Environmental Law Portal

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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The Supreme Court Makes a Mess of Takings Law

On June 23, the Supreme Court finally addressed directly the frequently posed question: When considering the claimed taking of a property interest by government regulation, what is the affected property to be considered? All of one’s land?  Or the regulated parcel?  In short, what is the proper denominator?  By a 5-3 vote in Murr v. Wisconsin, Justice Kennedy, as is his wont, wrote an opinion so confused that it will insure a generation of litigation in the lower courts on precisely the same question. Read More ›

Using An Old Hammer in a New Context: ONRR and DOJ Adopt Aggressive False Claims Act Strategy for Royalty Underpayments

The government is dramatically shifting its strategy for pursuing alleged underpayments of royalties owed on production from federal and Indian mineral leases. For decades, the Department of the Interior (“DOI”)’s Office of Natural Resources Revenue (“ONRR”) pursued royalty underpayments through administratively appealable orders to pay and, where necessary, civil penalty enforcement under the Federal Oil and Gas Royalty Management Act (“FOGRMA”).  Recently, however, a “task force” including ONRR, the DOI Inspector General’s Office, and the U.S. Attorney’s Office for the District of Colorado has pursued certain royalty underpayments using the more draconian False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq.  Unfortunately, for the regulated industries, this approach raises the stakes significantly, and allows the government to assess both treble damages and stiffer penalties. Read More ›

EPA Delays Effective Date of RMP Rule Amendments, Environmental Groups File Challenge

On June 14, 2017, EPA published a final rule in the Federal Register delaying the effective date of its Risk Management Program (RMP) rule amendment package for twenty months, until February 19, 2019.[1] EPA’s decision was immediately challenged by a coalition of environmental groups. Read More ›

DOJ Eliminates Option of Third Party Payments in Settlements

On June 7, 2017, Attorney General Jeff Sessions issued a memorandum prohibiting the U.S. Department of Justice (DOJ) from directing any settlement payments to third-party, non-governmental organizations (NGOs) that were not directly harmed by a defendant’s actions. If strictly implemented, this new policy may impose significant limits on the availability of certain types of relief available in civil and criminal environmental enforcement cases.  The memorandum also raises significant questions about how the U.S. Environmental Protection Agency (EPA) will handle environmental settlements under the Trump Administration, as well as how DOJ will approach settlements resolving citizen suits. Read More ›

Minamata Convention to Take Effect in August, Restricting the Production and Usage of Mercury Worldwide

On May 17, the European Union and seven EU member states ratified the Minamata Convention on Mercury, pushing past the 50-state threshold needed for its entry into force. The treaty – the most recent of the global multilateral environmental agreements – will now enter into force (i.e., become legally binding) on August 16, 2017. The United States ratified the Convention (as an executive agreement, without the advice and consent of the Senate) in 2013; in contrast to most of the recent multilateral environmental agreements, therefore, the United States will participate in this agreement as a full party.  Read More ›

President Trump Announces Withdrawal from Paris Agreement on Climate Change

President Trump announced on Thursday his intention to initiate a formal withdrawal of the United States from the Paris Agreement, a global agreement designed to address climate change by reducing greenhouse gas (“GHG”) emissions. The President indicated that the United States would move forward with the pull-out and possibly attempt to re-negotiate the agreement in order to get “terms that are fair to the United States.”  President Trump frequently discussed pulling out of the Paris Agreement while on the campaign trail, citing concerns regarding its potential impact on the American economy, particularly the energy sector.    Read More ›

Perfluorinated Compound Nominated for Listing in Stockholm POPs Convention

Norway has nominated perfluorohexane sulfonic acid (also known as perfluorohexane sulfonate or PFHxS, Chemical Abstracts Service (CAS) # 355-46-4) for inclusion in the Stockholm Convention on Persistent Organic Pollutants (Convention). This appears to be the only new proposal to list a new substance in the Convention that has been submitted in time for review during the current year. Read More ›

OSHA Indefinitely Delays Electronic Reporting Requirements

Last week, the Labor Department indefinitely delayed enforcement of at least the first phase-in deadline of its electronic reporting requirements for injury and illness logs. Specifically, OSHA’s Injury and Illness Recordkeeping and Reporting Requirements website states that:

OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Read More ›

TSCA Nanomaterial Reporting Rule: EPA Delays Effective Date and Releases Draft Guidance for Public Comment

The U.S. Environmental Protection Agency (“EPA”) issued its Draft Guidance on EPA’s Section 8(a) Information Gathering Rule on Nanomaterials in Commerce ( “Draft Guidance”) on May 16, 2017. See 82 Fed. Reg. 22452 (May 16, 2017).  EPA has requested public comment on the Draft Guidance, with public comments due on or before June 15, 2017. Read More ›

San Mateo Gardens Teaches College District a Lesson on Picking Thorny Subsequent Review Procedure

The California Supreme Court recently addressed an important California Environmental Quality Act (CEQA) issue: Who decides whether CEQA’s subsequent review provisions are applicable when there are changes to an adopted project? Subsequent review provisions include a subsequent Environmental Impact Report (EIR) or Negative Declaration (ND), a supplemental EIR, or an addendum to an EIR or ND.  When a project that has been reviewed and finalized under CEQA is altered, what type of review process under CEQA is required, if any?  As we said in our last update on Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al., (2016) 1 Cal.5th 937 (Friends of the College), the Court determined that the lead agency makes this determination.  The question that the lead agency should be analyzing is whether the original document “retains some informational value” – if it does, then CEQA’s subsequent review procedures apply.  Should the lead agency’s decision be challenged, then the Court must decide whether “substantial evidence” supports the lead agency’s conclusion. Read More ›