Category Archives: Environment

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Massachusetts High Court Rules Global Warming Solutions Act Mandates Annual, Declining Restrictions on GHG Emissions

In a decision that will have far-reaching consequences for the Massachusetts economy, Massachusetts’ highest court has ruled that the Global Warming Solutions Act (GWSA), passed in 2008, mandates the imposition of annual, declining limits on greenhouse gases (GHG) emissions.  In Kain vs. Dept. of Environmental Protection (SJC-11961, May 17, 2016), the Massachusetts Supreme Judicial Court … Continue Reading

Taking Another Look at Environmental Indemnity

From Grant E. Nichols of GT Philadelphia: For at least the past 30 years, parties involved in the purchase or sale of properties that contain environmental exposure have had to negotiate environmental indemnity agreements, either to protect assets, transfer liability, or to simply get a deal across the finish line.  However, as more properties have … Continue Reading

New York To Promote Climate Smart Project

This year’s New York State budget offered numerous headline grabbing changes, yet one of the less-heralded portions has the highest potential to reshape the state’s responsiveness to changing climactic conditions.  As part of the state transportation, economic development, and environmental conservation Article VII budget legislation (“TED Bill”), the Legislature passed Title 15 of Part U, … Continue Reading

Does FERC’s Denial of Authority to Construct Jordan Cove Signal a More Rigorous Test for Future LNG Projects?

On March 11, 2016, the Federal Energy Regulatory Commission (FERC) denied an application by Jordan Cove Energy Project, L.P. (Jordan Cove) for authority under Section 3 of the Natural Gas Act (NGA) to site, construct, and operate a facility at Coos Bay, Oregon, for the exportation, principally to Asia, of liquefied natural gas (LNG). In … Continue Reading

The “Other Yates Memo” and USDOJ’s Enforcement of Worker Safety Laws

On March 15, John Cruden, the Assistant Attorney General for Environment and Natural Resources, gave an address explaining USDOJ’s approach to enforcement of workplace health and safety laws.  This new approach is set out in a memorandum authored by Deputy Attorney General Sally Yates and issued late last year.  In short, criminal enforcement of workplace … Continue Reading

New York Environmental Regulator Proposes Major Overhaul of Solid Waste Regulations

On Monday, Feb. 29, 2016, the New York Governor announced that the New York Department of Environmental Conservation (“DEC”) was proposing new regulations for the handling of solid waste.  The proposed changes to the solid waste regulations contained in Parts 360, 364, and 369 seek to reorganize and rationalize the muddled set of regulations created … Continue Reading

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

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 … Continue Reading

Annual Review of Environmental Cases from the Pennsylvania Courts

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. … Continue Reading

Environmental Solutions to Uncertainties in Mergers & Acquisitions

From Curtis B. Toll of GT Philadelphia: As merger and acquisition (M&A) activity continues to increase, the complexity and size of these transactions warrants a sophisticated approach to deal with the broad range of potential environmental risks associated with these transactions.  Specialized and transaction-focused environmental insurance programs are increasingly used to manage these risks in … Continue Reading

James Bacchus Featured in Bloomberg Business of Law’s “The Lawyers Who Trekked to Paris for Climate Change Talks”

Political leaders are not the only ones in attendance at the 21st annual meeting of the “Conference of the Parties” (COP 21), taking place Nov. 30 to Dec. 11 in Paris. The conference is expecting roughly 45,000 participants, including many representatives from big U.S. law firms. While many attendees are not participating in the actual … Continue Reading

Environmental Commitments, Termination Clauses, and Waiting for the End of Time

My November environmental practice column for the Pennsylvania Law Weekly considered the problem of terminating an environmental obligation when conditions change after a time.  In the pursuit of “paradise by the dashboard light,” as Meatloaf taught, if I promise to love you until the end of time, I might end up “praying for the end of time … Continue Reading

Eighth Circuit Reverses Class Certification Where Class Members Not Commonly Injured by Contamination on Their Property

On September 15, the Eighth Circuit reversed the district court’s order certifying a class of property owners who sought nuisance based damages and injunctive relief. In Smith v. ConocoPhillips Pipe Line Co., No. 14-2191, 2015 WL 5332450 (8th Cir. Sept. 15, 2015) the Court concluded that there was no evidence showing that class members were … Continue Reading

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
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