Does CERCLA Preempt State Medical Monitoring Claims?

Posted in Articles, CERCLA, Pennsylvania

An appeal pending before the U.S. Court of Appeals for the Third Circuit asks whether CERCLA preempts state law claims for medical monitoring in Giovanni v. U.S. Department of the Navy, No. 17-2473 (3d Cir.). This is an important issue in the context of perfluorinated chemicals (PFCs) because the exact health effects remain in dispute. Residents state PFCs from the U.S. Department of the Navy’s Willow Grove and Warminster facilities contaminated their drinking water. The two naval facilities are currently being cleaned up under the Superfund program. The district court dismissed the request for an injunction to require the Navy to fund a health effects study and medical monitoring because the court held that the residents’ claim constituted a challenge to an ongoing cleanup, which was barred by Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

Floating Infrastructure

Posted in Infrastructure, Real estate

Kerri L. Barsh, co-chair of Greenberg Traurig’s Environmental Practice, authored an article that was featured in Best Lawyers titled “Floating Infrastructure.” This article examines new opportunities in floating infrastructure within the context of their evolution as a result of a landmark admiralty jurisdictional case from the U.S. Supreme Court: Lozman v. The City of Riviera Beach. This case, and the court’s decision to treat Barsh’s client’s floating home as an extension of real estate, had major implications floating homes, casinos, restaurants and hotels throughout the United States and impacted the regulatory authority of state and local governments.

To read the full article, please click here.

Tax Credits for Wind and Solar Facilities Under the Republican Tax Plan

Posted in Federal, GT Alert, Legislation, Solar

On Thursday, Nov. 2, 2017, the House Republicans unveiled their long-awaited tax plan, which was introduced as a Bill (H.R. 1) entitled the “Tax Cuts and Jobs Act” (the “Act”). While the Act has yet to be passed by the House, and it is likely to change in the legislative process, it contains proposals affecting the solar and wind industries which deserve to be carefully monitored. In addition to lowering income tax rates, which would, in general, make the tax benefits from investments in solar and wind facilities less valuable, as discussed in detail below, the Act would also make changes to the primary tax incentives relative to solar and wind facilities; namely, the investment tax credit and the production tax credit. While these changes may present planning opportunities, they also create issues and uncertainties, which hopefully will be clarified as the legislation progresses.

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Federal Environmental Deregulation and Pennsylvania Operations

Posted in Articles, Federal Regulation, Pennsylvania

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. Indeed, the president claimed publication of the proposal as a significant accomplishment in a tweet on Oct. 15. In Pennsylvania, however, for the most part the Pennsylvania Department of Environmental Protection—not the federal EPA—issues permits and administers the environmental regulations because Pennsylvania’s regulatory program has been delegated or authorized under federal law to satisfy both state and federal requirements. Therefore, a relaxation of federal requirements would not necessarily imply a relaxation of the conditions that a regulated entity in Pennsylvania must meet.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

CNH Issues Round 3 Bidding Guidelines for Exploration and Production in Shallow Waters

Posted in Energy, Mexico, Regulatory

On Sept. 29, 2017, Mexico´s National Hydrocarbons Commission (CNH) published the guidelines and model contracts for the first bidding process of “Ronda 3” (Round 3.1). Round 3.1 includes 35 exploration and production (E&P) contractual areas in shallow waters in the Gulf of Mexico, with a total surface of 26,265 km2 (10,140 mi2), approximately 1,988 million barrels of crude oil equivalent (MMBOE), and a remaining volume of 290 MMBOE. The contractual areas included in the bid are as follows:

  • 14 contractual areas located in the Burgos area, with a surface of 8,424 km2 (3,252 mi2), and 579 MMBOE of estimated prospective resources.
  • 13 contractual areas located in the Tampico-Misantla-Vercacruz area, with a surface of 12,493 km2 (4,823 mi2), 1,217 MMBOE of estimated prospective resources, and a remaining volume of 193 MMBOE.
  • 8 contractual areas located in the Southeast Basin area (Cuenca del Sureste), with a surface of 5,348 km2 (2,065 mi2), 192 MMBOE of estimated prospective resources, and a remaining volume of 96 MMBOE.

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New Contracting Model for Energy Transmission Lines in Mexico

Posted in Energy, Infrastructure, International, Mexico

On Sept. 18 2017, Mexico’s Ministry of Energy (SENER) announced the new contracting model for energy transmission lines. The new model will allow the implementation of tender processes for the award and execution of contracts for the management of electricity transmission (Contracts) with private parties in order for them to carry out, on behalf of the Mexican State, the financing, installation, maintenance, management, operation, and expansion of the required infrastructure for the provision of public transmission services. These tender processes are part of Mexico’s efforts to modernize its transmission infrastructure, anticipating increases in electricity generation and demand, with the assistance of the private sector.

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How Will Pa. Implement the Environmental Rights Amendment?

Posted in Pennsylvania, State & Local

The Pennsylvania Supreme Court’s June decision in Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017) (PEDF), has sparked many conversations about how the newly interpreted Environmental Rights Amendment to the Pennsylvania Constitution will be implemented. In my column this month for the Pennsylvania Law Weekly I hope to catalogue at least some of the issues to help move the conversation along.

For most of the last 40 years, the courts have tested statutes, actions of the executive agencies and decisions of municipalities under the three-part test of Payne v. Kassab.  In PEDF, the court made clear that Payne’s test no longer governed. The first sentence of the Environmental Rights Amendment sets out an affirmative right of “the people” to “clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment.” Government cannot take action that impinges on that right without (a) evaluating the environmental effects of its action beforehand and (b) avoiding “unreasonable” adverse effects in light of the other governmental purposes of the action.

Further, the second sentence of the Amendment creates a trust, the corpus of which is all of the public natural resources of the Commonwealth. The Commonwealth is the trustee of that trust, and the beneficiaries are “all the people” including “generations yet to come.” When the Commonwealth sold some of that trust corpus in the form of natural gas leases in the state forests, it was obligated to use the proceeds to benefit the trusts’ purposes.

In Center for Coalfield Justice v. DEP, EHB Dkt. No. 2014‐072‐B (Aug. 15, 2017), appeal pending, No. 1290 CD 2017 (Pa. Commw. Ct. filed Sept. 15, 2017), the Environmental Hearing Board applied PEDF to a third-party challenge to two coal mine permit extensions affecting streams. A temporary impairment of a stream could be a reasonable incursion on the people’s first‐sentence constitutional right, but permanent loss of the stream would be unreasonable.

Almost every project has at least one opponent.  If every individual has a right to stop any project with any environmental impact, Pennsylvania will come to a grinding halt.  The Commonwealth must devise a way to implement Article I, section 27, so that it facilitates, and does not impede, useful change.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

CNH Issues Bidding Guidelines and Agreements for Pemex Farm-Out (Nobilis–Maximino Project)

Posted in Energy, International, Mexico

On Sept. 15, 2017, the Commissioners of Mexico’s National Hydrocarbons Commission (CNH) held a meeting to discuss and approve an invitation to bid, the related Bidding Guidelines, and the exploration and production license model agreement (the “License Agreement”) for the selection of partner(s) for PEMEX Exploration and Production (PEP).

This is the second association of PEP through a farm-out agreement for exploring and producing hydrocarbons in the deep waters of the Gulf of Mexico, which will be carried out in the Nobilis–Maximino field. This new association will allow PEP to take advantage of the Mexican energy reform and improve its operating capabilities; share financial, technological and geological risks; and apply best industry practices in its activities.

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Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

Posted in Energy, Environment, Florida, Infrastructure, Stormwater, Utilities

In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee on Hurricane Response and Preparedness. Speaker Pro Tempore Jeanette Nunez of Miami will chair the 16-member bipartisan Select Committee whose focus will be to gather information, solicit ideas, and make recommendations to the governor and legislature for actions that will aid in Florida’s recovery. The topics proposed for consideration by the Select Committee include mitigation of future storm damage;  efficient evacuation and re-entry; and protection of elderly, disabled, and other  vulnerable people. Subjects of  particular interest for those in the environmental and energy arena will be  “innovative ways to avoid or reduce flooding”  and efforts to limit power outages by “infrastructure hardening, solar lighting or underground utilities.” The Select Committee will also examine whether fuel reserves can be “established or expanded” to improve their availability for evacuees.  Finally,  although post-Hurricane Andrew building code changes were by most accounts,  successful in protecting the public from wind damage, building code revision is another area of potential focus for the Select Committee. Because of the desire to take meaningful action to improve the state’s hurricane readiness, the Select Committee is expected to move quickly to formulate recommendations for tangible improvements to disaster response capabilities prior to the 2018 legislative session.  On the Senate side,  Senator Brandes is pushing Governor Scott to establish a special commission to examine hurricane readiness, response, and recovery, with an eye towards planning for future preparedness while learning from the experiences of this recent effort.

Post-hurricane restoration will be a priority for state and affected local governments in Florida, with resilience and infrastructure among the priority considerations.  Stay tuned for future developments.

Hurricanes Harvey & Irma: Controlling Water, Mold, Bacterial Fallout

Posted in EPA, Florida, GT Alert, Stormwater, Texas, Water

Six Tips on Managing Water Damage, Mold Growth, and Bacterial Threats

As Florida, Georgia, South Carolina, Texas, and other impacted areas begin the journey to recovery after Hurricanes Harvey and Irma, property owners are faced with the challenge of addressing water damage, preventing or remediating mold growth, and heading off bacterial threats from potentially contaminated flood waters. When water damage, flooding, or moisture intrusion occurs, there are several important factors to consider, on a case-by-case basis, when addressing potential or actual mold, microbial, and bacterial impacts.

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