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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With This Tie, There Is a Winner: 4-4 SCOTUS Ruling Results in Victory for Native Americans and a Clear Mandate for Washington to Correct Culverts

In most instances, a tie means there is no winner and no loser.  Not so with the U.S. Supreme Court’s 4-4 tie in the “Culverts Case” (one branch of the sprawling U.S. v. Washington case) on June 11, 2018.  Instead, by effectively affirming the Ninth Circuit decision below, this tie is a significant win for the United States and twenty-one Native American Tribes (“Tribes”) and a significant loss for Washington State. Read More ›

Full Steam Ahead: EPA Moves Forward with Key Initiative to Reduce Emissions at U.S. Ports

EPA’s Office of Transportation Air Quality recently issued a report titled “EPA and Port Everglades Partnership: Emission Inventories and Reduction Strategies” (“the Port Everglades Report”).[1] The Port Everglades Report comes in the wake of EPA’s 2016 “National Port Strategy Assessment: Reducing Air Pollution and Greenhouse Gases at U.S. Ports.”[2] Both the Port Everglades Report and the National Port Strategy Assessment are part of EPA’s “Ports Initiative,”[3] which seeks to establish a framework for stakeholders to evaluate and implement air pollution emission-reduction initiatives at ports. Read More ›

NGOs Challenge Department of Interior’s New Interpretation of “Incidental Take” Liability Under Migratory Bird Treaty Act

National environmental groups recently filed a pair of new lawsuits in New York federal district court seeking to expand the scope of liability for “incidental take” under the Migratory Bird Treaty Act (“MBTA”).[1]  The litigation seeks to overturn recent legal and policy guidance issued by the United States Department of the Interior (“DOI”) and Fish and Wildlife Service (“FWS”) which provided greater regulatory certainty by limiting those agencies’ enforcement actions under the MBTA to claims of intentional harm to migratory birds.  If the new lawsuits prevail, many industries may once again face potential criminal liability for day-to-day operations posing a risk of unintentional effects on migratory birds.  The lawsuits are also a reminder that courts remain split on the scope of MBTA liability, that MBTA enforcement policy may shift between administrations, and that other statutes still make avian protection a key component of environmental planning and compliance at many facilities. Read More ›

EPA Proposes to Rescind RMP Provisions Amended Under Obama Administration, Seeks Comments

On May 30, 2018, the U.S. Environmental Protection Agency (EPA) published a proposed rule (Proposed Rule) that would rescind the majority of the amendments to the RMP rule that were finalized in January 2017 in the final days of the Obama Administration (RMP Amendments Rule).  Comments on the Proposed Rule are due on or before July 30, 2018. Read More ›

Legal Whipsaw in Washington Sawmill Case: State Supreme Court Decision Fundamentally Changes the Scope of Liability Under the Model Toxics Control Act

On May 24, 2018, in a significant decision with far-reaching implications for cleanups at Washington’s contaminated sites, the Washington State Supreme Court narrowed the scope of “owner or operator” liability under the state environmental cleanup statute, the Model Toxics Control Act (MTCA).  Pope Resources, LP v. Washington State Department of Natural Resources.[1]  The surprising 6-3 decision held:  (1) that a state agency – in this case, the Department of Natural Resources (DNR) – may not be liable as an “owner” under MTCA when it merely acts as a lessor, or property management agent, for a property owned by the state; and (2) that liability as an “operator” under MTCA requires active involvement in the operational decisions at a facility. Read More ›

Major Offshore Wind Projects Advance in Massachusetts and Rhode Island

Commercial-scale offshore wind power may soon become a reality in New England. On May 23, Massachusetts electric distribution companies selected Vineyard Wind, a subsidiary of Avangrid Renewables, LLC, as the preferred provider of 800 megawatts (MW) of offshore wind generation to the Massachusetts power market, and Rhode Island selected Deepwater Wind as the preferred provider of 400 MW of offshore wind generation to the Rhode Island power market. Both companies propose to generate the electricity from wind projects they intend to construct on federal leases on the Outer Continental Shelf offshore of Massachusetts and Rhode Island. Read More ›

California Appeals Court Upholds State’s Reliance On Conclusion By A Foreign Agency To Classify Glyphosate As “Cancer-Causing”

Two courts recently examined California’s regulation of glyphosate, a widely used pesticide ingredient, for its alleged health risks via the state’s Proposition 65 warning program. The decisions are noteworthy for the contrasting approaches that they take with respect to the amount of deference to give to international regulatory actions that are incorporated by reference into U.S. law. Read More ›

Environmental Enforcement Policy Developments: The Trump Administration and Congress Make Their Mark

During the past year, numerous developments have signaled a change in approach to environmental enforcement as it is being conducted by the Trump Administration.  Enforcement continues, in several cases on high profile matters, but there are differences in scope and approach when compared to the prior administration.  Several of these developments are discussed below, followed by a list of key takeaways. Read More ›

Vermont House of Representatives to Consider Pair of Sweeping Toxic Tort Liability Bills

On March 21, 2018, the Vermont Senate approved S.197, a bill that (1) establishes strict liability, jointly and severally, for any person who releases a toxic substance and (2) creates a private right of action for medical monitoring damages related to toxic substance exposure. The Vermont House Judiciary Committee split the bill in two after hearing extensive testimony. The strict liability provisions are now attached to an unrelated bill, S.123, while the medical monitoring provisions remain in S.197. Read More ›

Conflicting District Court Rulings Set up Climate Change Tort Issues for Resolution by the Ninth Circuit

After two judges from the Northern District of California reached different conclusions in similar cases, The Ninth Circuit Court of Appeals will be next to determine whether climate-change-related tort actions may be properly heard in federal court.  As previewed by Beveridge & Diamond in a March 30, 2018 News Alert, the two judges reached contrary decisions concerning the scope of federal jurisdiction over climate-change-related tort actions, thus teeing up the complicated issues of Clean Air Act displacement and federal common law for the Ninth Circuit.  See California v. BP Plc, et al, No. 17-cv-6011 WHA, Memorandum Opinion and Order at *8 (N.D. Cal. 2018) (Alsup, J.); County of San Mateo v. Chevron et al., No. 17-cv-4929 VC, Memorandum Opinion and Order at  2-3 (N.D. Cal. 2018).  Read More ›