On Tuesday, October 15, 2013, the United States Supreme Court agreed to hear challenges to the United States Environmental Protection Agency’s (USEPA) authority to regulate greenhouse gases emitted from stationary sources.  A total of nine petitions for certiorari had been filed with the Court challenging various regulatory actions taken by USEPA with respect to greenhouse gases.  The Court consolidated and granted certiorari in six of the nine petitions.
Continue Reading Supreme Court Agrees to Review USEPA Regulation of Greenhouse Gas Emissions from Stationary Sources

In a much-publicized decision in 2007, the Supreme Court ruled that the United States Environmental Protection Agency (USEPA) is authorized to regulate greenhouse gases (GHGs) through the Clean Air Act. Massachusetts v. EPA, 549 U.S. 497 (2007). A slew of recent cases have rejected plaintiffs’ attempts to assert common law claims for damages based on the consequences of past emissions of GHGs. The courts generally have found that USEPA has occupied the role of regulating GHGs, and challenges to the agency’s actions must be brought through the appropriate administrative channels. As the Supreme Court weighs whether to grant certiorari in the Coal. for Responsible Regulation, Inc., et al. v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), the case that addresses four USEPA GHG rules, the Supreme Court may have difficulty in changing course from the idea that GHGs should be regulated pursuant to the Clean Air Act.
Continue Reading Is Regulation of Greenhouse Gases Through the Clean Air Act Becoming “Too Big to Fail”?

On March 28, 2013, the Sixth Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (USEPA) did not need to wait until post-construction emissions data became available to challenge DTE Energy Corp.’s projection that a construction project was not a “major modification,” and, thus, did not require a New Source Review (NSR) construction permit under USEPA’s Clean Air Act regulations.  (United States v. DTE Energy Co., 6th Cir., No. 11-2328).  In so ruling, the Sixth Circuit reversed a district court order that provided a safe harbor for owners and operators of sources that complied with pre-project recordkeeping and reporting requirements from USEPA enforcement until and unless post-project emissions data demonstrated that the projection was incorrect.
Continue Reading Sixth Circuit Court of Appeals Rules that USEPA May Proceed with an Enforcement Action against DTE Energy

In 2006, the Northwest Environmental Defense Center sued certain timber-industry related defendants claiming that their logging activities resulted in the discharge of pollutants without a permit into streams in state forests in Oregon where they were harvesting timber. In 2010, the Ninth Circuit overturned an Oregon federal district court’s grant of a motion to dismiss the case, finding that ditches and culverts adjacent to logging toads were point sources which required federal National Pollutant Discharge Elimination System (NPDES) permits. On March 20, 2013, the United States Supreme Court issued its decision in Decker v. Northwest Environmental Defense Center, Case No. 11-338, overturning the Ninth Circuit’s decision.
Continue Reading Supreme Court reaffirms EPA’s Right to Define Scope of its Own Regulations in Clean Water Act Decision

The United States Environmental Protection Agency (“USEPA”) recently issued an important guidance document applying the Bona Fide Prospective Purchaser exemption to tenants who operate at contaminated sites on a case-by-case basis, thereby protecting tenants from potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA holds owners and operators liable for costs of cleaning-up the release, or threatened release, of hazardous substances. 42 U.S.C.A. § 9607(a). Consequently, after CERCLA was passed, a property owner or operator could be held liable for contamination, even if the contamination occurred before the owner purchased the property or the operator began operations at the site. Thus, it became difficult to sell contaminated property for redevelopment because of the fear of liability. To encourage the redevelopment of these sites, Congress passed the Small Business Relief and Brownfield Revitalization Act (“The Brownfield Amendments”) in 2002. Pub. L. 107-118. The Brownfield Amendments contain several exemptions from liability intended to allay the fears of potential buyers. One of these exemptions is the “Bona Fide Prospective Purchaser” (“BFPP”) exemption which allows qualified buyers, and the tenant(s) of a qualified buyer, protection from CERCLA liability. 42 U.S.C.A. §§ 9601(40); 9607(r)(1).
Continue Reading Revised USEPA Guidance on Bona Fide Prospective Purchaser Protection for Tenants

Natural Resources Defense Council v. USEPA: Court Rejects USEPA’S Approach to PM2.5 NAAQS Implementation

Recently, the Circuit Court for the District of Columbia rejected the United States Environmental Protection Agency’s (USEPA’s) 2007 and 2008 rules implementing the 1997 national ambient air quality standard (NAAQS) for fine particulate matter having a diameter equal or less than 2.5 micrometers (PM2.5). The court held that USEPA erred by promulgating the PM2.5 implementation rules pursuant to the general nonattainment area implementation provisions for NAAQS found in Title 1, Part D, Subpart 1 of the Clean Air Act, rather than the stricter particulate matter-specific nonattainment area implementation provisions for NAAQS found in Subpart 4. The two rules were remanded back to USEPA for promulgation consistent with Subpart 4. The decision results in uncertainty for sources located in PM2.5 nonattainment areas.
Continue Reading Recent Developments in PM2.5, SO2 and CSAPR Rule Challenges

In a unanimous decision last week, the Ninth Circuit Court of Appeals ruled that federal common law public nuisance claims regarding domestic greenhouse gas emissions have been displaced by the Clean Air Act (“CAA”) and the United States Environmental Protection Agency (“USEPA”) action the CAA authorizes.  Native Vill. of Kivalina v. ExxonMobil Corp., 09-17490, 2012 WL 4215921 (9th Cir. Sept. 21, 2012).
Continue Reading Another Hurdle for GHG Suits as Ninth Circuit Affirms District Court Ruling in Kivalina v. ExxonMobil

Originally published as a Schiff Hardin Environmental Update newsletter

The Illinois General Assembly’s spring 2012 session brought a host of new environmental laws that impact environmental agencies’ administrative responsibilities, impact landfill operations, place additional restrictions on the use of toxic chemicals in Illinois, and address nutrient issues. Just as noteworthy, however, is the number of environmentally related bills that are still considered “active” and may present themselves again during the spring 2013 session. The following are a few highlights from the past legislative session.
Continue Reading New Illinois Environmental Legislation September 2012

Originally published as a Schiff Hardin Environmental Update newsletter

In a 2-1 decision, the Court of Appeals for the D.C. Circuit vacated the United States Environmental Protection Agency’s (“USEPA”) Cross-State Air Pollution Rule (“CSAPR” or the “Transport Rule”), USEPA’s attempt to “fix” the Clean Air Interstate Rule (“CAIR”) to regulate downwind state air pollution under the Clean Air Act (“CAA”). EME Homer City Generation LP v. EPA, D.C. Cir. No. 11-1302 (Aug. 21, 2012). In 2008, the D.C. Circuit struck down and remanded CAIR, with instructions to USEPA to continue administration of the CAIR until the replacement rule was implemented. Here, in light of the vacatur of the CSAPR, the D.C. Circuit has instructed USEPA to “continue administering CAIR pending [USEPA’s] promulgation of a valid replacement.”
Continue Reading DC Circuit Vacates CSAPR, Tells USEPA to Continue CAIR

Originally published as a Schiff Hardin Environmental Update newsletter

The U.S. Court of Appeals for the District of Columbia Circuit issued a per curiam opinion on Tuesday morning upholding greenhouse gas-related rules promulgated by the Environmental Protection Agency (EPA) after the U.S. Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007). The opinion, Coalition For Responsible Regulation, Inc., et al. v. EPA, No. 09-1322 (June 26, 2012), consolidates four separate cases brought by States and regulated industries petitioning for review of EPA’s greenhouse gas regulations. The petitioners claimed that EPA misconstrued the Clean Air Act and acted arbitrarily and capriciously.
Continue Reading DC Circuit Upholds EPA Greenhouse Gas Regulations