Environment & Energy Insights

Oral Argument in WOTUS at SCOTUS Does Not Provide Anticipated Clarity on Case’s Likely Outcome

Posted by Jeffrey Karp on 10/27/22 12:45 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Supreme Court held oral arguments in the case of Sackett v. Environmental Protection Agency on October 3, 2022. The case, which we discussed prior to the oral arguments,[1] concerns the scope of “waters of the United States” (WOTUS), a key term in the Clean Water Act, and its application to wetlands. The Sacketts seek to build on a wetland on their property near a lake and its tributary, and thus are challenging the Environmental Protection Agency’s determination that the wetland is WOTUS. As discussed below, there appear to be several swing votes, and the Justices’ statements and questions did not provide clarity on the case’s likely outcome.

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SCOTUS to Consider Meaning of WOTUS in Upcoming Term

Posted by Jeffrey Karp on 9/28/22 6:42 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

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August 2022 PFAS Update: U.S. EPA's Proposed CERCLA Rule, New Developments, and Consequences of Drinking Water Health Advisories

Posted by Jeffrey Karp on 9/1/22 11:08 AM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

U.S. EPA Announces Proposed Rule to Designate Certain Compounds as CERCLA Hazardous Substances, New Scientific Developments, and Consequences of U.S. EPA’s Drinking Water Health Advisories

Significant new developments regarding per- and polyfluoroalkyl substances (PFAS) contamination have been announced in recent weeks. The headline federal development occurred on August 26, 2022, with the US Environmental Protection Agency’s (EPA) proposal to designate the PFAS compounds perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Also, following the release of new drinking water health advisories by EPA in June 2022, new scientific studies have found that the problem of PFAS contamination is worse than previously believed. But, these studies also have pointed to potential remedial solutions. Although regulation of PFAS has gradually increased at the federal and state levels, the absence of comprehensive federal regulation has continued to engender disputes concerning the cleanup of PFAS contamination.

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Topics: PFAS, CERCLA, Drinking Water Health Advisories

The Inflation Reduction Act and Other Climate Measures

Posted by Jeffrey Karp on 8/15/22 4:09 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Biden administration has been announcing a new series of actions to address climate change, relying on executive power due to insufficient support in Congress. On July 27, 2022, however, Senators Charles Schumer (D-NY) and Joe Manchin (D-WV) unexpectedly agreed on a bill, the Inflation Reduction Act (“Act”), which would include many provisions intended to reduce greenhouse gas emissions, alongside other policies such as deficit reduction and prescription drug price negotiation. The Senate passed the bill on August 7, 2022, followed by the House on August 12.

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Topics: Climate change, Greenhouse Gas Emissions, Inflation Reduction Act

Chemours Challenges the EPA GenX Drinking Water Health Advisory, with a Surprising Argument: the Nondelegation Doctrine

Posted by Jeffrey Karp on 8/1/22 1:14 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Environmental Protection Agency’s new drinking water health advisories for PFAS, released on June 15, 2022, included an advisory level of 10 parts per trillion (ppt) for hexafluoropropylene oxide dimer acid and its ammonium salt, collectively known as GenX. On July 14, 2022, Chemours, which manufactures GenX, petitioned the United States Court of Appeals for the Third Circuit for review of the GenX health advisory. In its filing, Chemours argued that the health advisory was “arbitrary and capricious” by challenging EPA’s scientific assumptions, but Chemours also made a more radical argument: “The manner in which EPA has used its Safe Drinking Water Act authority to issue health advisories violates constitutional requirements, including the nondelegation doctrine, because EPA has utilized unfettered discretion to publish health advisories,” and had thus affected “the legal rights and obligations of companies, water utilities, and others across the country without sufficient legislative direction or regulatory safeguards.”[1]

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Topics: EPA, GenX, Safe Drinking Water Act

PFAS Update July 2022: Lawsuits, Biosolids Regulation, and New Drinking Water Health Advisories

Posted by Jeffrey Karp on 7/12/22 5:14 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

While the federal government still has not comprehensively addressed per- and polyfluoroalkyl substances (PFAS) contamination, important PFAS-related developments have occurred on three fronts recently. As litigation against PFAS manufacturers continues, its targets and legal theories have broadened. The Commonwealth of Massachusetts filed a new case in May 2022. Also, in March 2022, a federal district court judge ruled in a putative class action lawsuit that a chemical supplier had a duty to third parties under Georgia law. Some state governments have adopted new PFAS regulations, increasingly targeting contamination of biosolids and wastewater. And, although the Environmental Protection Agency (EPA) has not yet issued a binding regulation limiting PFAS in drinking water, its new drinking water health advisories indicate that the agency considers two types of PFAS to be a health risk at much lower concentrations than it previously believed.

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Topics: PFAS, PFAS Strategic Roadmap

U.S. Supreme Court Curtails EPA’s Use of Clean Air Act Regulations to Facilitate Decarbonization of Electricity Markets

Posted by Jeffrey Karp on 7/7/22 2:20 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

On June 30, 2022, the United States Supreme Court struck down the Environmental Protection Agency's (EPA's) Clean Power Plan ("CPP"), limiting the agency's authority to address climate change, in the case West Virginia v. EPA. The decision will inhibit the EPA's ability to significantly limit Greenhouse Gas ("GHG") emissions from the power sector, and is likely to impede the United States' goal of decarbonizing the electricity markets by 2035.

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Topics: clean power plan, Environmental Protection Agency, Clean Air Act

Fertilizer, Food Security, Financial Warfare, and Formula 1

Posted by Caroline Lambert on 3/18/22 12:08 PM

This Sunday on the Bahrain International Circuit, Formula 1 teams will line up for the first grand prix of the 2022 season. There will be a few new faces and different sponsors on the track this year that have sent fans abuzz, but for those of us who also work in the energy, environmental, and sanctions legal fields, the most interesting change of direction is the removal of the Haas F1 team title-sponsor Uralkali and the replacement of Haas’ driver Nikita Mazepin. The cutting of ties with Uralkali and the Mazepins is illustrative of much more than how a professional racing team responds to current events. It is also illustrative of how far-reaching and intertwined financial sanctions are with daily life and the impact and implications of real-world events on worldwide food supplies, the environment, climate-related issues, and of course the Formula 1 season.

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A Case Study of BP P.L.C. v. Mayor & City Council of Baltimore and Its Potential Impact on Other Climate Lawsuits

Posted by Jeffrey Karp on 3/16/22 9:36 AM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

Over the past few years, several state and local governments have filed lawsuits against fossil fuel companies, seeking money damages for the effects of climate change on their jurisdictions.[1] These lawsuits serve multiple potential functions; for example, in addition to the award of damages if successful, they may reveal new information about the companies’ decision-making via the discovery process that may lead to further litigation, and may affect the public perception of climate-related issues.[2]

For the most part, thus far the courts have not had a chance to address the substantive issues because of the lengthy procedural battles that have first occurred concerning whether the lawsuits should be pursued in state or federal courts. The case this article focuses on will therefore be an ongoing one, Mayor & City Council of Baltimore v. BP P.L.C. The procedural questions in this case have resulted in a US Supreme Court decision that has affected other climate change cases recently.[3] But the significance of Baltimore for our purposes is the substantive issues raised in the complaint, the motions to dismiss, and the responses to the motions. They provide a case study of a relatively typical municipal lawsuit against fossil fuel companies, in which both sides have articulated an array of arguments demonstrating the wide range of legal issues involved.

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Anatomy of the Response to Oil-Contaminated Water at a US Naval Base

Posted by Jeffrey Karp on 2/4/22 2:20 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

A November 2021 leak of 14,000 gallons of jet fuel at the US Navy’s Red Hill underground fuel storage facility, at Pearl Harbor on the Hawaiian island of Oahu, contaminated a well providing drinking water, displacing thousands of people and making many sick.[1] In response, in December, the Hawaii Department of Health issued an emergency order requiring the Navy to suspend operations at the facility and drain the fuel tanks there. The Navy began to comply in January 2022, but at the end of the month, it decided to contest the order in the courts.

Background: The Red Hill Fuel Storage Facility

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The Environment & Energy Insights blog analyzes developments in the law, as well as provides updates and perspectives on trends and polices.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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