Environmental and Sustainability Law Archives

Jul 27, 2017

U.S. Government Liable Under CERCLA as Owner for Mining Patent Leases in $1 Billion Environmental Clean-Up

On July 19th, the Tenth Circuit determined that the U.S. government is liable for environmental contamination at a mining site operated by Chevron and other mining entities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. Chevron Mining Inc. v. United States, No. 15-2209, 2017 WL 3045887, at *1 (10th Cir. July 19, 2017). Anticipated cleanup costs exceed $1 billion. Under the 1872 General Mining Act, 30 U.S.C. § 22, the U.S. government holds legal title and mining patents or claims are filed to specific portions of federal property. The 10th… Read more

Jul 25, 2017

EPA Issues Final Rules Under TSCA for Risk Evaluation and Prioritization of Chemicals

Toxic Substances and Person in Hazmat Suite

On July 20, 2017, EPA published two final rules in the federal register under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601, as revised by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. No. 114-182, 130 STAT. 448 (codified at 15 U.S.C. § 2601 (2016)). EPA also announced the availability of Guidance to Assist Interested Persons in Developing and Submitting Draft Risk Evaluations. 82 Fed. Reg. 33765 (July 20, 2017). The Lautenberg Act requires EPA to develop a program to evaluate chemical toxicity for substances used in commerce and provides for regulation of… Read more

Jul 12, 2017

D.C. Circuit Vacates EPA Methane Rule Stay

On July 3, the D.C. Circuit Court of Appeals vacated the U.S. Environmental Protection Agency’s (EPA) stay of the Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources under the Clean Air Act, Section 111(b)(1)(A) issued by EPA on June 3, 2016, 81 Fed. Reg. 35824. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. July 3, 2017). The EPA had issued a public notice indicating it was rescinding the rule on June 5, 2017. 82 Fed. Reg. 25730. This rule would address greenhouse gas emissions, including methane, from crude oil and natural gas production, transmission… Read more

Jun 27, 2017

Ninth Circuit Invalidates Conditional Nanomaterial Pesticide Registration

In a ruling that could slow EPA’s approval of nanomaterial-based pesticides, the Ninth Circuit on May 30 invalidated EPA’s conditional approval of NSPW-L30SS, formerly known as Nanosilva. Natural Resources Defense Council (NRDC) v. EPA (9th Cir., May 30, 2017). The Court found that EPA’s determination that use of nanosilver-based pesticides would result in lower overall silver emissions into the environment, and therefore was in the public interest, was faulty because it was based on two assumptions that lacked support—that current users of pesticides containing conventional silver would switch to the new pesticide, and that the new pesticide would not be used in… Read more

Jun 20, 2017

Supreme Court Hands Chevron Victory In Ecuador Pollution Case

The U.S. Supreme Court has denied a certiorari petition seeking review of a decision that an $8.65 billion Ecuadorian judgment against Chevron Corporation was unenforceable in the United States. In 2014, the U.S. District Court for the Southern District of New York blocked enforcement in the United States of an Ecuadorian judgment against Chevron. The District Court held, and the Second Circuit Court of Appeals later affirmed, that the Ecuadorian judgment was the product of fraud and racketeering. American lawyer Steven Donziger and Ecuadorians had sought to impose liability on Chevron Corporation for contamination in Ecuador linked to Texaco Petroleum,… Read more

Jun 15, 2017

Toshiba Backs Vogtle Nuclear Project

On June 9, Toshiba Corp. announced a $3.68 billion guarantee for the development of the Vogtle nuclear reactors. The guarantee is part of an agreement between Georgia Power, a subsidiary of the Southern Company, and Toshiba, the parent company of Vogtle contractor Westinghouse. Westinghouse was hired the primary contractor to build the Vogtle reactors, but filed for bankruptcy on March 29, 2017. The two Vogtle nuclear reactors in Georgia are co-owned by Georgia Power, Oglethorpe Power, MEAG Power and Dalton Utilities. According to a press release by Georgia Power, the agreement has been approved by the U.S. Department of Energy…. Read more

Jun 8, 2017

Now Is A Good Time To Read The Paris Climate Change Accord

Last week, the President announced that the United States would withdraw from the Paris Climate Accord negotiated in 2015. The Paris Climate Accord was signed by 195 Parties and ratified by 146 countries plus the European Union. However, the accord was not ratified by Congress and therefore was not subject to the Constitution’s Treaty Clause (Art. I, § 2, cl. 2). Under the accord’s provisions, any party may withdraw from the Agreement under Article 28, following a three year period which falls on December 12, 2018. The Paris Climate Accord provided that signatories provide a plan for carbon reduction by… Read more

May 31, 2017

FERC Awards $ 13 million to shipper in Interstate Pipeline Competition Decision

Long a supporter of interstate gas pipeline competition, on May 30, the Federal Energy Regulatory Commission (FERC) ruled that Sunoco unduly preferred certain shippers by executing throughput and deficiency agreements (TDAs) on the existing capacity of the Marysville Pipeline. The Marysville Pipeline has the capacity to transport roughly 192,000 barrels per day (BPD) of light crude oil equivalent. Administrative Law Judge Patricia Hurt cited pipeline company’s common carrier obligations of the Interstate Commerce Act (ICA) which prohibit a pipeline from unduly preferring or prejudicing any one shipper or class of shippers. As a result of the decision, which is an… Read more

May 24, 2017

Steve O’Day Speaks to the Water Leaders Summit 2017

At the invitation of The Water Council, Steve O’Day spoke on Tuesday at the Water Leaders Summit, held in Milwaukee May 23-24. Steve’s topic was the Tristate Water Wars among Georgia, Florida and Alabama as an example of water insecurity created by diplomatic disputes. Steve’s co-panelists on the panel addressing Diplomatic Security were Uri Shani, former General Manager of the Israeli Sewer and Water Authority, who spoke on mediation of the water dispute between Israel and Jordan, and Lt. Col. Hal Bidlack, Ph.D. (USAF-Retired), who addressed the national security implications of water disputes. Charles Fishman, author of The Big Thirst,… Read more

May 15, 2017

President Trump’s EPA Sends Repeal of WOTUS Rule for OMB Review

The first rule sent by the Trump Administration’s EPA to the Office of Management and Budget for review is the proposed repeal of the Obama EPA’s “Waters of the U.S.” jurisdiction rule under the Clean Water Act. The proposed repeal is the first step in the process of rewriting the rule to narrow its interpretation of the CWA’s jurisdiction. The proposed rule, “Definition of the ‘Waters of the United States’ — Recodification of Preexisting Rules” was sent to OMB on May 2. OMB’s website states that the proposed rule is not “economically significant”, an effort to avoid the application of… Read more