfy the ”substantial evidence” criteria contained in the development agreement entered into by the City and Oakland Bulk & Oversized Terminal (“OBOT”) governing a bulk cargo shipping terminal to be built and operated by OBOT. The case is Oakland Bulk & Oversized Terminal, LLC v. City of Oakland.

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On May 9, the U.S. District Court for the District of Alaska dismissed a challenge the constitutionality of the Congressional Review Act (CRA); the case is Center for Biological Diversity v. Zinke. While the District Court ruled that, while CBD had sufficient standing to make some of its arguments regarding the CRA, on the whole, it found that the constitutional and statutory arguments were inadequate to withstand the Government’s motion to dismiss.

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On May 7, the U.S. Court of Appeals for the Fourth Circuit affirmed the jury’s verdict that two shipping companies were guilty of criminal violations of the 1973 International Convention for the Prevention of Pollution from Ships, known as MARPOL. Both companies are headquartered in Greece, with Oceanic Illsabe Ltd. (Oceanic) being a Liberian corporation and Oceanfleet Shipping Ltd. (Oceanfleet) being a Marshall Islands corporation. The case is U.S. v. Oceanic Illsabe Ltd. and Oceanfleet Shipping Ltd.

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On April 12, a significant Clean Water Act (CWA) ruling has been made by the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit, in a split decision, held, in a case of first impression in this circuit, that the movement of a discharged pollutant through groundwater to navigable waters can constitute a violation of the CWA’s requirement that discharges of a pollutant from a point source to navigable waters is illegal unless the discharge has been permitted. The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP.

A few weeks ago, a similar decision was rendered by the U.S. Court of Appeals for the Ninth Circuit in the case of Hawai’i Wildlife Fund, et al., v. County of Maui.

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On May 2, the U.S. Court of Appeals for the Ninth Circuit decided the case of Daniels Sharpsmart, Inc. v. Smith, Director of the California Department of Public Health. The Ninth Circuit affirmed the decision of the U.S. District Court for the Eastern District to issue a preliminary injunction enjoining state health officials from enforcing, on an extraterritorial basis, provisions of the California Medical Waste Management Act (MWMA) against Daniels Sharpsmart, Inc., an Illinois-based corporation that “designs, develops, manufactures, markets and sells reusable sharps container systems for the disposal of needle-inclusive biohazardous medical products” (Daniels).

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