Brandon D. Zeller

All articles by Brandon D. Zeller

 

More Challenges Coming Down the Pipeline: 4th Circuit Grants Victory to Green Groups

Building a pipeline is never easy. From planning the route to restoring the pathway, the entire process requires meticulous care, hard work, and even a little luck. These days, the process is more difficult than ever, thanks to the dedicated ingenuity of environmental groups that make it their mission to erect as many regulatory hurdles as possible for pipeline developers. The most recent example of environmental groups’ success in this arena came last week, when the United States Court of
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Rounded Down: An Update on California Glyphosate Litigation

Last November, we brought your attention to litigation in federal court in California regarding the listing of glyphosate as a substance “known to the state to cause cancer.” Since then, there have been developments in both the originally reported federal court case and a state court case on the same subject. First, a refresher: glyphosate is a common pesticide sprayed on more than 200 types of crops across four million acres in California. Monsanto Company, the principal plaintiff in both
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Wild West: Colorado Court Allows Warrantless Searches of Oilfield Sites

A rancher in southwestern Colorado had three oil wells on his property, leased to an oil company, Maralex Resources, Inc., of which the rancher was the president. One afternoon, an inspection supervisor with the Colorado Oil and Gas Conservation Commission (COGCC) contacted a local Maralex office and requested access to the wells for a routine inspection. Because the rancher was out of town, and the properties were protected by locked gates, the Maralex office refused to permit access that day.
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Strictly Business: Court Opens Door to PFOA Lawsuit for Purely Economic Damages

On February 20, 2018, a federal court in New York expanded the universe of plaintiffs who can sue for PFOA contamination in that state. The court ruled that plaintiffs could seek purely economic damages in negligence claims based on PFOA contamination, so long as the plaintiff’s business is located within the “zone of contamination.” As readers of this blog may be aware, PFOA (perfluorooctanoic acid) is a man-made chemical used, among other things, to make fabrics water- and stain-resistant. Originally
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Get the Lead Out

Two recent developments illustrate that the dangers of lead paint need to remain on the radar, especially for employers, property owners, and real estate managers. First, on January 26, a jury in New York handed down a $57 million verdict against the New York City Housing Authority after it failed to perform lead paint inspections and then represented that the inspections had been completed. The Housing Authority’s failure resulted in high blood-lead levels in at least one small child, whose
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EPA Takes Baby-Step Toward Replacing Clean Power Plan

Last month, the Environmental Protection Agency took the first miniscule step toward replacing the Obama-era Clean Power Plan (CPP) when it announced that it will seek public input on “the proper and respective roles of the state and federal governments” in setting emissions limits on greenhouse gases. The CPP is a regulation set forth by the EPA under the Obama administration aimed at cutting greenhouse gas emissions from power plants. Among other things, the CPP sets a goal to reduce
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It’s High Noon: Showdown Between States, EPA on Ozone Regulations

On Tuesday, December 5, 2017, 14 states — including California, New York, and Illinois — plus the District of Columbia filed suit in federal court in the Northern District of California against Scott Pruitt and the EPA. The states are trying to force EPA to announce a decision on whether all areas of the country are in or out of compliance with Clean Air Act ozone standards. According to the complaint, such designations trigger the steps necessary to protect the
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PCB Suit Under Federal Waste Statute Gets Court Go-Ahead

In a decision that may invigorate the plaintiffs’ bar, a federal judge in Wisconsin ruled that the Resource Conservation and Recovery Act (RCRA) regulates polychlorinated biphenyls (PCBs). The decision in Liebhart provides the plaintiffs with a simpler path to an award of damages in their case and allows the plaintiffs to litigate their other state-law based claims in federal court. PCBs have flame retardant characteristics and were used in a variety of products, including electrical equipment, hydraulic oils, paints, and
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Di-can’t-a Part 2: Enter the Plaintiff’s Bar

In July, the Environmental Law Monitor reported on regulatory responses to the herbicide dicamba from Tennessee, Arkansas, and Missouri. Dicamba has been a hot button topic in the farming/agricultural world, which often finds itself at the busy intersection of environmental and toxic tort issues. As many of you know, dicamba is an herbicide that’s been in use for decades, but in the past couple of years suppliers have designed certain types of crops that are genetically modified to tolerate having
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State Seeks to Enter Court Battle Over Federal Red Snapper Rule

On September 22, 2017, the state of Louisiana sought to intervene in a conservation group’s lawsuit against the National Marine Fisheries Service (NMFS) regarding overfishing of red snapper in the Gulf of Mexico this past summer. Louisiana wants to argue on behalf of the federal government that the conservation group’s lawsuit is moot because the rule it challenges has already expired. Earlier this summer, the NMFS issued a temporary rule extending the fishing season for red snapper in federal waters
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Bankruptcy Court Approves $43 Million Coal Cleanup Deal

On Tuesday, September 5, 2017, a bankruptcy court in Missouri approved a $43 million settlement between the reorganized Peabody Energy Corp., which is a coal producer, and the federal government. The settlement related to CERCLA liability incurred by one of Peabody’s affiliate companies, Gold Fields Mining LLC. Peabody acquired responsibility for Gold Fields’ pollution liability when it gained control of the company in the 1990s.  The federal government had filed proofs of claim in Peabody’s Chapter 11 bankruptcy proceeding on
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Massachusetts Steps Up its Game on Climate Regulation

Last Friday, August 11, 2017, the Massachusetts Department of Environmental Protection published expansive new regulations aimed at reducing greenhouse gas emissions in the state. The regulations will affect a broad range of stakeholders within the state, including new requirements for power generators, electric utilities, natural gas distributors, government, and the transportation sector. The new regulations are the latest step in an arduous process the state has undertaken to combat climate change. In 2008, the Massachusetts legislature passed the Global Warming
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Nuclear Option: New York Federal Judge Strikes Down Challenge to Power Plant Subsidies

On Tuesday, July 25, 2017, U.S. District Court Judge Valerie Caproni dismissed a challenge to New York’s plan to subsidize the state’s nuclear power plants. According to the Judge’s decision, the plan does not intrude upon federal jurisdiction over wholesale electricity markets and passes constitutional muster because it is rationally related to a legitimate state interest: the production of clean energy and the reduction of carbon emissions from the production of other energy. A coalition of power generators and energy
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Back to the Drawing Board for Clean Coal

Kemper County Power Generation Facility, the flagship “clean coal” project in rural eastern Mississippi, will rely on natural gas rather than coal to produce electricity. After years of delays and cost overruns totaling over $4 billion over the facility’s original budget of $2.9 billion, the facility’s coal gasifier project has been shuttered. The Kemper facility had been central to the Obama administration’s energy plan and to the administration’s assertions that it was not anti-coal. However, the worsening situation prompted the
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NMFS and NOAA Solicit Comments Regarding Offshore Seismic Surveys; Environmental Groups Enthusiastically Oblige

On June 6, 2017, the National Marine Fisheries Service (NMFS) and National Oceanic and Atmospheric Administration (NOAA) took the next step towards oil and gas drilling offshore of the east coast of the United States. The agencies filed a notice of takes of marine mammals incidental to geophysical surveys in the Atlantic Ocean and opened the subject for public comment. Three geophysical mapping companies have sought permits to conduct surveys off the east coast. The surveys would involve the use
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