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 hold it liable at a site.

Continue Reading Lessons Learned: Negotiating Covenants Not to Sue in Environmental Agreements

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 and Recovery Act (RCRA) that create a new state permit program for the management and closure of coal combustion residuals (CCR) units. As we explained in our October 10, 2016 and September 23, 2016 blog posts, the amendment authorizes states to submit to the Environmental Protection Agency for approval of a permit program or alternative approval system for regulating CCR units that would operate in lieu of the CCR Rule.[1] The amendment allows states to adopt different technical standards from the CCR Rule so long as the standards are at least as protective as the federal rule. In circumstances where a state does not seek approval of a permit program or where EPA denies a state application, the amendments require EPA to adopt a permit program in lieu of the self-implementing rule, provided Congress provides funding for EPA to carry out a permit program. If no permit program is in effect in a state, the CCR Rule will remain self-implementing. Continue Reading Congress Amends RCRA and Establishes a New Coal Ash Permit Program

The gloves are off in a lawsuit in the Southern District of New York where an insurer and an oil and gas company disagree about whether the company’s insurance policy covers claims that fracking causes earthquakes. On June 27, 2016, insurer Lloyd’s sued New Dominion, arguing that the Lloyd’s pollution liability policies do not provide coverage because fracking is not a “pollution condition.” (See: Complaint for Declaratory Relief.) The Lloyd’s lawsuit relates to five other Oklahoma lawsuits addressing the same issue. (See: Complaints in Oklahoma lawsuits.)

With this lawsuit, the fracking debate moves into a new arena: insurance coverage disputes. Continue Reading Fracking Debate Moves into Insurance Realm

In 2013, President Obama issued the Climate Action Plan. Its goal: to reduce greenhouse gas emissions from a broad range of economic sectors. Moreover, the Climate Action Plan is the key set of initiatives necessary to achieve the United  States’ GHG reduction commitment set out in the 2015 Paris Agreement, an international accord.

We covered the initiation of a wide range of rulemakings in a blog post dated September 28, 2015, and, as the Obama Administration comes to a close, climate change rulemakings continue to move forward. The most contentious rule—the Clean Power Plan—has moved from rulemaking to litigation. Many other rules (e.g. new rules limiting methane emissions from the oil and gas industry and the renewable fuel standards) have moved from proposal to final rules. We summarize the status of 10 different rules, standards, or programs meant to implement the Climate Action Plan below. Continue Reading Recap: Climate Action Plan Nears Completion

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

The U.S. Commission on Civil Rights is holding a hearing on January 22, 2016 to review the environmental justice implications of EPA policies on coal ash disposal. The commission is conducting this review as part of its annual report on agencies’ progress implementing the Civil Rights Act. Rather than surveying the complete executive branch every year, commissioners instead focus on individual agencies’ civil rights practices. This year, the examination of EPA will begin with its coal ash disposal policies, though the commission says its initial hearing will also consider broader issues. Continue Reading Civil Rights Panel to Review EPA’s Coal Ash Disposal Policies on Jan. 22

On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is a reminder that the diligent prosecution bar to citizen suits under federal environmental statutes is not absolute, and the existence of a government enforcement action alone may not be enough to bar a citizen suit. Continue Reading Too Little, Too Late: State Agency’s Enforcement Action Does Not Bar Citizen Suit

Yesterday, a judge in the Eastern District of Wisconsin reversed his own ruling and held that NCR Corporation’s liability for the cleanup of polychlorinated biphenyls (PCBs) at the Fox River Superfund Site was not subject to divisibility.  Last May, the court held that NCR had proven that the environmental harm in Operable Unit 4 of the Site was capable of apportionment and could be reasonably apportioned based on NCR Corporation’s contribution of PCBs to this area.  In its May decision, the court held NCR liable only for its portion of the costs and determined NCR was not jointly and severally liable for all the costs of cleaning up PCBs in Operable Unit 4 (OU4).  That ruling upheld NCR’s “divisibility defense” to joint and several liability.  After yesterday’s decision, however, NCR is once again jointly and severally liable for all cleanup costs at OU4. Continue Reading Judge Rejects NCR Fox River Divisibility Defense in Reconsideration

The summer of 2015 saw several controversial EPA rulemaking proceedings that will affect the energy, transportation, waste management and construction sectors across the United States.  These rulemakings implement President Obama’s 2013 Climate Action Plan, which has a goal of  reducing greenhouse gas (GHG) emissions to mitigate the impacts of climate change. Continue Reading Climate Action Plan Takes Shape

On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s “take” provision.   Continue Reading Fifth Circuit Lets Citgo Fly Free