One of the key “non-scope considerations” commonly investigated during environmental due diligence for commercial property transfers is assessment of any lead impacts from lead-based paint (LBP) and lead dust. Although the use of LBP was banned in 1978, many structures constructed before that date retain LBP on surfaces. As that LBP deteriorates over time, it … Continue Reading
The US Supreme Court recently granted certiorari in an important climate change lawsuit, BP P.L.C. v. Mayor and City Council of Baltimore. The lawsuit pits the Mayor and City of Baltimore against twenty-six multinational oil and gas companies that Baltimore claims are responsible for climate change. Baltimore alleges that the companies contributed to climate change … Continue Reading
On June 22, Judge William B. Shubb of the US District Court for the Eastern District of California granted Monsanto’s motion for summary judgment and imposed a permanent injunction on the enforcement of Proposition 65 for glyphosate (the active ingredient in Roundup) in the closely followed case National Association of Wheat Growers v. Becerra. The … Continue Reading
The Trump administration recently finalized updates to regulations for environmental impact review of large projects under the National Environmental Policy Act (NEPA). NEPA was originally enacted 50 years ago to reorient federal agencies to consider the environmental impact of projects. It generally requires federal agencies to consider environmental effects of proposed projects before they are … Continue Reading
In April 2017, the UK Joint Committee on Human Rights suggested that it might be appropriate for a “failure to prevent” mechanism, such as the one found in section 7 of the Bribery Act 2010, to be applied to business and human rights. Earlier this year, the British Institute of International and Comparative Law (“BIICL”) … Continue Reading
Recently, in a 6-3 decision in County of Maui v. Hawaii Wildlife Fund (Maui), the United States Supreme Court held that a discharge of pollution to groundwater may be regulated under the Clean Water Act (CWA). The Supreme Court’s review arose from a case involving a wastewater treatment and reclamation facility in Hawaii that injects … Continue Reading
On April 20, 2020, the US Supreme Court issued its much-anticipated decision in Atlantic Richfield Co. v. Gregory Christian. In short, the Court held that the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) does not strip Montana state courts of jurisdiction over landowners’ claims for restoration damages; but the Court also held … Continue Reading
Control of nutrient loadings to US surface waters has widely proven to be a difficult task, and nutrient levels in many of our waterways continue to fail in satisfying the stated goals of the Clean Water Act. In 2015, the State of Montana established stringent water quality standards for nutrients. Recognizing the economic and social … Continue Reading
Two months ago, the US Supreme Court heard oral arguments in Atlantic Richfield Co. v. Gregory Christian. The case is critically important to environmental lawyers in the United States because it may alter the operation of Congress’s Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) scheme for environmental remediation. CERCLA gives EPA broad … Continue Reading
Public consultation is currently open for the Western Australian (WA) government’s proposed amendments to the state’s environmental protection legislation. The proposed changes aim to modernise the state’s environmental protection legislation to address the new challenges and priorities that have arisen in environmental protection in the 30 years since the Environmental Protection Act 1986 (WA) (EP … Continue Reading
On November 6, 2019, the U.S. Environmental Protection Agency (US EPA) proposed a new procedural rule titled “Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals” (the Proposal). The Proposal represents the first update to the Environmental Appeals Board (EAB) in 27 years. Specifically, the Proposal would impact the EAB’s … Continue Reading
Disagreements between California and the US Environmental Protection Agency (US EPA) over greenhouse gas (GHG) standards for automobiles have been simmering since 2018, but tensions between the two sides have recently increased after California entered into a voluntary agreement on GHG standards with a group of major automakers, followed swiftly by US EPA’s withdrawal of California’s authority … Continue Reading
On September 20, 2019, Maui County Council (Council) voted to settle the County’s pending appeal before the US Supreme Court of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. As previously reported here, the Ninth Circuit’s ruling held that the eventual migration of pollutants from permitted underground injection wells … Continue Reading
As we’ve covered extensively on this blog, the administrative state responsible for implementing environmental, health, and safety policy in the United States is in flux. A few months ago in Kisor v. Wilkie the US Supreme Court upheld but significantly narrowed Auer deference. Auer instructs that courts must defer to an agency’s construction of its … Continue Reading
Earlier this month, the US Supreme Court scheduled oral argument for November 6th in its review of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. The case has significant implications for the scope of the Clean Water Act (CWA), with the Ninth Circuit having ruled that the eventual migration … Continue Reading
In our prior coverage of Kisor v. Wilkie, we predicted that the Court would impose “greater scrutiny” on “administrative agencies’ . . . interpretation of their regulations.” And the Court did. The Court’s decision will affect every aspect of the federal government’s regulation of environmental, safety, and health. At the end of its term, the … Continue Reading
On March 12, 2019, Judge Kristin G. Farmer for the Stark County Court of Common Pleas dismissed the State of Ohio’s Third Amended Complaint against Rover Pipeline. The State alleged that Rover had committed widespread environmental violations during the construction of its 713-mile interstate natural gas pipeline. The court dismissed the complaint on the grounds that … Continue Reading
A recent prosecution by the Environment Agency, where a company was ordered to pay £327,000, has highlighted potentially difficult issues for businesses in complying with the statutory waste duty of care. What is the Statutory Waste Duty of Care? All businesses generate waste of some description: from paper and kitchen waste in offices, to hazardous … Continue Reading
On June 12, 2019, the US Environmental Protection Agency (US EPA) announced its seven enforcement and compliance assurance priority areas for fiscal years 2020-2023. One of the National Compliance Initiatives includes “Stopping Aftermarket Defeat Devices for Vehicles and Engines.” Specifically, the Agency expressed that it will have a focus on reducing aftermarket defeat device manufacture, … Continue Reading
On March 29, 2019, the US District Court for the District of Alaska blocked the Trump Administration’s efforts to revoke the Obama Administration’s prior withdrawal of portions of the Arctic and Atlantic Oceans from mineral leasing under the Outer Continental Shelf Lands Act (OCSLA). The court’s decision is noteworthy, not just for its implications for … Continue Reading
In Vedanta Resource PLC and another v Lungowe and others the UK Supreme Court has held that a claim for negligence and breach of statutory duty against a mining company based in Zambia and its English parent can be heard by the UK courts. In so doing, this landmark decision has potentially opened the door to … Continue Reading
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 … Continue Reading
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 … Continue Reading
