By Justin Gundlach, Climate Law Fellow The Alaska Liquefied Natural Gas (LNG) Project is enormous. It is designed to link natural gas drilling operations on the North Slope of Alaska to liquefaction facilities in Nikiski (south of Anchorage) via an 800-mile pipeline. The Natural Gas Act assigns the Federal Energy Regulatory Commission (FERC) responsibility for licensing new natural gas infrastructure, and requires...

The US EPA has proposed its National Enforcement Initiatives (“NEI”) for calendar years 2017 through 2019. US EPA develops a set of NEI every three years, focusing federal resources on industries with noncompliance issues on a regional or national scale, where federal attention can make a difference. EPA’s latest proposal would add several new areas of concern to the list of NEIs. These include: 1...

Mattress retailers and manufacturers face new requirements in California in 2016. Responding to attempts to over-regulate disposal of used mattresses, a coalition of manufacturers and retailers sponsored legislation to create an industry managed recycling program. The primary objective of the program is to get mattresses out of the waste stream and landfills. SB 254 (Correa, Hancock), [subscribers can access an enhanced...

A recent decision by the Seventh Circuit Court of Appeals, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], may significantly lower the causation bar for plaintiffs in toxic tort cases. In the case C.W. & E.W. v. Textron, Inc. , the Seventh Circuit was called on to evaluate a district court decision that excluded plaintiffs' experts for failing to meet the admissibility...

By Henry R. "Speaker" Pollard, V , Partner, Williams Mullen The Virginia State Water Control Board (“Board”) recently published long-awaited changes to the state’s petroleum aboveground storage tank (“AST”) regulations. This is a final regulatory action, and the changes become effective November 1, 2015. These amendments cover a fair amount of ground, but generally clarify and...

California Update: Here Comes El Nino While much of the West suffers through an epic drought that has contributed to a deadly fire season, state and local officials are bracing for a severe El Nino winter that could bring substantial rain along the Pacific Coast and significant snowfall in the mountains. California, expected to bear the brunt of the storms, may suffer the worst of both worlds. Forecasters say that...

On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19. This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering. Previous NEIs include: (1) air pollution from the largest sources; (2) toxic air pollution; (3...

The US EPA has revised the 1988 underground storage tank (UST) regulation and the 1988 state program approval (SPA) regulation. Some of these changes had their roots in the Energy Policy Act of 2005, which set out additional requirements in states that received federal RCRA Subtitle I money from EPA. Part of the impetus for this regulation was to apply these changes to Indian country and all states. Other changes relate...

A new EPA report, Climate Change in the United States: Benefits of Global Action , estimates the physical and monetary benefits to the U.S. of reducing global greenhouse gas emissions. The report summarizes results from the Climate Change Impacts and Risks Analysis (CIRA) project, a peer-reviewed study comparing impacts in a future with significant global action on climate change to a future in which current greenhouse...

The Sabin Center for Climate Change Law is releasing a set of model protocols for assessing the impacts of climate change on the built environment under the National Environmental Policy Act (NEPA) and state equivalents. The protocols are intended for use in environmental reviews of proposed buildings and infrastructure (we plan to initiate a similar project for natural resource and land management projects in the...

Pope Francis’ encyclical Laudato Si’, On Care for Our Common Home includes a section about the economics of carbon mitigation. Although a small part of the encyclical—one paragraph out of 246—the pope’s economic prescription received extensive coverage from top newspapers such as the Washington Post and New York Times. Many of the academics and pundits writing about this part of the encyclical...

The Supreme Court of Canada has allowed Ecuador pollution plaintiffs to try to seek enforcement against Chevron Canada of a multibillion-dollar damage award against Chevron Corporation for oil pollution in Ecuador: Chevron Corp. v. Yaiguaje . According to the court, this is a relatively simple question of the mutual respect owed between states. Those who obtain a “legitimate” foreign judgment may ask Canadian...

The Environmental Protection Agency (EPA) has released a report, “ Climate Change in the U.S. – Benefits of Global Action ,” detailing the findings of the EPA’s Climate Change Impacts and Risk Analysis (CIRA) study, a peer reviewed project that seeks to assess climate change risk at a regional and sectorial level. Unsurprisingly, the report finds that, in almost all of the 20 sectors discussed...

On July 23, 2015, John Cruden, head of DOJ’s Environment and Natural Resources Division, gave this speech to the American Bar Association Litigation Section on the current direction of federal environmental enforcement efforts. It touches upon issues we are consciously or subconsciously managing. If you do not have time to read the speech, review the summary below with a view toward what you are observing and take...

Pope Francis visited Ecuador and called for increased protection of the Amazon rain forest and in general has made environmental protection a central theme in his comments. Pope Francis noted, “The tapping of natural resources, which are so abundant in Ecuador, must not be concerned with short term benefits. As stewards of these riches which we have received, we have an obligation towards society as a whole, and...

This week EPA released EJSCREEN, an environmental justice screening and mapping tool that uses high resolution maps combined with demographic and environmental data to identify places with potentially elevated environmental burdens and vulnerable populations. According to EPA, EJSCREEN’s simple to understand color-coded maps, bar charts, and reports enable users to better understand areas in need of increased environmental...

Besides researching and writing environmental rules, such as the mercury power plant rule recently addressed by the US Supreme Court, the USEPA must also spend a lot of effort enforcing rules – to ensure they are fairly and evenly complied with. Besides the “stick” of fines, potential imprisonment, and bad publicity, the USEPA also uses the “carrot” of encouraging companies to comply. The...

Last week, the EPA-specific listing on the website of the Office of Information and Regulatory Affairs was updated with timelines on the EPA’s regulatory efforts. Of potential interest, in chronological order of expected release, are the following rules: • May 2015 (Final Rule). Clean Water Rule: Definition of “Waters of the United States” . The U.S. Environmental Protection Agency (EPA) and...

I continue to be surprised by how many people knowingly purchase a contaminated site, and regret it afterwards. Buy in haste, repent at leisure? Sometimes the purchaser of a contaminated site is merely unlucky, or suffers from a change of rules or approach by government regulators; sometimes I see incompetence by purchasers’ consultants, and/or lawyers. But sometimes the problem is due to the purchasers themselves...

How are major oil spill claims handled in the US? For a fascinating glimpse across the border, Enbridge-consent-judgment is a copy of the multimillion dollar consent order between the State of Michigan and Enbridge over the billion dollar, three-million-litre oil spill into wetlands and the Kalamazoo River in 2010. The State and Enbridge agreed to the order to finalize the obligations as between themselves; the class...

Can the government be liable for financial damages, when they refuse environmental permits for unreasonable reasons, or cause an unreasonable delay in issuing a permit? Yes, it is possible, according to the British Columbia Court of Appeal ! Given the chronic delays in federal and provincial environmental permitting across the country, this could be an important new remedy for aggrieved applicants. It should also ratchet...

By Michael B. Gerrard The remarkable Encyclical Letter issued last month by Pope Francis could be read as a primer on the importance and idealized operation of many of our environmental laws. The headings below are mine; the text is from the Vatican. National Environmental Policy Act 183. Environmental impact assessment should not come after the drawing up of a business proposition or the proposal of a...

The 2016 budget focus for the United States Environmental Protection Agency (“U.S. EPA”) is on continued implementation of its “Next Generation” enforcement initiative, and this could mean big costs for manufacturers who choose to adapt their environmental compliance practices accordingly and big penalties for those who do not. Under this initiative, U.S. EPA intends to make a significant shift...

Recently I was asked this question: When a farm cooperative (a “co-op”) does work for a farmer and in the process generates agronomic data, does the co-op own that data or does the farmer? Many in the ag industry like to say “the farmer owns the data,” but the co-op’s generation of farm data presents a more complicated problem. Of course, if the co-op has a written contract that addresses...

Farmers will call up their local co-ops this year to help them fertilize and spray their fields. These sprayers-for-hire will be recording what they do, but what happens to that data after that point? Does the co-op have an obligation to provide that data to the farmer? Does the co-op own the data generated on a farmer’s field? These questions need to be answered when farmers engage third parties to perform precision...