Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Gerald George

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Court Rules DOJ Enforcement Directive Arbitrary and Capricious

Posted in ESA
A U.S. District Court in Arizona has ruled that DOJ’s narrow interpretation of the requirements for a criminal misdemeanor under the Endangered Species Act went beyond unreviewable prosecutorial discretion, and its policy was arbitrary and capricious and in violation of the Administrative Procedure Act. WildEarth Guardians v. U.S. Department of Justice The Endangered Species Act… Continue Reading

Tenth Circuit Reverses Ruling Limiting Endangered Species Act Jurisdiction Over Intra-State Species

Posted in ESA
The Tenth Circuit U. S. Court of Appeals dashed the hopes of property rights activists by overturning a district court decision that the Fish and Wildlife Service (FWS) had no jurisdiction under the Endangered Species Act (ESA) over intra-state species located on non-federal lands. In People for the Ethical Treatment of Property Owners v. USFWS, plaintiffs… Continue Reading

On Remand from Supreme Court, Hawkes Wins Challenge to Army Corps’ Wetland Determination

Posted in Federal, Water Law
As described on this site  last year, the Supreme Court first affirmed the right to challenge wetlands jurisdictional determinations by the Army Corps of Engineers.  On remand, plaintiff Hawkes Company, a peat mining company in Minnesota, defeated the Corps’ wetland determination.  In granting summary judgment  to Hawkes, the district court applied the “significant nexus” test… Continue Reading

State Water Board Cleans Up Its Water Quality Enforcement Policy

Posted in California, Rulemakings, Water Law
 On August 4, 2016, the California State Water Resources Board (State Water Board) issued a draft rule amending its 2010 Water Quality Enforcement Policy. The proposed amendments are intended to provide additional clarity, allow disadvantaged communities to receive assistance with compliance matters akin to that provided under the current policy to facilities serving small communities,… Continue Reading

Ninth Circuit Rejects Application of CERCLA to Aerial Emissions

Posted in CERCLA, Federal, Litigation
In the long-running saga of efforts by the State of Washington and the Confederated Tribes of the Colville Reservation to attach CERCLA liability to a smelter in British Columbia, the smelter owner, Teck Industries, won a significant ruling. In Pakootas v. Teck Cominco Metals, Ninth Circuit Court of Appeals rejected plaintiffs’ efforts to expand their… Continue Reading

Fish and Wildlife Service Supports Renewable Developers and Proposes Revised Eagle Incidental Take Permit Reviving 30-Year Duration

Posted in Federal, Renewables, Rulemakings
On May 4, 2016, the United States Fish and Wildlife Service (FWS) released a draft rule and Programmatic Environmental Impact Statement (PEIS) analyzing the impact of the proposed rule on eagles, and extending the duration of permits from 5 years to up to 30 years. This continues the agency’s effort to support wind farms and… Continue Reading

Could the US Be “Aiding and Abetting” Cape Wind MBTA Violations?

Posted in Federal, Litigation, Natural Resources, Renewables
In the latest legal wrangling over the long-delayed Cape Wind Associates’ wind farm off Nantucket, during oral argument judges on the DC Circuit suggested that by permitting the wind farm, the US might be aiding and abetting violations of the Migratory Bird Treaty Act.  Whatever the outcome of the particular case, the comments may be… Continue Reading

DOJ Signals More Aggressive Stance On Environmental Crimes

Posted in Federal, Health and Safety
The Department of Justice announced on December 17, 2015, that it would intensify enforcement of environmental and safety laws by adding in environmental criminal counts to worker safety prosecutions.  The worker safety issues are often misdemeanors, so by coupling them with environmental crimes the Department expects it can impose greater penalties and increase deterrence. … Continue Reading

BP has settled its Clean Water Act penalty claims, but important questions remain to be decided

Posted in Environmental Quality, Health and Safety, Litigation
The United States and BP lodged their proposed settlement of the remaining claims by the US in connection with the Deepwater Horizon explosion and spill with the US District Court today. Comments to the Justice Department are due by Friday, December 4, 2015.  The details of the proposed settlement, which includes the largest Clean Water Act… Continue Reading

Corporate Wrongdoing: More Civil and Criminal Liability for Individuals?

Posted in Federal
The US Department of Justice has issued a memorandum to all of its prosecuting Divisions, directing changes to the principles applied by DOJ in prosecuting civilly or criminally individuals who engage in corporate misconduct. Press attention to the memorandum has focused on the application of those principles to Wall Street investment and banking firms, due… Continue Reading

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

Posted in Federal, Litigation, Natural Resources, Rulemakings
The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty (regular old) ducks”) resulting from uncovered equalization tanks at its Corpus Christi refinery. The court also reversed two Clean Air Act (CAA)… Continue Reading

Windfarm Industry Suffers Setback as Court Rejects 30 Year Eagle Permit Rule

Posted in NEPA, Renewables, Rulemakings
On August 11, 2015, a district court in Silicon Valley remanded a U.S. Fish and Wildlife Service (FWS) rule issued in 2013 that had extended the potential term of incidental take permits under the Bald and Golden Eagle Protection Act (Eagle Protection Act) from 5 years to 30 years.  Bird protection groups challenged FWS issuance of… Continue Reading

Creative Lawyering In RCRA Criminal Action Fails to Find Favor with the Ninth Circuit

Posted in Federal, Rulemakings
The Resource Conservation and Recovery Act, the federal law that regulates management of hazardous waste, is complicated and compliance can be tricky . . . but not impossible.  Our experience is that good faith efforts to comply will avoid serious regulatory problems.  A recent decision by the Ninth Circuit proves that the converse is true… Continue Reading

July 1 Deadline for General Industrial Stormwater Permits in California

Posted in California, Rulemakings, Water Law
Beginning July 1 of this year, there’s a new program in town!  A new general industrial stormwater permit kicks in in California. Companies with an existing stormwater permit will have to apply for a new permit, and prepare a new management plan—there is no grace period. Link to General Permit For Storm Water Discharges Associated… Continue Reading

USFWS Launches New Regulatory Program Under the Migratory Bird Treaty Act

Posted in Environmental Quality, Renewables
The US Fish and Wildlife Service issued a Notice of Intent to prepare a Programmatic Environmental Impact Statement (PEIS) to evaluate the potential environmental impacts of an incidental take program under the Migratory Bird Treaty Act (MBTA). The agency anticipates the development of general authorizations for particular industry sectors, focusing first on oil and gas… Continue Reading

Ninth Circuit Rejects CERCLA Settlement, Declines to Give Deference to State Agency

Posted in CERCLA, Litigation
On August 1, 2014, a divided panel of the Ninth Circuit reversed a district court’s approval of a multi-party settlement at an Arizona waste site.  State of Arizona v. Ashton Company Incorporated Contractors and Engineers, et al., No. 12-15691 (9th Cir. August 1, 2014).  The dissenting opinion noted that this is only the second time… Continue Reading

EPA Proposes to Amend All Appropriate Inquiries Rule to Remove References to 2005 ASTM Standard for Phase 1 Assessments

Posted in EPA
Earlier today  EPA published for comment notice of its intent to amend the “All Appropriate Inquiries Rule,” 40 CFR part 312, to remove references to ASTM E1527-05 “Standard Practice for Environmental Site Assessments:  Phase 1 Environmental Assessment Process (“2005 ASTM Standard”).  The Rule currently recognizes compliance with the 2005 ASTM standard as satisfying the Rule. … Continue Reading