Environmental eDeskbook

LawFlash: Clean Water Act Orders Subject to Pre-Enforcement Review

John McAleese — Thu, 22 Mar 2012 15:27:30 +0000

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.

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NJDEP Rule Provides Relief from Environmental Regulatory Requirements

John McAleese — Tue, 13 Mar 2012 18:17:23 +0000

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.

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Pennsylvania Passes Comprehensive Amendments to Oil and Gas Laws

John McAleese — Tue, 14 Feb 2012 18:18:54 +0000

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.

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Fee-Shifting Ruling Encourages Intervention in Clean Air Challenges

John McAleese — Thu, 12 Jan 2012 18:20:57 +0000

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.”

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Obama Administration Withdraws Draft Ozone Ambient Air Quality Standards and Reinstates 2008 Standards

John McAleese — Wed, 14 Sep 2011 16:23:13 +0000

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.

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Welcome to the Morgan Lewis Environmental eDeskbook

John McAleese — Thu, 28 Jul 2011 13:00:26 +0000

This eDeskbook is designed to be an up-to-date reference tool for people encountering environmental issues and the regulatory framework established to protect the environment.

The eDeskbook provides quick access to environmental regulations, noteworthy calendar items, articles, other environmental resource materials, and Morgan Lewis attorney contact information.

ARTICLE: Potential Disclosure Regimes in the Hydraulic Fracturing Industry

John McAleese — Wed, 22 Jun 2011 16:18:25 +0000

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

John McAleese — Tue, 21 Jun 2011 22:02:27 +0000

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.

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EPA Proposes Standards for Cooling Water Intake Structures at Existing Facilities

John McAleese — Fri, 01 Apr 2011 17:00:47 +0000

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.

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FOLLOW-UP: EPA Postpones Greenhouse Gas Reporting Deadline

John McAleese — Tue, 01 Mar 2011 17:00:24 +0000

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.

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