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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Showing 37 posts by James M. Auslander.

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 ›

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 ›

Maryland Takes Key Step for Offshore Wind

On May 11, the Maryland Public Services Commission (PSC) issued $1.9 billion in Offshore Wind Renewable Energy Credits (ORECs) to two prospective offshore wind developers, effectively ensuring a market for any electricity generated from their federal wind leases off Ocean City, Maryland.  If constructed, the planned projects, capable of generating 248 megawatts (MW) and 120 MW, would dwarf the capacity of the 30-MW capacity Block Island project off the coast of Rhode Island, which is the only current offshore wind facility in the United States.  Maryland’s issuance of ORECs is the first in a long line of necessary state and federal regulatory approvals, but signals Maryland’s commitment to generating energy from offshore wind and is regarded as essential to project planning and finance. Read More ›

Executive Order Charts New Path For Offshore Energy Development

On April 28, 2017, the Trump administration issued an Executive Order entitled “Implementing an America-First Offshore Energy Strategy.”  This EO calls for expanded oil and gas leasing in areas of the U.S. Outer Continental Shelf (OCS) that were recently placed off-limits to energy development, and instructs several federal agencies to reevaluate and possibly reverse recent regulations imposed on the offshore oil and gas industry.  If fully implemented, the EO would clear the way for expanded and expedited development of OCS energy resources.   Read More ›

EPA Initiates Reviews of Three Clean Air Act Regulations, Following President Trump’s “Promoting Energy Independence and Economic Growth” Executive Order

A week after President Trump signed an Executive Order directing agency review of various energy-related regulations (see March 28, 2017, B&D alert here), the Environmental Protection Agency (EPA) announced that it is initiating review of three such regulations under Clean Air Act.  The announcements were published on the Federal Register on April 4, 2017. Read More ›

Interior Secretary Immediately Implements President’s Executive Order on Energy and Climate

New Secretary of the Interior Ryan Zinke wasted no time implementing the mandates of the Trump Administration’s most recent Executive Order (EO), “Promoting Energy Independence and Economic Growth,” which was issued on March 28.  For a summary of that EO, click here.  On March 29, the Secretary issued two Secretarial Orders (SO) implementing the March 28 Order, and took additional administrative action consistent with its mandates.  Separately, the Secretary has reinstated a public-private advisory committee to address royalty issues. Read More ›

New Executive Order Creates a Changed Climate for Climate Change and Energy

On March 28, 2017, President Trump signed an Executive Order entitled “Promoting Energy Independence and Economic Growth” (EO).  This latest EO aims to further incentivize domestic energy production, particularly coal, oil and gas, by rolling back regulations and guidance premised on climate change considerations.  If fully implemented, it would have noticeable and substantive impacts on EPA, Interior, and other agency programs.  Yet it remains to be seen how quickly or effectively the stroke of the President’s pen will translate into on-the-ground actions, and to what extent it may yield opportunities or challenges for energy and natural resources project development.  In the interim, the EO sets in motion several energy-based initiatives across multiple agencies warranting close monitoring and active participation. Read More ›

Early Presidential Actions to Expedite Infrastructure and Domestic Manufacturing

On January 24, 2017, President Trump issued an Executive Order and a Presidential Memorandum aimed at streamlining environmental reviews and permitting for infrastructure projects and domestic manufacturing.  These actions echo efforts in prior administrations to achieve similar goals, and if aggressively implemented have the potential to significantly reduce lead times and increase certainty for large-scale infrastructure projects and manufacturers seeking federal approvals. Read More ›

Beveridge & Diamond Secures Trial Win for City of Los Angeles, Striking Down Biosolids Ban on Two Constitutional Grounds

Following a two week bench trial prosecuted by Beveridge & Diamond Principals Jimmy Slaughter and Jamie Auslander and California based counsel Michael Lampe, the Tulare County, California Superior Court has struck down a voter initiative passed in 2006 in Kern County that banned the land application of biosolids (treated municipal wastewater sludge) to farmland in Kern County. Judge Lloyd Hicks wrote in a 48 page opinion that that Measure E “is invalid and void for all purposes, for the dual reasons that it exceeds Kern’s police power authority and is preempted by state law.” City of Los Angeles v. Kern County, 2016 WL 7175653, 2016 Cal Super Lexis 9727 (Tulare Co. Super. Ct. Nov. 28, 2016).  The case is believed to be the first trial focused on the benefits and safety of recycling biosolids to farmland, a practice used by many of America’s largest cities for decades.  Read More ›

Supreme Court Again Sinks Government on Wetlands

If only Vegas betting were this easy.

A few months ago, we (and most everyone else not working at the Justice Department) predicted that the Supreme Court would rule that property owners seeking to develop potential federal wetlands on their property may immediately challenge in federal court approved jurisdictional determinations (“JD”) by the U.S. Army Corps of Engineers. The government had countered that JDs are not final agency actions.  Instead, recipients must either await denial of a Clean Water Act Section 404 wetlands permit after a lengthy and expensive administrative process, or proceed to fill wetlands at their own risk.  The federal appellate courts had split on this issue. Read More ›