By Gerald George on Posted in EPALessons 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
By Gerald George on Posted in CERCLA,EPA,Federal,Trump TrackFederal 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
By Gerald George on Posted in Environmental QualityOne of life’s eternal questions: where do all those golf balls go that are hit into a water hazard? If it was a pond, I knew the answer from my misspent youth – kids sneaking onto the premises at night fished them out of the ponds and sold them to other golfers. But what about… Continue Reading
By Gerald George on Posted in Rulemakings,Water LawIn 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
By Gerald George on Posted in ESA,FederalIn 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
By Gerald George on Posted in Environmental QualityInternational 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
By Gerald George on Posted in CERCLACourts have often noted that CERCLA is not a model of drafting excellence, and that some of the statute’s definitions are simply tautologies, e.g., that an owner means an owner. In Commonwealth of Pennsylvania Dept. of Env. Protection v. Trainer Custom Chemical, decided in 2016, we reported in this space that the district court had… Continue Reading
By Gerald George on Posted in Water LawThere 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
By Gerald George and Richard Glick on Posted in California,Water LawIn 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
By Gerald George on Posted in Water LawIn 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
By Gerald George on Posted in EPAOn 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
By Gerald George on Posted in CERCLA,Trump TrackOn 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
By Gerald George on Posted in EPA,Trump Track,Water LawOn 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
By Gerald George on Posted in EPA,Federal,Trump TrackOn 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
By Gerald George on Posted in Land Use,Natural Resources,Trump TrackOn 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
By Gerald George on Posted in Water LawCitgo 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
By Gerald George on Posted in Federal,Trump TrackThe 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
By Gerald George on Posted in Environmental Quality,Trump TrackOn Thursday, January 4, 2018, the Department of the Interior (DOI) announced a proposal to open 25 of its 26 offshore planning areas for leasing for oil and gas drilling, reversing an Obama Administration drilling plan that had put the Atlantic and Pacific Oceans off-limits, along with new regions in the Arctic Ocean. The Administration… Continue Reading
By Gerald George on Posted in EPA,Trump TrackOn 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
By Gerald George on Posted in EPA,Trump TrackAs 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
By Gerald George on Posted in Litigation,Natural Resources,Oil & Gas,Trump TrackOn 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
By Gerald George on Posted in EPA,Federal,Health and Safety,Litigation,Trump TrackAs 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
By Gerald George on Posted in EPA,Trump TrackOn 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
By Gerald George on Posted in CERCLAThe 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
