Ordinance Requiring Pesticide Warning Signs Found to Violate First Amendment

Posted in Court Cases, New York, Utilities

A town cannot compel a utility company to post a warning notice that its utility poles contain a wood preservative.  That is the effect of U.S. District Judge Spatt’s February 4th decision in PSEG Long Island LLC v. Town of North Hempstead, 15-cv-0222, slip op. (E.D.N.Y Feb. 4, 2016).

On September 9, 2014, the Town of North Hempstead (“Town”) enacted an ordinance that required PSEG Long Island (“PSEG-LI”) to post a “warning” sign on every fourth utility pole, indicating that: the utility pole contained a hazardous chemical; prolonged exposure should be avoided; and exposed areas should be washed.  PSEG-LI challenged the ordinance on multiple grounds including that it violated the First Amendment.  Greenberg Traurig attorneys William A. Hurst, Robert M. Rosenthal and Steven C. Russo represented PSEG-LI.

The majority of utility poles in the United States, including those PSEG-LI recently installed in the Town, are treated before use with Pentachlorophenol (“Penta”) – a heavy-duty, EPA-registered wood preservative regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  The Town sought to justify the ordinance requiring warning signs on the ground that the utility poles allegedly posed a significant risk to residents who touch them, and to the environment itself, ostensibly through migration of Penta into groundwater (although none has been documented in amounts exceeding any applicable maximum contaminant or action level).  During the public debate that followed, and in its Complaint to the District Court, PSEG-LI pointed out that Penta is registered for exactly – indeed, solely – this use, based on a comprehensive EPA health and environmental risk assessment.

On February 4, the District Court declared the ordinance an unconstitutional attempt to compel noncommercial speech. In so doing, the Court hewed closely to the standard First Amendment analysis with respect to government-compelled speech.

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Congress Adopts “FAST Act,” Seeking Expedited NEPA Review For Major Infrastructure Projects

Posted in Environment, Federal Regulation, NEPA

Review under the National Environmental Policy Act (“NEPA”) can be one of the most costly and time consuming components of any federal project or action.  Often, the hurdle of NEPA can be so substantial that necessary projects fall by the wayside.  Recognizing the tremendous burden environmental review can create, President Obama signed into law the Fixing America’s Surface Transportation Act, known as the “FAST Act,” on December 4, 2015.  In addition to providing funding for infrastructure projects, the Act—specifically within Title XLI—seeks to streamline the rules for permitting and environmental reviews for projects under NEPA.  It seeks to accomplish this by eliminating duplicative reviews, setting strict project timelines, ensuring best practices, and limiting opportunities for judicial review.  Additionally, a new office will be created to administer and set timelines for expedited review.

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California Public Utilities Commission’s Successor Net Metering Decision and Trends in Rate-Making

Posted in California, Energy, Renewables, Utilities

On January 28, 2016, by a 3-2 vote, the California Public Utilities Commission (“CPUC”) agreed to extend California’s net metering program. The CPUC’s decision rejected proposals by three of the state’s major utilities (Pacific Gas &Electric Co., San Diego Gas & Electric Co., and Southern California Edison) to decrease the financial credit received by eligible customers for excess energy sold back to the grid.

Energy executives and officials in many states have been watching California’s decision-making process closely as the industry contends with massive changes stemming from alternative energy, particularly rooftop solar generation. Net metering allows a customer with on-site renewable energy generation to receive a financial credit for excess power generated by his or her system. Industry and policy makers continue to grapple with how best to value electricity when it flows from customers to utilities, rather than the reverse.

Many states have net metering policies, but the rates vary, with some states offering credits near wholesale energy prices and others, like California, offering the retail rate. In December, Nevada utility regulators decided to phase out retail rate net metering for rooftop solar customers in favor of a wholesale rate, decreasing the rate from almost 10 cents per kilowatt hour to slightly over 2 cents per kilowatt hour. In October, Hawaii utility regulators ended the state’s retail net metering program, replacing it with alternative compensation options for rooftop solar customers.

The CPUC stated that its decision attempts to “strike a balance” between the requirements of Assembly Bill 327 and incentivizing a sustainable customer-sited renewable distributed generation program. Costs for net metering new customer-generators include a one-time interconnection fee and non-bypassable charges, the latter of which most consumers already pay. Those charges are slated to fund low-income and energy efficiency programs. Beginning in 2018, new customer-generators will also be compensated at variable rates depending on when they send their excess power to the grid.

California’s new net metering program will benefit rooftop solar customers as well as customers with generation facilities larger than 1 megawatt. Those larger facilities will be required to go through California’s “Rule 21” interconnection process and pay for any studies or grid improvements necessary to accommodate the new generation. Some Armed Forces bases and correctional facilities will be eligible to install these larger units.

The changes will not affect customers who already have solar photovoltaics or who install panels before the utilities in their area reach the rooftop use caps in their service territories, or by July 1, 2017, whichever occurs earlier. The utilities are required to submit new tariffs in compliance with the decision within 30 days. The CPUC said it will reconsider net metering again in 2019 and left open the possibility of additional revisions or charges.

U.S. Supreme Court agreed to hear an important regulatory takings case, Murr v. Wisconsin

Posted in Court Cases

The Supreme Court on January 15 granted cert. in Murr v. Wisconsin, 359 Wisc. 2d 675 (Wis. App. 2014), rev. denied, 862 N.W.2d 899 (Wis. 2015), a regulatory takings case involving the “relevant parcel” or “parcel-as-a-whole” issue, one of the most important takings issues that the Supreme Court has never addressed.

The relevant parcel issue, which can be determinative in many regulatory takings cases, concerns the extent of property that should be considered in assessing whether a regulatory imposition constitutes a taking.  Generally speaking, the larger the scope of property to be considered, the less severe the regulatory impact on the entire parcel-as-a-whole; conversely, if only a small parcel is relevant to the takings inquiry, the regulatory impact will be more concentrated on that small parcel and likely more adverse.  Because the economic impact of a regulation is the usually most important factor in determining whether a taking has occurred – and, indeed, under the Supreme Court’s Lucas decision a regulation that entirely eliminates the value of the relevant parcel is a per se taking property owners will benefit from a ruling in Murr that leads courts to define the relevant parcel narrowly, and thus to make regulatory impacts more concentrated and more severe.

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Bipartisan Coalition Asks Supreme Court to Halt EPA Power Plan

Posted in Energy, EPA

A bipartisan coalition of 29 states and state agencies filed an application with the U.S. Supreme Court yesterday to immediately halt the Obama Administration’s power plan while litigation continues in the D.C. Circuit Court.   The application for immediate stay of the final EPA rule imposing far-reaching climate rules for power plants was filed by the Texas Attorney General and West Virginia Attorney General, with other participants in the emergency application including Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality. 


On October 15, 2015, the day the EPA’s “Clean Power Plan” became subject to judicial review, the states filed petitions for review of the plan and moved simultaneously for a stay pending court review.  After the D.C. Circuit Court denied the motions for a stay on January 21, 2016, the states have now undertaken the unprecedented move of going straight to the Supreme Court for an immediate stay of the new rules.  The court of appeals still plans to review the EPA rules, however, and oral arguments are scheduled for June.


The states contend that the massive legislative and regulatory changes necessary to comply with the EPA plan, which are irreparable harms themselves, will also undermine the states’ ability to maintain and achieve their own sovereign priorities.  “The Obama Administration has exceeded its authority in imposing a plan that will kill jobs and significantly raise electric bills for all Americans,” Texas Attorney General Ken Paxton said. “This power grab will force a massive reordering of nearly every state’s electric grid and result in less-reliable service for all customers. Such far-reaching actions raise serious concerns about the power of the federal government.” West Virginia Attorney General Patrick Morrisey underscored the problem faced by the states:  “Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal.”  The states argue that the EPA’s rule fundamentally changes the nation’s energy policy in violation of federal law.

Invest: Insights presents Kerri Barsh, Shareholder, Greenberg Traurig

Posted in Climate Change, Environment, Florida, Green Building, P3, Renewables

In this Invest: Insights video, listen to Kerri L. Barsh, Shareholder, Greenberg Traurig, Co-Chair, National Environmental Practice discuss Sustainable Development in South Florida.

Kerri Barsh

Annual Review of Environmental Cases from the Pennsylvania Courts

Posted in Articles, Court Cases, Environment, Pennsylvania

In January, my monthly column in the Pennsylvania Law Weekly reviewed the treatment of environmental issues by the Pennsylvania appellate courts in the previous year.  Read the very-cleverly-titled Environmental Cases in the Pennsylvania Courts During 2015, 39 Pa. L. Weekly 56 (Jan. 19, 2016), by clicking here.

The cases addressed follow:

Berner v. Montour Twp., 120 A.3d 433 (Pa. Commw. Ct. 2015)

Borough of Avondale v. New Garden Twp., 111 A.3d 817 (Pa. Commw. Ct. 2015)

Borough of Indian Lake v. Rohrich, 22 C.D. 2015 (Pa. Commw. Ct. Aug. 27, 2015)

Borough of St. Clair v. Blythe Twp., 112 A.3d 701 (Pa. Commw. Ct. 2015)

Consol Pennsylvania Coal Co. v. Department of Environmental Protection, 351 C.D. 2015 (Pa. Commw. Ct. Dec. 15, 2015)

Department of Environmental Protection v. Spangler, 109 A.3d 321 (Pa. Commw. Ct. 2015)

EQT Production v. Department of Environmental Protection, 15 MAP 2015 (Pa. Dec. 29, 2015)

Fegley v. Lehigh County Board of Elections, 1905 C.D. 2014 (Pa. Commw. Ct. Sept. 15, 2015)

Feudale v. Aqua Commonwealth, Inc., 335 M.D. 2014 (Pa. Commw. Ct. July 22, 2015)

Gibraltar Rock v. New Hanover Twp., 118 A.3d 461 (Pa. Commw. Ct. 2015)

Gilbert v. Synagro Central, 121 MAP 2014 (Pa. Dec. 21, 2015)

Glencannon Homes Association v. North Strabane Twp., 116 A.3d 706 (Pa. Commw. Ct. 2015)

Haney v. Range Resources-Appalachia, 1130 W.D. 2014 (Pa. Super. Ct. Apr. 14, 2015)

Harley-Davidson v. Springettsbury Twp., 82 MAP 2014 (Pa. Sept. 29, 2015)

Harvilchuck v. Department of Environmental Protection, 117 A.3d 368 (Pa. Commw. Ct. 2015)

Hogan v. Lower Bucks Joint Municipal Authority, 1462 C.D. 2014 (Pa. Commw. Ct. Aug. 26, 2015)

Huckleberry Association v. South Whitehall Twp. ZHB, 120 A.3d 1110 (Pa. Commw. Ct. 2015)

Kusher v. Woloschuk, 114 A.3d 900 (Pa. Commw. Ct. 2015)

Maxatawny Twp. v. Department of Environmental Protection, 2369 C.D. 2014 (Pa. Commw. Ct. Oct. 16, 2015)

Pennsylvania Environmental Defense Foundation v. Commonwealth, 108 A.3d 140 (Pa. Commw. Ct. 2015), appeal pending, No. 10 MAP 2015 (Pa. filed Feb. 6, 2015)

Pennsylvania Independent Oil & Gas Association v. Department of Environmental Protection, 321 M.D. 2015 (Pa. Commw. Ct. Dec. 29, 2015)

Rausch Creek Land v. Porter Associations, 1078 MDA 2014 (Pa. Super. Ct. May 8, 2015)

Waste Management, Inc. v. Department of Environmental Protection, 107 A.3d 273 (Pa. Commw. Ct. 2015)

Wyeth Pharmaceuticals v. Borough of West Chester, 2116 C.D. 2014 (Pa. Commw. Ct. Nov. 5, 2015)

Public Comment Deadline Nears on Florida’s Imperiled Species Management Plan in Contemplation of April 2016 Vote

Posted in Florida, Wildlife

The Florida Fish & Wildlife Conservation Commission (Florida FWC) is taking comment until January 20, 2016, on changes proposed by the agency on its approach to endangered and threatened species management in Florida.  Specifically,  the FWC is proposing an Imperiled Species Management Plan (ISMP) that, “[f]or the first time,”  provides published conservation objectives and the actions needed to achieve those objectives for Florida’s listed species.  The  ISMP focuses on 2 primary areas :  “filling data gaps  necessary to improve conservation and management, and maximizing conservation benefits through directed communication, outreach, and management.”  Given these goals, the Florida FWC notes that “the importance of private lands in supporting conservation for  imperiled species cannot be undervalued.”  The ISMP includes a 10-year timeline for implementation, commencing this year.

Implementation of the ISMP will also require a number of rule changes, the most significant of which include listing status changes, possession limits, and clarification of certain language.   The ISMP also contemplates the preparation of Species Conservation Measures and Permitting Guidelines for all 57 listed species.  [ Of the 57 species enumerated on Florida’s Endangered and Threatened Species List,   37 are listed as Threatened, five are listed as Species of Special Concern , and 15 have been removed].   Among other things, these Guidelines will specify  : i) the circumstances when a permit is  required, ii ) activities that are allowed without a permit,  iii)  buffer zones or seasonal restrictions, and  iv)  as applicable, options to avoid  and minimize impact to the species and preempt the need for a permit.

Interested individuals may review the ISMP at MyFWC.com/Imperiled and transmit your comments using Imperiled@myfwc.com.   The Florida FWC staff will review the public comments on the proposed ISMP and, based upon the comments, determine if changes are needed.  The Commission itself is scheduled to vote on the ISMP at its meeting on April 13-14, 2016.  Stay tuned here for additional developments.


Changes to the EU’s REACH Regime May Increase the Administrative Burden on Prospective Registrants

Posted in International, Manufacturing, Substance

On 6 January 2016, the European Commission published the Implementing Regulation 2016/9 on the joint submission of data and data-sharing (the “Regulation”).  REACH requires manufacturers and importers of certain substances to register with the European Chemicals Agency before that substance is manufactured or brought into the EU above certain specified quantities.  Manufacturers or importers of the same substance are required to prepare a single joint submission for registration.

The Regulation is intended to improve the mechanism for sharing information and costs under the REACH regime.   It clarifies what the terms “fair, transparent and non-discriminatory” mean in the context of data-sharing between joint registrants under REACH.  The Regulation will enter into force on 26 January 2016 and it has retrospective effect.  Concerns have been raised that the Regulation is likely to increase the administrative burden that prospective Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) regime registrants are subject to.

The Regulation gives prospective REACH registrants joining a Substance Information Exchange Forum (the mandatory group made up of manufacturers and importers of the same substance which leads to the joint submission) the right to request a breakdown of the costs associated with making the joint registration. The retrospective effect of the Regulation means that data-sharing agreements which are entered into on or before 26 January 2016 will need to be reviewed and, if required, amended to ensure compliance with the Regulation. Concerns have been raised that the Regulation is likely to increase the administrative burden that prospective Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) regime registrants are subject to.

The Regulation is available here.

How Cos. Can Fight Back Against Inferential Statistics

Posted in Energy, Litigation, New Hampshire, State & Local

In an environmental contamination case involving the gasoline additive MTBE, the New Hampshire Supreme Court recently affirmed a trial court jury award of $236 million, based largely on statistical inferences by experts.   In short, the trial court allowed the plaintiffs to use extrapolated statistics to (1) hypothesize the existence of several thousand sites, (2) estimate total damages at each of the sites, and (3) determine what share of the total damages to impose on the trial defendant for each site.  In effect, this “trial by formula” avoided specific proof and arguably placed the defendant in the role of an insurance actuary for purposes of these claims.  State of New Hampshire v. Exxon Mobil Corp., Nos. 2013-0591 and 2013-0668 (Oct. 2, 2015).  Further discussion of this ruling, other similar cases involving inferential statistics, and ways in which defense counsel can protect their clients, are addressed in my recent article “How Cos. Can Fight Back Against Inferential Statistics.”