Legislators Request Action on Pipeline Infrastructure Attacks, and DOJ Responds

After a string of highly publicized attacks on energy pipelines in different areas of the country, several Congressmen addressed a letter to US Attorney General Jeff Sessions last month, asking that the United States Department of Justice (DOJ) respond to several questions concerning the ability and intent of the DOJ to investigate and prosecute criminal activity against energy infrastructure at the federal level. The letter also asks for DOJ clarification on whether attacks against the nation’s energy infrastructure fall within the DOJ’s understanding of 18 U.S.C. § 2331(5), which defines “domestic terrorism” to include activities that “involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and that “appear to be intended to . . . influence the policy of a government by intimidation or coercion.” For more information, see our post on PipelineLaw.

Navigating the CWA’s Reach: What’s Happening with WOTUS?

WOTUS, an acronym that has received a lot of attention in recent years, stands for the “waters of the United States.” When Congress enacted the Clean Water Act (“CWA” or the “Act”) in 1972, it prohibited “the discharge of any pollutant by any person” into navigable waters without a permit. The Act defines navigable waters as the “waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12). But Congress failed to, in turn, define the words “waters of the United States,” and the Supreme Court has noted that these “words themselves are hopelessly indeterminate.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (J. Alito, concurring). The meaning of these words matters because violations of the CWA are subject to substantial criminal and civil penalties, so knowing whether a feature on your site is a WOTUS subject to federal jurisdiction has important consequences. Continue Reading

New Jersey Decision Highlights Importance of Reviewing Historical Liability Insurance Policies

A New Jersey court recently held that an electrical products manufacturer was entitled to coverage rights provided by a predecessor’s commercial general liability policies if it was found liable for environmental remediation costs as a result of cleanup efforts by the US Environmental Protection Agency (EPA) along a 17-mile portion of the Passaic River in New Jersey. Continue Reading

Reopened CERCLA Liability: New Causes for Concern?

New chemicals of concern, new scientific and technical developments, newly discovered wastes, or natural disasters can add up to new CERCLA liabilities. When the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) was passed in 1980, it did not address the finality of judgments and settlements for the cleanup of contaminated sites. Some early settlements with EPA provided a complete release from all future CERCLA liability, but that later changed when the United States Environmental Protection Agency (“EPA”) began to limit the scope of covenants not to sue to specified “matters covered” by the settlement. The 1986 CERCLA amendments in section 122(f)(6), 42 U.S.C. § 9622(f)(6)(1) permanently made the change to require “reopeners” in all but a few limited circumstances. Continue Reading

Reformed TSCA and REACH: How Do They Compare?

Last year, President Obama signed into law the amended Toxic Substances Control Act (TSCA). Congress made substantial changes with respect to how both existing and new chemical substances are regulated. Some of these changes are significant and will have a direct impact on US chemical manufacturers, importers, distributors and users. However, the US did not attempt to mimic the EU’s REACH Regulation.

This article provides a high-level comparison of the main building blocks of the two regimes, bringing out the main similarities and differences between them. Of course, these are two different jurisdictions and no direct comparison can be completely valid, but it is worth making the comparison nonetheless, because many companies operate across both regions and because other jurisdictions have mimicked REACH in their regulatory reform, whereas the US has chosen not to. Continue Reading

Proposed Changes to California’s Hazardous Waste Regulations Could Significantly Impact Your Operations

With its proposed revisions to California’s hazardous waste management regulations, the California Department of Toxic Substances Control (DTSC) continues to make California’s hazardous waste management program more onerous and complex than the federal Resource Conservation and Recovery Act (RCRA). DTSC proposes substantial changes to hazardous waste personnel training requirements, financial assurance obligations, and hazardous waste permitting decisions.[1] Almost every facility that manages hazardous waste in California will be impacted if DTSC’s proposal is finalized. Public comment on DTSC’s proposed revisions remains open through November 6, 2017.     Continue Reading

Federal Judge Declines to Shut Down Dakota Access Pipeline While Corps Corrects Errors in Environmental Review

Once large infrastructure projects, such as oil and natural gas pipelines, receive federal government approval, they are often the target of legal challenges from opposition groups. Opponents repeatedly argue that the environmental review, pursuant to the National Environmental Policy Act (NEPA), was insufficient. If a court finds deficiencies in the government’s NEPA analysis, can a court halt construction or cease operations even after years of project design, permit approvals at all levels of government, and tens of millions of dollars in investment? This question was at the heart of the ongoing litigation involving the controversial Dakota Access Pipeline (DAPL), and, on October 11, Judge James Boasberg determined “no,” the court would not shut down the pipeline. This case is important precedent for projects being challenged under NEPA. For more information, see our post on PipelineLaw.

Core Functions and Cooperative Federalism: EPA’s Draft Strategic Plan

The US EPA released its draft strategic plan for 2018-2022 on October 5, 2017.[1] Not surprisingly, the draft plan differs greatly from the Obama EPA’s last strategic plan. The change in administrations has produced innumerable shifts in the policies, goals and operations of the federal government. EPA’s draft strategic plan is emblematic of these shifts. Continue Reading

What’s Up with Air Quality Standards for Ozone?

In October 2015, EPA reduced the level of the National Ambient Air Quality Standards (“NAAQS”) for ozone from 75 parts per billion (“ppb”) to 70 ppb. What is happening concerning implementation of those NAAQS?

Although litigation over EPA’s decision to lower the ozone NAAQS remains in abeyance as the Trump Administration continues to consider whether the Agency should reconsider the rule or some part of it, the 2015 standard itself has not been stayed. Thus, the Clean Air Act requires that implementation of the standard proceed. One key step in implementation is promulgation by EPA of a list of areas where the standard is violated, including areas that contribute to standard violations in nearby areas. EPA’s identification of these “nonattainment” areas is a trigger for many of the Act’s control requirements. Continue Reading

Viability of the “Act of God” Defense in a Superstorm World

The stakes are high for anyone facing environmental liability in the wake of superstorms like Hurricanes Katrina, Sandy, Harvey, Irma, and Maria. If you are among the parties potentially liable for the costs to clean up a release of oil or hazardous substances caused by a major storm event, you may be thinking about a possible “act of God” defense.  You may want to think again. In practice, the availability of this defense has proved elusive.  It is still a good idea, however,  to minimize risk in planning for the next “big one.”  Ultimately, advance actions taken to avoid or mitigate the impacts of natural disasters may be the difference between being excused from or being saddled with cleanup liability. Continue Reading

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