On March 26, 2020, US EPA issued a temporary policy regarding enforcement of routine monitoring, recordkeeping, and reporting violations caused by the COVID-19 pandemic. As discussed in an earlier blog post, US EPA’s temporary policy sets out the Agency’s overall policy to exercise of enforcement discretion during the COVID-19 pandemic and generally not seek penalties … Continue Reading
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 … Continue Reading
On January 25, 2018, Bill Wehrum, the new Assistant Administrator of US EPA’s Office of Air and Radiation, issued a memorandum to all Regional Air Division Directors rescinding US EPA’s historic “Once In Always In” (OIAI) policy for major sources under US EPA’s National Emission Standards for Hazardous Air Pollutants (NESHAP) program. Under the “Once In Always In” (OIAI) … Continue Reading
US Attorney General Jeff Sessions recently issued a new policy barring payments to non-governmental third parties as part of most civil and criminal settlements. The memorandum does not detail how the US Department of Justice (DOJ) will implement the policy, leaving much to departmental interpretation. The language is broad enough to have significant impacts on environmental settlements. … Continue Reading
Late last month the Seventh District Court of Appeals in Ohio upheld the appropriation of private land for a pipeline that will carry pure propane and pure butane, ruling that such fractionated natural gas liquids still constitute “petroleum” under Ohio’s eminent domain laws. The case is now on appeal to the Ohio Supreme Court, but … Continue Reading
With US EPA’s regulation of greenhouse gas emissions from fossil fuel–fired electric generation still hotly contested in the D.C. Circuit, US EPA is proceeding with the next step in its implementation of the White House’s Climate Action Plan by moving forward with additional greenhouse gas regulations, this time of the nation’s oil and gas infrastructure. … Continue Reading
Earlier this month, US EPA released its long-awaited draft assessment on the impact of hydraulic fracturing (fracking) on the nation’s drinking water resources. The assessment, titled Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, represents over four years of study into the potential of hydraulic fracturing to … Continue Reading
The US District Court for the Eastern District of Washington recently held in Anderson v. Teck Metals, Ltd. that CERCLA displaces federal common law claims for public nuisance based upon the standard for displacement set out by the US Supreme Court in American Elec. Power Co., Inc. v. Connecticut and the Ninth Circuit in Native Village of Kivalina v. Exxon … Continue Reading
US EPA has updated its Toxic Substances Control Act (TSCA) Work Plan for Chemical Assessments, the Agency’s list of priority chemicals for analysis, adding 23 new chemicals to the list while removing or consolidating 16 others. US EPA’s Office of Chemical Safety & Pollution Prevention (OCSPP) produced the original list of Work Plan chemicals in … Continue Reading
In a continued effort to ramp up the focus on global climate change, President Obama issued an executive order in September that expanded the US’s policy on climate resiliency to international development projects. This added focus on climate resilience (the ability of programs and projects to withstand the impacts of global climate change) has the potential to become … Continue Reading
Last week, the heads of US EPA’s Office of Air and Radiation and Office of Enforcement and Compliance Assurance jointly issued a memorandum to regional administrators clarifying the Agency’s position on permitting greenhouse gas (GHG) emissions under the Clean Air Act’s Prevention of Significant Deterioration (PSD) and Title V programs. The memo was issued in response … Continue Reading
In a seminal decision, the US Supreme Court ruled 5-4 that US EPA lacked authority to impose PSD and Title V permitting requirements under the Clean Air Act (CAA) on facilities based solely on their emission of greenhouse gases (GHGs), striking down much of US EPA’s plan for regulating GHG emissions under the Tailoring Rule. In the same opinion, … Continue Reading
As EPA continues to develop its policy on global climate change, significant questions remain as to the extent of the regulatory burdens that will be imposed on public utilities and private industry under the Clean Water Act (CWA) to address the predicted effects of global climate change on future weather patterns. For years now, environmental … Continue Reading
On September 4, 2013, EPA published a proposed rule to modify its Water Quality Standards program, The proposed rule addresses six key topics that have been the subject of litigation and past EPA guidance: (1) the Administrator’s authority to impose federal water quality standards; (2) how designated uses are determined; (3) the triennial review of state water … Continue Reading
The U.S. Court of Appeals for the Fifth Circuit this week affirmed dismissal of the plaintiffs’ common law tort claims in the case Comer v. Murphy Oil USA, Inc.,[1] one of the first cases seeking to impose common law tort liability on emitters of greenhouse gasses for their alleged contribution to global climate change, and a … Continue Reading
Plaintiffs seeking to impose civil liability on major emitters of greenhouse gases have been pressing their claims under the rubric of common law nuisance over the last several years. While the results of these efforts were initially mixed, the last two years have seen the tide clearly turn against such nuisance theories. The first and … Continue Reading
