On Second Thought: U.S. EPA Issues 2020 Steam Electric Reconsideration Rule

This week, the U.S. EPA finalized a rule relaxing Obama-era standards for disposal of wastewater from coal-fired power plants. The Trump administration has characterized the new rule as a means of reducing pollution and saving jobs at the same time, while environmentalists decry the new rule as a threat to the nation’s waterways and the health of those who live near affected power generation facilities.

In 2015, the EPA issued a final rule regulating discharges from steam electric power plants, including arsenic, lead, mercury, selenium, chromium, …

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Bona-Fide Improvement: Ohio Adds BFPP Defense to Hazardous Waste Liability

This summer, Ohio implemented a change in its hazardous waste law that will be welcomed news to purchasers of brownfields. The new law adds a bona-fide prospective purchaser (BFPP) affirmative defense that will make those who qualify for its protections “immune to liability” to the state under the state’s environmental laws. Additionally, the new defense applies retroactively to pending causes of action that started before the law’s effective date.

The concept of a BFPP defense is familiar to purchasers of commercial property, as a similar …

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Dakota Access Pipeline Shut Down

On July 6, 2020, a federal district judge ordered the Dakota Access Pipeline to shut down. The judge vacated the easement allowing the pipeline to cross beneath Lake Oahe, which stands near lands held sacred by several Sioux tribes, until the U.S. Army Corps of Engineers completes a full environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). Additionally, on July 7, 2020, a federal judge refused to put the decision to shut down the pipeline on hold pending appeal.

The Sioux tribes …

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Mercurial Mercury Reporting: A Second Circuit Story

The Natural Resources Defense Council and the State of Vermont challenged the Environmental Protection Agency’s recently-enacted Mercury Reporting Rule, and they came away with a mixed bag. The case came before the U.S. Court of Appeals for the Second Circuit, which issued its decision on June 5.

The Toxic Substances Control Act directs the EPA to promulgate rules requiring manufacturers and processors of chemical substances to maintain records of their use of chemicals and report that information to the EPA. In 2016, Congress amended the …

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States Bring WOTUS Rule Back to Court

The state of California continued its crusade against the Trump Administration this month, filing a lawsuit against the U.S. EPA, challenging the agency’s replacement for the defunct 2015 Waters of the United States Rule (WOTUS). Sixteen other states joined the lawsuit, which was filed in the Northern District of California. The Army Corps of Engineers (ACE) was also named as a defendant in the lawsuit.

The definition of “Waters of the United States” (WOTUS) as used in the Clean Water Act has been disputed for …

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SCOTUS Plays Red Light, Green Light in CERCLA Decision

The Supreme Court issued a landmark CERCLA decision in Atlantic Richfield Co. v. Christian. Most notably, the court held that CERCLA did not deprive Montana state courts of jurisdiction over state law trespass, nuisance, and strict liability claims brought by owners of land within a Superfund site, even where the landowners sought a cleanup that went beyond the remediation plan approved by the EPA. However, the court also held that the landowners were potentially responsible parties under CERCLA, and therefore the landowners’ remediation plan …

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U.S. EPA Issues Interim Guidance On Site Field Work In Times Of COVID-19

As the U.S. Environmental Protection Agency (EPA) continues to calibrate its response to COVID-19, the agency issued interim guidance on how to conduct environmental cleanups in light of the ongoing pandemic.  The guidance applies to cleanups under CERLCA, RCRA, the Toxic Substances Control Act, the Oil Pollution Act, and the Underground Storage Tank program.

The interim guidance does not provide any blanket work stoppage, nor does it toll any deadlines.  Rather, it provides that the EPA continues to make decisions about continuing, reducing, or pausing …

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Trouble in Paradise: Honolulu Brings Climate Change Lawsuit Against Fossil Fuel Companies

Last week, the City and County of Honolulu, Hawaii filed a lawsuit against major corporate members of the fossil fuel industry, alleging they knew the negative effects their products would cause via climate change but obscured the information from public knowledge in order to reap greater profits. According to the complaint, the fossil fuel companies worsened the climate crisis by undermining climate science and delaying a transition to clean energy.

According to the lawsuit, the fossil fuel companies’ actions have resulted in sea level rise that …

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Empire State’s Renewable Energy Project Siting Bill: A Different Kind of Regulatory Cleanup

Many efforts in environmental law aim at enacting regulations to help clean up the environment. New York Gov. Andrew Cuomo submitted a bill that flips the script last week. The proposed law aims to clean up New York’s regulations about siting for and permitting  renewable energy projects.

Under the proposed law, a new office would be created within the state’s Department of Economic Development tasked with overseeing siting and permitting for renewable energy projects. Environmental reviews for such projects would also be the new office’s …

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A Lighter Touch: USACE Withdraws Water Supply Rule

The law of administrative agencies creates a unique incentive system.  In many cases, the legislature grants broad authority over a given field to an administrative agency, empowering the agency to both create and enforce rules governing that field.  There is some judicial oversight that controls how agencies make and enforce their rules. However, courts recognize that the agencies have greater expertise in their fields of authority, and they therefore grant a measure of deference to administrative agencies in reviewing agency actions. Generally, the more formal the …

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