Ryan Whaley Coldiron Shandy

Recently, two courts have issued decisions in cases involving nuisance claims based upon “global warming.”  Although the two cases reached different decisions, both cases demonstrate that “global warming” is not ...

On October 22, the Environmental Protection Agency (“EPA”) filed notice with the federal court in Washington, D.C., that it would issue final maximum achievable control technology (“MACT”) standards for coal- and oil-fired power plants by Fall 2011...

The Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., may be experiencing a drastic modernization in the near future.  Senators Barbara Boxer (D-Calif.) and Frank Lautenberg (D-N.J.) plan to introduce new legislation intended...

On September 30, 2009, the Environmental Protection Agency (“EPA”) issued a new “Interim Policy” designed to shorten the duration of negotiations for CERCLA site cleanups with potentially responsible parties (“PRPs”)...

On September 21, 2009, the Second Circuit Court of Appeals reversed a district court’s 2005 dismissal of a lawsuit brought by several states, New York City, and private land trusts against six utility companies who own and operate fossil-fuel-fired power plants...

On September 30, 2009, EPA announced a proposal to regulate greenhouse gas (GHG) emissions over 25,000 tons per year from large facilities. The announcement came only eight days after EPA declared that starting...

What Happened:  The Seventh Circuit Court of Appeals, in an opinion by Judge Posner, recently ruled that the government’s claim to an injunction for clean up under the Resource Conservation and Recovery Act (RCRA) is not dischargeable...

On September 22, the Environmental Protection Agency (“EPA”) issued its “Final Mandatory Reporting of Greenhouse Gases Rule.”

Starting January 1, 2010, EPA will require suppliers of fossil fuels or industrial greenhouse gases (“GHG”), manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions to submit annual reports to EPA...

On December 19, 2008, the D.C. Circuit Court of Appeals vacated the startup, shutdown, and malfunction exemption to the “emissions standards” governed by Section 112 (generally referred to as the Maximum Achievable Control Technology or “MACT” standards). Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). The court’s decision turned on Congress’ mandate that “emission standards” for ...

What happened:  The Arkansas Court of Appeals interpreted the term “single proceeding” under Ark. Code Ann. § 23-18-502, or the Utility Act, to mean all matters concerning generating plants and transmission lines shall be resolved in a single proceeding.   The Court of Appeals reversed the Arkansas Public Service Commission’s (APSC) grant of a Certificate of Environmental Compatibility and Public Need (CECPN) to SWEPCO which authorized them to build a 1.6 billion dollar power plant in Hempstead County.  The APSC conducted three separate proceedings regarding construction of the plant in Hempstead County: one for the baseload capacity, another for the construction and financing of the generating plant, and finally one for the proposed transmission line construction.  The Court of Appeals found this was not in conformance with the Utility Act and CECPN law.

What Happened: A federal trial court in Maine denied a PRP’s motion to dismiss and in the process distinguished the limiting effect of the United States Supreme Court’s definition of “arranger liability” in Burlington Northern & Santa Fe Railway Co. v. United States, 129 S.Ct. 1870 (2009). Essentially, the court held that knowing disposal of hazardous wastes via sewer lines would fall well within the confines of arranger liability. Because the complaint alleged knowing disposal of poly-aromatic hydrocarbons via sewer lines, the complaint withstood the PRP’s motion to dismiss.

On April 27, 2009, in response to a Congressional mandate in the Omnibus Appropriations Act of 2009, EPA promulgated the “Toxic Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus Appropriations Act Rule” at 74 Federal Register 19001.

What happened:  the Eleventh Circuit decided a major case taking away a potential defense for companies and other defendants seeking to block a Clean Water Act (CWA) citizen suit.  Essentially, the Court held that a defendant cannot prevent a citizen suit from proceeding by getting the state regulatory agency to take an administrative or civil enforcement action that might result in a lighter penalty.

In a case decided May 4, 2009, the United States Supreme Court held that (1) CERCLA Section 9607(a)(3) “arranger liability” only attaches to a party that takes intentional steps to dispose of a hazardous substance, meaning that mere knowledge of continuing spills and leaks is insufficient grounds for liability; and (2) liability under CERCLA Section 107 is “divisible” where the record reasonably supports the apportionment of liability.

In 1992, the United States Supreme Court ruled that 45 O.S. §§ 939 and 939.1, which required Oklahoma coal-fired electric utilities to burn a mixture containing at least 10% Oklahoma-mined coal, violated the “Dormant Commerce Clause” of the United States Constitution.

On March 25, 2009, EPA Region 6 published its draft National Pollutant Discharge Elimination System (NPDES) “general permit” for discharges from horse, cattle and dairy cow, swine, poultry, and veal calf concentrated animal feeding operations (CAFOs) in Oklahoma at 74 Federal Register 12849.

On April 15, 2009, EPA published its FY2007 greenhouse gas inventory. The inventory tracks annual greenhouse gas emissions and sinks at the national level and presents historical emissions from 1990 to 2007.

In a case decided March 4, 2009, the Second Circuit Court of Appeals held that a potentially responsible party (PRP) that voluntarily enters into a consent order for CERCLA cleanup with a state agency may bring a cause of action against other PRPs for response costs under Section 107(a)(4).

The United States' Environmental Protection Agency on Friday released a pre-publication copy of its proposed rule under the Clean Air Act finding that carbon dioxide and five other greenhouse gases from major sources "endanger the public health and welfare," setting the stage for regulating them.

On April 10, 2009, EPA opened a 60-day public comment period for its “Mandatory Reporting of Greenhouse Gases; Proposed Rule.” The comment period will run until June 9, 2009.

Last fall, EPA issued a final rule entitled Revisions to the Definition of Solid Waste referred to as the DSW rule).  73 Fed. Reg. 64667, Oct. 30, 2008 (amending 40 CFR Parts 260 and 261).  As is often the case, the rule is very complicated and has over 100 pages of explanation (preamble).

According to EPA’s website, http://www.epa.gov/tri/indexcont.htm, the recently passed federal 2009 Omnibus Appropriations Act will, among many other things, turn back the clock on Toxic Release Inventory (TRI) reporting requirements for FY2008 reports.

Nearly two years after the Supreme Court held in Massachusetts v. EPA that carbon dioxide meets the Federal Clean Air Act (CAA) definition of an “air pollutant”, EPA has responded to the White House Office of Management and Budget with a proposed finding that carbon dioxide and five other greenhouse gases endanger human health and the environment.  EPA further proposes the gases be regulated as pollutants under the CAA.

On March 12, 2009, the 8th Circuit dismissed Hempstead County Hunting Club’s (HCHC) petition for injunctive relief to prevent the construction of the Southwestern Electric Power Company’s (SWEPCO) Turk Plant, a 600-megawatt pulverized coal-fired power plant, as moot in the case titled Hempstead County Hunting Club v. Southwestern Electric Power Co., No. 08-2613 (8th Cir. Mar. 12, 2009).

Although the Supremacy Clause in the U.S. Constitution provides that federal laws are the “supreme Law of the Land,” CERCLA does not expressly preempt state law. Rather, CERCLA has three provisions explicitly preserving the rights of states to impose additional liability for the release of a hazardous substance.

On March 10, 2009, in response to the Consolidated Appropriations Act (H.R. 2764), EPA Administrator Lisa Jackson signed a proposed rule entitled “Mandatory Reporting of Greenhouse Gases.” Originally expected to be released...

In Sierra Club v. EPA, No. 07-4485 (6th Cir. Feb. 26, 2009) (E. Kentucky Power Coop.), a power company obtained an air quality operating permit in the 1970s for one of its coal-fired steam generators. Two decades later...

On February 25, 2009, a full Tenth Circuit overturned a three judge panel’s decision to grant former Qwest CEO, Joe Nacchio, a new trial.  Nacchio had previously been convicted...

In 1977, acting under its discretion to regulate sources under Section 111, EPA determined that excess emissions of air pollutants during startup, shutdown, and malfunction (SSM) events did not constitute deviations from the underlying emissions standards, so long as the source exercised good air pollution control practice for minimizing emissions (called the “general duty” standard).

On February 6, in what might indicate a desire by EPA to more strictly enforce environmental regulations, the U.S. Solicitor General dismissed the EPA’s position in a case...