EPA’s New WOTUS Rule

Posted in Clean Water Act, EPA, Executive Order, Regulatory, Water, WOTUS

On Dec. 11, 2018, EPA and the U.S. Army Corps of Engineers (the Agencies) released a proposal to revise the regulatory definition of “waters of the United States” (WOTUS), as found in the federal Clean Water Act (CWA). The proposal represents another chapter in the long-running debate over the scope of federal authority.

The CWA gives the Agencies broad authority to regulate WOTUS – but does not define that term. The Agencies have adopted numerous definitions of WOTUS over the past several decades, recently adopting a rule during the Obama administration that defined WOTUS very broadly based on construing Justice Kennedy’s “significant nexus” test from his concurring opinion in Rapanos v. United States. The Obama-era WOTUS rule is currently enjoined in 22 states while litigation challenging its legality proceeds.

On Feb. 28, 2017, President Trump issued an executive order directing the Agencies to review and revise the Obama-era rule, instead adopting Justice Scalia’s narrower definition of WOTUS from the plurality opinion in Rapanos. The Agencies’ proposal this week is the latest action in response to the executive order.

The key changes to the definition of WOTUS found in the Agencies’ Dec. 11 proposal include:

  • Removing jurisdictional coverage of all interstate waters, instead requiring that an interstate water separately meet the definition of WOTUS under another jurisdictional category (such as being tributary to a navigable water, or being a navigable water);
  • Removing “ephemeral” waters features as definitional WOTUS, only including rivers and streams with yearly perennial or intermittent flow to downstream navigable waters;
  • Removing upland and ephemeral ditches from definitional WOTUS;
  • Only including lakes or ponds that are traditional navigable waters or connected to traditional navigable waters through tributaries;
  • Narrowing the coverage of wetlands, only including wetlands that are abutting jurisdictional waters or that have a direct hydrological surface connection to jurisdictional waters (thus removing wetlands separated by a berm, dike, or other barrier that were previously considered jurisdictional).

Otherwise, traditional navigable waters and territorial seas, impoundments, tributaries, wetlands abutting navigable waters, and ditches and lakes and ponds connected to navigable waters remain jurisdictional under the Agencies’ revised definition of WOTUS.

The Agencies claim that the new proposed WOTUS definition will bring clarity to jurisdictional determinations when compared with the Obama-era definition by creating clearly defined categories of waters considered WOTUS, eliminating the case-by-by case reliance on Justice Kennedy’s “significant nexus” test while still incorporating the important aspects of Justice Kennedy’s opinion.

The Agencies acknowledge that the new WOTUS definition narrows the scope of waters covered as jurisdictional when compared to both the Obama-era rule and the pre Obama-era WOTUS definition, but assert that the definition more closely adheres to constitutional and statutory limitations in the CWA, limiting the role of the federal government and respecting state and tribal authority over their own land and water resources.

Comments to the Agencies’ proposed rule will be due 60 days after formal publication in the Federal Register. If formally adopted, legal challenges to any final rule are expected – including seeking relief in the form of reinstatement of the 2015 Obama-era WOTUS Rule.


We are nominated for The Expert Institute’s Best Legal Blog Contest

Posted in Announcements

Thank you for reading the E2Law blog.

We are pleased to announce the E2Law Blog has been selected from hundreds of potential nominees to participate in the largest competition for legal blog writing: The Expert Institute’s Best Legal Blog Competition. The competition runs until the close of voting on December 17th.

Please click the link below to vote today – and please share!

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Environmental Aspects of the United States-Mexico-Canada Commercial Agreement (USMCA)

Posted in Environment, Federal, Federal Regulation, GT Alert, International, Mexico, Pollution, USMCA, Water

The recent United States-Mexico-Canada Agreement (USMCA), which replaces the North American Free Trade Agreement (NAFTA), claims to modernize and reinforce obligations regarding environmental matters that were previously covered in NAFTA and by the Commission for Environmental Cooperation (CEC).

This GT Alert summarizes some of the most important environmental aspects established by Chapter 24 of the USMCA and explains the scope of the new agreement’s binding obligations, which include conflict resolution through consultation and cooperation.

To read the full GT Alert, click here.

Energy Label C Obligation for All Office Buildings in the Netherlands in 2023 (With Few Exceptions)

Posted in Energy, Netherlands, Real estate


Beginning January 2023, energy labels of the major part of office buildings in the Netherlands will have to be at least in category C, because of an amendment to the Dutch Buildings Decree 2012 (Bouwbesluit 2012), published 2 November 2018. This generally means that owners of office buildings with energy labels from D to G (or without any energy label) should quickly implement energy-saving measures to comply with this obligation.


Since 1 January 2008, energy labels for nonresidential buildings (e.g., office buildings, schools, hospitals) have been mandatory when selling, letting, or transferring such buildings. A similar obligation exists for residential buildings in the Netherlands.

An energy label demonstrates the energy performance of a building. It also includes a standard of which energy-saving measures need to be taken to improve energy performance. The lower the energy label, the more energy-saving measures may be required to obtain a better energy label and to improve the energy performance of a building. The label categories range from A to G, with G being the lowest in terms of energy performance and having the most energy-saving measures needed to obtain a higher energy label.

At present, having an energy label in place is mandatory regardless of the category. Starting in 2023, however, stricter regulations will apply to office buildings concerning energy labels. These stricter regulations will be implemented in the Dutch Buildings Decree 2012.

New Requirements for 2023

Starting 1 January 2023, office buildings must have an energy label in category C or higher. The use of office buildings with an energy label below C will be prohibited as of that date. Exceptions will apply in the following circumstances:

  • the office building is part of a (larger) building and the total usable area for office functions is less than 50 percent of the total usable surface area of that building;
  • the total usable area for office functions and ancillary functions in the office building or the building in which the office building is a part is less than 100 square metres;
  • an office building that is mentioned in Article 2.2 Energy Performance Buildings Decree (Besluit energieprestatie gebouwen). Important exceptions based on this article 2.2 are:
    • an office building that is a national monument;
    • an office building that is only used for a maximum of two years.

Office space owners who can demonstrate that, before 1 January 2023, they have taken all measures needed to realize an energy label in category C with an earn-back-period of up to 10 years, can get by with an energy label lower than category C. The application of this provision and especially the application of the earn-back-period are not clearly explained in the amendment to the Dutch Buildings Decree 2012. It is, moreover, unclear how the effect of this provision will be enforced by the relevant authorities.

Consequences of the Energy Label C Obligation

The abovementioned amendments follow from the Energy Agreement (het Energieakkoord) for sustainable growth of 2013. This Energy Agreement aims to, among other things, limit CO2 emissions and save energy consumption in the Netherlands.

In practice we see that office buildings with energy label D, E, or F could, generally speaking, achieve a label C without major renovations (e.g., by lighting or heating measures). For office buildings with an energy label G, more drastic measures may be necessary.


A tenant is not responsible for compliance with the energy label C obligation with respect to the authorities. However, contractual stipulations in the lease agreement may require the tenant to be responsible for or cooperate with taking energy saving measures (e.g., in the case of a shell lease).

(Office) building tenants should inform or remind their landlords of the energy label obligation in a timely manner, as it will be prohibited to use noncompliant office buildings starting 1 January 2023. Furthermore, the execution of energy-saving measures could temporarily interfere with the use and occupation of an office building. Tenants should plan the execution of any measures with the owner/landlord. In addition, owners should communicate with their tenants about the planned energy-saving measures and how to prevent nuisance for the tenant as much as possible.


Starting 1 January 2023, it will be prohibited to use an office building that does not have an energy label C and is not exempted from this obligation. Violations of the energy label-obligation may result in administrative enforcement actions or criminal enforcement actions. This could lead to the imposition of an order subject to a penalty (last onder dwangsom), an administrative enforcement order (last onder bestuursdwang), or administrative fines (bestuursrechtelijke boete).

For the Future

The Energy Agreement aims for an energy label A requirement for the use of office buildings in 2030. Further legislation will likely follow to achieve this goal. Owners of office buildings should take this into account when investing in measures to upgrade their energy label.

Constant Vigilance: Why Environmental Criminal Enforcement Still Matters

Posted in Compliance, Court Cases, Environment, Environmental Justice, EPA, Litigation, Uncategorized

Jillian Kirn authored an article titled “Constant Vigilance: Why Environmental Criminal Enforcement Still Matters” in The Legal Intelligencer.

According to Syracuse University’s Transactional Records Access Clearing House (TRAC), federal prosecutions for environmental crimes are down 40 percent from 2013 levels. Still, despite these recent declines, environmental criminal enforcement remains a potent regulatory tool.

To read the full article, click here.


Florida Appellate Court Reverses Class Certification in Commercial Fishing Action Arising From a 65-Million-Gallon Process Water Release Into Tampa Bay

Posted in class action, Court Cases, Environment, Florida, Hazardous Waste, Pollution, Water

In the summer of 2004, during Hurricane Frances, an industrial facility released approximately 65 million gallons of process water into Tampa Bay. A group of commercial fishermen promptly filed a putative class action. The class representatives alleged that the release damaged the natural habitat and adversely affected commercial fishing in and around Tampa Bay. At the certification hearing class representatives testified to what they alleged was their firsthand observation of harm to the bay and their experience of loss in commercial fishing landings and revenue. They argued that the “overwhelming common legal and factual aspects between the claims of the named [p]laintiffs and putative class members dwarf any variation in the claims and predominate over any individualized issues.” The defendant presented the testimony of experts in the fields of ichthyology, benthic ecology, marine biology, physical oceanography, estuarine science, and commercial fishing economics to demonstrate not only the absence of areawide impact, but that the class representatives failed to provide any methodology to demonstrate classwide impact and no class representative could prove the cases of the absent class members by proving their own individual cases.

The trial court certified the class by bifurcating liability and damages. It stated in its certification order:

The liability issues are common to all plaintiffs, since they are determined only by the actions of the defendant and of nature. These common questions predominate up to and including the determination of the severity of the spill’s potentially toxic effects in each geographic area. The plaintiff’s yet-to-be-revealed evidence of the effect of the spill and the defendant’s “no causation” defense both pertain to particular geographic areas, not particular people, and are thus common questions to be resolved at the liability stage.

The defendant appealed the trial court’s class certification to the Second District Court of Appeal, which rendered a decision reversing the trial court’s certification, holding that the trial court “abused its discretion because there was no competent, substantial evidence supporting its ‘proof-based inquiry’ into and ultimate determination of rule 1.220(b)(3)’s predominance requirement.” Mosaic Fertilizer, LLC v. Curd, et al., Case No. 2D17-2301 (Fla. 2d DCA Nov. 9, 2018). In its decision, the appellate court made the following important points:

  1. The class representatives must provide a reasonable methodology for proving classwide impact. The appellate court stated that “[a] proponent of certification must demonstrate a ‘reasonable methodology for generalized proof of class-wide impact’ whereby ‘proving his or her own individual case, [the putative class representative] necessarily proves the cases of the other class members.’” And that in this case, “[t]he fisherman [] had the burden of proving—beyond mere ‘supposition’—some methodology for generalized proof by which the class representative would necessarily prove the cases of all other commercial fishing license holders who claim to have been damaged by the spill.”
  2. The class representatives’ evidence did not satisfy that requirement. The appellate court observed that “[t]aken as a whole, it is not possible to view [the class representatives’] testimony as plausibly putting forth a reasonable methodology for proving classwide claims.” Consequently, they “failed to carry their burden of positing any reasonable methodology for proving classwide claims.”
  3. Florida’s Engle case is unique and does not necessarily authorize bifurcation as a means of satisfying the predominance requirement. The appellate court observed that bifurcating liability and damages does not necessarily satisfy “a means of meeting” predominance, and Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) is an idiosyncratic case that is “unique and unlikely to be repeated.”
  4. The trial court left for later what it was required to do at the class certification hearing. Finally, the appellate court noted that “[w]ithout making some antecedent showing of the methodology by which the fisherman intended to prove classwide claims, the fisherman failed to meet the burden imposed by rule 1.220(b)(3).”

Mosaic Fertilizer, LLC v. Curd, et al. provides useful guidance in the field of environmental class actions.

Greenberg Traurig served as counsel to Appellant, Mosaic Fertilizer, LLC, in this case.

Recent Opinions Hold Differing Views on Point Source Discharges Into Waters

Posted in Clean Water Act, Court Cases, Environment, Pollution, Uncategorized, Water, Water quality

Kathleen Kline authored an article in The Legal Intelligencer titled “Recent Opinions Hold Differing Views on Point Source Discharges Into Waters.”

The article explores two recent opinions from the U.S. Court of Appeals for the Sixth Circuit regarding the growing cacophony over Clean Water Act jurisdiction, both holding that the act does not regulate pollution that reaches surface water via groundwater.

To read the full article, click here.

OSHA’s Regional Emphasis Program on Reducing Exposure to Ammonium

Posted in GT Alert, Uncategorized

On Oct. 1, 2018, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new Regional Emphasis Program (REP) to address hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia. The REP will be effective in the states of Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas. It is aimed at employers in the fertilizer storage, mixing/blending, and distribution industries whose workers can face hazards leading to serious illness, injury, and death from fire, explosions, and exposure to toxic gases and chemicals.

The REP was a result of a disaster at a facility several years ago in West, Texas, where at least forty tons of FGAN exploded and killed fifteen people, injured hundreds of others, destroyed the facility, and damaged other surrounding buildings.

Continue Reading.

It’s the Law: Don’t Sell Your Homebrew!

Posted in brewing, Environment, Federal Regulation, Water

Homebrewing and drinking craft beer are both widely popular. Currently, there are more than 6,000 craft breweries in the U.S., and over 2,000 homebrew clubs. As brewing for fun and profit has become more widespread, the applicable legal framework has also developed – and compliance is just as important for hobbyists as for professionals.

At the outset, it’s important to note that homebrewing and commercial brewing are subject to very different sets of laws. The most basic distinction is that homebrew can’t legally be sold, a golden rule (and actual rule) those of us in the homebrewing community can’t be reminded of enough. Therefore, homebrewers are unaffected by many of the regulations for-profit brewers must comply with – but are limited in what they can do with the final product (i.e. you can’t sell it).

Brewing at any scale requires a lot of water. On average, seven gallons of water are needed to make one gallon of beer – and most of that water ends up as waste. Commercial breweries must obtain Industrial User permits, allowing them to discharge wastewater to municipal treatment plants, if they discharge an average of 25,000 gallons per day or more of water. Each permit will describe and limit what compounds the discharged water may contain, and heavy fines may be levied if the permit’s terms are violated. In 2016, Pennsylvania brewery Yuengling learned firsthand what the cost of noncompliance can be – the brewery entered a consent decree with the United States to resolve a dispute over alleged discharge permit violations, agreeing to pay nearly $10 million in combined facility improvements and penalties – expenditures of the type we avoid by not selling homebrew. Yuengling’s discharges primarily contained sugar and yeast – not toxic or hazardous compounds – and exceeded permit limits for phosphorus and zinc, pH, and biological oxygen demand.

Fortunately for homebrewers, smaller production volumes obviate the need for discharge permits and much of the concern over wastewater disposal. In Pennsylvania, homebrew production is limited to 300 gallons annually per household – an amount far lower than would trigger discharge permit requirements. So long as you adhere to that limit, you should avoid regulatory scrutiny. Don’t forget – not selling your homebrew helps you avoid regulatory scrutiny as well. While penalties for brewing water disposal are generally not applicable to homebrewers, best practices in water management should be followed. Water used for cleaning brewing equipment or chilling wort can be dumped down the drain or used to water a yard or garden. However, brewing effluent, like other waste, shouldn’t be dumped into storm drains or bodies of water. Particularly in drought-prone areas, water conservation should be a focus. Water that’s piped through a counterflow chiller, for example, generally remains clean and can be used to wash equipment after brewing, or for other purposes. A batch of sanitizing solution – which is mostly water – can be used to clean multiple items before losing effectiveness, and most commercial sanitizers used by homebrewers are biodegradable and non-toxic.

The other main biproduct of brewing is spent grain – malted barley and other grains from which most of the fermentable sugar has been extracted. Despite its name, spent grain still contains nutrition, and lends itself to a variety of uses. Breweries commonly donate or sell spent grain to be used as animal feed, eliminating the need for costly disposal of the would-be waste. This practice is allowed by the FDA, so long as the brewers comply with human food safety regulations, ensure spent grains aren’t commingled with other waste or contaminants, and do not transform the grains after brewing by cooking or otherwise processing them. The agency considered more stringent handling and packaging rules for breweries offering spent grains as animal feed in late 2013, but withdrew the proposal following widespread industry pushback against what were expected to be costly and duplicative requirements.

Homebrewing isn’t subject to these regulations under which the FDA allows spent grains to be sold as animal feed. Therefore, just as you should never sell your homebrew, entrepreneurial homebrewers should not sell their brewing biproducts either – at least, not without researching all requirements governing the intended use of the grains or other waste. Homebrewers can, however, use their spent grains for personal consumption or composting. Because spent grain output from a home operation is much smaller than that of a commercial brewery, local waste management should easily dispose of whatever’s left over once you’ve had your fill of spent grain bread (or granola, or pizza dough, or pretzels, or dog treats…) and your compost bin and your neighbors’ are overflowing.

If you’ve read this far, you’ve probably gathered that you’re not allowed to sell your homebrew. And I can’t accept homebrew in exchange for legal services. I know, it’s a bummer. But look on the bright side: as homebrewers, we deal with far fewer regulatory restrictions on our brewing and waste disposal processes. And we can be innovative and experimental, free to break the law of the Reinheitsgebot.

Oh, one last thing: don’t sell your homebrew!

Kathleen Kline is a litigator and environmental lawyer who handles a variety of matters, including disputes over water pollution as well as professional liability. Kathleen also serves as Legal Advisor to the Philadelphia Homebrew Club, in which capacity she constantly reminds Club members that it’s against the law to sell homebrew.

Expanding Incentives for Brownfield Redevelopment: What Has Changed?

Posted in Articles, Brownfields

Giuliano Apadula co-authored an article in the The Legal Intelligencer titled “Expanding Incentives for Brownfield Redevelopment: What Has Changed?” The article explores the Brownfields Utilization, Investment and Local Development Act.

To read the full article, click here.