Environmental Law Monitor

February 6, 2020 Hydraulic Fracturing / Pennsylvania

Pennsylvania Supreme Court Restores “Rule of Capture” to Hydraulic Fracturing, But Trespass Claims Could Continue

In a split 3-2 decision, the Pennsylvania Supreme Court decided that the centuries-old rule of capture applies to hydraulic fracturing operations within the commonwealth, ending multi-year litigation where this critical concept received widespread scrutiny across the energy industry. See Briggs v. Southwestern Energy Production Co. This decision overturns Pennsylvania’s intermediary appellate court’s ruling, which had rejected the application of the rule of capture to fracking, as we reported.

Pennsylvania’s rule of capture allows drillers to drain a natural resource, including oil, gas, or water, from beneath property they do not own so long as …

February 6, 2020 Climate Change / Massachusetts

Climate Change Alert: Following the New York ExxonMobil Decision, Eyes Turn to Massachusetts

A federal judge in Boston, Massachusetts is considering a motion from the Massachusetts attorney general to remand the case back to state court from federal court. The case was removed to federal court in late 2019, and Attorney General Healey’s request to remand the case was received on Jan. 2, 2020. In the motion, the attorney general noted that the case did not concern various federal issues, such as carbon taxes, prohibitions on the sales of gasoline, or international climate change agreements. More specifically, the action was brought under the Massachusetts …

January 30, 2020 Clean Water Act

EPA Finalizes Controversial Navigable Waters Protection Rule

Last week the U.S. Environmental Protection Agency announced the final version of a new rule called the Navigable Waters Protection Rule, which will define the “waters of the United States” (WOTUS) under the Clean Water Act (CWA). The WOTUS definition is important as it determines which of the nation’s waterways falls within the jurisdiction of the CWA, the federal law that regulates the discharge of pollutants to the country’s surface waters. The recent announcement regarding the Navigable Waters Protection Rule is the second of two steps in the …

January 30, 2020 Florida / Legislation

Florida Senator Proposes Statewide Cooling Tower Regulation to Protect Citizens From Health Hazards Caused By Legionella

On Dec. 9, 2019, Florida State Senator Joe Gruters introduced Florida Senate Bill 1190 for consideration in the 2020 legislative session that began on Jan. 13, 2020. The legislative intent of this bill is to “protect people from the health hazards of Legionella, a waterborne bacterium that is known to originate in improperly sanitized cooling towers.”

Legionella causes Legionnaires’ disease, a serious type of pneumonia that is contracted when susceptible individuals inhale water droplets or mist containing elevated levels of thebacteria. Even for those persons exposed …

January 23, 2020 Clean Water Act / Water Contamination

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 …

January 23, 2020 Pennsylvania / PFAS

Principles of Interpretation and Separation of Powers: Federal Court’s PFAS Ruling a Short Study in Both

Our readers are well aware of the ongoing debate on whether perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) (commonly known, together, as PFAS) should be designated as hazardous substances. Despite the constant attention these compounds receive, they are yet to be designated. There is a recent case out of the U.S. District Court for the Eastern District of Pennsylvania that highlights the legal significance while employing some basic principles.

In Giovanni, et al. v. United States Dep’t of the Navy, individual plaintiffs discovered that PFAS chemicals from nearby Navy facilities had infiltrated …

January 16, 2020 Climate Change / Emerging Issues

Proposed Rollback of NEPA Regulations to Impact Review of Environmental Impacts of Federally-Approved Projects

The Council on Environmental Quality (CEQ) proposed a new rule on January 10, 2020 to alter the procedural provisions of the National Environmental Policy Act (NEPA). NEPA requires federal agencies to review the potential environmental effects of all federal, federally-assisted, and federally-licensed actions, and analyze potential alternative solutions before making a final decision on such actions. In essence, agencies are required to comply with the NEPA environmental review process, while considering a wide range of federal actions that include federal construction projects, plans to develop federally owned lands, and federal approvals of non-federal activities such …

January 16, 2020 PFAS

Limited PFAS Regulations Included in Recent Law Creating Military’s Space Force

When the National Defense Authorization Act for 2020 (NDAA) was signed into law on Dec. 20, 2019, it is not surprising that the creation of the Military’s Space Force garnered the most attention. However, for environmental regulatory observers, the new law surprisingly included several environmental regulations meant to address per- and polyfluoroalkyl substances (PFAS), including PFOA and PFOS. More specifically, the NDAA prohibits the use of firefighting foam containing PFAS after Oct. 1, 2024 at military installations and immediately prohibits use of PFAS-containing firefighting foam …

January 16, 2020 Illinois / PFAS

Legislators Assemble! North Carolina and Illinois Move to Enact PFAS Regulations

So far in 2020, the North Carolina Department of Environmental Quality (NC DEQ) proposed a maximum concentration level in groundwater for two PFAS compounds, while the Illinois Environmental Protection Agency released proposed draft amendments to its groundwater standards, including standards for a wide range of PFAS compounds. North Carolina’s and Illinois’ actions join prior efforts at legislation in other states, including Minnesota, New Hampshire, New Jersey, and Vermont.

The NC DEQ is proposing a maximum concentration of 70 parts per trillion (ppt) for PFOS and …

January 9, 2020 PFAS

EPA Releases Guidelines For PFAS in Groundwater

The U.S. Environmental Protection Agency (EPA) has issued Interim Recommendations for addressing groundwater contaminated with Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonate (PFOS) under federal cleanup programs. These recommendations represent the first federal guidance for mitigating per- and polyfluoroalkyl substances (PFAS) in groundwater.

After reviewing public comments solicited in April 2019, EPA made these interim recommendations based upon the data and scientific information it collected on PFAS’ toxicity, while specifically acknowledging that the scientific information on these compounds continues to evolve. Specifically, EPA recommends:

Using a screening