Articles Posted in Environmental

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The Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA, also known also as Superfund) stringent hazardous substance release reporting requirements are set forth as Section 103 of Superfund. A spill or release of a reportable quantity of a regulated hazardous substance must be reported immediately by the person in charge of the facility or vessel to the National Response Center. The hundreds of listed hazardous substances and their reportable quantities are set forth at 42 C.F.R. § 302.4 of the Environmental Protection Agency’s (EPA) rules. Their requirements apply to almost all facilities, with the exception of federally permitted releases, including farms.

This newest exception to the CERLA notification requirements is included in the Fair Agricultural Reporting Method Act, or FARM Act, that was included in the Consolidated Appropriations Act of 2018.

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On March 29, the U.S. Court of Appeals for the Third Circuit decided an important oil spill cost recovery case: In re Petition of Frescati Shipping Co., Ltd. v. Citgo Asphalt Refining Co., et al. It is a case concerning the apportionment of oil spill-related cleanup costs and related affirmative defenses, including subrogation, equitable recoupment, and liability limitations under the Oil Pollution Act of 1990 (OPA).

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Legal arguments that the laws a state enacts which take into consideration the interests of its own citizens unfairly impede the free flow of interstate commerce are difficult to win, as demonstrated by two recent U.S. Court of Appeals for the Second Circuit rulings. On March 29, the Second Circuit issued two Commerce Clause/Dormant Commerce Clause decisions:

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Public discourse regarding climate change is becoming focused less on whether it is occurring, and more on what society can and should do to address or slow its progression. Geoengineering, which involves deliberately modifying the earth’s climate, is gaining traction in the scientific community and may prove to be a useful tool in the future. However, as with many emerging technologies, the legal system is not designed to regulate geoengineering research and testing activities, much less widescale deployment.

In an article recently published in Pratt’s Energy Law Report, Pillsbury partner Rob James offers his suggestions on how domestic law can be navigated effectively to facilitate the research of geoengineering technologies.

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The Consolidated Appropriations Act of 2018 includes, at pages 1768-1786 of the bill, the “Brownfields Utilization, Investment, and Local Development Act of 2018,” also known as the “BUILD Act.” This is a bi-partisan bill whose enactment has been spurred by the realization there may be as many as 450,000 Brownfields sites around the country that require some financial assistance to be cleaned up and restored to productive uses. In contrast, there are only 1300 sites on the Superfund National Priorities List.

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On March 20, the U.S. Court of Appeals for the Sixth Circuit decided the case of Marquette County Road Commission v. U.S. EPA, et al. The opinion will not be published in the Federal Reporter. Both the trial court and the Sixth Circuit rejected the Marquette County Road Commission’s argument that the Environmental Protection Agency’s (EPA) actions and inactions amounted to a “veto,” and were thus a “final action” for purposes of the Administrative Procedure Act (APA).

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Many lawsuits have been filed in the U.S. Court of Federal Claims alleging that the U.S. Army Corps of Engineers’ (Corps) management of the Missouri River flood control system has resulted in the serious flooding of many properties located in several states that are located adjacent to the river, and that this amounts to an unconstitutional “taking” of their property in violation of the U.S. Constitution. On March 13, 2018, a very long opinion (more than 250 pages) was released following extensive hearings which holds that these claims have merit, and now the court will decide whether the plaintiffs may be entitled to an appropriate amount of compensation. The case is Ideker Farms, Inc., et al,., v. The United States, based on the evidence submitted regarding 44 plaintiffs selected as representative or “Bellwether” plaintiffs.

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On Friday, March 9, the U.S. Court of Appeals for the Ninth Circuit issued another significant ruling in a Clean Water Act (CWA) Citizen Suit case. Affirming the District Court, the Ninth Circuit held

“pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are point sources within the meaning of 33 U.S.C. § 1362(14).”

The case is Olympic Forest Coalition v. Coast Seafoods Corp.

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On March 12, the U.S. Court of Appeals for the Second Circuit issued a decision interpreting Clean Water Act (CWA) Section 401 and the Federal Regulatory Energy Commission’s (FERC) permitting authority, which may have settled some lingering legal issues for the construction of pipelines. The case is New York State Department of Environmental conservation, et al., v. FERC.

The Second Circuit considered two issues:

  1. Whether FERC correctly held that NYSDEC waived its right to act on Millennium Pipeline Company’s (Millennium) application; and
  2. Whether FERC appropriate accepted and reviewed the application as subject to its exclusive jurisdiction under the Natural Gas Act.

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On March 5, the U.S. Court of Appeals for the Tenth Circuit issued a ruling that the general federal five-year statute of limitations which is applicable to the enforcement of any civil fines, penalties or forfeitures (28 U.S.C. § 2462) does not apply to a series of discrete misappropriations that occurred over many years. The case is SEC v. Kokesh. In reaching this conclusion, the Tenth Circuit referenced its own recent decision in Sierra Club v. Oklahoma Gas and Electric Co., a Clean Air Citizen Suit, involving Section 2462

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