On Sept. 6, 2018, the Secretariat of Environment and Natural Resources (SEMARNAT), along with the Secretariat of Agriculture, Livestock, Rural Development, Fishery and Food (SAGARPA), published a new agreement establishing the digital information platform mandated in Article 24, Paragraph 3 of the Sustainable Forest Development Law (the Agreement). The agreement sets out the guidelines that SEMARNAT and SAGARPA will use to identify forest territories and agricultural lands, and includes details about the digital platform that will be used to determine which forested land is eligible to receive government support and economic stimulus to help develop agricultural activities.
On Sept. 7, 2018, the Energy Regulatory Commission (ERC) published guidelines for petroleum price visibility and storage tank identification in service stations selling gasoline and diesel fuel to the public in the Official Gazette of the Federation (the Guidelines). The Guidelines repeal agreement number A/047/2017.
The Guidelines went into effect Sept. 10, 2018, but licensed sellers of gasoline and diesel fuel have 90 days from Sept. 11 to comply.
The Dutch government is working on a major overhaul of the statutory environmental framework in the Netherlands. In this context, four key environmental decrees (AMvBs) (the Decrees) were adopted and published in the Dutch Government Gazette on Aug. 31, 2018.
The publication of the Decrees is part of a major and fundamental revision of practically all Dutch environmental legislation. Dozens of acts and decrees and hundreds of rules will be bundled into one Environment and Planning Act (Omgevingswet) (the Act), including the Decrees. The Act itself was published in the Government Gazette on April 26, 2016.
This legislative program includes significant changes. Statutory obligations to attain a permit will, for example, be reduced or replaced with more general environmental rules. As a result, the industry expects a shift from permitting to supervision and enforcement. In addition, facilities with large amounts of hazardous substances will be exposed to administrative fines if they violate hazardous substances regulations (such a measure currently is not available for administrative authorities in the enforcement of hazardous substances).
Further, the municipal zoning plan (currently a key administrative instrument used to assign certain uses to plots of land) will be replaced with a new instrument, the environment plan (omgevingsplan), which should include comprehensive environmental rules (and not just the designated use of a plot). Based on the Act, local authorities may also choose to abolish the (current) requirement to attain a building permit, if they see fit. These amendments may have a major impact on development projects in the Netherlands.
The Act and the Decrees are scheduled to enter into force on Jan. 1, 2021. This allows for a period of transition during which governmental authorities and the industry can take the necessary preparatory actions.
The California Court of Appeal, First Appellate District (First District) recently reversed course on an important issue in the Proposition 65 world by indicating that a jury trial may be available to defendants in certain circumstances. The decision, Nationwide Biweekly Administration, Inc., et al., v. The Superior Court of Alameda County, Opinion, A150264, (June 13, 2018), rebuked both the legal reasoning and conclusion of the First District’s precedent on the issue, DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007), which held that Proposition 65 defendants did not have a right to a jury trial.
In DiPirro, the court reasoned that jury trials are not available in Proposition 65 cases because the essential character and purpose of the law is to provide equitable relief, not to impose civil penalties. Id. at 180-81. DiPirro was based on a widely recognized principle in American jurisprudence under the Seventh Amendment to the U.S. Constitution – that litigants in traditional legal actions (i.e., monetary damage cases) are guaranteed the right to a jury trial, whereas litigants in equitable actions do not have such a right.
The First District’s recent decision in Nationwide Biweekly Administration expressly calls into question the legal reasoning and conclusion of DiPirro. The First District states that the DiPirro court misconstrued the rule, and that “a right to jury trial does exist as to liability in a government enforcement action seeking statutory penalties” but does not exist as to the amount of those penalties. Of course, Proposition 65 is not strictly an equitable relief statutory scheme – it includes a significant penalty component. On this basis, the First District stated that “we cannot endorse DiPirro’s analysis” given its unsupported conclusion that a right to jury trial does not exist when determining liability for penalties under Proposition 65.
Nationwide Biweekly Administration looks to be a positive development for defendants in Proposition 65 cases, but it does not expressly overturn DiPirro nor undo other fundamental problems with the law, including the fact that the burden of proof is often placed on the defendant. While the First District’s decision is a step in the right direction, it likely will not alter the ultimate conclusion for most Proposition 65 defendants – that settlement is a more cost-effective approach than engaging in lengthy litigation.
Brady R. McShane authored an article in the Colorado Real Estate Journal titled “Green Roof Initiative: Compare the Green Roof Initiative with the new proposal.” The article discusses Denver’s Green Roof Review Task Force and its proposed changes to the Initiative. Passed by voters in the November 2017 election, the Green Roof Initiative aimed to decrease building energy consumption, greenhouse gas emissions, and the urban heat island effect, but has been criticized as an impractical, “one-size-fits-all approach.”
To read the article, click here.
On July 23, 2018, Mexico published new administrative provisions (the “Guidelines”) implementing minimum insurance requirements for entities engaged in activities related to transportation, storage, distribution, compression, decompression, liquefaction, regasification, or retail sale of hydrocarbons or petroleum products in Mexico (“Regulated Entities”).
The Guidelines will help Regulated Entities that carry out activities in the hydrocarbon sector understand minimum insurance requirements for civil liability and environmental damage liability or losses that may occur as a result of their activities.
The Provisions are effective as of July 24, 2018.
Soil or groundwater cleanups can take a long time. When one person conducts the cleanup and another has an interest in its completion, the two can disagree over the pace of the project. That is typically a three-party issue involving the regulator—for example, the Environmental Protection Agency or the Department of Environmental Protection. Resolving the dispute by litigation poses challenges. Last month, the Commonwealth Court offered some guidance on some of these challenges in Delaware Riverkeeper Network v. Department of Environmental Protection, No. 525 M.D. 2017 (Pa. Commw. Ct. July 25, 2018), permitting citizen suit claims against the DEP to obtain a faster cleanup and a direct claim under the Environmental Rights Amendment.
At a nationally-televised news conference July 24, 2018, EPA Acting Administrator Andrew Wheeler announced the approval of biofuels derived from sorghum oil as “advanced” renewable fuels under the Clean Air Act’s Renewable Fuel Standard (RFS) program. See Renewable Fuel Standard Program: Grain Sorghum Oil Pathway (Sorghum Rule) (July 24, 2018, pre-publication version). Wheeler called the approval a win for the nation’s “sorghum farmers and biofuel producers alike.”
In late June, the New York State Department of Environmental Conservation (DEC) promulgated long-awaited final revisions to its regulations detailing the standards and procedures for New York’s “Little NEPA” environmental quality review statute, the State Environmental Quality Review Act (SEQRA). This modest reform effort, which began with stakeholder outreach in 2012, will now govern all environmental reviews, including Environmental Impact Statements and Environmental Assessments, conducted in New York State starting in 2019.
The final rule largely tracks with the rule proposed in early 2017 (addressed more fully in our prior blog post, available here), including the reduction of the threshold for Type I actions, the imposition of mandatory scoping procedures prior to the preparation of an environmental impact statements (EIS), and the creation of new limiting factors to facilitate a faster EIS process. The final rule also retains many of the added exemptions for green infrastructure, energy, and reuse of existing facilities. There were, however, several potentially significant changes that, unfortunately, narrowed the scope of the amendments.
Changes to Proposed Type II Additions
The greatest change to the regulations relates to the creation of new SEQRA exempt “Type II” projects. Type II actions are actions that the DEC has determined do not pose a risk of significant adverse environmental impacts, and therefore do not require further SEQRA review.
First, the final rule eliminated the proposed rule’s exemption for redevelopment projects on “previously disturbed sites” in municipal centers, which was aimed at encouraging “smart growth” projects by exempting them from SEQRA’s requirements. This type of in-fill development was eliminated due to perceived difficulty in statewide application of the definition of what constitutes municipal centers, and was determined by the DEC to be best addressed at the municipal level (other government agencies subject to SEQRA can adopt their own Type II lists, but rarely do so). The DEC also removed anaerobic digesters associated with sewage treatment plants from the Type II list due to concerns over the potential impact of such facilities in dense urban areas. Finally, the DEC eliminated the proposed Type II treatment of rule minor subdivisions as Type II. As a result, the DEC significantly cut back its prior attempt in the draft regulations to streamline SEQRA by enhancing the list of SEQRA-exempt activities. Those activities, like myriad other discretionary government actions, will be treated as “unlisted actions,” subject to an assessment to determine whether an EIS is required.
In addition, the final rule amended some of the language surrounding proposed Type II projects for energy generation, easing some of the restrictions on placement of solar panels on superfund, brownfield, landfill, wastewater treatment, and industrial sites, as well as on existing structures that are not listed or eligible to be listed as historic sites. The final rule also altered the size threshold for solar, switching from a generating capacity restriction of five megawatts to an area restriction of 25 acres. These changes, recognizing New York’s renewable energy goals, serve to increase solar energy availability and decrease barriers to further growth.
Requirement to Consider Late-Filed Comments on the Scope
The department also slightly altered the requirements of the scoping process in response to public comment, requiring a lead agency to consider and include late-submitted comments on the scope in an appendix to the draft EIS. [6 NYCRR 617.8(g) of the final rule]. This requirement applies only to potentially important or relevant information submitted after the comment period with a statement indicating: (i) the nature of the information that should be considered, (ii) why the information relates to a potential significant impact, and (iii) why the information was not identified during scoping and why it should be considered during the review. Upon receiving such late submitted comments, the agency is required either to incorporate the information if truly significant or to include the information as an appendix to the draft EIS. Thus, the final regulations water down another aim of the revision effort, providing certainty to applicants and project sponsors on what must be included in an EIS for it to be deemed a complete assessment of potential adverse impacts. The DEC’s revision attempts to thread the needle somewhat by limiting the requirement to consider late comments to the preparation of an appendix rather than requiring a full amendment of the draft EIS; thus, the proposed rule seeks to ensure all public input is disclosed, while allowing a project sponsor to complete the environmental review process without needing to continuously amend the document to account for an endless stream of late-filed comments.
The length of time required to finalize these new regulations—which were formally adopted by the DEC June 27, 2018, and will become effective January 1, 2019—is proof that changing New York’s environmental review statute is never an easy endeavor. The removal of a number of provisions that sought to streamline SEQRA review ensures that the process will continue to be lengthy and complex for applicants and project sponsors.
On July 18, 2018, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ordered a stay of a recent Environmental Protection Agency (EPA) action that would allow manufacturers to continue to produce trucks with engines that do not comply with the agency’s Clean Air Act caps. In so ruling, the D.C. Circuit expressly stated that the stay “should not be construed in any way as a ruling on the merits of that motion” and ordered the EPA to submit responsive briefs July 25.