Lawmakers in Congress have their sights set on increased regulation of PFAS (per- and polyfluoroalkyl substances). What are PFAS? PFAS are a class of widely used chemicals, some of which have been common since the 1940s. They are used in non-stick coatings, stain- and water-repellant fabrics, firefighting foam, and many other applications. Over the past … Continue Reading
Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A). Section 400(h) provides: (h) Oversight. The … Continue Reading
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 … Continue Reading
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 … Continue Reading
A unanimous panel of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) threw the Washington, D.C. area’s beleaguered “Purple Line” light rail project a lifeline earlier this week when it overturned a district court ruling that would have required the Federal Transportation Administration (FTA) to prepare a Supplemental Environmental … Continue Reading
On Oct. 16, the Environmental Protection Agency published its proposal to repeal the carbon pollution emission guidelines for existing electric power plants, the centerpiece of the Clean Power Plan, 82 Fed. Reg. 48,035. That action serves as a reminder that the current national administration takes seriously its promise to deregulate business under the environmental laws. … 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
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
FAST Act Implementation Progress: An Important Tool for Expediting Energy Projects for the Incoming Trump Administration? On Dec. 4, 2015, President Obama signed the Fixing America’s Surface Transportation Act, also known as the “FAST Act,” which sought to expedite the NEPA environmental review process for major infrastructure projects. One year later, rulemaking and guidance from … Continue Reading
On Dec. 1, the Environmental Protection Agency (EPA) administrator signed a proposed rule, “Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry,” which would impose new financial responsibility requirements for current owners and operators of hardrock mines, including numerous metal mines in the western United States. Federal Register … Continue Reading
Millions of Americans are coming to grips with the broad social and political ramifications of Donald Trump’s stunning upset victory in last Tuesday’s presidential election. And while the president-elect’s policy pronouncements to date have been short on detail, one thing is clear: those concerned with environmental protection and climate change had better buckle up for … Continue Reading
On Aug. 1, 2016, the Council on Environmental Quality (CEQ) issued its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act (NEPA) Reviews. CEQ issued the guidance in an endeavor “to provide greater clarity and more consistency in how agencies … Continue Reading
On May 31, 2016, in a unanimous ruling, the United States Supreme Court held that the Army Corps’ determination as to whether “protected waters,” subject to Clean Water Act regulations, are present on a property is subject to judicial review. See United States Army Corps of Engineers v. Hawkes Co., Inc. No. 15-290 (U.S. May … Continue Reading
Review under the National Environmental Policy Act (“NEPA”) can be one of the most costly and time consuming components of any federal project or action. Often, the hurdle of NEPA can be so substantial that necessary projects fall by the wayside. Recognizing the tremendous burden environmental review can create, President Obama signed into law the … Continue Reading
From Douglas M. Grom, Harris L. Kay, and Gregory K. Lawrence: On Dec. 8, 2015 States Commodity Futures Trading Commission (CFTC) announced that it had simultaneously filed and settled charges against Total Gas & Power North America, Inc. (Total Gas) and Therese Tran (Tran), for violations of Section 6(c) and 9(a)(2) of the Commodity Exchange … Continue Reading
As the Supreme Court’s new term begins, it will be considering several cases that could have a significant impact on cases involving the Administrative Procedure Act and other federal regulatory litigation. What follows is a summary of last term’s APA-related decisions followed by a preview of two cases currently on the Court’s docket for the … Continue Reading
As noted previously, the Ninth Circuit found, in Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), that state government agencies are not afforded the same level of deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. Arizona filed a petition for writ … Continue Reading
When administrations change, so does policy. That may result in an agency changing its mind. On the federal level, that change — particularly a change in a factual finding — will be subject to review under the Administrative Procedure Act. The Ninth Circuit recently considered such a change in position over whether the Tongass National … Continue Reading
On June 23, 2015, the Federal Energy Regulatory Commission issued an Order Denying Rehearing of its earlier April 6, 2015 order, authorizing Sabine Pass Liquefaction, LLC to construct and operate natural gas liquefaction export facilities. The order is noteworthy for the Commission’s response to the arguments made by the Sierra Club that the Commission failed … Continue Reading
On June 9, 2015, the Federal Energy Regulatory Commission (FERC) conditionally approved significant reforms to PJM’s capacity market, implementing the Capacity Performance Resource product, with PJM’s compliance filing due within 30 days.1 FERC found such reforms were necessary to address “the confluence of changes in the PJM markets, including both recent performance issues…impacted by inadequate … Continue Reading
In a recent decision, Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), the Ninth Circuit found that state government agencies should not be afforded the same deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. In my recent column for Pennsylvania Law Weekly, I examine … Continue Reading
In May, two “loophole” penalty orders were issued regarding recent fraud and manipulation investigations conducted by the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement (OE), which are discussed below. What will June bring? To start, on June 3, the House of Representatives Energy and Commerce Subcommittee on Energy and Power heard testimony, including from … Continue Reading
On March 13, EPA’s Environmental Appeals Board’s issued its long-awaited decision in the Elementis TSCA 8(e) case, reversing the ALJ’s decision imposing a multi-million dollar penalty on Elementis. In Re Elementis Chromium, Inc., TSCA Appeal No. 13-03 (March 13, 2015). Section 8(e) of TSCA requires the “immediate” reporting of information which “reasonably supports the conclusion” … Continue Reading
For the second time in a year, a wetlands mitigation bank “instrument” executed between a landowner and a federal agency has been held by a court to be a binding contract that could be enforced against the agency when it tried to alter the terms of the instrument to the detriment of the landowner/mitigation bank … Continue Reading
