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New WOTUS Rule Restores Protections for Many Waters, but Uncertainty Persists Due to Continuing Litigation

Posted by Jeffrey Karp on 2/1/23 3:37 PM

On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (collectively Agencies) announced the issuance of a final rule defining “waters of the United States” (WOTUS), a key term in the Clean Water Act (CWA). That phrase, which serves as the definition for “navigable waters” in the statute, effectively establishes the boundaries of the Agencies’ regulatory authority under the CWA.[1] The rule was published in the Federal Register on January 18, 2023, and will take effect 60 days thereafter.[2]

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Topics: Litigation, Environmental Protection Agency, Environmental Policy, Environmental Law, WOTUS

U.S. Supreme Court Curtails EPA’s Use of Clean Air Act Regulations to Facilitate Decarbonization of Electricity Markets

Posted by Jeffrey Karp on 7/7/22 2:20 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

On June 30, 2022, the United States Supreme Court struck down the Environmental Protection Agency's (EPA's) Clean Power Plan ("CPP"), limiting the agency's authority to address climate change, in the case West Virginia v. EPA. The decision will inhibit the EPA's ability to significantly limit Greenhouse Gas ("GHG") emissions from the power sector, and is likely to impede the United States' goal of decarbonizing the electricity markets by 2035.

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Topics: clean power plan, Environmental Protection Agency, Clean Air Act

Another Iteration of the WOTUS Rule Likely to be Served Up Shortly

Posted by Jeffrey Karp on 6/23/21 11:44 AM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Law Clerk

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Topics: Environmental Protection Agency, Clean Water Act, Navigable Waters Protection Rule (NWPR), WOTUS

Supreme Court Overturns U.S. Government's Effort to Insulate Navy from Liability to Territory of Guam for Landfill Cleanup

Posted by Jeffrey Karp on 5/25/21 3:39 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Law Clerk

On May 24, 2021, in an opinion written by Justice Thomas, a unanimous Supreme Court ruled that Guam’s lawsuit against the US Navy was not barred by

CERCLA, thus restoring the Territory’s claim for recovery of costs to remediate a dumpsite the Navy had created, operated and used beginning in the 1940s.

In the case of Guam v. United States, Guam had sued the Navy in 2017 seeking cost recovery under CERCLA section 107. Alternatively, Guam sought contribution from the Navy under CERCLA section 113(f). The federal government countered that a 2004 Clean Water Act (CWA) settlement with U.S. EPA requiring that Guam pay a civil penalty, and close and cover the landfill, had resolved Guam’s liability for a CERCLA response action under section 113(f)(3)(B), thus limiting Guam to a contribution claim as its exclusive remedy under CERCLA. The government further asserted that Guam’s contribution claim was time-barred by a three-year statute of limitations and sought dismissal of the case.

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Topics: United States Supreme Court, Environmental Protection Agency, CERCLA

Guam v. U.S. - A Case of Environmental Injustice?

Posted by Jeffrey Karp on 4/27/21 3:45 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Law Clerk

President Biden has made environmental justice a cornerstone of his administration. While all government departments and agencies have a role to play, the U.S. EPA has taken on the environmental justice mantle as reflected in the 1) new Administrator’s April 7th memo to agency staff setting forth the specifics of the EPA’s renewed commitment to environmental justice; and 2) substantial funding the President is seeking from Congress for EPA equity initiatives in his proposed 2022 budget. That budget proposal also identifies the Environment and Natural Resources Division within the Department of Justice (DOJ) to receive funds to engage in equity initiatives. To highlight this enhanced role, it even has been suggested that "Environmental Justice" be added to the DOJ Division’s name.

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Topics: United States Supreme Court, Department of Justice, Environmental Protection Agency, CERCLA

U.S. EPA Fast-Tracking Implementation of Environmental Justice Initiatives

Posted by Jeffrey Karp on 4/13/21 3:23 PM

By Jeffrey Karp, Senior Counsel and Edward Mahaffey, Law Clerk

A cornerstone of the Biden Administration is environmental justice, which EPA defines as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies."

On April 7, EPA Administrator Michael Regan sent an email to all agency staff discussing the agency’s renewed commitment to environmental justice, and included four specific directives to all EPA offices. The first directive is stronger "enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution." (The memo does not identify what Mr. Regan considers "cornerstone environmental statutes" or which civil rights laws over which the EPA has enforcement authority.) The second is immediate incorporation of environmental justice considerations into the work of all EPA offices, "including assessing impacts to pollution-burdened, underserved, and Tribal communities in regulatory development processes and considering regulatory options to maximize benefits to those communities." The third directive involves "early and more frequent engagement with pollution-burdened and underserved communities affected by agency" actions, including regular consultation with Tribal officials. Finally, the email states that EPA offices should "consider and prioritize direct and indirect benefits to underserved communities in the development of grant applications and in making grant award decisions, to the extent allowed by law." Regan also noted that he and the rest of EPA’s senior leadership would establish more detailed plans and "measures of accountability" for environmental justice over the next few months.

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Topics: Environmental Protection Agency, Environmental Law, Environmental Justice

Supreme Court to Again Consider the Interplay Between a CERCLA Cost Recovery and Contribution Action

Posted by Jeffrey Karp on 4/2/21 9:24 AM

Written by Jeffrey Karp, Environment, Energy and Natural Resources Group Leader, and Edward Mahaffey, law clerk.

Liability for clean-up of hazardous substances pursuant to the Comprehensive Response, Compensation and Liability Act of 1980 ("CERCLA," "Act" or "Superfund") can be extremely costly, amounting to hundreds of millions of dollars. Under CERCLA’s broad liability net, the United States Environmental Protection Agency ("EPA") can obtain reimbursement of response costs from or require potentially responsible parties ("PRPs")[1] to conduct response actions to address releases or threatened releases of hazardous substances from a facility. See 42 U.S.C. § 9607(a); 42 U.S.C. § 9601(9)(B).

Although CERCLA does not specify the liability standard in government cost recovery cases under Section 107, most courts have accepted the application of strict, joint and several liability for PRPs who cannot prove divisibility of the harm they caused from the total harm. See O’Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989) ("The rule adopted by the majority of courts, and the one we adopt, is based on the Restatement (Second) of Torts: damages should be apportioned only if the defendant can demonstrate that the harm is divisible."). In Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), the U.S. Supreme Court recognized apportionment as a judicially created affirmative defense to joint and several liability under CERCLA. It instructed the lower courts to follow the Restatement (Second) of Torts § 433A in determining whether harm is divisible in any specific case, which occurs when "there is a reasonable basis for determining the contribution of each cause to a single harm." 556 U.S. at 614. The burden of proof, however, is placed on defendants to establish that such a reasonable basis exists. See Restatement (Second) of Torts § 433B(2); Burlington Northern at 617 (there must be "facts contained in the record reasonably support[ing] the apportionment of liability."). The practical effect of placing the burden on defendants to prove divisibility is that responsible parties rarely escape joint and several liability, which means that any one PRP may be held responsible for the entire cost of a cleanup. See Guam v. U.S., 950 F.3d 104, 107 (D.C. Cir. 2020).

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Topics: United States Supreme Court, Environmental Protection Agency, CERCLA

PFAS Updates: Congressional and Federal Regulatory Developments

Posted by Jeffrey Karp on 11/19/19 9:31 AM

By Jeffrey M. Karp and Edward Mahaffey

This posting provides an update on PFAS developments involving federal legislative and regulatory activities.

Congress

On November 6, 2019, a panel of experts at a congressional briefing sponsored by the Endocrine Society and the NIH’s National Institute of Environmental Health Sciences warned that PFAS may contribute to obesity, osteoporosis, and thyroid dysfunction, while acknowledging that more study is needed of possible links.[1] The briefing reflected a continuing congressional interest in potential PFAS health impacts, as seen in the 13 PFAS-related bills approved by the US House of Representatives’ Subcommittee on Environment and Climate Change,[2] as well as the inclusion of funding for PFAS-related activities on military bases in House[3] and Senate[4] appropriation bills.

As of November 18, 2019, no further action has been taken on any of these bills.  However, at the request of members of Congress the Defense Department’s Inspector General agreed to examine the military’s use of PFAS in materials such as firefighting foam,[5] and to complete the investigation by January 2020.[6]

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Topics: Environmental Protection Agency, PFAS

Confluence of Emissions Regulations Favor Renewable Energy Investment (Part 1)

Posted by Administrator on 5/23/16 3:39 PM

GOP Presidential Candidate Donald Trump made several sweeping promises while on the campaign trail vowing to reopen shuttered mines and bring coal back to its dominance of a decade ago. These promises, however, are dated as the coal industry continues to face multiple hurdles: (1) greater availability of affordable natural gas and renewable resources; (2) stricter emissions standards for fossil-fuel fired electricity generating sources; and as a result, (3) reluctance in the investor community to finance new coal projects.  What candidates on both sides of the political spectrum could say is that, although the mines will close, the country remains dedicated to training displaced miners to work in a new renewable energy future.

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Topics: Renewable Energy, clean power plan, Environmental Protection Agency, EPA, renewable energy investment, new stationary source rule, existing stationary source rule

U.S. EPA Earns Early Victory in Opponents' Challenge to Clean Power Plan

Posted by Jeffrey Karp on 1/22/16 5:47 PM

On January 21, the United States Environmental Protection Agency (U.S. EPA) won an initial victory as the D.C. Circuit refused to grant opponents a stay of the Clean Power Plan (CPP or Rule).

The Rule, promulgated pursuant to section 111(d) of the Clean Air Act (CAA), limits carbon dioxide emissions from existing fossil fuel fired electric generating plants (generating units).  The CPP’s goal is to cut emissions by 32 percent from 2005 levels by 2030, and each state is provided an emissions reduction target. Qualifying state emissions reductions under the Rule generally prompt the retirement of coal plants and the greater adoption of natural gas and renewable resources.  States must submit their implementation plans (SIP) in 2016 demonstrating that they will achieve the requisite emissions reduction by 2022, or request a two-year extension. However, if a state fails to submit an adequate implementation plan by the 2016 due date or request an extension for plan development until 2018, U.S. EPA will assign a federal implementation plan (FIP) that will enable that state to meet its emissions reduction target.

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Topics: Carbon Emissions, CPP, Clean Power, clean power plan, Environmental Protection Agency, EPA, State of West Virginia v. EPA, EPA Victory, West Virginia, Stay of the Rule, Climate change, Clean Air Act, Section 111(d), Global Warming, Greenhouse Gas Emissions, Stay

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The Environment & Energy Insights blog analyzes developments in the law, as well as provides updates and perspectives on trends and polices.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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