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Showing 9 posts by Andrew C. Silton.

Replacement of the Clean Water Rule to Be a Two-Step Process

The Environmental Protection Agency and Army Corps of Engineers announced yesterday that the implementation of President Trump’s executive order directing EPA and the Corps to replace the Clean Water Rule will be a two-step affair.  The first step, contained in a pre-publication proposed rule issued by both agencies, will rescind the Clean Water Rule and restore the definition of “waters of the United States” (“WOTUS”) that was in place before EPA and the Corps issued the Rule in 2015.  In step two, which will occur at some future date, EPA and Corps will propose a new, narrower WOTUS definition.  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 ›

Fourth Circuit: CWA Permit Shield Requires Compliance with Incorporated Quality Standards

A recent Fourth Circuit decision will have wastewater dischargers taking a closer look at their NPDES permits and state water quality standards. The court of appeals held, in Ohio Valley Environmental Coalition v. Fola Coal Co., No. 16-1024, that permit language incorporating state water quality standards required compliance with all such standards, including narrative standards not reflected in the permit’s effluent limits.  As a consequence, a source can only be assured that it is shielded from liability under the CWA if its discharges comply with both (a) effluent limits in the NPDES permit and (b) any water quality standards—even narrative standards—that the permit incorporates.  The decision raises questions about potential exposure and how to approach permit writers in the future. Read More ›

First-Ever Federal Labeling Requirements for Bioengineered Foods Signed Into Law

On July 29, President Obama signed into law a bill establishing first-ever federal requirements for the labeling of food containing genetically engineered ingredients.  The bill, known as S.764, directs the U.S. Department of Agriculture (USDA) to issue rules to establish mandatory labeling requirements for so-called “bioengineered foods.”  In preparing its new regulations, USDA must determine the threshold levels of a bioengineered substance that will subject a food to the labeling requirements and develop a process for manufacturers and others to obtain a determination from the Agency concerning the status of a given food item under the new program. USDA must issue these rules within the next two years, and food manufacturers, technology developers, and other interested parties are expected to have opportunities to submit comments throughout the rulemaking process. Read More ›

Cosmetic Safety Legislation Introduced, Again

In what is the latest in a line of Congressional proposals to beef up the federal government’s authority to regulate cosmetics, Senator Dianne Feinstein (D-CA), has proposed a bill aimed at dramatically increasing Food and Drug Administration (FDA) oversight of the chemicals found in cosmetics and personal care products.  The Personal Care Products Safety Act , S. 1014[1] mirrors past proposals considered by Congress,[2] albeit with a number of differences from past bills. The bill, which would make substantial revisions to the Federal Food, Drug, and Cosmetic Act (FFDCA)[3] chapter on cosmetics, was proposed on April 20, 2015, and referred to the Committee on Health, Education, Labor, and Pensions. Read More ›

Pennsylvania Federal Court Rejects Early Lone Pine Motion in Oil and Gas Nuisance Suit

A federal district court in Pennsylvania cautioned against premature Lone Pine motions in a ruling that may be instructive for future lawsuits involving oil and gas exploration and production operations.  See Russell v. Chesapeake Appalachia, LLC, No. 4:14-cv-00148 (M.D. Pa. Mar. 2, 2015).  Plaintiffs, owners and residents of property situated near Defendant’s gas exploration and extraction operations, filed a complaint in state court alleging nuisance, negligence and negligence per se.  Defendants removed the case to federal court, and after filing their answer, renewed an earlier motion for a Lone Pine order. Read More ›

Pennsylvania Federal Court Strikes Class Allegations in Air Pollution Suit

Underscoring the requirement that class action plaintiffs clearly and objectively define the putative class without reference to the underlying merits of plaintiffs’ claims, a federal district court in Pennsylvania struck class allegations from a complaint in a suit against a power plant. See Bell v. Cheswick Generating Station,No. 12-929, (W.D. Pa. Jan. 28, 2015).  The case was back in district court after the Third Circuit reversed the trial court’s dismissal, ruling that the Clean Air Act did not preempt Plaintiffs’ claims.  See Bell v. Cheswick Generating Station, 734 F.3d 199 (3d Cir. 2013).  (Our previous coverage of this case is available here and here.) Read More ›

Texas Supreme Court Holds Plaintiffs Must Prove Lack of Consent in Trespass Suits

Potentially making it more difficult for plaintiffs to prevail on trespass claims in Texas, the Supreme Court of Texas held for the first time that a plaintiff bears the burden of proving the lack of consent in a suit for trespass. See Envtl. Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905 (Tex. Feb. 6, 2015).  Plaintiffs filed suit against their neighbor, alleging that Defendant’s underground wastewater injection was causing wastewater to migrate into the subsurface of Plaintiffs’ property.  After a prior set of appeals and a trial, a jury returned a take-nothing verdict in favor of Defendants, and further appeals followed.  Read More ›

China Proposes Framework for Public Participation in Environmental Policymaking, Enforcement

China’s Ministry of Environmental Protection (MEP) has proposed “Measures for Public Participation in Environmental Protection (Trial)” (Measures), which lay out a variety of mechanisms for public participation in environmental lawmaking, policy, and enforcement. The proposed Measures characterize the (1) activities in which the MEP and other environmental protection departments (“departments”) would seek public participation, (2) mechanisms for public participation, and (3) manner in which the public may participate in environmental oversight and enforcement. The MEP solicited comments on the Measures through April 20, 2015. Read More ›