Left In The Lurch – Another UK Landlord Convicted Following Tenant’s Unlawful Waste Operations

Recent caselaw demonstrates that regulators are prepared to prosecute landlords as a direct result of their tenants’ unlawful waste operations. Landlords should consider this possibility when Toxic Waste Barrelsnegotiating with prospective tenants and put in place reasonable safeguards to protect themselves. However, victims of fly-tipping may potentially face a similar risk of prosecution against which such safeguards will not be available. Continue Reading

Two Federal Courts Issue Decisions Against EPA “Suspension” Rule, Reviving and Protecting Obama-era Waters Rule

A swamp in the middle of the clearing

In the past two weeks, U.S. District Courts in South Carolina and Washington issued decisions that dealt additional blows to the Trump Administration’s efforts to unravel the 2015 Obama-era “waters of the United States” rule (“Obama Rule”).  In light of these rulings, the Obama Rule appears poised to remain effective in 22 states for at least the immediate future.

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The Significance in UK Nuisance Law of the Introduction of the “Agents of Change” Principle

The National Planning Policy Framework (NPPF) was first published in March 2012. The original NPPF (NPPF1) consolidated various other Planning Policy documents into one overarching framework. The purpose of the NPPF is set out in the introduction which states that “It provides a framework within which locally-prepared plans for housing and other development can be produced… [and that] the National Planning Policy Framework must be taken into account in preparing [a] development plan, and is a material consideration in planning decisions”.

The Revised National Planning Policy Framework (NPPF2) published in July 2018 introduced the “Agents of Change” principle into the legislative framework (paragraph 182). This is the first revision of the NPPF since the NPPF1 was published in March 2012. The purpose of the NPPF2 remains the same as that in the NPPF1. Both the NPPF1 and NPPF2 focus on issues such as: sustainable development, building a strong economy, ensuring the vitality of town centres, promoting healthy communities and protecting green belt land. However, the NPPF2 introduces around 85 reforms and amendments to the NPPF1, with the inclusion of the “Agents of Change” principle one of the key differences between the two documents. Continue Reading

November 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Online NewsWe are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the November edition, we summarise 35 developments in the environmental, safety and health sector. Top stories this month include:

  • The Institute of Safety and Health responding to the Sentencing Guidelines on Manslaughter, which came into force on 1 November 2018
  • A director sentenced to eight months imprisonment, and his company fined £700,000, for breaching the Health and Safety at Work Act
  • The Home Office publishing its 2018 Report on Modern Slavery, which includes an assessment of modern slavery in the UK and a summary of the UK’s response to the issue
  • The launch of the multi-agency National Economic Crime Centre, as part of the government’s strategy to tackle serious and organized crime
  • The release of annual injury and health statistics in Great Britain, which show a fall in convictions, but an increase in fines

For more detailed information on these developments and access to the remaining summaries, download a copy from our website. Make sure you also subscribe to receive our most recent edition every month.

US BUILD Act Clarifies Tenant Standing for Bona Fide Prospective Purchaser Protections from Contaminated Property Liability

For LeaseWhen President Trump signed the omnibus spending bill on March 23, 2018, he also enacted the Brownfields Utilization, Investment, and Local Development Act of 2018 (BUILD Act) (not to be confused with the Better Utilization of Investments Leading to Development Act of 2018—yet another BUILD Act of 2018). Among the several provisions within the BUILD Act were some changes to how exceptions to CERCLA liability may be met, including clarification on how tenants may establish the Bona Fide Prospective Purchaser (BFPP) liability protection. Continue Reading

October 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Electronic NewsWe are pleased to share with you the latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In our October edition, we summarise more than 35 developments in the environmental, safety and health sector. Some of the top stories this month include:

  • The Health and Safety Executive announcing that it is to target the construction industry to assess its respiratory risks and occupational lung disease prevention measures
  • An Environment Agency report that shows how the Proceeds of Crime Act can be used to deal with corporate offences
  • A European Parliament resolution on potential uses for blockchain and other distributed ledger technology
  • The Serious Fraud Office (SFO) confirming it will not appeal the Court of Appeal decision in Serious Fraud Office v. Eurasian Natural Resources Corp Ltd
  • The SFO releasing a draft review of and recommendations for improvements to meat processing practices

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website. You can also subscribe to ensure you receive our most recent edition every month.

Colorado Proposition 112: If Colorado Bans New Oil and Gas Development, What Next?

OilwellThe State of Colorado is a leader in regulating oil and gas development. But a ballot initiative proposes a more dramatic regulatory step: restricting oil and gas development all together. In the upcoming election, Colorado voters will decide whether to enact Proposition 112, a law requiring a 2,500-foot setback between any new oil and gas developments and any “occupied structure” or “vulnerable area.”

Proposition 112 will ban oil and gas development in Colorado.

The measure changes the setback under state law from 72 acres to 450 acres. And the law defines “new” oil and gas development to include reentry of an oil or gas well previously plugged or abandoned. Even Sierra-club endorsed Democratic Gubernatorial candidate Jared Polis opposes the measure, recognizing it as a near-total “ban” on oil and gas development in Colorado. Continue Reading

Ninth Circuit Orders Ban on Chlorpyrifos

In a 2-1 opinion this August, the Ninth Circuit Court of Appeals instructed US EPA to revoke all tolerances and cancel all registrations for chlorpyrifos, one of the most widely used conventional insecticides in the United States.  If left in place, this ruling will effectively ban domestic use of the popular pesticide, though the Ninth Circuit may revise its injunction to allow continued non-food applications. Continue Reading

Groundwater Remediation as Potential Tool to Combat Water Scarcity: Navigating Potential Conflicts Between CERCLA Remediation Considerations and Water Policy Issues

New water supplies in the western United States are likely to come from a panoply of non-traditional sources, including storm water capture, waste water recycling, desalination, infrastructure efficiency improvements, and other conservation measures. One potential new water source for municipalities is contaminated groundwater requiring environmental remediation, that, but for its low quality, could be used as water supply. Exploring this option is especially appealing in water stressed regions, such as much of the western United States. For example, in southern California, the Metropolitan Water District supports “[r]ecovering degraded groundwater supplies for municipal use” as part of its Local Resources Program. The idea is to conduct environmental remediation of groundwater in a way that unlocks new unused water resources. In cases where contaminated groundwater is hydrologically separated from aquifers that are being beneficially used, a remedy that involves the extraction of water and treatment for later recharge into the principal water supply aquifer can actually increase the volume of water naturally available for human use. Continue Reading

Proposed Affordable Clean Energy Rule: Navigating US EPA’s Clean Power Plan Replacement

On August 31, 2018, the US Environmental Protection Agency (US EPA) published its proposed rule providing a replacement to the Clean Power Plan (CPP).  The proposed rule, named the Affordable Clean Energy (ACE) rule, outlines revised emissions guidelines and the process for states to submit plans for the reduction of greenhouse gas (GHG) emissions from affected electric utility generating units (EGUs).  Key components include a shift to “inside-the-fenceline” emission reduction measures at individual sources for the best system of emission reduction (BSER) and proposed changes to applicability requirements for EGUs under the New Source Review (NSR) program.  Comments on the proposed rule are currently due on October 31, 2018, and the only public hearing thus far was held in Chicago on October 1, 2018.  The Agency is taking steps to organize the comments by indexing each comment solicitation and directing commenters to “include the corresponding identifier” when providing relevant comments.

The CPP remains subject to a stay in the D.C. Circuit Court of Appeals since February 9, 2016.  On September 4, 2018, a group of petitioners including seventeen states filed a response and motion requesting the court lift the abeyance and issue a ruling.  The basis for the motion included that US EPA does not have sufficient grounds to continue the stay and is unduly prolonging the abeyance.  The petition noted that such a decision would not prevent US EPA from pursuing this proposed rulemaking. Additionally, the Agency published an advanced notice of proposed rulemaking on December 28, 2017 seeking comments as to a proposed replacement rule. For a detailed overview of these background events, see this article.

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