Toxic Substances Control Act Revised for the 21st Century

On June 22, 2016, President Obama signed the Lautenberg Chemical Safety Act into law.  The Act is the first significant change to the 1976 Toxic Substances Control Act in 40 years and amends the Environmental Protection Agency’s (EPA) methods for reviewing chemical substances before they are marketed and allowed to be used in consumer products.

The Act has several new key features: Continue Reading

FAA Eases Opportunities for Utilities to Use Drones

In a long awaited release, on June 21, 2016, the Federal Aviation Administration (FAA) issued a Final Rule to allow for increased commercial operation of small, unmanned aircraft systems (UAS or drones) in the National Airspace System (NAS).[1]  Existing regulation mandated that commercial users of UAS apply to the FAA for a case-by-case review for permission to use drones deterring widespread use of emerging drone technologies.  The Final Rule tracks the Notice of Proposed Rulemaking issued in February 2015[2] and closes the regulatory gap that thwarted the use of drone technology by many utilities. Continue Reading

Eighth Circuit Rejects Class Certification in Environmental Contamination Case

The U.S. Court of Appeals for the Eighth Circuit has reversed class certification in a case involving claims of alleged environmental contamination. Ebert v. General Mills, Inc.[1] illustrates that class action requirements, like predominance of common issues and cohesiveness of claims, can be difficult to establish in the environmental context because issues of liability, causation, and damages are individualized. Ebert may pose a significant obstacle for class certification in future environmental cases. Continue Reading

Corps v. Hawkes: Supreme Court Rules Clean Water Act Jurisdictional Determinations are Final and Appealable Agency Actions

In this much-anticipated decision, on May 31, 2016, the U.S. Supreme Court unanimously sided with the property owner companies over the U.S. Army Corps of Engineers (“Corps”). The Court held that a Corps’ jurisdictional determination as to whether a property contains a jurisdictional wetland is immediately appealable because it constitutes a final agency action. This decision resolves a split among federal circuits and provides a remedy for property owners that receive an unfavorable jurisdictional determination (“JD”) without forcing them to first suffer potentially costly consequences. The Fifth and Eighth Circuits had been split on the issue.   Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir. 2014); Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (2014) (please see our April 21, 2105 blog post for a summary of the Eighth Circuit decision). Continue Reading

FERC Issues Policy Statement Clarifying Hold Harmless Commitments Under FPA § 203

On May 19, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued a Final Policy Statement clarifying FERC’s implementation of hold harmless commitments in Federal Power Act (FPA) Section 203 applications seeking change of control authorization. The Final Policy Statement largely tracks a Proposed Policy Statement that was issued in January of 2015.

For FERC approval under Section 203, a transaction must be “consistent with the public interest.” The Commission considers three factors in determining whether a transaction meets this requirement: the effect of the transaction on (1) competition; (2) rates; and (3) regulation. The Policy Statement relates to the second prong of FERC’s analysis (the effect on rates). Continue Reading

Insurers’ Duty to Defend May Be Triggered at Early Stages of CERCLA Enforcement Process

On May 11, 2016, the 9th Circuit held that EPA information requests under CERCLA § 104(e) may trigger general liability insurers’ defense obligations.[1] This case marks the second time that the Ninth Circuit has held that § 104(e) letters — which often merely request information and do not designate an entity as a Potentially Liable Party (PRP) — can trigger insurers’ duty to defend. Other state and federal courts have held the same in recent years. These cases — which may mark the beginning of a trend — may allow companies to shift more of their CERCLA-related costs to insurers. Continue Reading

Environmental Injuries Must Be “Concrete” and “Particularized” to Confer Standing to Sue in Federal Court

On May 16, 2016, the United States Supreme Court clarified that a plaintiff must allege an injury in fact that is both concrete and particularized to establish standing to sue in federal court. Neither a particularized injury nor a “bare procedural violation” of a federal statute alone will confer standing.  The case, Spokeo, Inc. v. Robins, may impact “citizen suits” in environmental litigation where the injury in fact alleged may actually be to the environment broadly construed and not to an individual plaintiff’s “concrete” and “particularized” interests. Continue Reading

Coming Down the Pipeline: New Methane Emissions Limits

On May 12, 2016, the United States Environmental Protection Agency issued a pre-publication version of a final rule that sets the first-ever federal limits on methane emissions for new, reconstructed, and modified oil and gas sources. The Methane Rule aims to reduce greenhouse gas (GHG) emissions in the oil and gas industry in two ways: by updating New Source Performance Standards (NSPS) for the emission of methane and volatile organic compounds (VOCs) and by imposing new monitoring and maintenance requirements. It is the latest in a series of EPA rulemakings to implement the Obama administration’s Climate Action Plan. The Methane Rule will become effective 60 days after it is published in the Federal Register, which has not yet occurred. Continue Reading

Another Unexpected Fork in the Road to the Clean Power Plan

The Clean Power Plan continues its surprising path to becoming the law of the land. On May 16, the D.C. Circuit Court of Appeals on its motion issued an order to delay oral argument in the Clean Power Plan rulemaking and hear the case en banc. The oral arguments were scheduled for June 2 and 3, and are now set to begin on September 27. Presumably the argument will be allotted two days, but the court notes that it will issue further orders regarding the allotment of time for oral argument. Continue Reading

Recent Developments in Toxic Torts and Environmental Law

A team of Schiff Hardin attorneys compiled “Recent Developments in Toxic Torts and Environmental Law” for the Tort Trial & Insurance Practice Law Journal originally published in the winter of 2016 (Vol. 51-2) on the evolving landscape of the environmental and toxic tort areas of law. Toxic tort-related topics covered by this article include the growing judicial rejection of the “any exposure” causation theory, heightened party disclosure rules in asbestos litigation, and federal preemption of the Engle Phase I jury findings. Continue Reading