Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Gerald George

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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

Trump Track: EPA/DOJ Funding Split

Posted in EPA, Trump Track
EPA has proposed to end its funding of Superfund enforcement activities by the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD). In its proposed budget for FY 2018, EPA has cut the nearly $26MM that DOJ included in its budget for FY2018.  This represents a complete change from the practice since 1986, when… Continue Reading

Trump Track: WOTUS Wrangle

Posted in Trump Track, Water Law
We have strange bedfellows, as business groups, states and environmentalists maneuver before the Supreme Court over the Obama Administration regulation defining “waters of the US” (“WOTUS”) under the Clean Water Act (CWA). Organizations supporting and opposing the rule all argue that the Court should overrule the decision of the Sixth Circuit Court of Appeals holding… Continue Reading

Trump Track: Is Superfund Small Ball Best?

Posted in CERCLA, Trump Track
The most active agency in carrying out the Trump agenda in its first year has been the EPA, where there has been a raft of efforts to roll back the regulatory initiatives of the Obama Administration. However, in one area the agency has promised to take a more active approach, with Administrator Pruitt promising to… Continue Reading

Trump Track: Executive Order To Speed Infrastructure Projects

Posted in Trump Track
On August 15, 2017, President Trump issued yet another executive order (EO) intended to speed environmental review of infrastructure projects. His first executive order with that objective, issued January 24, 2017, was devoid of detail and largely hortatory.  The August EO, is more detailed, but is merely aimed at implementing legislation passed during the Clinton… Continue Reading

Ninth Circuit Addresses Finality Requirements for CERCLA Contribution Actions

Posted in CERCLA
The Ninth Circuit Court of Appeals revived a contribution action under CERCLA, and in the course of ruling, it addressed three issues of first impression in the Circuit regarding contribution litigation under CERCLA. Asarco, LLC v. Atlantic Richfield Company. First, it joined the Seventh Circuit in holding that a settlement entered into under an authority… Continue Reading

Trump Track: Pruitt Moves to Streamline Superfund Process, Accelerate Pace of Cleanups

Posted in Environmental Quality, EPA, Federal, Trump Track
On May 22, 2017, EPA Administrator, Scott Pruitt, convened a Superfund Group to examine the existing Superfund process and make recommendations to streamline the process and incentivize parties to accelerate remediation and revitalize the properties. On July 25, he received the group’s report and ordered implementation of its recommendations.  In particular, the recommendations and the… Continue Reading

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