Environmental Law Monitor

August 13, 2020 Litigation

Environmental Groups Raise Climate Change Concerns in New Suit Challenging Trump Administration’s Attempted NEPA Overhaul

Last week, a coalition of environmental groups filed suit in the Southern District of New York following the Trump Administration’s proposal to update the National Environmental Policy Act (NEPA)—the federal law that requires certain environmental reviews prior to the approval of major infrastructure projects.

The lawsuit, Environmental Justice Health Alliance et al. v. Council on Environmental Quality et al., Civil Action No. 20-cv-6143, is the third challenge to the Administration’s NEPA overhaul following two other cases filed in Virginia and California federal courts in late July.

The suits were spurred by the promulgation of …

Posted by: Goldberg Segalla

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 …

August 6, 2020 EPA / New York / PFAS / Water Contamination

Posted by: Oliver E. Twaddell

Empire State Adopts MCL for 1, 4-Dioxane, PFOA, and PFOS

On July 30, 2020, New York’s Public Health and Health Planning Council voted in support of maximum contaminant levels (MCLs) for PFOA and PFOS—the two most well-known per- and polyfluoroalkyl substances (PFAS). The Council voted to set the MCLs for both chemicals at 10 parts per trillion—among the lowest levels adopted by any state, and significantly lower than the U.S. EPA’s current guidance levels of 70 ppt.

Another chemical—1, 4-Dioxane—also has an MCL of 1 part per billion now. New York announced that this regulation …

July 30, 2020 Emissions / EPA

Posted by: Goldberg Segalla

Is a Watchdog’s Bark Worse Than its Bite? Inspector General Begins Probe of EPA’s New Vehicle Emissions Rule

The Office of the Inspector General of the United States Environmental Protection Agency is beginning an investigation into “potential irregularities” in the adoption of new regulations related to vehicle emissions. The evaluation arose after a former Environmental Protection Agency employee complained that career staff were not involved in the creation of the new rules.

The notice from the Office of Inspector General also credits Senator Tom Carper (D-Del.) for initiating the investigation and notes that the Office of Inspector General will determine whether the rule …

July 30, 2020 Emerging Issues / Hydraulic Fracturing

Posted by: Karen Cullinane

Wave of Oil and Gas Bankruptcies Expected to Lead to Costly Cleanups

U.S. oil and gas companies have increasingly moved towards bankruptcy—particularly in recent months—amid a global price war and the spread of the COVID-19 pandemic, reducing demand. It is possible that nearly 250 oil and gas companies may file for bankruptcy protection by the end of 2021. This market crisis may soon bring about, and be further compounded by, a costly environmental crisis involving abandoned hydraulic fracturing wells.

Abandoned wells often leak gases, such as methane, that pollute and warm the planet. Preventing water contamination or …

July 16, 2020 Clean Water Act / Emerging Issues

Posted by: Goldberg Segalla

Supreme Court Limits Prohibition on Streamlined Pipeline Permitting Process

Last week, Supreme Court Justice Elena Kagan issued an Order for the Supreme Court on a stay application, limiting a lower court decision that prohibited new pipeline projects from using Nationwide Permit 12 (NWP 12), a permit used for certain types of discharges in oil and gas infrastructure projects. The stay of the lower court decision does not apply to the Keystone XL pipeline project, which is the subject of a pending appeal in the U.S. Court of Appeals for the Ninth Circuit. The stay …

July 9, 2020 Emerging Issues

Posted by: Goldberg Segalla

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 …

July 9, 2020 Emerging Issues

Posted by: Oliver E. Twaddell

How Many Have Seen Schrödinger’s Cat?: D.C. Circuit Strikes Down FERC’s Longstanding Use of Tolling Orders in Response to Rehearing Requests

In Allegheny Defense Project, et al. v. FERC (Allegheny), the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, ruled last week that the Federal Energy Regulatory Commission (FERC or Commission) could not delay reconsideration of its approval of gas infrastructure projects for the purpose of postponing judicial review. In essence, in a 10-1 decision, the court said FERC’s “tolling policy”—something used in every gas pipeline case (39 to be exact) of the last 12 years—violates the strictures of the …

July 1, 2020 California / Emerging Issues

Posted by: Goldberg Segalla

Does This Mean My Trucker Hat is Cool Again? CARB Enacts First Mandate for Implementation of Zero-Emission Trucks in the U.S.

The California Air Resources Board (CARB) adopted a rule on June 25, 2020, setting a deadline of 2045 for all trucks sold in California to be zero-emission models. The rule is the first of its kind in the United States. Globally, the rule represents one of the most ambitious efforts to date to replace diesel trucks with battery-powered and other zero-emission vehicles.

“It is clear this is the first of its kind in the world,” said California Air Resources Board Chairwoman Mary Nichols. “It’s part …

June 25, 2020 Clean Water Act / Colorado / Emerging Issues

Posted by: Goldberg Segalla

Outside of Colorado, the Navigable Waters Protection Rule Takes Effect

As previously discussed in the Environmental Law Monitor, the Trump Administration has taken action throughout 2020 to narrow the scope of which wetlands and waterways are protected under the Clean Water Act (CWA). The recently limited rule took effect on June 22, 2020, which in essence, opens the doors for developers anxious to get to work ahead of future legal action and the 2020 presidential election.

The EPA first unveiled its planned Navigable Waters Protection Rule in January 2020. The regulation, also known as …