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

Drinking Water

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

DuPont Toxic chemicals

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

Attorney/Client Conversation

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

Nov 21, 2019

New USDA Hemp Rules: Initial Reactions

Blog_Hemp lab testing

Since the USDA’s recent release of the interim final rule for domestic hemp production, three aspects of the rule have emerged as hot topics of discussion: (1) “total THC”; (2) the requirement for testing labs to be DEA-registered; and (3) the destruction of “hot” hemp. More than 500 comments have already been submitted in response to the rule. Many of these comments express dissatisfaction with the rule’s requirement that hemp crops must be tested for “total THC,” which is derived from the sum of delta-9 tetrahydrocannabinol (THC) and delta-9-tetrahydrocaanabinolic acid (THCA). Crops testing higher than 0.3% total THC would be… Read more

Nov 13, 2019

Energy Companies Consider Petitioning Supreme Court to Review Obama Era Ozone Standards

Blog_Energy Co solicits Supreme Court

A coalition of energy companies and business groups petitioned Chief Justice John Roberts for extra time to weigh whether or not to appeal a lower court’s decision that largely upheld the Environmental Protection Agency’s (“EPA”) 2015 ozone caps. In August, the U.S. Court of Appeals for the District of Columbia upheld the Obama administration’s primary ozone standard of 70 ppb, which industry representatives maintain is too stringent. The industry challenge focused on two arguments: (1) that pollution standards should be looser to account for “background ozone” from natural sources; and (2) that the EPA should have considered “adverse economic, social,… Read more