Category Archives: Environment

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Third Circuit Upholds EPA’s Authority for Chesapeake Bay TMDL

The Third Circuit recently determined that EPA acted within its statutory authority in publishing the Chesapeake Bay TMDL in American Farm Bureau Federation v. United States Environmental Protection Agency, No. 13-4079 (3d Cir. July 6, 2015).  My column for the Pennsylvania Law Weekly discusses the decision and the implications for Pennsylvania, a state that did … Continue Reading

Horne and Environmental Law: The case of the taken raisins

Horne v. Department of Agriculture, No. 14-275 (U.S. June 22, 2015), is a takings case about the price support program for California raisins.  That may seem a little far afield for environmental lawyers, but the case bears some careful analysis.  Among other things, the Court draws a distinction between the analysis appropriate for a regulatory … Continue Reading

Massachusetts Regulates Fertilizer Use to Reduce Nutrient Water Pollution

Following a developing trend around the country, the Massachusetts Department of Agriculture (DAR) recently promulgated regulations restricting how fertilizers containing phosphorous, nitrogen or potassium may be applied.  The goal of these regulations is to reduce nutrient loading to waterbodies, which can lead to eutrophication and other negative water quality impacts. The regulations, promulgated at 330 … Continue Reading

FERC’s Reaction to CEQ’s Greenhouse Gas Guidance: For Now, Business as Usual

On June 23, 2015, the Federal Energy Regulatory Commission issued an Order Denying Rehearing of its earlier April 6, 2015 order, authorizing Sabine Pass Liquefaction, LLC to construct and operate natural gas liquefaction export facilities. The order is noteworthy for the Commission’s response to the arguments made by the Sierra Club that the Commission failed … Continue Reading

U.S. Supreme Court Reverses and Remands MATS to D.C. Circuit for EPA Failure to Consider Costs

In a 5 to 4 split decision, the U.S. Supreme Court ruled on Monday, June 29th, that the U.S. Environmental Protection Agency (“EPA”) unreasonably interpreted the federal Clean Air Act (“CAA”) when EPA decided deemed that costs were irrelevant in deciding whether to regulate hazardous air emissions from electric utility sources under section 112 of … Continue Reading

Performance Enhancement: FERC Approves Significant Restructuring of PJM’s Capacity Market

On June 9, 2015, the Federal Energy Regulatory Commission (FERC) conditionally approved significant reforms to PJM’s capacity market, implementing the Capacity Performance Resource product, with PJM’s compliance filing due within 30 days.1 FERC found such reforms were necessary to address “the confluence of changes in the PJM markets, including both recent performance issues…impacted by inadequate … Continue Reading

Clean Water Act Jurisdiction under the Newly Issued Clean Water Rule

More than 40 years after Congress passed the landmark Clean Water Act, the jurisdictional reach of that statute remains a contentious legal and political issue. By prohibiting the discharge of pollutants to “navigable waters” without a permit, the Act expressly limits its protections to “navigable waters.” The statute defines “navigable waters” as “waters of the … Continue Reading

Tactical Issues When Multiple Parties Oppose Your Client

Environmental lawyers for regulated entities, governments, and NGOs often handle matters in which more than one party is on the other side.  Indeed, lawyers often have to think of organizations — businesses, agencies, or environmental groups — not as monolithic entities, but as coalitions of the individuals within them.  The Pennsylvania Environmental Law Forum planners … Continue Reading

The Proposed Pennsylvania Budget, New Oil and Gas Regs, and the Fear of Fracking

In early March, Pennsylvania Governor Wolf submitted his proposed budget.  The Department of Environmental Protection issued a new iteration of proposed revisions to the Pennsylvania Oil and Gas Regulations that has since appeared in the April 4 Pennsylvania Bulletin, 45 Pa. Bull. 1615.  Acting DEP Secretary John Quigley reportedly stated the Administration’s support for the Delaware River … Continue Reading

2014 Environmental Cases in the Pennsylvania Appellate Courts

My column this month in the Pennsylvania Law Weekly summarizes most (maybe all) of the decisions of the Pennsylvania appellate courts with an environmental dimension in 2014.  Read A Review of 2014 Environmental Cases in Pa.’s Appellate Courts, 38 Pa. L. Weekly 28 (Jan. 13, 2015), by clicking here.  If I have left something out, … Continue Reading

A New Pennsylvania Environmental Rights Amendment Opinion . . . In Dissent

In Hess v. Pa. Pub. Util. Comm’n, No. 1370 C.D. 2013 (Pa. Commw. Ct. Dec. 22, 2014), the Pennsylvania Commonwealth Court en banc considered a petition for review of an order of the Public Utility Commission granting approvals for a transmission line crossing the Susquehanna River.  The majority opinion mostly addresses reliability and what constitutes public … Continue Reading

Environmental Policy as Part of Integrated Overall Policy

Environmental quality is important, but it is just one set of the objectives of public policy.  Is it possible to think about the incentives set by environmental regulatory decisions and the outcomes they induce as part of a more integrated policy? Perhaps not. Consider Michigan v. EPA, No. 14-46 (U.S. Nov. 25, 2014).  Last month, … Continue Reading

Environmental Regulation and Investor State Dispute Settlement Clauses – OceanaGold and El Salvador

Investor state dispute settlement (“ISDS”) clauses in bilateral and regional investment treaties enable foreign corporations to sue a host country regarding regulations, policies, or court decisions. ISDS clauses were originally included in trade agreements and investment treaties in order to protect businesses that invest in foreign jurisdictions where legal and political systems are not robust. … Continue Reading

CERCLA Preemption of State Law Contribution Claims under Pennsylvania HSCA

The federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) allows private parties that incur cleanup costs to reallocate those costs to others through a cost recovery claim under section 107(a)(1-4)(B) or a contribution claim under section 113(f)(1) or (3)(B).  So do some state statutes and state common law.  There can only be one allocation … Continue Reading

US-China Joint Announcement on Climate Change

from the GT Climate Change Group You may have read in the press that President Obama and Chinese President Xi Jinping jointly announced an agreement on greenhouse gas emission reduction goals and other climate change measures.  The U.S.-China Joint Announcement on Climate Change and an accompanying fact sheet have been released by the White House.  This perhaps breaks the rhetorical logjam of discomfort among … Continue Reading

2014 Voters Address State, Local Infrastructure Funding Proposals

Written by Robert S. Brams, Alais L. M. Griffin‡, Jennifer R. McEwan˘, Jamey L. Tesler and David Veator. On Nov. 4, 2014, voters across the country addressed a series of state and local infrastructure funding proposals that will have substantial ramifications for transportation and infrastructure finance in many major states. As these results will impact the … Continue Reading

Thinking About Natural Resource Damages

My column this month in the Pennsylvania Law Weekly considers natural resource damages and their measurement.  NRDs are available under a number of federal programs.  To my knowledge, however, Pennsylvania state trustees have only sought to recover NRDs twice. We have to think about whether that might change.  The Supreme Court’s plurality opinion in Robinson … Continue Reading

Cross-Border Renewable Energy Projects: Sustainable Development and Investor Protection

Cross-border renewable energy development is a rapidly growing share of the more than $200 billion per year renewable energy industry. Balancing the interests of investors seeking regulatory certainty with the interests of states in environmental protection is a significant source of potential conflict. In a joint publication by two committees in the ABA Section of Environment, … Continue Reading

NY Community Risk & Resiliency Act – Significant Step Forward or Much Ado About Nothing?

Written by Steven C. Russo and Robert M. Rosenthal On June 19th, the New York Legislature passed the Community Risk and Resiliency Act in both houses by wide margins. The Act would likely be submitted to the Governor in the next two months for signature.  The Act has a laudable goal, to seek to encourage … Continue Reading

Miami-Dade County Extends Period for Public Comment Regarding Proposed Amendments to the Wellfield Protection Ordinance

As we previously reported, on May 24, 2014, Miami-Dade County opened a period for receipt of public comments regarding its proposal to amend the County’s Potable Water Supply Wellfield Protection Ordinance and associated maps for the Northwest Wellfield and the West Interim Wellfield protection areas. The County has extended the comment period. The new deadline for … Continue Reading

Charities, Donated Land and Environmental Liability

This month’s column in the Pennsylvania Law Weekly addresses the contamination risk faced by charities that accept donated land.  I particularly treat the problem of charities whose very purpose calls for them to accept environmentally suspect property.  Perhaps it has been a vacant lot subject to fly dumping.  Perhaps the charity is specifically intended to locate in … Continue Reading
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