A curious appellate court decision has Pennsylvania environmental law practitioners scratching their heads about the status of certain waterways.
No, we do not reference the U.S. Supreme Court’s latest Clean
Continue Reading Navigability: It’s Not Just for the Federal Clean Water Act Anymore
Rejecting the Trump administration’s novel 2019 interpretation that the Clean Water Act never requires permits for pollutant discharges to groundwater, the United States Supreme Court handed down, on April 23,
Continue Reading Supreme Court: Pollutants Reaching Navigable Waters Through Groundwater May Require Permit Under Clean Water Act
During the COVID-19 pandemic, as large and small businesses alike struggle to stay afloat while acting responsibly to protect public health, sustainability may not be top-of-mind. But the development and
Continue Reading EPA Commences Public Comment on Recycled-Content Product List – It May be More Relevant Than You Think
An EPA Inspector General (IG) report issued on March 31 found that agency enforcement and compliance activity and resources have generally declined – substantially on certain measures – between Fiscal
Continue Reading EPA Inspector General Finds Declining Enforcement and Compliance Resources and Outcomes
The U.S. Environmental Protection Agency (EPA) issued a memorandum (Susan Parker Bodine, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” U.S. EPA, March 26, 2020) (Discretion Memo)
Continue Reading U.S. Environmental Protection Agency Issues Enforcement Discretion Policy to Address Civil Noncompliance during the COVID-19 Pandemic
The “circular economy” is coming to Pennsylvania. And if recent polling data are correct, it cannot come a moment too soon—and Pennsylvania attorneys and advisers would be well-advised to become
Continue Reading Pennsylvania and the Circular Economy: Turning Waste Into Something New
In addition to causing infection and illness, the COVID-19 pandemic is creating challenges for organizations contending with employee quarantines and isolation, supply chain and logistics disruptions, and other operational changes.
While environmental compliance may not be top-of-mind right now for most Americans, it still is a critical consideration for organizations with environmental compliance or cleanup obligations.
Many environmental laws and settlement agreements provide relief valves in certain emergency or force majeure situations. But given that the regulators themselves may be quarantined or teleworking in the coming weeks and months, organizations can take certain steps now to ensure they are able to maintain environmental compliance during the COVID-19 pandemic or to obtain relief based on force majeure, impossibility or impracticability of performance, compliance-with-all-laws clauses, enforcement discretion, or emergency relief provisions.
Continue Reading Meeting Environmental Compliance and Cleanup Requirements During the Pandemic
In the wake of the drinking water crises in Flint, Michigan and elsewhere, the U.S. Environmental Protection Agency (EPA) proposed a rule on Oct. 10, 2019, that would impose new
Continue Reading After Flint, EPA’s New Lead Rule Proposal May Not Satisfy Critics
On Sept. 25, Minnesota Gov. Tim Walz asked the Minnesota Pollution Control Agency (MPCA) to initiate the process to establish a Clean Cars Minnesota Rule, which would set both a low-emission vehicle (LEV) standard and a zero-emission vehicle (ZEV) standard. Next month, the MPCA will begin its rulemaking process, with a goal of adopting a final rule by December 2020. If implemented, Minnesota would join 14 states with an LEV standard, 11 of which also have a ZEV standard.
The Minnesota plan is modeled after California LEV and ZEV standards. California has a nearly 50-year-old waiver under the Clean Air Act permitting the state to set stricter emission standards. After indications that the federal government would publish a rule revoking the waiver, California, joined by 22 other states, including Minnesota, and the District of Columbia filed a lawsuit seeking to enforce states’ rights to set emission standards more stringent than those imposed by the federal government. The lawsuit presents novel questions under the Clean Air Act including whether a waiver can be revoked, and if so, under what circumstances. Any final rule in Minnesota will be contingent on states retaining the right to adopt more restrictive measures, including through the operative waiver under Sections 209(b) and 177 of the Clean Air Act.
Continue Reading In Minnesota, More Little Red Corvettes May Soon be Electric
On Sept. 12, 2019, the U.S. Environmental Protection Agency and the Department of the Army followed through on an early Trump administration promise to repeal a 2015 jurisdictional rule defining the scope of the government’s authority under the Clean Water Act. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (pre-publication version).
Dubbed the “Waters of the United States” (WOTUS) rule, the Obama-era regulation spawned a tide of litigation, in federal trial and appellate courts, challenging the WOTUS rule as an unlawful attempt by the EPA and the Corps of Engineers to increase the numbers and kinds of waters subject to permitting requirements. The U.S. Supreme Court ultimately weighed in, saying that challenges to the WOTUS rule belong in the federal districts courts, not the U.S. courts of appeals. National Association of Manufacturers v. Department of Defense, __ U.S. __, 138 S.Ct. 617 (2018).
Continue Reading Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains