Articles Posted in Environmental

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Several interesting decisions have recently been made by federal and state courts.

FEDERAL APPELLATE COURTS

The U.S. Seventh Circuit Court of Appeals – ARCO Shifts from State to Federal and No Vigor for VIM
On June 18, 2020, the court decided the case of Baker, et al. v. ARCO, holding that the revised federal removal statutes authorize the removal to federal court of a state-filed complaint against several defendants by the former residents of an Indiana housing complex who contended that the defendants were responsible for the industrial pollution attributed to the operations of a now-closed industrial plant. The housing complex was constructed at the site of the former U.S. Smelter and Lead Refinery. During the Second World War, the plant produced products for the use of the government war effort, thus triggering the applicability of the federal removal statutes.

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A recent Executive Order by President Trump directs agencies to expedite reviews of infrastructure projects based on the emergency provisions of several key federal environmental laws. In “President’s Executive Order to Expedite Environmental Reviews of Infrastructure Pushes the Envelope on the Interpretation of Emergency Authorities,” colleagues Sheila McCafferty Harvey, Reza Zarghamee, Mona E. Dajani and Alex Peyton discuss how these emergency provisions have been seldom invoked in the past, and when they have, the purpose often has been to fast-track immediate response actions to address environmental concerns, as opposed to facilitating infrastructure projects years in the making.

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Co-head of Pillsbury’s Projects team, partner Robert A. James, authored the article “Oil Regulation 2020: United States,” in which he describes the key commercial aspects of the U.S. oil sector; national energy policies; major laws concerning production activities, reservoir ownership and mineral rights; environmental, health and safety regulations; and other issues affecting the oil industry.

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Last week (June 1-7, 2020), the federal appellate courts released several important rulings.

Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection
On June 3, 2020, the U.S. Court of Appeals decided the case involving the Atlantic Bridge LNG pipeline project which received FERC ‘s approval in July 2017. At issue is the proposed construction of a natural gas compression station in Weymouth, Mass. The MDEP granted the pipeline’s application and granted an air permit. Local opposition resulted in this appeal of the agency’s order. The plaintiffs argued that the DEP violated its own procedures in assessing whether an electric motor satisfied EPA’s BACT Clean Air Act requirements to control NOx emissions. The appeals court agreed that the DEP’s explanation of the cost factors was inadequate, vacated the air permit and remanded the matter to the agency for further proceedings.

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The Fifth Circuit released three new decisions last Friday.

On May 29, 2020. The US Court of Appeals for the Fifth Circuit released three opinions in environmental cases: Stratta, et al. v. Roe, Director of the Brazos Valley Groundwater District; Environmental Integrity Project, et al. v. EPA; and American Stewards of Liberty, et al,. v. U.S. Department of the Interior.

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On May 26, 2020, the U.S. Court of Appeals for the Ninth Circuit decided three significant environmental law cases. Two of these cases involved whether global warming tort cases could be brought in California state courts on, for example, a public nuisance claim, and whether the defendant energy companies had the right to have them removed to the federal courts. Continue Reading ›

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Here are a few interesting new rulings from the federal appellate courts.

COURT ORDERS

Like a Good Neighbor …? — State of Maryland v. EPA
On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy.

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Environmental_Protection_Agency_logo-275x300This is a brief account of some of the significant environment law developments that have occurred since the President’s March 13 national emergency declaration that the spread of COVID-19 poses a threat to national security.

The Courts – SCOTUS
The U.S. Supreme Court has issued three important decisions affecting environmental law during this period.

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The coronavirus pandemic has been credited with improved air and water quality as America shelters in place, reducing its emission and discharge footprint. This unanticipated benefit, however, overlooks the numerous environmental problems that Californians were addressing prior to the advent of the pandemic. In “California’s Stay-at-Home Orders: Implications for Environmental Contractors,” colleagues Eric Moorman and Mark E. Elliott discuss that the exceptions outlined in state and local directives likely encompass the investigatory and remedial activities performed by environmental contractors.