Category Archives: State & Local

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Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee on Hurricane Response and Preparedness. Speaker Pro Tempore Jeanette Nunez of Miami will chair the 16-member bipartisan Select Committee whose focus will be to gather … Continue Reading

Hurricanes Harvey & Irma: Controlling Water, Mold, Bacterial Fallout

Six Tips on Managing Water Damage, Mold Growth, and Bacterial Threats As Florida, Georgia, South Carolina, Texas, and other impacted areas begin the journey to recovery after Hurricanes Harvey and Irma, property owners are faced with the challenge of addressing water damage, preventing or remediating mold growth, and heading off bacterial threats from potentially contaminated … Continue Reading

Safe Drinking Water Act Does Not Preempt Flint Plaintiffs’ Section 1983 Claims

On July 28, 2017 the Sixth Circuit Court of Appeals reversed two lower court rulings and remanded two cases pertaining to the lead-contaminated water crisis in Flint, Michigan, concluding that plaintiffs’ claims under 42 U.S.C. § 1983 for deprivation of their federal rights were not preempted by the Safe Drinking Water Act (SDWA) (Beatrice Boler, … Continue Reading

The Margate Dune Project, Cooperative Federalism, and Problems of Litigation Procedure

The current federal administration has expressed a desire to defer largely to states through principles of cooperative federalism.  A recent case involving the dune construction in Margate, New Jersey, offers some insight into the procedural complexities this approach presents for those affected.  Where a state oversees a federally funded project, it is unlikely that one … Continue Reading

What’s Happening With the Environmental Rights Amendment?

A decision rendered last month by the Supreme Court of Pennsylvania reinterpreted the commonwealth’s obligations under Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA). The Supreme Court sided with the appellant, Pennsylvania Environmental Defense Foundation (PEDF), in PEDF v. Commonwealth of Pennsylvani a, 10 MAP 2015, and held … Continue Reading

Levitas v. Christian: Standards for Expert Opinions on Exposure Pathways in Maryland

Last week, the Maryland Court of Appeals (the highest state court) decided a lead paint toxic tort case of potential interest to environmental lawyers. Levitas v. Christian, No. 58 Sept. Term 2016 (Md. July 11, 2017), holds that a pediatrician may testify not only that the plaintiff’s injuries are the result of lead exposure, but … Continue Reading

Beware the Public Trust: New York’s Highest Court Stops Retail Expansion On Citi Field’s Parking Lot Under Public Trust Doctrine

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses. The New York Court of Appeals showed just how strictly that doctrine is applied when, after many years of planning and litigation, it enjoined development of a retail entertainment complex known as Willets West in … Continue Reading

Developments in Recent NY Medical Monitoring Claims

As readers of this blog know, we have been closely following developments regarding claims for medical monitoring.  (Medical Monitoring Claims in Illinois, Part 1; Medical Monitoring Claims in Illinois, Part 2.) A recent decision arising out of Hoosick Falls, New York, allowed Plaintiffs’ request for a medical monitoring fund to survive defendants’ motion to dismiss. On … Continue Reading

The 5th Circuit Issues Order Leaving Intact its Judicial Stay on the EPA Regional Haze Rule

On March 22, 2017, the U.S. Court of Appeals for the 5th Circuit continued its stay of EPA’s Regional Haze Rule. Texas et al. v. U.S. Environmental Protection Agency, No. 16-60118 (Mar. 22, 2017). The EPA rule would have required power plants in Texas and Oklahoma to install costly and potentially unnecessary upgrades to their generators. Last July, … Continue Reading

Drytech, NFAs, and ISRA Triggers: The ultimate clingy relationship

Have you ever wanted to escape a clingy and annoying relationship? In terms of environmental compliance, triggering New Jersey’s Industrial Site Recovery Act (ISRA) can evoke the same feelings of frustration.  N.J.S.A. 13:1K (­­­­1993). The recent Drytech, Inc. v. State of New Jersey, in particular, highlighted the pesky and recurrent nature of ISRA. ISRA applies … Continue Reading

Help! The DEP Guidance Document I Need is Missing!

The Pennsylvania Department of Environmental Protection (“DEP”), as is typical of government agencies, regularly releases guidance documents explaining how to interpret or apply its programs and regulations. Once drafted and again once finalized, these documents are published in DEP’s Online Library, where they can be accessed through browser searches or directly through the eLibrary.  But … Continue Reading

New York State Proposes Revisions to Its Environmental Review Regulations

Late last month the New York State Department of Environmental Conservation (DEC) proposed to revise its Part 617 regulations, which are the rules governing the conduct of environmental impact review under New York’s “Little NEPA,” known as the State Environmental Quality Review Act (SEQRA). The proposal was officially noticed in today’s issue of the New … Continue Reading

Massachusetts Releases Draft Regulations to Further Reduce GHG Emissions

The Massachusetts Department of Environmental Protection (MassDEP) recently released draft regulations for public comment which aim to further reduce greenhouse gas (GHG) emissions from various industry sectors in Massachusetts, including transportation, electricity generation, and natural gas pipelines. Public comments on these regulations are due by Feb. 24, and can be submitted in writing to MassDEP … Continue Reading

Philadelphia’s Approach to Nuisance Abatement on Vacant Properties

Conventional environmental lawyers may find themselves in unfamiliar territory when faced with a municipal citation for allowing a vacant property to become a nuisance or a municipal claim to recover the costs of abating that nuisance.  In Philadelphia, the City has a regular program to do both.  That program proceeds under City ordinances and regulations, … Continue Reading

New Emergency Rule in Florida Requires Responsible Parties to Quickly Notify Public of Pollution Spills

On Sept. 26, 2016, Governor Scott ordered the Florida Department of Environmental Protection to immediately issue an emergency rule requiring immediate notification of pollution spills to the general public, FDEP, and local governments. FDEP provides a copy of the Governor’s order and related materials on its website. During an investigation of two recent pollution spills … Continue Reading

Multiple Challenges Filed Against Massachusetts Small MS4 Stormwater General Permit

The long odyssey of the Massachusetts Small MS4 stormwater general permit continues – the latest chapter involving four separate appeals filed in two courts seeking to modify the permit’s terms.  Issued by U.S. EPA New England, the general permit authorizes stormwater discharges from small municipal separate storm sewer systems (“MS4”) located in Massachusetts. While the … Continue Reading

Court Weighs In on the ERA After ‘Robinson Township’

The Commonwealth Court of Pennsylvania recently denied a petition seeking declaratory and mandamus relief to require the Pennsylvania Public Utility Commission and a group of executive government officials to regulate greenhouse gases consistent with Article I, Section 27 of the Pennsylvania Constitution.  Funk v. Wolf, No. 467 M.D. 2015 (Pa. Commw. Ct. July 26, 2016).  … Continue Reading

Independent Scientific Panel Faults the EPA’s Landmark Hydraulic Fracturing Study

In a detailed, 180-page report released Aug. 11, the EPA’s Science Advisory Board (SAB) faulted the clarity and conclusions of the agency’s landmark study on the environmental impacts of hydraulic fracturing, the high-pressure injection of water, sand and chemicals to break open shale and other “tight” geologic formations to release gas and other hydrocarbons. In … Continue Reading

New York State Regulator Finalizes Definitions Under Amended Brownfield Program Relating to Eligibility For Tangible Property Credits For New York City Brownfield Projects

On July 29, the Department of Environmental Conservation (DEC) adopted a new rule for the Brownfields Cleanup Program (BCP) to effectuate the brownfield amendments passed by the Legislature last year. Under amendments to the BCP passed in connection with the executive budgeting process, the Legislature sought to limit the availability of certain tangible property tax … Continue Reading

Army Corps’ Jurisdictional Determinations Are Immediately Appealable

As previously covered by this blog, on May 31, in a unanimous ruling, the eight-member U.S. Supreme Court held that a final determination by the U.S. Army Corps of Engineers (Army Corps) as to whether a property contains “waters of the United States,” subject to Clean Water Act regulations, is a final agency action subject … Continue Reading

GT Philadelphia at the PA Environmental Law Forum

Recently, lawyers from Philadelphia’s Environmental Practice Group attended the Pennsylvania Environmental Law Forum in Harrisburg, Pennsylvania. Organized by the Pennsylvania Bar Institute, the annual Forum includes educational presentations by experienced practitioners along with networking events. Jillian Kirn gave a presentation on cooling water intake structures commonly used by industrial facilities, such as power plants, and the … Continue Reading

Massachusetts Takes Important Step Towards Clean Water Act Permitting Delegation

Massachusetts Governor Charlie Baker has filed legislation that moves Massachusetts one step closer to a long-desired goal:  authorization to administer the Clean Water Act NPDES permitting program.  Currently, Massachusetts is one of only four states (in addition to Idaho, New Hampshire, and New Mexico) that has not been “delegated” this authority. A number of the … Continue Reading

Texas Supreme Court strikes down Houston air quality ordinances

On Friday, the Texas Supreme Court struck down Houston’s air quality ordinances, ruling the city had overstepped its authority to police local polluters.  In an 8-1 decision, the justices ruled that local ordinances requiring businesses to pay registration fees and allowing criminal sanctions for emissions violations were inconsistent with state law. The justices wrote in … 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
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