Articles Posted in Environmental

On January 12, the Supreme Court of the State of Washington issued a unanimous ruling holding that both the Court of Appeals and the state’s Shorelines Hearing Board (Board) had erroneously interpreted the state’s Ocean Resources Management Act, Rev. Code of Wash. §§ 43.143.005 et seq. (ORMA), as having no application to applications submitted to the Board to expand two large oil terminals located on the shores of Grays Harbor. The case is Quinault Indian Nation, et al., v. Imperium Terminal Services, LLC, et al.

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On January 19, the U.S. Court of Appeals for the Fourth Circuit upheld the criminal conviction of Donald Blankenship, the former Chairman and CEO of Massey Energy Company (MEC), the operator of the Upper Big Branch Coal Mine in Montcoal, West Virginia. In April 2010, an accident at this mine resulted in the death of 29 miners, and Mr. Blankenship was indicted and convicted of conspiring to violate federal mine safety laws. He was sentenced to be imprisoned for one year and to pay a fine of $250,000, the maximum punishment that could be assessed pursuant to 30 U.S.C. § 820(d). The case is U.S. v. Donald L. Blankenship.

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On January 18, the U.S. Court of Appeals for the Second Circuit reversed the lower court and held that EPA’s 2008 promulgation of the “Water Transfers Rule” (Rule) published in the Federal Register at 73 FR 33697 on June 13, 2008, was entitled to Chevron deference, and reinstated the rule. The regulation is codified at 40 C.F.R. § 122.3(i), and provides that water transfers, as defined in the rule, do not require National Pollutant Discharge Elimination System (NPDES) permits because they do not result in the addition of a pollutant. The case is Catskill Mountains Chapter of Trout Unlimited, Inc., et al, v. EPA.

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“The old order changeth, yielding place to new.” January 2017 has been a very active month, with several important environmental and federal administrative court rulings being issued, and many significant rules being proposed and finalized. Here’s a selection: Continue Reading ›

Today, our colleague Kevin Ashe posted his client alert on the California Environmental Protection Agency’s and Office of Environmental Health Hazard Assessment’s recent release of an “Update to the California Communities Environmental Health Screening Tool,” better known as CalEnviroScreen Version 3.0. CalEnviroScreen is a software tool used to identify and direct resources to communities affected by pollution, based on environmental exposure and population data. As guidance for prior CalEnviroScreen versions made clear, however, the tool’s approach to “cumulative impacts” is very different from that of environmental review under the California Environmental Quality Act (CEQA). While Version 3.0 omits a clear statement to that effect, lead agencies and project proponents should be confident that CEQA law has not changed and CalEnviroScreen remains the wrong tool for CEQA review of local projects and permitting decisions. The alert is titled CalEnviroScreen 3.0 – Still the Wrong Tool  for CEQA Review.

OSHA has just published a Final Rule restating its interpretation of the “continuing violations” theory. There are now two Circuit Court of Appeals rulings that disagree with this interpretation: AKM LLC dba Volks Contractors v. Secretary of Labor, et al. (Volks) and Delek Refining, Limited v. Occupational Safety and Health Review Commission, et al. (Delek).

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Recently Law360 published my three-part series covering 2016’s most significant environmental cases decided by the U.S. Supreme Court and federal courts. Part 1 covers the U.S. Supreme Court and federal courts sitting in the D.C., First, Second, Third and Fourth Circuits. Part 2 highlighted cases decided by the federal courts sitting in the Fifth, Sixth, Seventh, Eighth and Ninth Circuits. Part 3 covers cases decided in the Tenth and Eleventh Circuits, as well as several state supreme courts.

On December 22, the U.S. District Court for the District of Columbia issued an opinion in Water Quality Insurance Syndicate v. U.S., which reversed the Coast Guard’s National Pollution Funds Center’s (NPFC) finding of gross negligence by the captain of the MONARCH, a supply vessel that collided with an offshore oil and gas production platform in the Cook Inlet, AL. This decision may have significant implications for insurers. Continue Reading ›