General Archives

Jul 17, 2023

EPA and Army Corps to Issue New WOTUS Rule

The EPA and the Army Corps of Engineers are planning to issue a rule narrowing the definition of “Waters of the United States” (WOTUS) to conform to the Supreme Court’s Sackett Ruling. Both agencies have suspended issuance of approved jurisdictional determinations (AJD) pending revised rules to reflect the Supreme Court’s decision. The Supreme Court’s May 25 decision significantly narrowed the scope of wetlands covered by the Clean Water Act to only those that are “indistinguishable” from adjacent, jurisdictional water bodies based on a “relatively permanent” surface-water connection. In addition to suspending the issuance of AJDs, the EPA has sought to… Read more

Jun 20, 2023

EPA Proposes Reforms to New Chemicals Review Under TSCA

On May 16, 2023, the EPA proposed amendments to regulations that govern review of new chemicals under TSCA. Under TSCA, the EPA is charged with reviewing the potential risk of new chemicals before they enter U.S. commerce, and authorizes the EPA to put safeguards in place to protect human health and the environment. The proposed amendments would eliminate existing exemptions for PAFS and related compounds from the Pre-Manufacturing Notice (“PMN”) safety review for the manufacture of chemicals with low production quantities, environmental releases, or human exposures. The proposal would make new PFAS compounds categorically ineligible for these exemptions, and are… Read more

Feb 13, 2023

EPA Expects Legal Challenge to Veto of 404 Permit

On January 31, the EPA issued a final determination vetoing the controversial Pebble Mine Project in Bristol Bay, Alaska. The EPA utilized its authority under 404(c) to block construction of a massive mine near Bristol Bay – home to one of the world’s largest salmon fisheries. The EPA’s decision bars the Pebble Mine Project from dumping mine waste into Alaska’s Bristol Bay watershed, which the EPA determined would have unacceptable, adverse impacts on the salmon fishery and other environmental receptors. The EPA and the Army Corps of Engineers share responsibly for dredge–and–fill permitting under Section 404 of the Clean Water… Read more

Sep 26, 2022

EPA Set to Approve Canola Oil for “Advanced” Fuel under RFS

The EPA is expected to approve canola oil as a feed stock for the manufacturer of advanced, low‑carbon fuel which will be qualified to earn credit under the Renewable Fuel Standard (“RFS”). The Rule would provide economic incentives to create renewable diesel, jet fuel, naphtha and liquid propane gas made from canola, and is expected to boost bio fuel makers’ options to produce RFS. The EPA has already approved a pathway for generating RFS credits from canola oil used for biodiesel production, but the new rule would approve a pathway for renewable diesel, which is a different product. For more… Read more

May 19, 2022

First Circuit Reverses Bar on CWA Citizen Suits

The U.S. Court of Appeals for the First Circuit has overturned its bar on Clean Water Act (“CWA”) citizen suits seeking declaratory relief when a state is “diligently” prosecuting a violation. In the opinion, the Court agreed with environmentalists and the EPA that its prior opinion was at odds with the text and congressional intent of the CWA. In the language of the Court, “the limitations set forth in Section 309(g)(6)(A) bars only a citizen suit that seeks to apply civil penalty for an ongoing violation of the CWA and not a citizen suit for declaratory and prospective injunctive relief… Read more

Apr 28, 2022

A Century Later: Implied Duty of Good Faith and Fair Dealing Still Going Strong

Parties to construction contracts are often surprised to learn that they are bound to implied unwritten contract obligations in addition to the written terms of their contracts. Courts in the United States began to recognize certain implied contract obligations about 100 years ago in circumstances where application of the common law rules of contract formation and interpretation would lead to results that the parties to the contract clearly did not intend. As a result, the courts required that the implied contract obligations be consistent with and necessary to carry out the express terms of the contract, such that it could… Read more

Apr 7, 2022

EPA to Cease Accepting Expedited Corrections to TSCA Inventory

On February 24, the EPA announced that it will stop accepting streamlined requests to correct entries on the TSCA Inventory of Chemicals in Commerce as of April 26, 2022. Historically, the Agency has allowed corrections to chemical identities using the same forms and documentation used to add an existing chemical to the inventory. This practice greatly streamlined and expedited the ability of industries to correct mistakes made in initial filings. Under the EPA’s new policy; however, the Agency will require any changes to go through the same pre-manufacture notice (“PMN”) process required for completely new chemicals. The decision has already… Read more

Dec 21, 2020

Indemnity Rights of Condominium Board Members

An appellate court decision issued on November 19th raises concerns that condominium board members may be exposed to unexpected personal liability in connection with their board service. In light of the decision, condominium boards should carefully examine the board member indemnification provisions of their bylaws. In Board of Managers of the 28 Cliff St. Condominium v. Maguire, the former board president was sued by the current board of managers for misuse of condominium funds. The former president, defendant Maguire, disputed the claim of misuse and sought an order from the court requiring the condominium to indemnify her for the costs… Read more

Sep 21, 2020

Waiver Of Money Damages And The Inadvertent Consent To Injunctive Relief

When drafting commercial contracts, attorneys often insist on including a provision requiring one or both parties to waive claims for money damages in the event of an alleged breach. For example, commercial leases often include a provision requiring the tenant to waive claims for money damages in matters pertaining to the landlord’s exercise of its judgment in withholding consent or approvals under the lease. While these provisions are intended to reduce risk by removing the exposure to money damages, they may have the unintended consequence of a finding that the parties have contracted for, and consented to, the granting of… Read more

Apr 15, 2020

They Don’t Call Us “Counselor” For Nothing: Part Two of Three

In Part One, the importance of sustaining a client’s morale was discussed. Sustaining morale becomes particularly difficult when rendering candid advice. Part Two will discuss the balance between sustaining morale and rendering candid advice. Rule 2.1 of the Rules of Professional Conduct, in the part entitled “Counselor,” addresses “giving candid advice”: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. The Comment following the Rule 2.1 reveals the delicate balance a “counselor”… Read more