Last week, the US Environmental Protection Agency (EPA) released its annual enforcement results for the 2018 fiscal year (ranging from October 1, 2017, to September 30, 2018). The report, prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), highlights the results of the agency’s civil and criminal enforcement of the nation’s federal environmental laws over the past year. The 2018 results mark the first full fiscal year of enforcement results, including inspections and compliance evaluations, under the Trump administration. A statement in the report from Susan Bodine, the Assistant Administrator for OECA, summarizes EPA’s enforcement priorities, explaining, “[i]n fiscal year 2018, we continued our focus on expediting site cleanup, deterring noncompliance, and returning facilities to compliance with the law, while respecting the cooperative federalism structure of our nation’s environmental laws.” Continue Reading EPA’s 2018 Environmental Enforcement Results Released
Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured. Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019). Continue Reading Texas Supreme Court Holds Anadarko’s $100M Deepwater Horizon Defense Costs Are Not Subject To Joint Venture Liability Limits
Responding to an EPA collection request can be costly, time consuming and stressful for the target of the request—especially because failure to submit a timely and accurate response can result in significant civil or criminal penalties. On November 21, EPA’s Office of Water (OW) and Office of Civil Enforcement (OCE) issued new policies that, if followed, promise to make the process more reasoned and less burdensome. Continue Reading New EPA Guidance Aims to Reduce Burdens, Increase Collaboration of Information Collection Process
In my April 2, 2018, post, I asked whether the US Court of Appeals for the Fifth Circuit would put another nail in the coffin of NSR enforcement for projects completed a long time (some of them, decades) before EPA or other plaintiffs filed a complaint alleging NSR violations. A three-judge panel of the Court of Appeals answered in United States v. Luminant, No. 17-10235 (5th Cir. Oct. 1, 2018), by unanimously ruling that the statute of limitations bars civil penalties for NSR violations that allegedly occurred more than five years before the filing of the complaint. But in a 2-1 decision, the majority ruled that, while injunctive relief is also barred in those circumstances for non-government plaintiffs (Sierra Club, in this case), injunctive relief is still “available” when the government is seeking to enforce the Clean Air Act. In her dissent in part, Judge Elrod said she would have affirmed the district court’s dismissal of the case in all respects, characterizing any “injunctive” relief sought by the government as “really just time-barred penalties in disguise.” Continue Reading Yes, Said the Fifth Circuit: We Have Put Another Nail in the Coffin of NSR Enforcement for Ancient Projects; But It Is Not The Final Nail
The New Source Review (NSR) program of the Clean Air Act requires major stationary sources to go through an extensive, time-consuming, and expensive review and permitting process prior to construction. Among other requirements, such sources are required to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in ways that result in significantly increased emissions.
The pace of enforcement actions has decreased in recent years, but more than a decade-and-a-half of NSR enforcement litigation has failed to settle the main legal issues, resulting in contradictory court decisions. This lack of certainty has significant implications to how sources must evaluate compliance going forward.
To learn more, read this article originally published in Natural Gas & Electricity’s September 2018 issue. Felicia Barnes, now an associate at Beveridge & Diamond, was a contributing author.
As a former regulator (both as an inspector and an attorney, ensuring compliance and enforcing violations) in the environmental law enforcement space, I read EPA Assistant Administrator Susan Parker Bodine’s recent memorandum entitled Transition from National Enforcement Initiatives to National Compliance Initiatives with great interest. Having numerous facility inspections and enforcement settlements under my belt, I have seen firsthand the interplay between compliance and enforcement. To be sure, the threat of enforcement and the deterrence factor associated with resolving an enforcement action are powerful tools. But, if the end goal is compliance with environmental laws, does the road leading there have to be so scary for the regulated community? Whereas many regulated parties commonly see EPA and other environmental agencies as enforcement machines, this proposed transition to a more compliance-oriented approach may be not only a welcome change, but also an appropriate one that will actually improve compliance. After all, Ms. Bodine’s office is entitled the Office of Enforcement and Compliance Assurance (OECA). Isn’t it a good idea to have an equal focus on helping with compliance and on enforcement? And isn’t the point to maximize compliance? Shouldn’t OECA be striving for a world in which its “enforcement” arm goes out of business because it has “assured compliance?” That may be too much for the regulated community to hope for, but the notion of “compliance” initiatives over “enforcement” initiatives is not a bad way to start. Continue Reading EPA Announces Shift from National Enforcement Initiatives to National Compliance Initiatives
While still early in the new administration, emerging enforcement trends are beginning to indicate that EPA and the U.S. Department of Justice (DOJ) will continue to pursue cases involving fraud in the Renewable Fuel Standard (RFS) program. We noted last summer that EPA and DOJ have pursued numerous enforcement actions against renewable fuel producers and importers that generated invalid Renewable Identification Numbers (RINs), which are the “currency” of the RFS program. Although it is reasonable to assume the vast majority of program participants comply with EPA’s regulations, the program has suffered from high profile cases of fraud and abuse requiring federal enforcement, including criminal prosecutions. Recent cases and statements by DOJ and EPA officials show that federal prosecution of RFS fraud, particularly that involving multi-state schemes, will continue. And RFS fraud cases may even occupy a larger portion of EPA’s enforcement bandwidth as EPA gives greater deference to states in enforcement of delegated programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act. Continue Reading Enforcement Trends: Federal Enforcement of Renewable Fuel Standards Marketplace Fraud Continues
Judicial review of state agency regulatory orders in California has long been seen as an exercise in futility as state courts typically give significant deference to agency determinations. However, two recent decisions by California Superior Courts have bucked that trend and may provide renewed hope that success at the trial court level is not out of reach. Continue Reading Scoring Gold at the Superior Court: California Water Boards’ Regulatory Authority Successfully Challenged
The US Environmental Protection Agency (EPA) released its annual enforcement and compliance results for the most recent fiscal year (FY) on February 8, 2018. The results, which cover the period from October 1, 2016, to September 30, 2017, are the Trump administration’s first annual statistical report on federal environmental enforcement. The results provide insight into the administration’s focus and priorities for enforcement. Continue Reading EPA Announces Fiscal Year 2017 Environmental Enforcement Statistics
A year ago, the regulated community and its environmental lawyers recognized that the Trump administration would bring a new approach to the enforcement of federal environmental laws, but the nature of the specific changes remained nebulous. While it is still early to speculate on the long-term impacts to enforcement that may be implemented by the administration, events over the prior year have brought the new administration’s enforcement philosophy and priorities into greater focus. This post reviews some of the key personnel, policy, and budget announcements made during President Trump’s first year in office that will shape the future of federal environmental enforcement by the Environmental Protection Agency in the coming years.