Courts have often noted that CERCLA is not a model of drafting excellence, and that some of the statute’s definitions are simply tautologies, e.g., that an owner means an owner. ...more
There have been five circuit court decisions in 2018 addressing the application of the Clean Water Act (CWA) to discharges reaching navigable waters through groundwater....more
In Environmental Law Foundation v. State Water Resources Control Board, the California Court of Appeal for the Third District on August 29, 2018 affirmed a district court’s application of the Public Trust Doctrine to the...more
In Sierra Club v. Virginia Electric & Power Company (“VEPCO”), the Fourth Circuit Court of Appeals affirmed in part and reversed in part a district court decision finding VEPCO liable for unpermitted discharges to navigable...more
On October 16, 2017, the now former Administrator of EPA, Scott Pruitt, issued a memo to the agency directing steps intended to end what has been known pejoratively as “sue and settle” – the practice of suing agencies,...more
On August 27, 2018, the Office of Restoration and Damage Assessment (ORDA) at the Department of the Interior published an Advance Notice of Proposed Rulemaking and request for public comment on revision of the Department’s...more
On August 17, the day after a federal judge in South Carolina invalidated the Trump administration’s suspension of the rule defining “waters of the United States” (WOTUS) under the Clean Water Act, a panel on the D.C. Circuit...more
On August 2, 2018, after many months of public rhetoric from the administration and the states, EPA and the National Highway Traffic Safety Administration sought comment on a joint proposal to modify the Corporate Average...more
On Monday, July 24, 2018, the Bureau of Land Management (BLM) issued a memorandum prohibiting BLM from requiring “compensatory mitigation” projects, except where specifically mandated by the Federal Land Policy and Management...more
Citgo Petroleum received a Valentine’s gift of sorts from the Fifth Circuit Court of Appeals on February 14, in United States v. Citgo Petroleum Corporation. The Court affirmed an $81MM civil penalty assessed by the district...more
The Trump Administration has taken the position that the President not only has the power under the Antiquities Act of 1906 to unilaterally establish national monuments, but also the unfettered authority to reduce in size or...more
On Thursday, January 4, 2018, the Department of the Interior (DOI) announced a proposal to open 25 of its 26 offshore planning areas for leasing for oil and gas drilling, reversing an Obama Administration drilling plan that...more
On December 11, 2017, the NY Times’ headline read: Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers. The article reviews EPA enforcement during the first nine months of the...more
As noted in this space, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred to by the...more
On October 17, 2017, the U.S. and the States of Rhode Island and Massachusetts lodged what was acknowledged as a “unique” settlement with a tug boat owner and operator for natural resource damages resulting from a 2003 marine...more
As noted previously on this blog, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred...more
On October 16, 2017, EPA Administrator Pruitt issued a memo to his agency directing that managers take certain steps to curtail the practice known as “sue and settle.” This practice most often is used for relatively quick...more
The Ninth Circuit Court of Appeals has reversed a district court decision allocating 100% of CERCLA response to costs to a U.S. military contractor, where both the U.S. and the contractor were liable parties. TDY Holdings,...more
On October 4, the district court for the Northern District of California in State of California and Sierra Club, et al v. BLM, et al. held that BLM could not postpone its enforcement of various provisions of the Obama-era...more
EPA has proposed to end its funding of Superfund enforcement activities by the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD). In its proposed budget for FY 2018, EPA has cut the nearly $26MM...more
We have strange bedfellows, as business groups, states and environmentalists maneuver before the Supreme Court over the Obama Administration regulation defining “waters of the US” (“WOTUS”) under the Clean Water Act (CWA)....more
The most active agency in carrying out the Trump agenda in its first year has been the EPA, where there has been a raft of efforts to roll back the regulatory initiatives of the Obama Administration. However, in one area the...more
On August 15, 2017, President Trump issued yet another executive order (EO) intended to speed environmental review of infrastructure projects. His first executive order with that objective, issued January 24, 2017, was devoid...more
The Ninth Circuit Court of Appeals revived a contribution action under CERCLA, and in the course of ruling, it addressed three issues of first impression in the Circuit regarding contribution litigation under CERCLA. Asarco,...more
On May 22, 2017, EPA Administrator, Scott Pruitt, convened a Superfund Group to examine the existing Superfund process and make recommendations to streamline the process and incentivize parties to accelerate remediation and...more