Category Archives: State & Local

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Help! The DEP Guidance Document I Need is Missing!

The Pennsylvania Department of Environmental Protection (“DEP”), as is typical of government agencies, regularly releases guidance documents explaining how to interpret or apply its programs and regulations. Once drafted and again once finalized, these documents are published in DEP’s Online Library, where they can be accessed through browser searches or directly through the eLibrary.  But … Continue Reading

New York State Proposes Revisions to Its Environmental Review Regulations

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

Massachusetts Releases Draft Regulations to Further Reduce GHG Emissions

The Massachusetts Department of Environmental Protection (MassDEP) recently released draft regulations for public comment which aim to further reduce greenhouse gas (GHG) emissions from various industry sectors in Massachusetts, including transportation, electricity generation, and natural gas pipelines. Public comments on these regulations are due by Feb. 24, and can be submitted in writing to MassDEP … Continue Reading

Philadelphia’s Approach to Nuisance Abatement on Vacant Properties

Conventional environmental lawyers may find themselves in unfamiliar territory when faced with a municipal citation for allowing a vacant property to become a nuisance or a municipal claim to recover the costs of abating that nuisance.  In Philadelphia, the City has a regular program to do both.  That program proceeds under City ordinances and regulations, … Continue Reading

New Emergency Rule in Florida Requires Responsible Parties to Quickly Notify Public of Pollution Spills

On Sept. 26, 2016, Governor Scott ordered the Florida Department of Environmental Protection to immediately issue an emergency rule requiring immediate notification of pollution spills to the general public, FDEP, and local governments. FDEP provides a copy of the Governor’s order and related materials on its website. During an investigation of two recent pollution spills … Continue Reading

Multiple Challenges Filed Against Massachusetts Small MS4 Stormwater General Permit

The long odyssey of the Massachusetts Small MS4 stormwater general permit continues – the latest chapter involving four separate appeals filed in two courts seeking to modify the permit’s terms.  Issued by U.S. EPA New England, the general permit authorizes stormwater discharges from small municipal separate storm sewer systems (“MS4”) located in Massachusetts. While the … Continue Reading

Court Weighs In on the ERA After ‘Robinson Township’

The Commonwealth Court of Pennsylvania recently denied a petition seeking declaratory and mandamus relief to require the Pennsylvania Public Utility Commission and a group of executive government officials to regulate greenhouse gases consistent with Article I, Section 27 of the Pennsylvania Constitution.  Funk v. Wolf, No. 467 M.D. 2015 (Pa. Commw. Ct. July 26, 2016).  … Continue Reading

Independent Scientific Panel Faults the EPA’s Landmark Hydraulic Fracturing Study

In a detailed, 180-page report released Aug. 11, the EPA’s Science Advisory Board (SAB) faulted the clarity and conclusions of the agency’s landmark study on the environmental impacts of hydraulic fracturing, the high-pressure injection of water, sand and chemicals to break open shale and other “tight” geologic formations to release gas and other hydrocarbons. In … Continue Reading

New York State Regulator Finalizes Definitions Under Amended Brownfield Program Relating to Eligibility For Tangible Property Credits For New York City Brownfield Projects

On July 29, the Department of Environmental Conservation (DEC) adopted a new rule for the Brownfields Cleanup Program (BCP) to effectuate the brownfield amendments passed by the Legislature last year. Under amendments to the BCP passed in connection with the executive budgeting process, the Legislature sought to limit the availability of certain tangible property tax … Continue Reading

Army Corps’ Jurisdictional Determinations Are Immediately Appealable

As previously covered by this blog, on May 31, in a unanimous ruling, the eight-member U.S. Supreme Court held that a final determination by the U.S. Army Corps of Engineers (Army Corps) as to whether a property contains “waters of the United States,” subject to Clean Water Act regulations, is a final agency action subject … Continue Reading

GT Philadelphia at the PA Environmental Law Forum

Recently, lawyers from Philadelphia’s Environmental Practice Group attended the Pennsylvania Environmental Law Forum in Harrisburg, Pennsylvania. Organized by the Pennsylvania Bar Institute, the annual Forum includes educational presentations by experienced practitioners along with networking events. Jillian Kirn gave a presentation on cooling water intake structures commonly used by industrial facilities, such as power plants, and the … Continue Reading

Massachusetts Takes Important Step Towards Clean Water Act Permitting Delegation

Massachusetts Governor Charlie Baker has filed legislation that moves Massachusetts one step closer to a long-desired goal:  authorization to administer the Clean Water Act NPDES permitting program.  Currently, Massachusetts is one of only four states (in addition to Idaho, New Hampshire, and New Mexico) that has not been “delegated” this authority. A number of the … Continue Reading

Texas Supreme Court strikes down Houston air quality ordinances

On Friday, the Texas Supreme Court struck down Houston’s air quality ordinances, ruling the city had overstepped its authority to police local polluters.  In an 8-1 decision, the justices ruled that local ordinances requiring businesses to pay registration fees and allowing criminal sanctions for emissions violations were inconsistent with state law. The justices wrote in … Continue Reading

New York To Promote Climate Smart Project

This year’s New York State budget offered numerous headline grabbing changes, yet one of the less-heralded portions has the highest potential to reshape the state’s responsiveness to changing climactic conditions.  As part of the state transportation, economic development, and environmental conservation Article VII budget legislation (“TED Bill”), the Legislature passed Title 15 of Part U, … Continue Reading

Regulation of Bisphenol A (BPA) Will Soon Affect Consumer Products Distributed in California – Comments on Regulation due April 29, 2016

Despite positive reviews from the EPA and European Food Safety Authority, Bisphenol A (BPA), a synthetic compound used to line canned goods and other consumer products, was added to the Proposition 65 list on May 11, 2015, as a chemical known to cause reproductive toxicity.  Effective May 11, 2016, private enforcers may bring lawsuits to … Continue Reading

New York Environmental Regulator Proposes Major Overhaul of Solid Waste Regulations

On Monday, Feb. 29, 2016, the New York Governor announced that the New York Department of Environmental Conservation (“DEC”) was proposing new regulations for the handling of solid waste.  The proposed changes to the solid waste regulations contained in Parts 360, 364, and 369 seek to reorganize and rationalize the muddled set of regulations created … Continue Reading

‘Arsenal Coal’ Exception and the Status of Pre-Enforcement Reviews

In two decisions issued at the end of 2015, the Pennsylvania courts increased uncertainty regarding the breadth of the Arsenal Coal exception and status of pre-enforcement reviews. As a general rule, a regulated entity may only challenge regulations when the regulator imposes those regulations on the entity in a permit or enforcement action. In Pennsylvania, pre-enforcement review … Continue Reading

Ordinance Requiring Pesticide Warning Signs Found to Violate First Amendment

A town cannot compel a utility company to post a warning notice that its utility poles contain a wood preservative.  That is the effect of U.S. District Judge Spatt’s February 4th decision in PSEG Long Island LLC v. Town of North Hempstead, 15-cv-0222, slip op. (E.D.N.Y Feb. 4, 2016). On September 9, 2014, the Town … Continue Reading

California Public Utilities Commission’s Successor Net Metering Decision and Trends in Rate-Making

On January 28, 2016, by a 3-2 vote, the California Public Utilities Commission (“CPUC”) agreed to extend California’s net metering program. The CPUC’s decision rejected proposals by three of the state’s major utilities (Pacific Gas &Electric Co., San Diego Gas & Electric Co., and Southern California Edison) to decrease the financial credit received by eligible … Continue Reading

Public Comment Deadline Nears on Florida’s Imperiled Species Management Plan in Contemplation of April 2016 Vote

The Florida Fish & Wildlife Conservation Commission (Florida FWC) is taking comment until January 20, 2016, on changes proposed by the agency on its approach to endangered and threatened species management in Florida.  Specifically,  the FWC is proposing an Imperiled Species Management Plan (ISMP) that, “[f]or the first time,”  provides published conservation objectives and the … Continue Reading

Navigating Legal Implications of Power Industry Regulations

I participated in a Power Magazine legal issues conference on December 7th in Las Vegas entitled, “Navigating Legal Implications of Power Industry Regulations.”  My presentation focused on the “nuts and bolts” of  preparing a State Plan under section 111(d) of the CAA and on what utilities should be doing with respect to State Plans while … Continue Reading

Horne and Environmental Law: The case of the taken raisins

Horne v. Department of Agriculture, No. 14-275 (U.S. June 22, 2015), is a takings case about the price support program for California raisins.  That may seem a little far afield for environmental lawyers, but the case bears some careful analysis.  Among other things, the Court draws a distinction between the analysis appropriate for a regulatory … Continue Reading

New York State Formally Adopts Ban on Fracking: An Analysis of the New York State DEC’s SEQRA Findings Supporting Its HVHF Ban

The New York State Department of Environmental Conservation (DEC) undertook its final official step in imposing a total ban on gas drilling using the method of high-volume hydraulic fracturing (HVHF) through its issuance this week of its “Findings Statement” pursuant to New York’s State Environmental Quality Review Act (“SEQRA”).  This week’s action was a fait … Continue Reading
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