Samuel L. Brown

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Last week, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) released its annual enforcement report detailing the results of the past year’s civil and criminal enforcement and compliance efforts.  The report covers the 2020 fiscal year, which ran from October 1, 2019, through September 30, 2020, and thus provides some key insight into the effect of the COVID-19 pandemic on environmental enforcement.…
Continue Reading EPA’s FY2020 Annual Enforcement Results Are In

A January 12, 2021 US Department of Justice (DOJ) memorandum extends and provides additional legal analysis to support the government’s increasing drumbeat against settling cases and reducing environmental penalties in recognition of Supplemental Environmental Projects or “SEPs.”  The new memo addresses the limited circumstances under which attorneys in DOJ’s Environment and Natural Resources Division (ENRD), the division of DOJ that represents EPA and other federal agencies in enforcing environmental laws, may include certain mitigation requirements in settlement agreements.  Issued last week by ENRD Assistant Attorney General Jeffrey Bossert Clark on the same day that he announced his departure from the Department, the memo bolsters the previously provided rationale for ENRD’s policy prohibiting SEPs in settlement agreements.  It also distinguishes SEPs from “equitable mitigation,” which the memo defines more narrowly and considers to be both permissible and appropriate.  The memo also lists criteria to guide ENRD attorneys evaluating whether equitable mitigation measures are appropriate in a given civil enforcement case.…
Continue Reading New Memo Doubles Down and Bolsters Justice Department Positions on Limiting Supplemental Environmental Projects

The European Commission (EC)–the executive branch of the European Union (EU)–recently proposed a comprehensive regulatory framework for batteries (the proposal). The finalized proposal would replace the existing Battery Directive, which currently covers only the end-of-life stage of batteries. The proposal is the first action taken by the EC under its new Circular Economy Plan and is viewed as a necessary step towards meeting the European Green Deal’s goal of zero net greenhouse gas (GHG) emissions by 2050. The proposal will have significant implications for companies manufacturing and importing batteries (or products with batteries) in the EU and may influence the future policies of the incoming Biden administration.…
Continue Reading The EU Drive toward a Sustainable Battery Framework and Seeing Around the Corner in the US

On November 29, Voters in Switzerland narrowly rejected the “Responsible Business Initiative” (RBI), which would have extended liability to multinational corporations and their subsidiaries and suppliers for noncompliance with international environmental and human rights standards, not just in Switzerland but also when doing business abroad. The majority of Swiss voted in favor of the RBI, but the referendum failed due to unique requirements associated with Switzerland’s direct democracy.
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Continue Reading Switzerland Narrowly Rejects Novel ‘Responsible Business Initiative’ on Multinational Corporation Environmental- and Human Rights-Based Liability

In the age of COVID-19, demand for surface wipes, sprays and similar products is at record levels. Retail stores have struggled to keep supplies stocked and shelves may once again be emptied when the winter flu season arrives. If schools and businesses reopen concurrently, the prospects of securing these products becomes even bleaker, which may re-fuel consumer stockpiling. To meet this surging demand, manufacturers have ramped up production and new entrants are pouring into this market space in unprecedented numbers. Supply chains are already stressed and further straining is expected to continue.
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Continue Reading Got COVID-19 “Claims”: Recent US EPA Enforcement under FIFRA Emphasizes Compliance Demands on Pesticide Product Supply Chains, especially for Products Claiming to be Effective against Coronavirus

The Equator Principles (EPs) are a framework for assessing and managing environmental and social risk associated with project financing. The EPs provide a minimum due diligence standard and monitoring protocol supporting responsible risk assessment and decision-making. The EPs apply globally, to all industry sectors, and are focused on risk management for projects financed by the financial institutions that have adopted the EPs. Currently, the EPs have been adopted by 105 financial institutions across 38 countries. The EPs oblige financial institutions to make informed investment decisions and withhold or withdraw financing on projects or assets not conforming to “good international industry practice.” The EPs incorporate IFC’s Environmental and Social Performance Standards (IFC Performance Standards) and World Bank Group Environmental, Health, and Safety Guidelines.…
Continue Reading EP4 – What’s New and What’s Next for the Enhanced Equator Principles?

The United States-Mexico-Canada Agreement (USMCA), a trilateral trade agreement between the three counties, entered into force on July 1, 2020 replacing the North American Free Trade Agreement (NAFTA).

The focus of the USMCA is diverse, ranging from intellectual property, to labor, to financial services. New provisions create incentives to manufacture cars in North American and open new markets for US agricultural products. The expectation is that it will take time for companies to understand and comply with the new requirements in the USMCA, in particular during a global pandemic and economic recession. The US Customs and Border Protection has released guidance to assist in the short-term with implementation of the USCMA.…
Continue Reading The USMCA, Trade, and the Environment

As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.…
Continue Reading EPA Sets Termination Date for Temporary Enforcement Policy

In its ruling today in Atlantic Richfield Company v. Christian, the Supreme Court upheld a decision by the Montana Supreme Court allowing owners of contaminated residential properties at one of the nation’s largest Superfund sites to pursue state law claims for damages in the form of restoration of their properties beyond the cleanup mandated by the U.S. Environmental Protection Agency, rejecting claims by the defendant in the state court action that these claims were barred by the terms of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Court also held that the property owners, although never pursued by EPA to contribute to any of the CERCLA response costs at the site, nonetheless were “potentially responsible parties” within the meaning of the statute, and therefore would be required to obtain approval from EPA for any additional cleanup arising under state law.…
Continue Reading Supreme Court Green Lights State Law Claims for Broader Cleanup at Superfund Sites, but only with EPA’s OK