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Showing 44 posts by James M. Auslander.

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 ›

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 ›

Fourth Circuit Holds Maryland Ban on Pharmaceutical “Price Gouging” Unconstitutionally Regulates Out-of-State Business Activity, Reinvigorating Extraterritoriality Doctrine of Dormant Commerce Clause

The U.S. Court of Appeals for the Fourth Circuit has struck down a Maryland law banning “excessive” prices for generic drugs, breathing new life into the extraterritoriality prong of the Dormant Commerce Clause that prohibits state and local laws that regulate commerce in other states.  Ass’n for Accessible Medicines v. Frosh,  --- F.3d ----, 2018 WL 1770978 (4th Cir. 2018). Finding that the law attempted to control drug prices set in transactions upstream from consumer sales in Maryland, the court in a 2-1 split invalidated the law, breaking with other circuits that have narrowed the extraterritorial doctrine to only bar express regulations of out of state pricing. Read More ›

New White House Guidance and Multi-Agency MOU Continue Push to Expedite Environmental Reviews and Permitting for Major Infrastructure

The Office of Management and Budget and Council on Environmental Quality, on March 20, 2018, issued a Memorandum instructing federal agencies how to implement the “One Federal Decision” policy established in Executive Order 13807 (the “Memorandum”).  (Click here for an overview of Executive Order 13807.)  In turn, on April 9, 2018, 12 federal agencies executed a Memorandum of Understanding (“MOU”) to implement this policy.  These efforts are intended to streamline National Environmental Policy Act, Endangered Species Act Section 7, and other environmental reviews and permitting decisions.  They represent the most recent attempt, spanning multiple Presidential administrations, to eliminate inefficiencies and delays associated with these environmental reviews and authorizations perceived to impede infrastructure development. Read More ›

DOJ Clarifies Limits on Third Party Payments in Environmental Settlements

In a memorandum issued earlier this month, the U.S. Department of Justice (DOJ) clarified how a policy prohibiting settlement payments to third parties, announced in June 2017,  will apply in cases handled by DOJ’s Environment and Natural Resources Division.  Our prior alert is available here.  When DOJ unveiled the policy last June, it left open a number of questions concerning how the policy might affect settlements in environmental cases.  DOJ’s new memorandum resolves some of these questions, while also indicating how DOJ will implement the policy in environmental cases. Read More ›

Unanimous Supreme Court: WOTUS Rule Challenges Belong in Federal District Courts

In a unanimous opinion, the Supreme Court today held that lawsuits challenging the 2015 rule amending the definition of waters of the United States (WOTUS Rule) under the Clean Water Act (CWA) must be brought in federal district courts because federal courts of appeals lack jurisdiction over those challenges.  The case, National Association of Manufacturers v. Department of Defense, resolves uncertainty over the scope of the CWA’s judicial review provisions.  The Court’s opinion also opens a new chapter in the fight to keep the WOTUS Rule from going into effect. Read More ›

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 ›

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 ›