Environmental Law Portal

Welcome to the Beveridge & Diamond Environmental Law Portal.

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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California Attorney General Proposes Proposition 65 Amendments To Address Litigation Abuse

On September 25, 2015, the California Office of the Attorney General published a Notice of Proposed Rulemaking to amend the regulations implementing the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”) (“AG Amendments”).  The AG Amendments would affect settlement terms, attorney’s fees and penalty amounts in civil actions filed by private plaintiffs (a.k.a. “Private Enforcers”).  The Attorney General’s proposal also aims to provide increased transparency and judicial oversight of settlement agreements.  According to the Attorney General, the proposed amendments are designed to help restore public confidence that Proposition 65 is used for its proper health-protective purposes and not abused for private gain.  The full text of the AG Amendments can be found here. Read More ›

Massachusetts Department of Environmental Protection to Hold Listening Sessions under Executive Order 562

In April, we reported on Governor Baker’s issuance of Executive Order 562, a very broad Order that prohibits any Massachusetts agency from issuing new regulations for one year, unless certain conditions are met.  In order to issue a rule, an agency is required demonstrate a clear need for governmental intervention and that the costs of the regulation do not outweigh the benefits, that the regulation does not exceed federal requirements or duplicate local requirements, that there are no less restrictive or intrusive desirable alternatives, and that the regulation does not adversely affect Massachusetts’ citizens, customers, or competitive environment. Read More ›

Prudence Prevails: Fifth Circuit Supports Narrow Reading of Liability under the Migratory Bird Treaty Act

The U.S. Court of the Appeals for the Fifth Circuit recently ruled that the criminal prohibition on killing or injuring birds under the Migratory Bird Treaty Act (“MBTA”) “only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.”  The appellate court reversed a criminal conviction under the MBTA for the deaths of migratory birds that had become trapped in uncovered equalization tanks containing oil and wastewater.  In so doing, the Fifth Circuit solidified the split among federal courts over the appropriate interpretation of an unlawful “taking” under the MBTA when commercial operations inadvertently impact birds.  In the process, it significantly increased the likelihood of the Supreme Court taking up the issue in the not-too-distant future.  And it further cast doubt on a recently-announced regulatory initiative of the U.S. Fish & Wildlife Service (“FWS”) to create “incidental take permits” under the MBTA covering commercial operations’ impacts on migratory birds. Read More ›

On the Cusp of TSCA Reform, States Continue to Regulate Chemicals

As legislation to reform the Toxic Substances Control Act nears passage in Congress,[1] states continue to enact and implement a diverse array of their own requirements affecting the use of chemicals in products sold within their borders.  Some state requirements have a narrow scope limited to particular chemicals or products, while others institute comprehensive regulatory frameworks that govern the use of many chemicals.[2]  States continue to adopt new requirements, notwithstanding the expected passage of TSCA legislation that aims to strengthen the federal program for reviewing and regulating chemicals as appropriate.[3]

Two aspects of state chemicals activity deserve particular emphasis.  The first is legislative activity.  Many state legislative sessions for 2015 have already ended.  The attached chart reports on the status of bills that were introduced this year. 

The second aspect worth noting is the growing number of state green chemistry laws.  These laws authorize state agencies to address a broad number of chemicals through the regulatory process by requiring notification (with an expected impact on suppliers), as well as, in some cases, alternatives analyses and restrictions.  In 2014, Vermont joined California, Washington, Maine, and Minnesota by adopting a green chemistry law.  In 2015, Oregon also adopted a green chemistry law.  Each state green chemistry law is discussed below.  First a summary of the law or its implementing regulations is provided, and then recent developments are summarized. Read More ›

Draft EEA Environmental Justice Policy Released in Massachusetts

In January, we reported on the issuance of an executive order on environmental justice (EJ) by the administration of outgoing Massachusetts Governor Patrick, provided a survey of the EJ framework in Massachusetts, and discussed some uncertainties about the impact of EJ policies given the gubernatorial transition that was occurring at that time. For that discussion, please click here.

Nine months later, we have a much better view of how the Baker Administration plans to address EJ issues and apply the EJ legal and policy framework to new projects. Some important issues remain pending, and the Executive Office of Energy and Environmental Affairs (EEA) has posted a draft revision to its EJ policy which highlights those issues. There is a public comment period that runs until September 30, 2015. A copy of the draft revision (available in six languages) can be accessed here. Read More ›

FTC Issues Warning Letters About Environmental Seals and Certifications

On September 14, 2015, the U.S. Federal Trade Commission (FTC) announced that it had issued warning letters to five providers of environmental certification seals and 32 companies using those seals, stating that use of the seals may not conform to FTC’s environmental marketing guidelines, known as the Green Guides.  Although FTC did not explain the basis for its concerns, the warning letters published on the commission’s website suggest that the relevant seals may improperly suggest that products earning the seal have specific and far-reaching environmental benefits.  FTC updated its Green Guides in October 2012 and since then has initiated seven sets of enforcement actions against a total of 15 companies.  See, e.g., our January 24, 2014 client alert “FTC Continues Crackdown on Improper Environmental Marketing Claims.” Read More ›

Executives Beware: DOJ’s New Policy Memo Signals Focus on Prosecuting Individuals

“Look What the Doctor ( . . . or Attorney General) Just Ordered.”

In light of the near-unbridled discretion of the U.S. Department of Justice (“DOJ”) to bring federal criminal charges, businesses and their leaders are wise to pay close attention to the prosecutor’s “playbook.”  Sometimes these lessons emerge in the pattern of investigations and prosecutions, but often the priorities are found in new policy declarations. Read More ›

Highest EU Court: REACH SVHC Thresholds Apply at Component – Not Product – Level

In a break from European Commission and prevailing industry interpretations, the European Court of Justice (ECJ) held on September 10, 2015 that REACH concentration thresholds for substances of very high concern (SVHCs) that can trigger notification and communication requirements must be calculated at the component level.  For companies that had relied on the European Commission’s more favorable interpretation – calculating concentration thresholds for imported products at the product level – the implications of the court’s decision could be significant, perhaps necessitating an updated supply chain communication and compliance strategy for imports into the EU. Read More ›

EPA Proposes New Rules for Pharmaceutical Wastes That Qualify as RCRA Hazardous Wastes

On August 31, 2015, the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) signed a proposed rule that would establish special management standards for pharmaceutical wastes that are classified as hazardous wastes under the Resource Conservation and Recovery Act (“RCRA”).  The new standards would include separate requirements for healthcare facilities and pharmaceutical reverse distributors, such as rules for storage, labeling, recordkeeping, reporting, and off-site shipment.  The Proposed Rule would also conditionally exempt hazardous waste pharmaceuticals that qualify as controlled substances under the rules of the U.S. Drug Enforcement Administration (“DEA”), add new provisions for hazardous waste pharmaceuticals from households, and amend the requirements for residues of hazardous waste pharmaceuticals in containers.  It requests comments on amending the acute hazardous waste listing for low-concentration nicotine products, and on a potential strategy for listing additional pharmaceutical wastes as hazardous.  Read More ›

FedEx Enters Settlement with California District Attorneys to Partially Resolve Allegations of Mismanagement of Damaged Products, But Related Actions Still Pending in State and Federal Courts

On July 28, 2015, FedEx Ground Package System, Inc. (“FedEx”) entered into a settlement agreement (“Settlement”) with a group of California District Attorneys to partially resolve allegations that the company stored and transported packages of products that it found to be damaged or leaking, without complying with the applicable California requirements for hazardous and medical wastes.  Under the terms of the (partial) Settlement, FedEx will pay a total of $1,750,000, consisting of civil penalties, reimbursement for the costs of investigation and prosecution by the District Attorneys, and funding for supplemental environmental projects and a program of customer outreach for waste minimization and improved packaging.  The company is also enjoined from future violations of the hazardous waste and medical waste regulations, as well as fromfailure to maintain the confidentiality of customer and employee records. Read More ›