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 … Continue Reading
Last January, the U.S. Environmental Protection Agency (EPA) issued a memorandum withdrawing the “once in always in” (OIAI) policy that had provided interpretation of the Clean Air Act since 1995. Under the Clean Air Act, the regulations air pollution sources must comply with, depend on whether the source counts as “major” or “nonmajor”; the OIAI … 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
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
President Donald J. Trump and his administration have focused on the EPA during his time in office, particularly in regards to its funding, and its regulations. The president has taken several high-profile steps in addressing climate change, including pulling the United States out of the Paris climate accord and proposing the repeal of the Clean … 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
The Commonwealth Court recently held that certain Comprehensive General Liability (“CGL”) “occurrence” insurance policies issued before the institution of a blanket pollution exclusion cover latent environmental contamination that occurred during the policy period, even when such contamination does not manifest until after the policy period expires. This holding identified latent environmental contamination as falling within … Continue Reading
On Friday, June 2, a Pennsylvania intermediate appellate court held that air emissions from a natural gas gathering system compression station and a natural gas well pad served by that gathering system could not be aggregated for purposes of air emissions permitting because they were owned by different corporations, albeit corporate affiliates. National Fuel Gas … Continue Reading
According to the U.S. Energy Information Administration, the commonwealth of Pennsylvania is the largest generator of coal ash in the United States. Pennsylvania is home to roughly 100 coal ash disposal facilities, three of which have been classified as “high hazard” by the U.S. Environmental Protection Agency (EPA). Throughout the country, numerous electric generating facilities … 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
Last month, the U.S. Environmental Protection Agency published its amendments to, and reorganization of, the regulations governing generators of hazardous waste, 81 Fed. Reg. 85,732 (Nov. 28). These rules govern the hundreds of thousands of enterprises nationally that produce wastes characterized or listed as hazardous under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. … 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
In January, my monthly column in the Pennsylvania Law Weekly reviewed the treatment of environmental issues by the Pennsylvania appellate courts in the previous year. Read the very-cleverly-titled Environmental Cases in the Pennsylvania Courts During 2015, 39 Pa. L. Weekly 56 (Jan. 19, 2016), by clicking here. The cases addressed follow: Berner v. Montour Twp., 120 A.3d 433 (Pa. … Continue Reading
My November environmental practice column for the Pennsylvania Law Weekly considered the problem of terminating an environmental obligation when conditions change after a time. In the pursuit of “paradise by the dashboard light,” as Meatloaf taught, if I promise to love you until the end of time, I might end up “praying for the end of time … Continue Reading
The Third Circuit recently determined that EPA acted within its statutory authority in publishing the Chesapeake Bay TMDL in American Farm Bureau Federation v. United States Environmental Protection Agency, No. 13-4079 (3d Cir. July 6, 2015). My column for the Pennsylvania Law Weekly discusses the decision and the implications for Pennsylvania, a state that did … Continue Reading
Diligence on environmental liabilities in real estate transactions is reasonably basic stuff. But one does the diligence in order to avoid litigation. When a lawsuit happens, it can serve as a reminder of basic points about why environmental due diligence makes sense and what sorts of claims arise when bad things happen after a deal … Continue Reading
In early March, Pennsylvania Governor Wolf submitted his proposed budget. The Department of Environmental Protection issued a new iteration of proposed revisions to the Pennsylvania Oil and Gas Regulations that has since appeared in the April 4 Pennsylvania Bulletin, 45 Pa. Bull. 1615. Acting DEP Secretary John Quigley reportedly stated the Administration’s support for the Delaware River … Continue Reading
Regulators need access to environmentally contaminated sites. They have to study them to determine whether the contamination requires a cleanup, they have to choose a cleanup, they have to conduct or direct implementation of that cleanup, and then they have to provide for its monitoring and maintenance. But when the contaminated property is not the … Continue Reading
My column this month in the Pennsylvania Law Weekly summarizes most (maybe all) of the decisions of the Pennsylvania appellate courts with an environmental dimension in 2014. Read A Review of 2014 Environmental Cases in Pa.’s Appellate Courts, 38 Pa. L. Weekly 28 (Jan. 13, 2015), by clicking here. If I have left something out, … Continue Reading
We have a new opinion today under the Environmental Rights Amendment to the Pennsylvania Constitution. Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015). Maybe the state constitution mandates some sort of environmental impact study before the commonwealth acts. Maybe it means nothing more than that one must comply … Continue Reading
In Hess v. Pa. Pub. Util. Comm’n, No. 1370 C.D. 2013 (Pa. Commw. Ct. Dec. 22, 2014), the Pennsylvania Commonwealth Court en banc considered a petition for review of an order of the Public Utility Commission granting approvals for a transmission line crossing the Susquehanna River. The majority opinion mostly addresses reliability and what constitutes public … Continue Reading
The federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) allows private parties that incur cleanup costs to reallocate those costs to others through a cost recovery claim under section 107(a)(1-4)(B) or a contribution claim under section 113(f)(1) or (3)(B). So do some state statutes and state common law. There can only be one allocation … Continue Reading
My column this month in the Pennsylvania Law Weekly considers natural resource damages and their measurement. NRDs are available under a number of federal programs. To my knowledge, however, Pennsylvania state trustees have only sought to recover NRDs twice. We have to think about whether that might change. The Supreme Court’s plurality opinion in Robinson … Continue Reading
