Splitting from Other Circuits, Sixth Circuit Limits the Scope of the Clean Water Act

This week, the Sixth Circuit diverged from the Fourth and Ninth Circuits by limiting the scope of the Clean Water Act (CWA) as it relates to groundwater. The court held that the CWA cannot regulate pollutants from point sources if they reach navigable waters through groundwater. This decision is a clear split from the Fourth and Ninth Circuits, who have both held this year that groundwater can be regulated under the CWA if it serves as a conduit for pollution
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The Costs of Doing Business: 9th Circuit Upholds Oregon Clean Fuels Program

In 2007, the Oregon legislature instituted a program designed to reduce the state’s greenhouse emissions to at least 10 percent lower than 2010 levels by 2025. The Oregon Clean Fuels Program uses a cap-and-trade scheme that attributes a carbon intensity value to transportation fuels produced or imported into Oregon. Regulated parties must keep the average carbon intensity of all transportation fuels used in Oregon below an annual limit. A fuel with a carbon intensity below the limit generates a credit, and one with a
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Trump Administration Continues Rollback of Obama-Era CO2 Regulations

On August 21, 2018, the Trump administration released a proposed CO2 plan that will permit states to establish emission standards for coal power plants rather than encouraging their closure. The new proposal will provide coal companies with a strong financial incentive to keep their plants in operation, rather than the Obama administration’s goal of replacing them with power plants using renewable energy.  According to the EPA, the proposed rule, named the Affordable Clean Energy (rule), contains several key components:  a
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Kivalina and AEP Claim Another Victim – New York Climate Change Suit Falls

Like the proverbial acid relentlessly burning its way through materials in which it comes in contact, the relentless reasoning underlying the Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410 (2011) (AEP) and Native Village of Kivalina v. ExxonMobile Corp., 696 F.3d 849 (9th Cir. 2012) (Kivalina) climate lawsuits has claimed another victim. After taking out the lawsuits filed by the cities of San Francisco and Oakland earlier this summer (Order), Kivalina and AEP now have been used to eliminate the climate change suit filed by the City of
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Kivalina and AEP Strike Again – Oakland and San Francisco Climate Change Suits Dismissed

By Order dated June 25, 2018, the United States District Court for the Northern District of California dismissed the lawsuits filed by the cities of San Francisco and Oakland seeking compensation from five of the world’s largest energy producers for the costs of adapting to climate change allegedly caused in part by these companies’ sale of fossil fuels. This dismissal brings to an end, at least temporarily, to two of the fourteen second-generation climate change lawsuits that have been filed
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Climate Change Lawsuits Heat Up – The City of Boulder, Boulder County, and San Miguel County Join the Mix

On April 17, 2018, the City of Boulder, Boulder County, and San Miguel County, all in Colorado, collectively became the latest government entities to file suit against some of the world’s largest oil and gas companies, seeking compensation for the costs of adapting to climate change in their communities.   Non-coastal suits arrive: The Colorado suit, similar to all the previously filed government suits, alleges that the defendants’ greenhouse gas products are directly responsible for current and future physical impacts
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Cutting out the CARBs: EPA Administrator Suggests Possible Split with California on Emission Standards

Scott Pruitt, the Administrator of the Environmental Protection Agency (EPA), recently discussed a broad range of issues in an interview with Bloomberg TV. Chief among those, Pruitt stated that the EPA is opposed to setting stricter fuel economy standards beyond 2025 and has questioned whether individual states should be able to enact their own tougher emissions rules for cars and light trucks. Pruitt said that California, which has a waiver under the 1970 Clean Air Act giving it authority to
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California Second Generation Climate Change Suits — Back to the Future with Federal Common Law?

An interesting battle currently is playing out in the California courts involving what can be considered a “second generation” of climate change suits that seek to hold producers of greenhouse gases responsible for the costs that government entities are forced to expend in adapting to climate change. In July 2017, three California government entities — Marin and San Mateo Counties, along with the City of Imperial Beach — filed suit in California Superior Court against some of the world’s largest
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MTBE Update — Maryland AG’s Office Commences MTBE Litigation Against 50 Oil Companies

Just last month, the Maryland Attorney General filed suit in Baltimore City Circuit Court against over 50 petroleum related companies to recover damages and address widespread contamination of Maryland’s waters with methyl tertiary butyl ether (MTBE). MTBE is a chemical compound that was used as a fuel additive in gasoline since the late 1970s to make the fuel burn more cleanly, reducing smog. In the 1990s, MTBE was used specifically to fulfill the oxygenate requirements set by Congress in the
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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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