LATEST INSIGHTS

Michigan
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Wolverine State Moves Toward Regulation of GenX

Michigan could be the first state in the nation to establish maximum contaminant levels for the chemical, GenX. This comes after a Science Advisory Workgroup, made up of three environmental and health experts, listed GenX among seven chemicals deserving of regulation in the state’s drinking water in late June. Although it gained notoriety for contaminating the Cape Fear River in North Carolina, GenX is not among chemicals currently regulated by the EPA, leaving beleaguered states to step up and set guidelines where needed. Michigan’s proposed …

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California
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$2 Billion Glyphosate Verdict Weed Whacked To $86.7 Million

On July 25, 2019, Judge Winifred Smith of the Alameda County, California Superior Court reduced a $2 billion judgment entered by a jury against Monsanto Company, holding that the damages award was unconstitutionally high. The damages award was the third against the Bayer AG subsidiary in cases regarding whether popular herbicide Roundup causes Non-Hodgkin’s lymphoma. The court reduced the judgment to $86.7 million.

The court held that there was clear and convincing evidence that Monsanto committed malice, oppression, or fraud. Specifically, the evidence showed that …

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CERCLA / Clean Water Act / Water Contamination
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Federal PFAS Regulation Around the Corner?

The Senate and House both are considering Per- and polyfluoroalkyl substances (PFAS) regulations this summer. Last month, the Senate began inching closer to consensus on certain regulations. Following two hearings in the Senate Environment and Public Works Committee, the PFAS Release Disclosure Act was considered in committee and filed as an amendment to S. 1790, the National Defense Authorization Act heading to the Senate floor.

The Senate PFAS legislation would require reporting of PFAS releases as part of the Toxic Release Inventory Reporting program, address …

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California / Legislation
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Three Steps Forward, Three Steps Back- California Moves Forward With Legislation to Adopt Overturned Federal Regulations

In a move that seems tailor-made to create additional litigation, California legislators are considering legislation that would automatically adopt any federal environmental regulations that are weakened or eliminated by the federal government.

“SB 1 ensures clean air, clean water, endangered species, and worker safety standards that have been in place for as long as 50 years are not rolled back as a result of the anti-environment actions of the president and Congress,” Toni Atkins, Senate president pro tem, said in a statement accompanying the legislation.…

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California / CERCLA / EPA
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Tug-of-War: EPA and States Take Opposing Action on 1,4-Dioxane

On June 28, 2019, the EPA released its draft risk evaluation for 1,4-Dioxane. The EPA’s initial determination was that 1,4-Dioxane poses no unreasonable risks to the environment and no unreasonable risks to occupational non-users. However, the EPA also concluded that the chemical presents unreasonable risks to workers in certain circumstances. The same day, the California Department of Toxic Substances Control held a public workshop on 1,4-Dioxane risks, and the department is actively considering further regulation. Just two days earlier, the New York legislature approved a …

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Fracking / Hydraulic Fracturing
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Wastewater-Induced Earthquakes May Cause Rising Insurance Rates, But Are Costs Recoverable? Tenth Circuit Says No

The Tenth Circuit Court of Appeals recently dismissed a putative class action (i.e., an uncertified class), alleging that fracking operations by various natural gas companies in Oklahoma increased the risk of earthquakes in the state, causing property insurance premiums to rise for local residents.

In Meier v. Chesapeake Operating LLC, et. al., residents of Oklahoma claimed that wastewater disposal wells drilled into the Arbuckle formation, a 7,000-foot-deep sedimentary rock layer below the surface, have caused thousands of manmade earthquakes across the state since 2008.  …

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Emerging Issues / EPA / Wastewater / Water Contamination
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Regulatory Alert: EPA Publishes Draft Risk Evaluations for 1,4-Dioxane and HBCD

Last week, the United States Environmental Protection Agency (EPA) issued controversial draft risk evaluations for 1,4-Dioxane and Cyclic Aliphatic Bromide Cluster (HBCD), two of 10 chemicals subject to scrutiny under the Toxic Substances Control Act (TSCA). Under the Frank Lautenberg Chemical Safety for the 21st Century Act which amended the TSCA in 2016, the EPA is required to publish information regarding “hazards, exposures, conditions of use and potentially exposed or susceptible subpopulations,” regarding the enumerated chemicals. These risk evaluations are open for public comment for …

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Emerging Issues / General / Pennsylvania
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Don’t Go Taking My Land: Did SCOTUS Find a Serious Hurdle for State Limitations on Energy Development?

What does a private graveyard have to do with environmental regulation? Potentially a lot. The United States Supreme Court recently ruled that property owners can forgo state court to assert claims that the government unconstitutionally allowed a “taking” of their land. Most are familiar with the takings clause of the U.S. Constitution’s Fifth Amendment: “[N]or shall private property be taken for public use, without just compensation.” That is, governments are not permitted to take private property without providing fair value.

The decision, Knick v. Township …

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California / Clean Air Act / Climate Change
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To Remove or Not Remove – Complete Preemption is the Question!

An interesting dichotomy is developing in how federal courts are determining the proper forum for climate change lawsuits, that is whether they should be heard in state or federal court. This question, while seemingly a technical matter of civil procedure, could be fundamental to whether current and future climate change suits will be successful or whether they will be heard at all. The technical issue at stake is preemption – whether federal issues are determinative of the matters raised in the climate change suit  – …

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California / Clean Air Act
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Summer of Discontent – EPA looks to eliminate California Air Resources Board

Despite an effort by the automotive industry, the Environmental Protection Agency (EPA) is set to finalize a proposal that would freeze fuel economy standards at roughly 37 miles per gallon for the next six years, rather than raising them to nearly 51 miles per gallon for 2025 models. The rule would also revoke California’s existing waiver to set its own rules under the Clean Air Act, a practice the federal government has allowed for decades.

“As we acknowledged earlier this year, California Air Resources Board …

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