Contradicting the argument raised by the United States in a recent amicus brief in the U.S. Court of Appeals for the Ninth Circuit, the EPA finalized new guidance on April 12, 2019, concluding that the Clean Water Act “is best read as excluding all releases of pollutants from a point source to groundwater from NPDES … Continue Reading
On Feb. 21, 2019, the Delaware Superior Court decided that the state’s Department of Natural Resources and Environmental Control (DNREC) cannot order an environmental violator to remedy its violation under the department’s general enforcement statute. That is, under that statute, DNREC can order a person illegally disposing of solid waste to stop adding to the … Continue Reading
Part 2 of this series on the large number of environmental cases decided by the Pennsylvania appellate courts in 2018 discusses enforcement, the Oil and Gas Act, valuation, and a few other cases of note. Read David G. Mandelbaum’s article from The Legal Intelligencer supplement Pa. Law Weekly, “Significant Environmental Cases in Pa. Courts During 2018 … Continue Reading
On Jan. 14, 2019, the Colorado Supreme Court held in Martinez v. Colo. Oil & Gas Conservation Comm’n, that the Colorado Oil and Gas Conservation Commission (Commission) properly denied a petition requesting that it adopt a rule that would halt the drilling of oil and gas wells for the foreseeable future. The Supreme Court’s decision reinforces … Continue Reading
The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; Sewage Facilities Act (Act 537); and stormwater, earth disturbance, and stream encroachment. Read David G. Mandelbaum’s 42 Pa. … Continue Reading
The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them additional obligations. Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2018), holds that the amendment does not alter … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
The Supreme Court of Pennsylvania issued two decisions on June 1 relating to the operation of natural gas wells in Pennsylvania. This article focuses on one of those decisions: Gorsline v. Board of Supervisors of Fairfield Township, No. 67 MAP 2016 (Pa. June 1). Continue Reading.… Continue Reading
Section 5(a)(iii) of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (“Chapter 21E”) makes persons liable to clean up releases of oil or hazardous material also liable to any other person for property damage caused by the release. The Supreme Judicial Court decided a case on January 19 restating clearly that private … Continue Reading
The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize. Read Environmental Cases in the Pennsylvania Appellate Courts During 2017 by clicking here.… Continue Reading
Last week we examined the Sierra Club v. Federal Energy Regulatory Commission decision from the D.C. Circuit holding that natural gas pipeline NEPA review must consider greenhouse gas emissions impacts from power plants served by the proposed pipeline. This week, we review the decision and its impact on pipeline projects: In August, the U.S. Court … Continue Reading
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 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
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
This month, my column in the Pennsylvania Law Weekly surveys the decisions in the Pennsylvania appellate courts during 2016 addressing environmental issues. The cases cover the Environmental Rights Amendment, impacts of oil and gas drilling, stormwater, land contamination, air pollution, the Alternative Energy Portfolio Standards Act, solid waste management, and enforcement procedure. Read Environmental Cases … Continue Reading
In a previous post we predicted that the U.S. Supreme Court would affirm an Eighth Circuit decision holding that a landowner can obtain immediate judicial review of a wetlands “jurisdictional determination” (JD) by the U.S. Army Corps of Engineers, and the Court did affirm that decision near the end of last Term. See U.S. Army … Continue Reading
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
Sarao, Coscia, and now the Berkshire Power Company, each charged with crimes – spoofing, fraud, false information – relating to commodity trading. Commodity traders likely have incorporated into their compliance regimes the general risk that allegations of criminal fraud could arise. These criminal matters no longer appear to be isolated instances and, instead, counsel for … Continue Reading
On Feb. 16 the Sierra Club filed a lawsuit in the U.S. District Court for the Western District of Oklahoma against oil and gas drillers Chesapeake Operating LLC, Devon Energy Production Co. and New Dominion LLC.1 The Sierra Club claims that wastewater injection wells have contributed to cause increased earthquake activity in Oklahoma and alleges … Continue Reading
In two decisions issued at the end of 2015, the Pennsylvania courts increased uncertainty regarding the breadth of the Arsenal Coal exception and status of pre-enforcement reviews. As a general rule, a regulated entity may only challenge regulations when the regulator imposes those regulations on the entity in a permit or enforcement action. In Pennsylvania, pre-enforcement review … Continue Reading
A town cannot compel a utility company to post a warning notice that its utility poles contain a wood preservative. That is the effect of U.S. District Judge Spatt’s February 4th decision in PSEG Long Island LLC v. Town of North Hempstead, 15-cv-0222, slip op. (E.D.N.Y Feb. 4, 2016). On September 9, 2014, the Town … Continue Reading
