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General
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New Technologies Being Developed to Combat Harmful Algal Blooms in Upstate New York

Harmful Algal Blooms (HABs)—neither pretty nor safe—have been an ongoing issue in certain Upstate New York lakes and other bodies of water. However, it appears that some good news has arrived for those otherwise bucolic upstate areas. Recently, the state of New York announced that new HAB mitigation technologies—being developed by Clarkson University and SUNY Environmental Science and Forestry (ESF)—are being tested: hydrodynamic cavitation with hydrogen peroxide, and electrochemical oxidation filtration.

According to the DEC, “Both treatment systems are designed to collect algae-laden water near …

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Emerging Issues
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Will the U.S. Finally Have a Legal Reckoning with Ammonium Nitrate?

The explosion in the port of Beirut earlier this month was caused by—according to Lebanese officials—ammonium nitrate, and serves as a reminder of the deadly power of this chemical when recklessly stored or when there is an absence of oversight of its use.

Indeed, the Lebanese disaster echoes similarly fatal explosions involving ammonium nitrate at chemical plants in industrial pockets of the United States. Moreover, it is a primary chemical component of the livestock manure and fertilizer blanketing ever-expanding farms flung across the nation that …

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Emerging Issues
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Oil Prospecting in the Arctic National Wildlife Refuge: Is it Worth It?

Earlier this week, the Trump administration finalized its plan to open up a portion of the Arctic National Wildlife Refuge in Alaska to oil and gas development. This marks a significant change in protections for the Refuge, as protections have been afforded to this large stretch of wilderness for more than half a century. The Trump administration was drawn to this area of land based on a large coastal plain located in the Refuge, which is believed to contain significant portions of oil. Furthermore, oil production …

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Litigation
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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 …

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CERCLA / Emerging Issues / Ohio
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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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EPA / New York / PFAS / Water Contamination
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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 …

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Emissions / EPA
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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 …

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Emerging Issues / Hydraulic Fracturing
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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 …

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Clean Water Act / Emerging Issues
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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 …

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Emerging Issues
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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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