Category Archives: Environmental

Subscribe to Environmental RSS Feed

Pruitt Declares “The War Against Coal is Over”

Environmental Protection Agency (EPA) Administrator Scott Pruitt declared “the war against coal is over” yesterday in his announcement that the EPA will move to repeal the Clean Power Plan. In a lengthy proposal leaked last week that was then updated and signed October 10, the EPA proposes to repeal the Clean Power Plan (CPP), a … Continue Reading

Next Steps in EPA Deferral to States: Waters of the U.S. Rule Repeal and Replacement

Consistent with President Trump’s February 28, 2017 Executive Order, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced a joint proposal representing the first step of a two-part plan to implement a more narrow “waters of the U.S.” or “WOTUS” definition. The first step, published in the Federal Register … Continue Reading

No Delay for Proposition 65 Listing of Glyphosate

For the past several months, Monsanto has been in court challenging California’s decision to add the chemical glyphosate—the active ingredient in its herbicide Roundup—to the Proposition 65 list. It recently faced a setback when the California Supreme Court rejected Monsanto’s request to stay a lower court’s decision to include glyphosate among the 960 chemicals on the list.  California’s … Continue Reading

TSCA Framework Rules Offer Manufacturers Regulatory Clarity

On the one year anniversary of major amendments to the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) issued three new “framework” rules on how it plans to prioritize and evaluate risks from new chemicals or new uses of chemicals — offering clearer guidance to manufacturers on how chemicals will be evaluated and … Continue Reading

EPA Takes Back Decision-Making Authority for the Most Costly Superfund Cleanups

In a break with long-standing policy, Environmental Protection Agency (EPA) Administrator Scott Pruitt has taken back authority to approve remedies costing $50 million or more at Superfund sites effective immediately. According to the delegation of authority memo issued on May 9, 2017, the purpose of these revisions is to promote accountability and consistency in the … Continue Reading

EPA Litigation Snapshot: Pivotal Cases See Continued Delays

As the Trump-era Environmental Protection Agency (EPA) continues the process of reconsidering Obama-era decisions, we have seen a flurry of EPA-requested stays on ongoing litigation related to rules and decisions from the prior administration. The courts have generally been willing to grant these motions, issuing 60, 90, or 120-day stays for most cases.… Continue Reading

Trump EPA Delays Ongoing Obama-Era Litigation

President Trump recently issued two executive orders that aim to reform administrative regulations and improve domestic energy production. On January 30, 2017, President Trump issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” which, among other things, introduced a regulatory impact cost cap for 2017. On March 28, 2017, President Trump issued Executive Order … Continue Reading

EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants

On April 12, 2017, the EPA announced that it will reconsider and administratively stay future deadlines of the 2015 final rule that set new, technology-based effluent limitations guidelines (ELGs) and standards for steam electric power plants under the Clean Water Act. The final rule places significant burden on affected segments of the steam electric power … Continue Reading

California Prop 65 Decision Raises New Potential Conflict with Federal Pesticide Product Registration and Labeling Requirements

Monsanto officially lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup. As we previously reported, Monsanto argued that the State of California’s reliance on an unelected, European organization to decide that glyphosate poses a cancer risk was improper. Last month, a … Continue Reading

Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty

A recent federal court ruling in a Sierra Club lawsuit against Dominion Virginia Power alleging violations of the Clean Water Act (CWA) raises key questions about how other courts will interpret “point source” and “navigable waters” relative to ash ponds and groundwater releases, and whether a reasoned cost-benefit analysis can be used to substantially mitigate … Continue Reading

Energy Independence is Theme of Trump Environmental Plan

On March 28, 2017, President Trump signed an executive order (EO) called “Promoting Energy Independence and Economic Growth.”  The EO rescinds a host of climate change-related policies and rules instituted by the prior administration, including the Clean Power Plan and the Climate Action Plan. This new energy policy promotes all forms of domestic energy, and, … Continue Reading

Ag’s Big Win: A Follow Up

The latest ruling in an Iowa case against Des Moines Water Works represents another win for farmers and the agricultural community. As we previously posted, in January the Iowa Supreme Court ruled against Des Moines Water Works on certified, state-law questions including whether drainage districts are immune from paying money damages. The case had come … Continue Reading

Run-Away Liability and the BNSF Ruling

On March 3, 2017, BNSF Railway entered into a proposed consent decree with multiple environmental groups, led by the Sierra Club. BNSF agreed to clean up what it characterized as “coal pollution” along its tracks in Washington, fund $1 million in additional environmental work, and study the feasibility of covering its railcars. In exchange, the … Continue Reading

Lessons Learned: Negotiating Covenants Not to Sue in Environmental Agreements

Parties that settle environmental claims with the government frequently include covenants not to sue in their settlement agreements. But how does a party ensure that a covenant not to sue prevents the government from suing it again? By negotiating a broad covenant not to sue that contemplates all the ways in which the government may … Continue Reading

Monsanto Uses the Constitution to Challenge Warning Labels for Herbicide

Monsanto has, at least temporarily, lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup.  On January 27, 2017, a California judge tentatively dismissed Monsanto’s claims that the State of California unconstitutionally turned to an unelected, European organization to decide whether glyphosate … Continue Reading

Keeping Information Confidential: What Businesses Need to Know About Recent Developments under FOIA and the CWA

Most businesses face numerous privacy concerns. Businesses that provide confidential information to regulatory agencies face a unique challenge: How can they keep this information private? Recently, several hundred power plants faced this challenge when environmental groups sued EPA to compel disclosure of confidential information the plants had provided to EPA. The case highlights the different … Continue Reading

Ag’s Big Win: Iowa Supreme Court Denies Water Utility’s State Law Claims against Drainage Districts

In a big win for the agricultural community, the Iowa Supreme Court recently ruled against Des Moines Water Works (DMWW) in its state law claims against upstream drainage districts for nitrate pollution in the Raccoon River. See Bd. of Water Works Trs. of Des Moines v. SAC Cty. Bd. of Supervisors, No. 16-0076, 2017 WL … Continue Reading

Congress Amends RCRA and Establishes a New Coal Ash Permit Program

On December 16, 2016, President Obama signed the Water Infrastructure Improvements for the Nation (WIIN) Act into law. The WIIN Act is heralded as a bill addressing navigation and flood control, and authorizes funding to address drinking water emergencies in communities like Flint, Michigan. Included in the WIIN Act are amendments to the Resource Conservation … Continue Reading
LexBlog