Each year, businesses in every sector are impacted by a variety of extreme weather events including hurricanes, forest fires, blizzards, and heatwaves. Earlier this year, Jillian Kirn was interviewed by the Urban Land Institute for their publication, Scorched: Extreme Heat and Real Estate. The report examines ways in which land use, real estate, and design sectors can mitigate the impacts of urban heat islands. You can read her input on regulatory trends, as well as insights from more than fifty developers, designers, land use policymakers, and climate scientists, by clicking here.
On July 29, the Pennsylvania Commonwealth Court returned to Pennsylvania Environmental Defense Foundation v. Commonwealth, a leading case on the Environmental Rights Amendment to the Pennsylvania Constitution. The court appears to have decided that the commonwealth is free to allow use of Pennsylvania’s pubic natural resources and to apply the income however it chooses. Only proceeds from the sale of public natural resources must be returned to the public trust corpus.
The commonwealth had received bonus payments upon entry into the primary term of leases, rents, fees and royalties. Of those, the Commonwealth Court had to determine which were payments for the sale of a trust asset, and which were not. The July 29 decision from the Commonwealth Court addresses that question.
Read more from my article in this week’s edition of Pa. Law Weekly in The Legal Intelligencer, 42 Pa. L. Weekly 33 (August 13, 2019), by clicking here.
We Didn’t Start the Fire . . . . But Your Employees Might Breathe the Smoke
Last year was the most destructive fire season in California’s history. Over 7,600 wildfires burned nearly two million acres. As a result, on July 18, the California Department of Industrial Relations (DIR) Occupational Safety Health Standards Board adopted an emergency regulation to protect workers from hazards associated with wildfire smoke. The regulation is now in effect, following its approval on July 29, 2019, by the Office of Administrative Law.
The emergency regulation will be effective for one year, and applies where the current Air Quality Index (AQI) for airborne particulate matter (PM) 2.5 is 151 or greater (the AQI scale is from 0 to 500, and a 151 AQI is considered “unhealthy”), or where employers should reasonably anticipate that employees could be exposed to wildfire smoke.
To read the full GT Alert, click here.
For more on OSHA, click here.
On July 12, 2019, the 2019-2024 National Development Plan (Plan Nacional de Desarrollo, “PND”) was published in the Federal Official Gazette (Diario Oficial de la Federación, “DOF”). The PND’s purpose is to specify the national objectives, strategy, and priorities for Mexico’s comprehensive, equitable, inclusive, and sustainable development.
The principal regional projects that will be implemented during this six-year period are described below:
|•||The Mayan Train. This infrastructure project will have a route spanning 1,525 km and will be built through the states of Chiapas, Tabasco, Campeche, Yucatan and Quintana Roo. It will connect the main cities and tourism sites of the Yucatan Peninsula, have 15 stations, and require an investment MX$120-150 billion from public, private, and social sources.|
|•||Felipe Angeles Airport in Santa Lucia. This project will add to the airport infrastructure of the country’s central region, and a third terminal to Mexico City’s Benito Juárez International Airport will be built. The environmental impact authorization procedure of the project was favorably resolved by the Ministry of the Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales) on July 17, 2019. However, it is important to mention that several Amparos have been filed, for which (in some cases) federal judges have ordered the definitive suspension of the works, since the project still does not have all of the environmental authorizations required in addition to the environmental impact authorization.|
|•||Program for the Development of the Tehuantepec Isthmus. This project aims to modernize the Tehuantepec Isthmus railway, and the ports of Coatzacoalcos in Veracruz, and Salina Cruz in Oaxaca; and to offer cargo, transport, storage, and packaging services, promoting the growth of the regional economy while respecting the history, culture, and traditions of the Isthmus of Oaxaca and Veracruz.|
|•||Several programs focused on achieving food self-sufficiency and rescuing Mexico’s agricultural activity, i.e., farming.|
To read to full GT Alert on Mexico’s 2019-2024 National Development Plan, click here.
If you are currently disposing of pharmaceuticals, including dietary supplements, into the dumpster or down the drain, you may want to reconsider that practice. New regulations promulgated by the Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA) impact how health care facilities must dispose of unused pharmaceuticals. The new regulations treat some dietary supplements as pharmaceuticals and therefore regulate them as hazardous waste. Additionally, as of Aug. 21, 2019, health care facilities may be prohibited from disposing of pharmaceuticals and dietary supplements into the sewer, etc. This is in addition to RCRA already prohibiting disposal into the garbage or in some instances by recycling. Noncompliance comes with hefty fines.
- Does your company qualify as a health care facility?
- Do your products qualify as pharmaceuticals?
- Is your product a hazardous waste pharmaceutical?
- Penalties and implementation
Click here for the full GT Alert.
The U.S. Supreme Court recently had the opportunity to overturn Auer deference, Kisor v. Wilkie, No. 18-15, (U.S. June 26, 2019). A 5-4 majority declined to do so, but not without emphasizing the limits of the doctrine. Auer deference refers to the doctrine that a court should generally defer to an agency’s interpretation of agency regulations when the regulations are determined to be ambiguous, see Auer v. Robbins, 519 U. S. 452 (1997). The doctrine also may be referred to as Seminole Rock deference, see Bowles v. Seminole Rock & Sand, 325 U.S. 410 (1945). This doctrine has been called into question because it essentially allows the regulatory body charged with writing the regulation the final say as to what the regulation means. Environmental lawyers, and anyone else involved in regulatory disputes, will likely want to keep the stated limits—whether new or old—front and center moving forward.
I discuss this decision, and its impact to environmental decision-making, in this month’s Legal Intelligencer/Pennsylvania Law Weekly column. Read What Environmental Lawyers Should Know About the Limits of ‘Auer’ Deference, 42 Pa. L. Weekly 29 (July 12, 2019), by clicking here.
PFAS (perfluoroalkyl and polyfluoroalkyl substances) have been under scrutiny on both sides of the Capitol in recent months, and the Senate made significant headway in late June in reaching consensus on PFAS legislation. Following two hearings in the Senate Environment and Public Works (EPW) Committee this spring, a package was unveiled and quickly considered in Committee on June 19. Championed by EPW Chairman John Barrasso (R-WY), Ranking Member Tom Carper (D-DE), and Senator Shelley Moore Capito (R-WV), S. 1507, the PFAS Release Disclosure Act, was considered in Committee and simultaneously filed as an amendment to S. 1790, the must-pass National Defense Authorization Act (NDAA) that was headed to the Senate floor the following week.
To read the full GT Alert, click here.
˘ Not admitted to the practice of law.
Daubert decisions can be case-dispositive in complex cases. Accordingly, understanding how to discern and dismantle the foundations of expert testimony is a crucial skill for defense attorneys. Using lessons learned from a recent Eleventh Circuit toxic-tort case, Williams v. Mosaic Fertilizer LLC, Greenberg Traurig attorneys David B. Weinstein, Christopher Torres, and Ryan T. Hopper share strategies for exposing unreliable expert opinions and turning them to defendants’ advantage.
Read their article, Avoiding the Talismanic Effect of Unfounded Expert Testimony, in the June 2019 issue of For the Defense by clicking here.
Imagine that you are environmental, health, and safety (“EHS”) counsel or general counsel for a company dealing with a natural disaster. The company’s facilities are only partially functional, employees have lost their homes, and business unit functionality has been severely disrupted. You find yourself managing the myriad demands of the federal, state, and local environmental agencies, the company’s employees, and the public. Amidst all this, the media reports that a criminal investigation is forthcoming due to the company’s alleged failure to adequately prepare for the event. What could you have done to better prepare for disaster?
I discuss these issues in this month’s Legal Intelligencer/Pennsylvania Law Weekly column. Read Weathering the Storm: Mitigation of Environmental Risks Caused by Extreme Weather, 42 Pa. L. Weekly 25 (June 18, 2019), by clicking here.
With today being World Oceans Day, the future of our oceans and the effects of sea level rise are on our mind. Greenberg Traurig’s Kerri L. Barsh, co-chair of the Environmental Practice, recently published an article in South Florida Legal Guide Monthly titled “Five Things That Business Owners Need to Know About Sea Level Rise.” In this article, Barsh discusses how business can prepare themselves for impacts that may be caused by rising seas, including: (1) Knowing the nuances of your real property insurance coverage; (2) Being aware of the growing number of flood-related claims; (3) Taking note of regulatory changes; (4) Understanding the timing and requirements for vulnerable infrastructure; and (5) Knowing and complying with applicable disclosure requirements.
Read the full article here.