Keystone XL Pipeline Litigation Takes a Turn on Heels of President Trump’s New Presidential Permit

Welding on Gas Pipeline

The Keystone XL Pipeline is back in the spotlight. In the first quarter of 2019, the U.S. District Court for the District of Montana and the U.S. Court of Appeals for the Ninth Circuit upheld the injunction prohibiting TransCanada Keystone Pipeline, LP and TransCanada Corporation (TransCanada) from beginning construction on the Keystone XL Pipeline. On March 29th, President Donald Trump issued a new cross-border permit that threatens to bypass the pending litigation. Most recently, on April 8th, the United States and TransCanada filed motions to dismiss the Ninth Circuit appeal and remand to the district court with instructions to dismiss for mootness.

These filings represent the most recent steps in a decade-long fight over this controversial pipeline. Continue Reading

March 2019 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 March edition, we summarise 29  developments in the environmental, safety and health sector. Some of the top stories this month include:

  • A £224,000 fine for a chemical manufacturing company after a worker was exposed to chemicals
  • A Organisation for Economic Co-Operation and Development consultation seeking input on the effectiveness of the anti-bribery recommendation
  • A government-proposed audit of its Modern Slavery Statement Compliance, interim reports on Modern Slavery Act 2015 and guidance on annual statements
  • A £1.8 million fine for a food manufacturer for work at height failures
  • A Court of Appeal decision in R v Squibb Group, reducing the fine from £400,000 to £190,000

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.

Environmental, Safety & Health Practice Group Launches Comprehensive Suite of UK-Based Training Programs

The scope of this training includes practice and procedure for health and safety law, environment, anti-bribery and corruption, food and drink laws and product safety.

Legal compliance issues can have a huge impact on the fortunes of your business. Investing in skills, knowledge and competencies at all levels of an organisation is the most effective solution to preventing and mitigating the risks impacting on every business. Our lawyers can train your board, legal team and/or operational staff in relation to legal requirements, obligations and compliance; developments in environmental, safety and health practice; directors’ duties under the relevant regime(s); and the approach of the regulator and courts to any breach, including sentencing powers and relevant case law.

We have developed a range of training options to provide you with practical, commercial and tailored assistance where you need it most. The training is designed to be flexible and to meet your business needs. We propose an indicative length and content for each course, but all courses can be adapted to suit your business, your industry/sector and the knowledge and experience levels of the people who will be attending. If you are interested in more than one course, we can combine them, as required, and can adapt proposals accordingly.

Follow the link to view the full scope of our frESH Law Training offering and contact us to discuss how we can tailor our programs to meet your needs. Continue Reading

Four Things to Know About US EPA’s Draft WOTUS Rule

A swamp in the middle of the clearing

On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act.  The proposed rule is the second step in a two-part process to revise the definition, consistent with one of the first Executive Orders issued by President Trump.  The Clean Water Act prohibits the unpermitted discharge of pollutants, including soil or fill material in water bodies, wetlands and even some normally-dry lands.  Accordingly, as the definition of waters of the United States (WOTUS) expands, so does the federal government’s control over construction and other activities affecting these areas.  The Agencies note that they are attempting to “preserve[] the traditional sovereignty of States over their own land and water resources[,]” and the proposed rule is widely expected to narrow the overall number of waters subject to federal jurisdiction.

The comment deadline on the proposed rule is April 15 — there are four points to be aware of in deciding whether to comment on the proposal: Continue Reading

February 2019 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Electronic 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 February edition, we summarise 19 developments in the environmental, safety and health sector. Top stories this month include:

  • A Health and Safety Executive press release reporting the £600,000 fine of a contractor after an employee was killed by a dumper truck
  • The £274,000 fine of a food company after two workers suffered injuries as a result of being trapped in machinery
  • The fatal fall of a worker leading to two companies being fined a total of £860,000
  • A successful asbestos compensation claim for an electrician against a previous employer

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 EPA Approves Missouri’s Innovative Approach to Limiting Nutrient Pollution

In December 2018, the US EPA approved Missouri’s standards for limiting nutrient pollution in lakes and reservoirs in the state. The Agency’s approval comes after years of past debate and litigation between US EPA and Missouri over the state’s approach to nutrient criteria and, notably, represents a reversal from US EPA’s Obama-era opposition to the state’s proposed standards. It is likely that Missouri’s framework will be used as guidance by other states in developing their approaches to lake and reservoir nutrient pollution, and it may be that US EPA’s approval will embolden states to deviate from the federally-recommended numeric nutrient criteria and develop customized plans. Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

Often called the fourth branch of government, administrative agencies implement the labyrinth of federal regulations governing people and companies in the United States. Administrative agencies play a particularly important role in regulating environmental, health, and safety in the United States. Those administrative agencies may soon face greater scrutiny from federal courts in their interpretation of their own regulations. This development could give businesses—particularly those in highly regulated industries—more opportunities to challenge, limit, or at least better anticipate their regulatory burden.

This term in Kisor v. Wilkie, the US Supreme Court will consider whether to overturn Auer deference; the rule that courts must defer to an agency’s construction of its own regulation unless that interpretation “is plainly erroneous or inconsistent with the regulation.” This development fits with the broader trend that we identified last year—the Court’s growing skepticism about deferring to legal determinations made by administrative agencies. Last year, we explained the Court’s hostility to Auer deference’s controversial cousin, the Chevron doctrine, which requires courts to defer to an agency’s reasonable interpretation of a statute. Continue Reading

January 2019 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 January 2019 edition, we summarise 27 developments in the environmental, safety and health sector. Top stories this month include:

  • Post-Brexit environmental guidance set out in the Environment Bill, which introduces principles that will apply in place of the EU treaty principles after Brexit
  • The publishing of Defra’s long-awaited Resources and Waste Strategy for England, which looks at several issues in relation to various types of waste
  • An Environment Agency proposal to revise its public participation statement for environmental permitting
  • Defra issuing its Clean Air Strategy, intended provide a stronger legislative framework for future action on air pollution
  • Environment Agency guidance on environmental permitting compliance and its response to last year’s consultation changes to permit compliance scoring

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.

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due to the shutdown. On February 6, 2019, EPA announced that the hearing will now be held on February 27 and 28, 2019.   The Office of the Federal Register has not yet published the proposed rule, which will start the clock on the 60-day comment period.

Because it determines the scope of the Clean Water Act, the definition of “waters of the United States” has been a hot-button issue since it was amended, and significantly broadened, by the Obama administration in mid-2015.   The 2015 rule was challenged by 31 states and numerous other stakeholders in multiple lawsuits. In October 2015, the Sixth Circuit issued a nationwide stay of the rule. The nationwide stay was lifted when the US Supreme Court determined on January 13, 2017 that review of the rule falls within the jurisdiction of the district courts.   Although the nationwide stay is no longer in effect, decisions by the US District Courts for the Districts of North Dakota, Southern District of Georgia, and Southern District of Texas, preliminarily enjoining the 2015 rule in 28 states remain in effect. Thus, the Obama-era rule is in effect in only 22 states, the District of Columbia, and US territories.

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Latest News and Perspectives on California Prop 65

The latest news and perspectives on California’s Proposition 65 (Prop 65) track the passage of the newly-amended Clear and Reasonable Warnings regulations under Prop 65, which took effect on August 30, 2018. Significantly, plaintiffs have started to target companies whom they believe to not be in compliance with the newly-amended regulations.  Read more below about this and other important recent updates since the new Prop 65 regulations became effective, including the updated comment deadline of January 11, 2019, on proposed amendments:

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