Publications
LawFlash: Clean Water Act Orders Subject to Pre-Enforcement Review
March 22, 2012
by Ron Tenpas, Chris McAuliffe, and John McAleese
In a much-anticipated decision, Sackett v. EPA, 566 U.S. ______ (2012), the U.S. Supreme Court unanimously decided yesterday that a party may seek judicial review of the U.S. Environmental Protection Agency’s (EPA’s) jurisdiction to issue an administrative compliance order under the Clean Water Act before EPA enforces the order. The decision is significant because parties subject to an enforcement order under the Clean Water Act may now be able to challenge an EPA order without the risk of incurring additional daily penalties and further enforcement. Previously, EPA maintained that its order could only be challenged by waiting for enforcement to occur.
NJDEP Rule Provides Relief from Environmental Regulatory Requirements
March 13, 2012
The New Jersey Department of Environmental Protection (NJDEP) adopted a new rule on March 8 that provides a process for NJDEP to waive compliance with regulatory requirements. Waivers of compliance are granted at NJDEP’s discretion, following a demonstration by a party seeking the waiver, and consistent with NJDEP’s core mission to maintain, protect, and enhance New Jersey’s natural resources and to protect public health, safety and welfare, and the environment. NJDEP will begin accepting applications for waivers on August 1, 2012.
Pennsylvania Passes Comprehensive Amendments to Oil and Gas Laws
February 14, 2012
On February 13, Governor Tom Corbett signed House Bill 1950, amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes. This legislation, most of which will become effective on April 13, imposes a drilling “impact fee” and preempts local environmental regulation of oil and gas operations. It also strengthens requirements for permitting and expands disclosure requirements for fracking chemicals and reporting obligations. Fracking, or hydraulic fracturing, is a technique that uses water mixed with chemicals and sand to pump deep into shale layers to extract gas.
Fee-Shifting Ruling Encourages Intervention in Clean Air Challenges
January 12, 2012
On December 20, 2011, the U.S. Court of Appeals for the D.C. Circuit expanded fee-shifting incentives for parties that intervene in challenges to Clean Air Act rules issued by the Environmental Protection Agency (EPA). The novel ruling may encourage state and local governments, environmental groups, and many others to intervene in future EPA cases, with the expectation of a “free ride.”
Under Section 307(f) of the Clean Air Act, courts may award reasonable attorneys’ fees “whenever . . . such award is appropriate.” One need not be a “prevailing party” to trigger fee shifting, but prior cases awarded fees only to parties that contributed to the “proper implementation and administration of the Act” by playing “a significant role in the litigation.”
Obama Administration Withdraws Draft Ozone Ambient Air Quality Standards and Reinstates 2008 Standards
September 14, 2011
President Obama announced on September 2 that his administration was withdrawing the draft ozone ambient air quality standards that the U.S. Environmental Protection Agency (EPA) had prepared and was in the process of issuing as new regulations. The new regulations, had they become final, would have resulted in stricter standards related to ozone. This action does not relieve companies of compliance with any current air pollution control requirements because the withdrawn standards had not been adopted as final. Moreover, the withdrawal may result in only a temporary respite from new ozone standards because the Clean Air Act requires EPA to reconsider ozone standards in 2013. In addition, the administration has clarified that it intends to proceed to the next steps in implementing standards announced in 2008.
ARTICLE: Potential Disclosure Regimes in the Hydraulic Fracturing Industry
June 22, 2011
Morgan Lewis partners Ronald Tenpas and Alex Polonsky authored an article in Westlaw Journal: Environmental (Vol. 31, Issue 24). Read the article >>
Supreme Court Changes the Climate on Greenhouse Gas Suits
June 21, 2011
The U.S. Supreme Court issued its much-anticipated decision in American Electric Power Co. v. Connecticut, reviewing whether federal common law would support a claim that greenhouse gas emissions could give rise to a public nuisance claim that would warrant injunctive relief against future emissions. The Court concluded that the federal common law cannot support such a claim.
EPA Proposes Standards for Cooling Water Intake Structures at Existing Facilities
April 1, 2011
On March 28, 2011, the U.S. Environmental Protection Agency (EPA) issued proposed regulations under section 316(b) of the Clean Water Act that set standards applicable to cooling water intake structures for the protection of aquatic organisms. The proposed regulations would require existing large power plants and manufacturing facilities that withdraw water from adjacent water bodies exclusively for cooling to limit the number of aquatic organisms that are killed when they are pinned against the facility’s intake structure or that are drawn into the facility’s cooling system. The section 316(b) standards would be implemented through National Pollutant Discharge Elimination System (NPDES) permits issued to the covered facilities.
FOLLOW-UP: EPA Postpones Greenhouse Gas Reporting Deadline
March 1, 2011
The U.S. Environmental Protection Agency (EPA) announced today that it is postponing the March 31 deadline for submitting the first greenhouse gas emission reports under the Mandatory Greenhouse Gas Reporting Rule (Mandatory Reporting Rule). As we reported in our February 28, 2011 LawFlash, the Mandatory Reporting Rule required subject operations to submit reports of their greenhouse gas emissions data from calendar year 2010 by March 31, 2011. Today’s action by EPA adjourns that deadline, but does not set a new deadline for when entities must report their 2010 greenhouse gas emissions data. EPA plans to issue the final tool for uploading data for the reports this summer.
Greenhouse Gas Reporting Deadline Approaches for Most Subject Industries
February 28, 2011
March 31, 2011 is the deadline for the first annual reports due under the Mandatory Reporting for Greenhouse Gas Emissions Rule (Mandatory Reporting Rule or the Rule) that the U.S. Environmental Protection Agency (EPA) published in the October 30, 2009 Federal Register. EPA continued to amend the Mandatory Reporting Rule and to issue guidance documents after adoption of the Rule, including during the compliance period. Companies should take time during the month of March to review the data they have collected and intend to report and verify that their reports meet the latest requirements of EPA’s greenhouse gas (GHG) reporting program. Now is also a good time for facilities to verify that the data collection and management systems they created to comply with the Mandatory Reporting Rule perform as required and that those systems continue to meet the requirements of the Rule for the 2011 data collection period.