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Significant Environmental Cases in Pa. Courts During 2018 (Part 1)

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

Constant Vigilance: Why Environmental Criminal Enforcement Still Matters

Jillian Kirn authored an article titled “Constant Vigilance: Why Environmental Criminal Enforcement Still Matters” in The Legal Intelligencer. According to Syracuse University’s Transactional Records Access Clearing House (TRAC), federal prosecutions for environmental crimes are down 40 percent from 2013 levels. Still, despite these recent declines, environmental criminal enforcement remains a potent regulatory tool. To read the … Continue Reading

Recent Opinions Hold Differing Views on Point Source Discharges Into Waters

Kathleen Kline authored an article in The Legal Intelligencer titled “Recent Opinions Hold Differing Views on Point Source Discharges Into Waters.” The article explores two recent opinions from the U.S. Court of Appeals for the Sixth Circuit regarding the growing cacophony over Clean Water Act jurisdiction, both holding that the act does not regulate pollution that reaches surface … Continue Reading

OSHA’s Regional Emphasis Program on Reducing Exposure to Ammonium

On Oct. 1, 2018, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new Regional Emphasis Program (REP) to address hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia. The REP will be effective in the states of Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas. It is aimed at … Continue Reading

Minimum Insurance Requirements for Regulated Entities in the Hydrocarbon Sector in Mexico

On July 23, 2018, Mexico published new administrative provisions (the “Guidelines”) implementing minimum insurance requirements for entities engaged in activities related to transportation, storage, distribution, compression, decompression, liquefaction, regasification, or retail sale of hydrocarbons or petroleum products in Mexico (“Regulated Entities”). The Guidelines will help Regulated Entities that carry out activities in the hydrocarbon sector … 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

Permitting Implications of UARG Decision

Last week, EPA issued guidance to its Regional Administrators that addresses some of the questions raised by the decision in Utility Air Regulatory Group  v. United States Environmental Protection Agency, 134 S.Ct. 2427 (U.S. June 23, 2014) (“UARG”).   As discussed in our posts of June 23rd and July 14th, that decision raised several issues that … Continue Reading

New York Court of Appeals Upholds Municipalities’ Fracking Bans

The New York Court of Appeals has just released its decision upholding the right of local governments to enact bans on high volume hydraulic fracturing.  The court held that the State’s Oil, Gas and Solution Mining Law “does not preempt the home rule authority vested in municipalities to regulate land use.”  The decision can be … Continue Reading

Standard of Proof for Civil Penalties in Florida is “Preponderance” not “Clear and Convincing”

On May 22, 2014, the Supreme Court of Florida reversed the Fifth District Court of Appeals in the case of South Florida Water Management District v. RLI Live Oak, LLC, No. SC 12-2336 (Fla. May 22, 2014), an appeal brought by the water management district over the applicable burden of proof when imposing civil penalties. … Continue Reading

EPA Releases Cooling Water Intake Rule

The U.S. Environmental Protection Agency finalized standards today that are designed to protect fish and other aquatic life drawn each year into cooling water systems at large power plants and factories.  The rule addresses impingement issues and heat damages that can be caused by cooling water intake structures at large industrial facilities and power plants. … Continue Reading

EPA Initiates Rulemaking On Reporting About Hydraulic Fracturing Fluids

From Chris Bell of GT Houston: EPA today published an advanced notice of proposed rulemaking seeking comment, by August 18, 2014, on a variety of options EPA is considering to collect and make available to the public information about chemicals used in oil and gas exploration and production, particularly those used in hydraulic fracturing.  79 … Continue Reading

“Policy-Setting” Resolution Requires County Infrastructure Projects to Consider Potential Impacts of Sea Level Rise and Storm Surge During All Project Phases

On May 6, 2014, the Miami-Dade County Board of County Commissioners passed a Resolution (Click Here) requiring that all County infrastructure projects “shall consider” the potential Impacts of sea level rise and storm surge during all project phases (including planning, design, and construction) to ensure that these projects will function properly for fifty years or … Continue Reading

Massachusetts Endangered Species Act Regulations Upheld as Valid Agency Rulemaking

In a case of first impression, the Massachusetts Supreme Judicial Court (“SJC”) recently rejected a landowner’s challenge to the so-called Priority Habitat regulations issued under the Massachusetts Endangered Species Act (“MESA”).  Pepin vs. Division of Fisheries and Wildlife, 467 Mass. 210 (2014).  These regulations require that projects located in areas mapped as Priority Habitat must … Continue Reading

Proper Definition Of The Relevant Property Leads to a $7 Million Award In a Takings Case Arising From Denial of A Wetlands Fill Permit

From Jerry Stouck of GT Washington, D.C.: A Florida company was awarded nearly $7 million by the U.S. Court of Federal Claims on March 14 in a long-running case involving a claimed unconstitutional taking of property arising from the denial of a Clean Water Act Section 404 wetlands fill permit.  The critical issue underlying the court’s … Continue Reading

West Virginia and the Importance of Risk Maintenance

From Christopher Bell of GT Houston: The recent chemical spill emergency in West Virginia is a reminder of the importance of effective risk management and compliance programs.  It has been reported that the tanks at the West Virginia facility had not been inspected since the early 1990s.  This drives home a point well understood by … Continue Reading

Public Hearing to Examine Need for New Environmental Bond Act In New York

From Robert Rosenthal of GT Albany: In New York, Robert Sweeney– the Chair of the Assembly Environmental Conservation Committee —announced a hearing to examine the need for a new Environmental Bond Act.  The hearing, to be held in Buffalo on October 22, 2013, would also review the NYS Department of Environmental Conservation’s effectiveness in meeting its … Continue Reading

A Reminder About Pollution Liability Coverage

In his recent Pennsylvania Law Weekly article, Kyle Johnson of GT Philadelphia discusses a recent decision from the federal district court in Pittsburgh, Wiseman Oil v. TIG Insurance, 2013 U.S. Dist. LEXIS 14747 (W.D. Pa. Jan. 22, 2013), which highlights the importance of carrying environmental insurance, especially in connection with properties or facilities with an increased … Continue Reading

Courts in two recent decisions refuse to expand the regulatory authority of the EPA under the Clean Water Act

Two recent cases have signaled that federal courts remain willing to resist efforts by EPA to expand the scope of its regulatory authority under the Clean Water Act. In yesterday’s unanimous five-page opinion authored by Justice Ginsburg, Los Angeles County Flood Control District v. Natural Resources Defense Council, the U.S. Supreme Court reversed and remanded … Continue Reading

In an action with national implications, U.S. EPA establishes numeric nutrient criteria for Florida’s waterways and estuaries on Friday after a protracted court battle.

On Friday, November 30, 2012, EPA Administrator Lisa Jackson filed notice in federal court that the agency had complied with a 3-year old consent decree requiring adoption of new water quality rules for Florida, thereby triggering the establishment of numeric nutrient criteria for approximately 100 000 miles of waterways and more than 4,000 miles of … Continue Reading

EPA Petitions for En Banc Rehearing of Decision that Overturned CSAPR

From Michael Cooke of GT Tampa: The U.S. Environmental Protection Agency has filed a petition seeking en banc review of the August 21, 2012, decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit that vacated EPA’s Cross-State Air Pollution Rule (“CSAPR”). (We posted the court’s opinion on August … Continue Reading

EPA Stormwater Regulations Continue to Drift

For well over a decade, the U.S. Environmental Protection Agency (EPA) has been in search of a regulatory approach to address post-construction stormwater discharges. In contrast to its regulations for stormwater discharges from construction sites,  this initiative targeted stormwater discharges after a project has been developed or redeveloped. EPA’s efforts to regulate post-construction stormwater discharges … Continue Reading