Articles Posted in Environmental

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On February 14, the Supreme Judicial Court of Massachusetts reviewed the application of the state’s “anti-SLAPP” law to challenges made against a blogged critique of Cardno Chemrisk, LLC (Chemrisk) and British Oetroleum (BP) in the case of Cardno Chemrisk, LLC v. Cherri Foytlin & Another, confirming that it protects pamphleteers/bloggers. Continue reading

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On February 9, the Oregon Supreme Court affirmed the decisions of the Oregon Environmental Quality Commission (OEQC) and the Oregon Court of Appeals that Oil Re-Refining Company (ORRCO) was strictly liable for “simple” violations of the Oregon State Resource Conservation and Recovery Act (RCRA) rules. The case is Oregon Re-Refining Company v. Environmental Quality Commission of the Department of Environmental Quality for the State of Oregon.

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On February 13, a sharply divided U.S. Court of Appeals for the Fifth Circuit , by a vote of 8 to 6, rejected a petition seeking

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The Dusky Gopher Frog, once known as the Mississippi Gopher Frog, has an average length of about three inches and a stocky body with colors on its back that range from black to brown or gray and is covered with dark spots and warts. (Western Carolina University photo/ John A. Tupy)

an en banc rehearing of the court’s initial decision in the case of Markel Interests, LLC, et al., v. U.S. Fish and Wildlife Service, et al. In its June 5, 2016 decision, the Fifth Circuit held that 1500 acres of private land located in Louisiana is subject to the requirements of the Endangered Species Act (ESA) with respect to the dusky gopher frog, which was determined to be an endangered species in 2001, but whose “critical habitat” was not designated until 2012. At the present time, the species is located only in Mississippi, but the U.S. Fish and Wildlife Service (Service) designated not only several thousand acres of Mississippi land as its critical habitat, but land in Louisiana as well, reasoning that the presence of five ephemeral ponds on the Louisiana land could support the species’ reproduction. Apart from the presence of these ponds, all parties appear to agree that the Louisiana land is otherwise uninhabitable.

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In a case argued on February 1, 2017 and decided on February 13, the U.S. Court of Appeals for the Sixth Circuit held that Maxxim Rebuild Co., LLC’s small manufacturing facility located in Sidney, Kentucky is not a “coal mine” subject to the federal Mine Safety and Health Administration’s (MSHA) jurisdiction. Following workplace safety inspections of this facility, MSHA issued several notices of violation to Maxxim: (a) the absence of a written hazardous chemicals communication plan; (b) a dirty bathroom; (c) an accumulation of oil, fuel and dust on a Caterpillar 988 loader; and (d) citations in connection with a heater and boiler at the facility. Each citation referenced a pertinent MSHA rule which Maxxim challenged before an Administrative Law Judge, who ruled that the shop was “a coal or other mine” under the Section 802(h) of the Federal Mine Safety and Health Act, 30 U.S.C. §§ 801 et seq. (the Act). The Commissioner later upheld this ruling. The case is Maxxim Rebuild Co., LLC, v. Federal Mine Safety and Health Comm’n.

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On January 31, the U.S. Court of Appeals for the Eighth Circuit held that, under the terms of a commercial general liability insurance policy, natural gas condensate, a valuable commercial product, once released, is a pollutant that triggers the policy’s “pollutant exclusion.” The case is Hiland Partners GP Holdings, LLC, et al., v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA. The Eighth Circuit confirmed that the District Court did not err by concluding that National Union Fire Insurance Company of Pittsburgh, PA (National Union) did not have a duty to defend or indemnify Hiland Partners GP Holdings, LLC, Hiland Partners, LP, and Hiland Operating,  LLC (collectively, Hiland) because the allegations in B&B Heavy Haul, LLC’s (B&B) employee Lenny Chapman’s complaint fell within the policy’s pollution exclusion and the exception to the exclusion did not apply because Hiland failed to offer evidence that it reported the pollution to National Union within 21 days of discovering it.

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On January 30, the U.S. Court of Appeals for the Seventh Circuit held that the extraterritorial effects of Indiana’s Vapor Pens and E-Liquid Act, Ind. Code §§ 7.1-7-1-1 et seq., violated the dormant Commerce Clause of the U.S. Constitution. In 2015 the State of Indiana en-acted the Act “to regulate the manufacture and distribution of vapor pens and the liquids used in so-called e-cigarettes.”). The Seventh Circuit reasoned:

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Today, my colleagues Sheila McCafferty Harvey, Meghan Claire Hammond and I published our client alert discussing the House Rules Committee meetings this week during which the committee discussed resolutions for
overturning regulations passed under the Obama Administration. The roll-back efforts could include key energy and environmental regulations, including the Bureau of Land Management’s new methane restrictions related to the oil and
gas industry, the Security and Exchange Commission’s requirement for  reporting payments to foreign governments, the Department of Interior’s Stream Protection Rule requiring coal companies to restore mining lands back to their original state, and the Department of Energy’s efficiency requirements, among others. Congress may seek to overturn hundreds of agency rules recently promulgated under the Obama Administration. These efforts are being given a high priority. The Alert is titled Congress Begins Congressional Review Act Rollbacks of Energy & Environmental Regulations This Week.

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New directions in environmental and regulatory policy are outlined in these Executive Orders and Presidential seal-300x207Memorandums that have been issued in the past few days:

  1. An Executive Order, dated January 30, 2017, requiring federal executive departments and agencies, whenever they propose to add a new regulation, to delete two existing regulations (Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs);
  2. A Memorandum dated January 24, 2017, directing the Secretary of Commerce to develop a plan by which, to the extent possible, all new pipelines or the retrofitting of older pipelines, shall, to the maximum extent, be constructed with pipeline components that are “produced in the United States”, and the Secretary shall provide this plan to the President in 180 days (Presidential Memorandum Regarding Construction of American Pipelines)
  3. A Memorandum dated January 24, 2017, ordering the relevant government agencies, in particular the Army Corps of Engineers, to expedite the provision of all the authority needed to complete the Dakota Access Pipeline (Presidential Memorandum Regarding Construction of the Dakota Access Pipeline);
  4. A Memorandum dated January 24, 2017, inviting the owners and operators of the Keystone XL Pipeline to reapply for all necessary permits needed to construct the pipeline and the Secretary of State shall issue a final permitting decision in 60 days (Presidential Memorandum Regarding Construction of the Keystone XL Pipeline);
  5. A Memorandum dated January 24, 2017 directed to the Heads of Executive Departments and Agencies to support the expansion of domestic manufacturing by streamlining the permitting process and reducing regulatory burdens (Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing); and
  6. A Memorandum dated January 24, 2017 instructs departments and agencies, with respect to regulations that have been published in the Federal Register but that have not taken effect, as permitted by applicable law, to A) temporarily postpone their effective date for 60 days for the purpose of reviewing questions of fact, law, and policy they raise, B) where appropriate, to consider proposing for notice and comment a rule to delay the effective date for regulations beyond that 60 day period, and C) in cases where the effective date has been delayed in order to review questions of fact, law, or policy, departments and agencies are to consider potentially proposing further notice-and-comment rulemaking (Memorandum: Implementation of Regulatory Freeze). Exclude from these actions are any regulations “subject to statutory or judicial deadlines.”

The Secretary of Commerce will take the lead in conducting “outreach” to stakeholders concerning the impact of federal regulations and how to streamline the process.

Quote in Title:  Alfred, Lord Tennyson

Photo:  Dave Newman, Presidential Seal, Taken January 11, 2011 – Creative Commons

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Today, my colleagues Jay SilbergRoland Backhaus and I published our client alert discussing the Nuclear Regulatory Commission’s (NRC) decision to consider revisions to applicable security and accountabilityhttp://www.gravel2gavel.com/files/2017/01/radioactive.-300x225.jpg regulations in response to a Government Accountability Office (GAO) sting operation which identified certain regulatory weaknesses. If adopted, these revisions could significantly affect the ability to efficiently use and transfer certain radioactive sources and increase the cost of doing so. Our alert is titled Potential Revisions to NRC Regulations Could Significantly Affect the Oil & Gas Industry.

Photo:  Blake Burkhart, Radioactive (Taken Sep. 7, 2011) – Creative Commons

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Something light for your Monday morning. On January 23, the U.S. District Court for the Northern District of Oklahoma issued a ruling dismissing the plaintiff’s pro se complaint that the recycling practices of the Tulsa City-County Library Commission placed an “undue obstacle” on the plaintiff’s practice of “Environmentalism.” The case is Krause v. Tulsa City-County Library Commission. Plaintiff alleged that the Tulsa City-County Library Commission’s placement of “fake” recycling bins in the downtown Central Library mounted to a hindrance to his faith, and warrants the protections of the First Amendment because the exercise of his “secular and political choices,” being rooted in environmental advocacy, constitutes a religion. The District Court noted that the complaint contains no factual support for the plaintiff’s conclusory assertion that Environmentalism is religious, and not a secular practice or lifestyle. The District Court also notes that this claim is a matter of first impression in the Tenth Circuit, but that the U.S. District Court for the Eastern District of California, in the case of McDavid v. Cty. of Sacramento, 2006 U.S. Dist. LEXIS 43711, at *7-8 (E.D. Cal. June 26, 2006), addressed an analogous claim, and held that veganism is not a religion:

All courts recognize some distinction between a religious belief and a non-religious lifestyle decision; courts will protect the former, but not the latter.

The complaint suffered from other defects, requiring its dismissal.