Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Category Archives: Natural Resources

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$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

Sturgeon v. National Park Service: Supreme Court Sidesteps Federal / State Lands Conflict

Posted in Land Use, Litigation, Natural Resources, Rulemakings
A case originating in Alaska may have answered the question for those wondering how the United States Supreme Court will approach weighty questions of law and policy with a vacancy on the Court; it probably won’t. In Sturgeon v. National Park Service, 577 U.S.  (2016), the Court had the opportunity to address a monumental conflict… 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

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

Free Webinar: Bird Mortality and Renewable Energy Facilities

Posted in Natural Resources, Renewables
        You see the headlines regularly –wind farms and solar arrays kill birds and companies pay major fines. Bird mortality is an increasingly sensitive topic for energy companies and their facilities, with complex and widespread legal implications. On June 2, Davis Wright Tremaine partner Gerald George  and Adrian Delnevo, PhD., CEO and… Continue Reading

California State Water Resources Control Board Finalizes Rules for Desalination Plants

Posted in California, Natural Resources, Rulemakings, Water Law
As the drought continues across California, the State Water Resources Control Board (“SWRCB”) has adopted its first-ever requirements for desalination plants in the state. Desalination – a process of removing minerals from ocean water to produce fresh water for municipal uses – has not been widely used in California because it is expensive, energy-intensive, and… Continue Reading

Washington State Producers and Retailers of Mercury-Containing Lights Face New Regulations

Posted in Health and Safety, Natural Resources, Northwest
The New Year brought with it new obligations for any company that produces or sells mercury-containing lights in (or into) Washington State.  As of January 1, 2015, the State’s recycling program and corresponding funding mechanism is fully operational, and participation is mandatory for producers of mercury-containing lights. While the statute and regulations impose unclear requirements… Continue Reading

California Desert Renewable Energy Conservation Plan Aims to Provide Certainty for Renewable Developers: Draft Released

Posted in California, Land Use, Natural Resources
On September 23, 2014, the U.S Department of Interior and the State of California released a draft Desert Renewable Energy Conservation Plan (“DRECP”), which covers over 22 million acres in Imperial, Inyo, Kern, Los Angeles, Riverside, San Bernardino, and San Diego counties.  The DRECP proposes to protect environmentally-sensitive areas of the California desert while also… Continue Reading

Offers of Judgment – Can They Shift Fees?

Posted in Litigation, Natural Resources, Rulemakings
A recent Resource Conservation and Recovery Act (“RCRA”) lawsuit may offer some additional guidance on when offers of judgment may cut off a party’s right to recover attorneys’ fees and costs under environmental laws.  Plaintiff National Exchange Bank and Trust (“National Exchange”) prevailed on its RCRA claim and was found to be entitled to litigation… Continue Reading

California Low Carbon Fuel Standards Survive Ninth Circuit Petition for Rehearing

Posted in California, Climate Change, Environmental Quality, Natural Resources, Oil & Gas, Rulemakings
On January 22nd, the Ninth Circuit Court of Appeals declined petitions to reconsider their decision upholding of enforceability of California’s Low Carbon Fuel Standard (LCFS).  The petitions were spearheaded by various trade groups and energy groups, including the Rocky Mountain Farmers Union and the American Fuel and Petrochemical Manufacturers, who argued that the LCFS’s strict… Continue Reading

Square Pegs in Round Holes

Posted in Federal, Natural Resources, Water Law
The Western states face two reciprocating and overarching problems in water resources policy.  First, water is an increasingly scarce resource facing sharply competitive needs.  Climate change is projected to put even more strain on water supplies.  Second, most streams listed as water-quality impaired in the West are designated as such for issues related to the… Continue Reading

Contingent Valuation Returns?

Posted in California, Natural Resources
The latest battle in the timber wars provides vividly contrasting views of the impact of last summer’s Rim fire, which burned across over 250,000 acres in the Stanislaus National Forest, Yosemite National Park and on private lands, at one point threatening the water supply for the San Francisco Bay Area as the fires reached toward… Continue Reading

Migratory Bird Treaty Act Concerns Extend to Solar Plants

Posted in California, Federal, Land Use, Natural Resources, Sustainability
By Gerald George The Migratory Bird Treaty Act (MBTA) has a famously broad scope, outlawing the taking of over 1000 species of birds, ranging from hummingbirds to robins and crows. It is also a criminal statute, although most violations are treated as misdemeanors subject to (not-insubstantial) fines.  Enforcement of the statute has been criticized as… Continue Reading

Ecology to hold public meetings on updates to human health criteria in Washington’s water quality standards

Posted in Environmental Quality, Health and Safety, Natural Resources, Northwest, Water Law
On September 12 and 16, 2013, Ecology will hold public meetings at its headquarters in Lacey, Washington regarding its rulemaking to update Washington’s surface water quality standards.  The rule making will set new human health criteria and implement regulatory tools to help dischargers comply with water quality standards. … Continue Reading

Those Dam Polluters!

Posted in Electric Power, Environmental Quality, Health and Safety, Natural Resources, Northwest, Oil & Gas, Water Law
The Columbia and Snake River federal network of dams, and the abundance of low cost electricity it produces, has long been the cornerstone of the Pacific Northwest manufacturing economy.  It has also supported another industry—the legions of lawyers fighting over the environmental effects.  The latest iteration is an attack brought by Columbia Riverkeepers against the… Continue Reading

Fish and Wildlife Service says No to Alaska’s request for oil exploration in the Arctic National Wildlife Refuge

Posted in Federal, Land Use, Natural Resources, Northwest, Oil & Gas
The Arctic National Wildlife Refuge (“ANWR”) is in the news again.  This refuge, set in the midst of some of the nation’s richest petroleum deposits, has been a source of contention and controversy since the passage of the Alaska National Interest Land Conservation Act (“ANILCA”) in 1980.  That Act greatly expanded the size of ANWR,… Continue Reading

5th Circuit Evaluates Application of Civil Penalty Factors for Oil Spills under the Clean Water Act, Holds Economic Benefit is Central Factor

Posted in Federal, Health and Safety, Natural Resources, Oil & Gas
By Gerald George On an appeal of a penalty determination in the first oil spill case to be tried under the civil penalty provisions enacted after the Exxon Valdez catastrophe in the Oil Pollution Act of 1991,[1] the 5th Circuit Court of Appeals reversed and remanded the case for reconsideration of the penalty, despite holding… Continue Reading

President Obama Unveils Climate Action Plan

Posted in Climate Change, Environmental Quality, EPA, Federal, Natural Resources
President Obama published a formal Climate Action Plan last month, announcing the plan in a speech delivered at Georgetown University. The plan organizes the President’s executive actions under three pillars: (1) Cutting Carbon Pollution in America; (2) Preparing the United States for the Impacts of Climate Change; and, (3) Leading International Efforts to address Global… Continue Reading

BLM Revises Proposed Rule on Hydraulic Fracturing

Posted in Environmental Quality, Federal, Health and Safety, Land Use, Natural Resources, Oil & Gas, Water Law
A recent advisory from DWT partners Glenn Benson and Barbara Jost: On May 16, 2013, the U.S. Department of the Interior’s Bureau of Land Management (“BLM”) issued a revised proposed rule regarding hydraulic fracturing on federal and Indian lands for oil and gas production. In response to the more than 177,000 public comments submitted in… Continue Reading