Tag Archives: GT Law

New DOJ Guidance Seeks to Limit Federal Enforcement under the Clean Water Act

On July 27, 2020, the U.S. Department of Justice (DOJ) issued a policy memorandum designed to stay the federal government’s hand in enforcing the Clean Water Act where states have initiated a civil judicial penalty proceeding under analogous state laws on the same core of operative facts. The policy, “Civil Enforcement Discretion in Certain Clean … Continue Reading

DOJ’s Attack on ‘Supplemental Environmental Projects’ Extends to Citizen Plaintiffs

The Department of Justice, in the last year, has altered its guidance related to supplemental environmental projects (SEPs), first prohibiting their use in settlements with state and local governments, then extending that prohibition to settlements with private parties. The Department of Justice is now targeting settlements that include similar projects agreed to by two private … Continue Reading

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

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 … Continue Reading

PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA

On Feb. 20, 2020, roughly one year after announcing its comprehensive per- and polyfluoroalkyl substances (PFAS) action plan, the Environmental Protection Agency (EPA) issued a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for the two most-studied of the chemicals, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This is the initial step in the process of … Continue Reading

Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit

On Feb. 11, 2020, the United States Court of Appeals for the Fourth Circuit decided that the Federal Energy Regulatory Commission (FERC) did not overstep the statute of limitations in its effort to impose more than $29 million in civil penalties over alleged wholesale electricity market manipulation carried out by Dr. Houlian Chen and other associated financial … Continue Reading

Congress Takes Initial Steps to Address PFAS in the National Defense Authorization Act Conference Report

On Dec. 11, the House of Representatives passed S. 1790, the National Defense Authorization Act (NDAA) conference report. The Senate followed suit on Dec. 17, bringing an end to protracted negotiations on this annual must-pass legislation. In one of their final acts, conferees agreed to provisions addressing per- and polyfluoroalkyl substances (PFAS). Two major provisions … Continue Reading

LNG Export: DOE Authorizes a New Business Model Under Its Small-Scale Export Rule

On Nov. 8, 2019, the Office of Fossil Energy (FE) of the Department of Energy (DOE) issued DOE/FE Order Nos. 4461 and 4462 (the Orders) authorizing GT client SpotX Energy, LLC (SpotX) to export domestically produced liquefied natural gas (LNG) under its recently enacted “small-scale natural gas export” rule (the Rule). The Rule amended DOE’s … Continue Reading

UK Government Ends Its Support for Fracking in England (At Least for Now)

On 2 November 2019, the UK government announced that it is ending its support for fracking in England. This follows a report from the UK’s Oil and Gas Authority (OGA), an independent subsidiary of the UK’s Department for Business, Energy and Industrial Strategy (BEIS), which found that it is not currently possible to accurately predict the likelihood or … Continue Reading

The Revised Brexit Withdrawal Agreement and Political Declaration and Their Impact on UK Environmental Standards

An important difference between UK Prime Minister Boris Johnson’s Withdrawal Agreement and former Prime Minister Theresa May’s Withdrawal Agreement is that provisions relating to environmental protections have been removed and are now to be found in the amended Political Declaration. While the Withdrawal Agreement, once ratified, would be a legally binding treaty between the UK … Continue Reading

Thumbs Up for Energy Storage: FERC Approves PJM and SPP Proposals Implementing Order No. 841

On Oct. 17, 2019, the Federal Energy Regulatory Commission (FERC) gave PJM Interconnection, L.L.C. and Southwest Power Pool the green light to implement their energy storage proposals to comply with FERC’s Order No. 841. FERC found that these proposals reduce barriers to market participation by storage resources by allowing them to be compensated fairly when delivering … Continue Reading

United States Indicts Facility Owner Under Clean Air Act General Duty Clause

The U.S. Environmental Protection Agency (EPA) continues to increase its enforcement role in industrial accidents, at times overshadowing the role traditionally played by the Occupational Safety and Health Administration (OSHA). EPA often takes tougher enforcement actions than OSHA and is more willing to bring criminal charges. This trend is reflected in a recent case affirming … Continue Reading

Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains

On Sept. 12, 2019, the U.S. Environmental Protection Agency and the Department of the Army followed through on an early Trump administration promise to repeal a 2015 jurisdictional rule defining the scope of the government’s authority under the Clean Water Act. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (pre-publication version). Dubbed … Continue Reading

Latin America Renewable Energy: Calls for Public Bids

Update: The Ministry of Mines and Energy of Colombia published on September 18 a new Resolution (number 4-0725) in connection with the call for electricity generation projects through renewable energy sources (Resolution 4-0591). This new resolution establishes an additional automatic award mechanism for the long-term energy agreements for the referred projects. The new award mechanism will … Continue Reading

Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain … Continue Reading

EPA Seeks Public Comment on Pesticide Applications for Hemp

The legalization of industrial hemp production in the 2018 Farm Bill is a likely boon for farmers grappling with the changing agricultural landscape. Given the strong economic forecasts for hemp production, pesticide registrants are intensifying their interest in gaining approvals for use of their products on hemp. Hemp farmers are also pressing for expanded crop … Continue Reading

An uncertain path to a cleaner future: Zero carbon electricity legislation in New York and California

With the recent passage of New York’s Climate Leadership and Community Protection Act, which calls for a carbon free electricity market by 2040, New York became the sixth state to pass legislation calling for a carbon free electricity market. Just one year earlier, California passed similar legislation, SB100, adopting a state policy to achieve a zero-carbon … Continue Reading

California Adopts Emergency Regulation to Protect Outdoor Workers From Wildfire Smoke

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 … Continue Reading

EPA Expands RCRA Hazardous Waste Restrictions to a Broader Range of ‘Pharmaceuticals’ Including Dietary Supplements

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 … Continue Reading

FDA Findings on PFAS Chemicals in U.S. Food and Drinking Water Supply

This week the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoroalkyl substances (PFAS) have entered American food and drinking water supplies; however, “[c]urrent FDA testing has found that most foods have no or very low levels of PFAS.” The FDA’s efforts are ongoing … Continue Reading

Refundable State Tax Credits: Maybe Don’t Take the Money and Run

On April 25, 2019, the United States Court of Appeals for the Federal Circuit decided that refundable state tax brownfield credits are taxable income for federal purposes. The court held in Ginsburg v. United States, “The excess amount of the brownfield redevelopment tax credit received by the Ginsburgs in 2013 is taxable gross income because … Continue Reading

Pennsylvania Prospective Purchasers of Contaminated Property and Their Administrative Records

On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental … Continue Reading

Contradicting the Department of Justice, EPA Changes Stance on Groundwater Discharges

Contradicting the argument raised by the United States in a recent amicus brief in the U.S. Court of Appeals for the Ninth Circuit, the EPA finalized new guidance on April 12, 2019, concluding that the Clean Water Act “is best read as excluding all releases of pollutants from a point source to groundwater from NPDES … Continue Reading

In Honor of Earth Day…

April 22 is Earth Day! In honor of this day, here is a roundup of insights from our Environmental team highlighting best practices, trends, and recent regulations: EPA Announces New Owner Audit Program Agreement for Oil & Natural Gas Exploration and Production Facilities Staying in Lane Under the Environmental Rights Amendment New York to Propose … Continue Reading
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