Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Gerald George

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Lessons In Persistence for Us All

Posted in EPA
Lessons In Persistence for Us All Recent actions by the New Hampshire House of Representatives provide a variety of lessons about the value of persistence, both in the political process and in life. Four years ago, a group of fourth-graders attempted to have the red-tailed hawk designated the official state raptor. Oddly, the effort was… Continue Reading

Trump Track: Chevron Deference – Whose Ox Is Gored?

Posted in CERCLA, EPA, Federal, Trump Track
Federal courts often rely on “Chevron deference” in upholding regulations issued pursuant to vague congressional authorization. This doctrine dictates that where the statutory language is unclear, a court will defer to a reasonable interpretation of the language by the agency designated to enforce the statute. Agencies are not prone to reading their authority narrowly, and… Continue Reading

Seventh Circuit Affirms Both RCRA Liability and Denial of Injunctive Relief

Posted in Rulemakings, Water Law
In LAJIM LLC v. General Electric, in both the district court and on appeal, the plaintiff both won and lost. The U.S. Court of Appeals for the Seventh Circuit readily affirmed the federal district court’s grant of summary judgment under the Resource Conservation and Recovery Act (RCRA) to a down-gradient golf course operator who alleged… Continue Reading

Supreme Court Decides Critical Habitat Must Be Habitat

Posted in ESA, Federal
In a unanimous decision (with Justice Kavanaugh not participating), the Supreme Court on November 27, 2018, remanded a controversial Endangered Species Act (ESA) decision for further consideration by the Fifth Circuit Court of Appeals. Weyerhaeuser v. U.S. Fish and Wildlife Service (FWS) The Court held that “critical habitat” must be “habitat.” The Court agreed that… Continue Reading

Marine Pollution: A Continuing Problem

Posted in Environmental Quality
International efforts to reduce marine pollution are bearing fruit, according to a press release issued by INTERPOL on November 13. But it’s a big problem that won’t go away soon. Is it really that bad? Yes. Is it just a problem in U. S. waters? No. It’s international. Those of us who regularly read environmental… Continue Reading

Three Circuits Set Up CWA Application to Groundwater for Supreme Court Test

Posted in Water Law
There have been five circuit court decisions in 2018 addressing the application of the Clean Water Act (CWA) to discharges reaching navigable waters through groundwater. The year started with a decision by the Ninth Circuit which, addressing discharges through groundwater from an injection well, held that where there was a direct hydraulic connection between the… Continue Reading

California Court Holds Public Trust Doctrine Applies to Groundwater Impacts on Surface Streams

Posted in California, Water Law
In Environmental Law Foundation v. State Water Resources Control Board, the California Court of Appeal for the Third District on August 29, 2018 affirmed a district court’s application of the Public Trust Doctrine to the impact of groundwater wells on the Scott River in Siskiyou County. The case has far-reaching implications for groundwater use in… Continue Reading

Fourth Circuit Limits Impact of CWA Groundwater Decision

Posted in Water Law
In Sierra Club v. Virginia Electric & Power Company (“VEPCO”), the Fourth Circuit Court of Appeals affirmed in part and reversed in part a district court decision finding VEPCO liable for unpermitted discharges to navigable waters through groundwater from a coal ash landfill and settling ponds. VEPCO had not challenged the lower court’s finding that… Continue Reading

Trump Track: Is This the End of Sue and Settle?

Posted in EPA
On October 16, 2017, the now former Administrator of EPA, Scott Pruitt, issued a memo to the agency directing steps intended to end what has been known pejoratively as “sue and settle” – the practice of suing agencies, particularly EPA and the federal resource managers, for failing to meet statutory and regulatory deadlines, and then… Continue Reading

Trump Track: Natural Resource Damage Assessment Regulations Rewrite?

Posted in CERCLA, Trump Track
On August 27, 2018, the Office of Restoration and Damage Assessment (ORDA) at the Department of the Interior published an Advance Notice of Proposed Rulemaking and request for public comment on revision of the Department’s regulations for the conduct of natural resource damage assessments (NRDA) in connection with releases of hazardous substances. The notice identified… Continue Reading

Trump Track: What is Behind the Administration’s Failed Attempts at Delaying Rules?

Posted in EPA, Trump Track, Water Law
On August 17, the day after a federal judge in South Carolina invalidated the Trump administration’s suspension of the rule defining “waters of the United States” (WOTUS) under the Clean Water Act, a panel on the D.C. Circuit invalidated an effort by the administration to extend by 20 months the effective date of the Chemical… Continue Reading

Trump Track: Are the Gasoline Wars About to Begin with California?

Posted in EPA, Federal, Trump Track
On August 2, 2018, after many months of public rhetoric from the administration and the states, EPA and the National Highway Traffic Safety Administration sought comment on a joint proposal to modify the Corporate Average Fuel Economy (CAFÉ) standards for years 2021-2025. The Trump administration’s preferred modification would be a freeze on the standards at… Continue Reading

Trump Track: BLM Bar on Compensatory Mitigation: Optics Only?

Posted in Land Use, Natural Resources, Trump Track
On Monday, July 24, 2018, the Bureau of Land Management (BLM) issued a memorandum prohibiting BLM from requiring “compensatory mitigation” projects, except where specifically mandated by the Federal Land Policy and Management Act (FLPMA). BLM will consider “voluntary proposals for compensatory mitigation,” but will not accept monetary payments as compensatory mitigation. “Compensatory mitigation” is defined… Continue Reading

Weighing the Costs and Risks of Litigation

Posted in Water Law
Citgo Petroleum received a Valentine’s gift of sorts from the Fifth Circuit Court of Appeals on February 14, in United States v. Citgo Petroleum Corporation. The Court affirmed an $81MM civil penalty assessed by the district court for a spill at the company’s Louisiana facility.  The “gift” was the Court’s determination that the lower court… Continue Reading

Trump Track: Be Careful What You Ask For

Posted in Federal, Trump Track
The Trump Administration has taken the position that the President not only has the power under the Antiquities Act of 1906 to unilaterally establish national monuments, but also the unfettered authority to reduce in size or eliminate national monuments established in earlier administrations. Accordingly, the Trump Administration has undertaken a review of every national monument… Continue Reading

Trump Track: Polluters Play?

Posted in EPA, Trump Track
On December 11, 2017, the NY Times’ headline read: Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers.  The article reviews EPA enforcement during the first nine months of the Trump Administration.  The writers cite not only statistical comparisons with the first year of the Bush and Obama EPAs, but… Continue Reading

Trump Track: EPA’S Sue and Settle Process – Justification or Rejection?

Posted in EPA, Trump Track
As noted in this space, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred to by the rubric “sue and settle.”  The major changes in policy included inviting participation by all interested parties in any settlement negotiations, more… Continue Reading

$13mm NRD Settlement in 2003 Oil Spill Illustrates Long Tail on OPA Natural Resource Damage Claims

Posted in Litigation, Natural Resources, Oil & Gas, Trump Track
On October 17, 2017, the U.S. and the States of Rhode Island and Massachusetts lodged what was acknowledged as a “unique” settlement with a tug boat owner and operator for natural resource damages resulting from a 2003 marine oil spill. In U.S. v. Bouchard Transportation Company, the defendants had earlier settled other federal, state and… Continue Reading

Trump Track: Test for EPA’s Sue and Settle Process

Posted in EPA, Federal, Health and Safety, Litigation, Trump Track
As noted previously on this blog, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred to by the rubric “sue and settle.” The major changes in policy included inviting participation by all interested parties in any settlement negotiations,… Continue Reading

Trump Track: EPA Sue and Settle Fix?

Posted in EPA, Trump Track
On October 16, 2017, EPA Administrator Pruitt issued a memo to his agency directing that managers take certain steps to curtail the practice known as “sue and settle.” This practice most often is used for relatively quick resolution of citizen suits by environmental groups against the EPA involving the agency’s failure to comply with statutory deadlines for… Continue Reading

U.S. Reversed on 100% Allocation to Contractor

Posted in CERCLA
The Ninth Circuit Court of Appeals has reversed a district court decision allocating 100% of CERCLA response to costs to a U.S. military contractor, where both the U.S. and the contractor were liable parties. TDY Holdings, LLC et al. v. United States.  The appellate court held that the district court had properly applied its discretion… Continue Reading