On April 18, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling in a Louisiana case that dismissed the plaintiff’s claims for property damage based on contamination caused to his property by long-term oil and gas operations conducted by the predecessors of Hess Corporation. The case is Guilbeau v. Hess Corporation.
On April 20, an intermediate Court of Appeals for the First Court of Appeals, sitting in Houston, reversed the trial court and directed that court to reinstate an environmental enforcement action that had purportedly been settled by agreement of the officials of Brazoria County, Texas and the defendants. Brazoria County had brought an environmental enforcement action against the defendants for violating state and county regulations regarding sewage disposal and the use of on-site sewage facilities. The State had objected to these settlement reached by Brazoria County and the defendants, but the trial court overruled the State’s objections and entered final judgment resolving the case and attaching the Agreed Judgments as exhibits to its judgment. The case is The State of Texas v. Brazoria County and Daniel Infante, Humberto Lumbrero, Isidro Dejesus Luna, and Ma Dejesus Luna.
On April 20, the U.S. District Court for the District of South Carolina, Anderson Division, dismissed the plaintiffs’ Clean Water Act (CWA) Citizen Suit which alleged that the defendant pipeline operators had violated the CWA by discharging pollutants into navigable waters without a permit. The District Court concluded that although plaintiffs “identified a discrete source for the pollution,” they “failed to allege a discrete conveyance of pollutants into navigable waters.” The District Court otherwise confirmed that “the CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.” The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc.
On April 20, the U.S. Court of Appeals for the Second Circuit issued a unanimous ruling that may terminate much of the litigation triggered by the bankruptcy of Tronox Inc. The Court of Appeals dismissed the appeal for lack of jurisdiction. The case is In re Tronox Inc.
On April 14, a U.S. Magistrate serving with the U.S. District Court for the Northern District of Indiana issued a ruling in a matter involving the attorney-client and attorney work product privileges. The case is Valley Forge Insurance Company v. Hartford Iron & Metal, Inc. The District Court held that the attorney’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. were not entered into for the purpose of rendering legal advice and, therefore, the attorney-client privilege did not apply. However, the District Court did agree that some of the emails were protected by the attorney work product doctrine.
The new administration at the Environmental Protection Action has taken these actions:
On June 3, 2016, pursuant to the Clean Air Act (CAA), EPA promulgated amendments to the existing oil and gas New Source Performance Standards, 40 C.F.R. Part 60, Subpart 0000, and established new methane emissions standards for the these sources, 40 C.F.R. Part 60, Subpart 0000a, with respect to volatile organic compounds (VOC) and greenhouse gas emissions. The new 0000a standards are designed to reduce pollutant greenhouse gases (GHG) emissions from oil and natural gas production, processing, transmission and storage activities and operations.
On April 18, responding to petitions for reconsideration filed by industry groups and trade associations, EPA determined that these petitions raised an important issue that had not been considered earlier regarding the monitoring of fugitive emissions. As a result, EPA will convene a new proceeding to reconsider these requirements, and stayed the compliance date for fugitive emissions monitoring for 90 days. EPA will also consider the impact of these rules on low–production wells.
Yesterday, the Environmental Protection Agency published a notice in the Federal Register seeking public comments on any “regulations that may be appropriate for repeal, replacement, or modification.”
This notice invites an unprecedented level of review over EPA’s entire existing body of regulations. The notice aims to implement the President’s February 24 Executive Order 13777 Enforcing the Regulatory Reform Agenda “to alleviate unnecessary regulatory burdens.” The notice describes those regulations vulnerable to overhaul as those that:
(a) Eliminate jobs, or inhibit job creation;
(b) Are outdated, unnecessary, or ineffective;
(c) Impose costs that exceed benefits;
(d) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies.
The comment period closes only 30 days out, on May 15, 2017. Contact your counsel for more information or to request assistance in commenting.
On April 11, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court and held, 
in a unanimous opinion, that the American Forest Resource Council has standing to challenge the U.S. Fish and Wildlife Service’s 2012 designation of 9.5 million acres of federal forest lands as a protected critical habitat for the northern spotted owl. The case is Carpenters Industrial Council, et al., v. Zinke.
On April 11, the U.S. Court of Appeals for the District of Columbia Circuit vacated the
Environmental Protection Agency’s December 18, 2008 CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms rule (Rule) that created hazardous substance reporting exemptions for all farms, except large animal raising operations known as concentrated animal feeding operations (CAFO). The case is Waterkeeper Alliance, et al. v. EPA. The case was argued in December 2016, or almost eight years after the rule was promulgated.
For builders working in California—already one of the most expensive states for new construction—a new bill winding its way through the legislature could add yet more costs. For this reason, Senate Bill 71 (SB 71) should be on the radar of developers and construction companies that do business in California. SB 71 would require all “solar-ready buildings” constructed on or after January 1, 2018, to include a solar electric or solar thermal system on their roofs. “Solar-ready buildings” include single-family residences in subdivisions with 10 or more single-family residences with an approved subdivision map; low-rise multi-family buildings; high-rise multi-family buildings and hotel/motel occupancies; and all other non-residential buildings. The solar systems would be required to be installed during construction because, as the bill explains, installing systems at that stage is more cost effective.
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