Supreme Court: Pollutants Reaching Navigable Waters Through Groundwater May Require Permit Under Clean Water Act

Posted in Clean Water Act, Court Cases, Environment, Pollution, Water

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, its eagerly awaited decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.

The 6-3 majority held that Section 301 of the Clean Water Act requires an NPDES (National Pollutant Discharge Elimination System) permit for a point source discharge that reaches navigable waters after traveling through groundwater “if that discharge is the functional equivalent of a direct discharge ….” (emphasis added). The case is the last word (for now) in a highly publicized dispute about Maui’s underground injection of treated sewage waste water, a large part of which migrates a short distance via groundwater into the Pacific Ocean.

Read the full GT Alert: “Supreme Court: Pollutants Reaching Navigable Waters Through Groundwater May Require Permit Under Clean Water Act.”

EPA Commences Public Comment on Recycled-Content Product List – It May be More Relevant Than You Think

Posted in COVID-19, Emergency Preparedness, Environment, EPA, RCRA

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 sale of sustainable products may provide struggling businesses with new sources of revenue and competitive advantage in the days ahead.

The federal government promotes recycling by using federal purchasing power to demand products made with recovered materials. The U.S. Environmental Protection Agency (“EPA”) maintains a list of approved recycled-content products for procuring agencies.  EPA has commenced a 90-day public comment period on a new list that may be more relevant than ever as companies seek to emerge from the current crisis.

What’s the list?

Section 6002 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6962, authorized EPA’s Comprehensive Procurement Guideline (“CPG”) Program as part of an effort to promote recycling. With a few exceptions, section 6002(a) of RCRA requires procuring agencies—including federal agencies and state or local agencies or government contractors using federal funds— that spend more than $10,000 a year on an EPA-designated item to purchase that item made from recovered materials. Executive Order 13423 also requires agencies to implement sustainable acquisition practices and purchase EPA-designated recycled-content products as well as environmentally preferable products.

The CPGs designate items that are made, or can be made, from recycled materials. EPA then publishes Recovered Materials Advisory Notices (“RMANs”), which provide recommendations and procurement specifications for purchasing those designated items. EPA must identify a recycled-content level for each item – often a range. There has not been an update to the CPGs since 2007.

Request for public comment

On April 7, 2020, EPA commenced a 90-day public comment period, seeking input on the current recycled-content designated items and procurement specifications.  See 85 Fed. Reg. 19473.  This presents an opportunity to identify new items and categories or to weigh in on the current recycled-content levels for existing items.

What are the current designations?

The existing CPGs/RMANs include 61 items in eight different product categories: (1) Construction Products; (2) Landscaping Products; (3) Miscellaneous Products; (4) Nonpaper Office Products; (5) Paper and Paper Products; (6) Park and Recreation Products; (7) Transportation Products; and (8) Vehicular Products.

Although EPA does not endorse any specific product or manufacturer, EPA maintains an online database of manufacturers and suppliers for each designated item.

Why does it matter?

Given current demands, EPA may be open to considering new item-types for inclusion (e.g., certain personal protective equipment). EPA would need to develop a CPG/RMAN for any new designation, which takes time and further comment. But EPA’s request for comments on the proposed list may present an opportunity for manufacturers of recycled goods.

Manufacturers and others have until July 6, 2020 to submit comments on the proposed designations and to propose additional product-types made or capable of being made from recycled materials that are in high demand by procuring agencies, but not yet designated.

FERC Clarifies and Reaffirms ADIT Rules

Posted in Energy, FERC, Utilities

The Federal Energy Regulatory Commission (FERC) issued Order 864-A on Public Utility Transmission Rate Changes to Address Accumulated Deferred Income Taxes (ADIT). Order No. 864-A addresses requests for clarification and rehearing concerning the obligation of public utilities with either transmission formula rates or transmission stated rates to return excess ADIT arising from the reduction in the federal corporate income tax rate under the Tax Cuts and Jobs Act of 2017 (TCJA).

FERC reaffirmed its determination in Order No. 864 that public utilities with transmission formula rates must, inter alia, return the full amount of excess ADIT resulting from the TCJA to customers.  The Commission also affirmed that utilities with transmission stated rates must return excess ADIT to customers, but clarified how such utilities should treat excess and deficient ADIT between rate cases.  To the extent a public utility with a transmission stated rate has a FERC-approved ratemaking method for addressing excess and deficient ADIT, the utility should return excess ADIT (or recover deficient ADIT) according to that FERC-approved method. Public utilities with transmission stated rates that lack a FERC-approved ratemaking method must use some ratemaking method to make provision for excess and deficient ADIT.  Importantly, the Commission clarified that such utilities could begin amortizing excess and deficient ADIT balances immediately upon the tax rate change, subject to Commission review in its next rate case.

Read the full GT Alert here.

Mexican Official Standard NOM-017-CRE-2019: Clean Energy Measurement and Compliance Assessment

Posted in Clean energy, Compliance, Energy, International, Mexico

The Energy Regulatory Commission (Comisión Reguladora de Energía, “CRE”) published Mexican Official Standard (Norma Oficial Mexicana) NOM-107-CRE-2019, Methods for measuring variables to calculate the percentage of clean energy and compliance assessment procedure (the “NOM”).

We discuss the background, purpose, scope of application, measurement methods, compliance assessment, and oversight authority of the CRE.

Read the full GT Alert here. 

UK Environment Agency Four Further Coronavirus Disease 2019 Enforcement Suspensions

Posted in COVID-19, Emergency Preparedness, International, United Kingdom

In addition to the three new temporary regulatory position statements (RPS) discussed in a previous GT Alert, in response to the ongoing disruption caused by the Coronavirus Disease 2019 (COVID-19) pandemic the UK’s Environment Agency (EA) has published four new temporary regulatory position statements (RPS).

Like the EA’s other RPS, the four new COVID-19 specific RPS are declarations by the EA (the primary environmental regulator and enforcement authority for England and Wales) that it will not seek to enforce certain aspects of the UK’s environmental permitting regime in specific circumstances related to COVID-19.

The new RPS apply to:

Read the full GT Alert here.


Greenberg Traurig Launches Legal Environmental Insights Podcast

Posted in Announcements, COVID-19, Emergency Preparedness

In recognition of today’s 50th anniversary of Earth Day, we are pleased to announce the launch of our Legal Environmental Insights Podcast, offering comprehensive summaries and concrete takeaways on the latest developments and trends in environmental law. The podcast is available on the Greenberg Traurig website, as well as on Apple Podcasts, Stitcher, and Spotify.

The podcast is launching with “Getting Through,” a mini-series focused on environmental concerns during the COVID-19 pandemic. The pilot episode is available now:

Upcoming episodes include:

  • What’s Next for Environmental Law? – An evaluation of new work for environmental law practitioners post-pandemic.
  • Environmental Regulations for Pandemic Response Products – Addressing environmental requirements that accompany a new or significantly altered manufacturing process.

“As we all try to identify new ways to communicate, our Greenberg Traurig Legal Environmental Insights podcast affords us the opportunity to provide current up-to-date information related to environmental laws, regulations, and policies that affect a wide-range of businesses,” said Kerri L. Barsh who is co-chair of the firm’s Environmental Practice. “We want our clients, industry colleagues, and business leaders, to stay abreast of environmental issues that can have an effect on business, particularly during these challenging times as the impacts of the COVID-19 pandemic are far-reaching.”

According to environmental shareholder and “Getting Through” mini-series host, Bernadette M. Rappold, “It can be hard to keep track of what’s important with the flood of information circulating during the pandemic. We’re hoping our Getting Through miniseries can provide some bite-size nuggets of helpful environmental information and insights in a format that’s readily accessible and easy to use.”

The podcast is designed to help business leaders, in-house counsel, and entrepreneurs stay current on environmental laws that impact their businesses. Future mini-series will focus on the circular economy, emerging contaminants, and the evolution of energy usage.

Implementation of the Dutch Environment and Planning Act (Omgevingswet) Postponed Due to Pandemic

Posted in COVID-19, Emergency Preparedness, Netherlands, Regulatory

On 1 April 2020 the Dutch minister for Environment and Housing (Minister voor Milieu en Wonen) announced that implementation of the Environment and Planning Act is postponed. Implementation of the new legislation was planned for 1 January 2021, but according to the minister, postponement is inevitable due to the ongoing outbreak of Coronavirus Disease 2019 (COVID-19).

The Environment and Planning Act, passed by the Dutch Senate (Eerste Kamer) in 2016, aims to simplify and merge existing rules for environmentally relevant activities and planning. Currently, these rules are spread over 26 acts, 60 orders in council (AMvB), and 75 ministerial regulations (Ministeriële regeling). The new Environment and Planning Act will bundle all rules in this regard into one Act, four orders in council, and one ministerial regulation (Omgevingsregeling). While the goals of this Act have received much support, the Act has also faced criticism for being complex and potentially difficult to implement.

Read the full GT Alert here.

The Supreme Court Allows State Law Claims for More Cleanup on Superfund Sites . . . Sometimes

Posted in Court Cases, Superfund

On April 20, the United States Supreme Court decided that Montana homeowners within a Superfund site could seek to recover the costs of restoration of their land to its uncontaminated condition – a more complete cleanup than the Superfund remedy would accomplish – but only if the U.S. Environmental Protection Agency (“EPA”) ultimately approved the additional work. Atlantic Richfield Co. v. Christian, No. 17-1498 (U.S. Apr. 20, 2020). The case reaches the reasonable result that the federal government’s cleanup decision under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75, probably cannot be superseded by a state jury in this case, but it leaves a lot of questions about the implications of state law for federal remedy selection going forward.

Montana law allows a person to sue for tort damages if his or her land has been damaged by pollution. CERCLA allows state tort claims to proceed even though the United States may have begun Superfund enforcement or may have reached agreement with the responsible party to implement the cleanup. However, a wrinkle of Montana law allows the measure of damages to be the cost of restoring the property if (a) the property is a residence, (b) the plaintiff is the homeowner, and (c) the recovery actually will be spent to restore the property. So, a tort claim for these restoration damages becomes a claim for the costs of a “super-cleanup” when the Superfund remedy will not completely restore a property to pre-contamination conditions.

CERCLA generally protects EPA’s remedy selection from attack. The federal courts have no jurisdiction to consider a challenge to a remedy selection until after either (i) the United States sues to enforce the remedy or to recover its cost or (ii) the remedy is completed. 42 U.S.C. § 9613(h). Indeed, that provision has been held to preclude a challenge to a remedy by neighbors when the basis of the challenge was that the remedy itself (incineration of dioxin on-site) would harm them during its implementation. Arkansas Peace Center v. Arkansas Department of Pollution Control and Ecology, 999 F.2d 1212 (8th Cir. 1993), cert.denied, 511 U.S. 1017 (1994).

Oddly, section 113(h) says nothing about state court challenges to federal remedies, and indeed allows challenges in federal court when jurisdiction is based on diversity, not federal question. But, the statute otherwise insulates cleanups from state law. State permit requirements do not apply to work conducted on-site. 42 U.S.C. § 9621(e). State substantive requirements are to be considered applicable or relevant appropriate in developing a remedy, but states only have limited opportunity to impose them if EPA does not do so. 42 U.S.C. § 9621(f). And any claim arising under CERCLA must be brought in federal court. 42 U.S.C. § 9613(b).

These rules have been held by the courts of appeals generally to preclude any action under any federal or state law theory to obtain an additional or different cleanup than the one selected under CERCLA. Natural resource trustees, including the states and tribes, may sue for damages to natural resources, but only the trustees may sue and they are supposed to coordinate with the response agencies.

In ARCO, the defendant had entered into a consent decree with the United States to clean up a large Superfund site caused in part by air emissions from a copper smelter. But the Supreme Court in ARCO decided that because no explicit provision of the statute precludes a state court challenge to a federal remedy, plaintiffs were permitted to sue that defendant in state court for restoration damages, in effect a remedy challenge. Nevertheless, because the statute prohibits a PRP from implementing a remedial action (that is, a permanent cleanup) after commencement of a remedial investigation and feasibility study without EPA’s consent, 42 U.S.C. § 9622(e)(6), the plaintiffs would have to obtain EPA’s consent to bring their claims.

Section 122(e)(6) of CERCLA has not received much attention from the appellate courts. Indeed, I am aware of only one reasonably recent case, and it is not reported. Bartlett v. Honeywell Int’l, Inc., 737 Fed. Appx. 543 (2d Cir. May 25, 2018), cert. denied, 139 S. Ct 343 (2018). The Supreme Court in ARCO reads section 122(e)(6) to apply to any person who could have been liable for the site, ignoring any potential defenses. But even read that broadly, one cannot be certain that all potential state statutory or tort plaintiffs are themselves necessarily “potentially responsible parties.” Moreover, as in Arkansas Peace Center, they may not be seeking additional cleanup, they may be seeking different cleanup.

Settling expensive Superfund sites is hard enough. If the settlement does not bar additional claims for more cleanup, the task becomes that much more difficult. The Supreme Court may have sent the ARCO plaintiffs on a quixotic quest for EPA approval that may as a practical matter give the defendant most of what it needed. But that may not be the outcome in every future case.

Federal Judge Prohibits Use of U.S. Army Corps of Engineers’ Nationwide Permit 12 for Utility and Pipeline Projects

Posted in Clean Water Act, Clean Water Act, Court Cases, Litigation, NEPA, Water

In an April 15 ruling in Northern Plains Resource Council, et al. v. Army Corps of Engineers, Judge Brian Morris of the U.S. District Court for the District of Montana vacated the U.S. Army Corps of Engineers’ Clean Water Act Nationwide Permit 12 and enjoined the Corps from using NWP 12 to authorize any dredge and fill activities. Judge Morris concluded that the Corps violated the Endangered Species Act when it re-issued NWP 12 in 2017, and remanded NWP 12 to the Corps for an ESA consultation with federal wildlife agencies, a process which may take some time. The opinion does not state that it is limited to Montana.

This decision may have an impact on the planning and timing of thousands of projects across the nation, including pipelines, transmission lines, and any projects that include utility lines (e.g., solar, wind, real estate) that rely on the streamlined NWP 12 to avoid the lengthy process of obtaining site-specific Clean Water Act 404 permits. NWP 12 is frequently used to quickly permit stream or creek crossings that might involve minor disturbances to “waters of the United States.” Project-specific permitting not only takes time, but also may trigger public participation opportunities for project opponents. The impact of this decision on projects that already relied on the 2017 NWP 12 remains to be determined.

In dismissing without prejudice the claim that the Corps violated the National Environmental Protection Act when it reissued NWP 12 in 2017 without conducting a full Environmental Impact Assessment, Judge Morris suggested that the Corps might decide to conduct a NEPA EIS based on what it learns during the ESA consultation. This implies that NWP 12 is vulnerable to a NEPA challenge.

Both the substance of this decision, and its potential nationwide applicability, may be appealed; but for the moment, NWP 12 does not appear to be available.

UK Environment Agency – Coronavirus Disease 2019 Enforcement Suspensions

Posted in COVID-19, Emergency Preparedness, International, United Kingdom

In response to the disruption caused by the Coronavirus Disease 2019 (COVID-19) pandemic, the UK’s Environment Agency (EA) has published three new temporary regulatory position statements (RPS).

Like the EA’s other RPS, the three new COVID-19 specific RPS are declarations by the EA (the primary environmental regulator and enforcement authority for England and Wales) that it will not seek to enforce certain aspects of the UK’s environmental permitting regime in specific circumstances related to COVID-19.

In particular, businesses seeking to rely on a COVID-19 RPS must comply with:

  • the specific conditions set out in the RPS (including any requirements to notify the EU or get its approval to rely on the RPS); and
  • requirements concerning pollution and harm to human health.

Read the full GT Alert here.