Monthly Archives: March 2012

The decision last week by Judge Amy Berman Jackson – an Obama appointee – to reject EPA’s authority to withdraw its “specification” which authorized the Army Corps of Engineers to issue a § 404 permit to the Mingo Logan Spruce No. 1 mine would be important in its own right. In combination with the recent Supreme Court decision in Sackett,… More

On Tuesday, EPA announced release of its proposed New Source Performance Standards for carbon pollution from new power plants. I’m feeling like a broken record here. Everyone’s acting on rational motives (if not rationally), but the result remains, to put it mildly, suboptimal. On the paramount environmental issue of the day, we’re going about it all wrong, when we know that there is a better way.

I cannot really blame EPA or the environmentalists. … More

The auction held last Wednesday, March 14th, by the Regional Greenhouse Gas Initiative (RGGI) was the fifteenth held so far — making it seem far from novel —  but as we highlighted in January, this first auction of RGGI’s second compliance period could provide interesting insight into the future of the program.   

According to the market monitor report, 21.5 million (62%) of the 34.8 million allowances offered for sale by the 9-state group sold at last week’s auction,… More

In its unanimous decision yesterday in Sackett v. EPA, the Supreme Court’s communicates more than a little exasperation with its co-equal branches of government. Justice Alito’s concurrence is an outright broadside attacking Congress for failing over decades to clarify the scope of the Clean Water Act which enabled the Executive Branch in the form of an arrogant EPA to employ what Justice Scalia in the majority opinion describes as the “strong-arming of regulated parties”.… More

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.

The first is what will happen to CWA enforcement. On that score,… More

2012 is shaping up to be the Year of the Commerce Clause. Not only is the Commerce Clause at the center of the Supreme Court ‘s impending review of the Affordable Care Act later this spring; it is also at the heart of a statement made by a federal district judge in Voggenthaler v. Maryland Square, LLC that the Constitution bars the application of RCRA’s citizen suit provision in the case of a local groundwater contamination plume:

The central issue in this case is an alleged contamination plume located in Las Vegas,… More

Last week, the Geneva Association, which describes itself as “the leading international insurance think tank for strategically important insurance and risk management issues,” issued a report entitled “Extreme events and insurance: 2011 annus horribilis.” Quick take-away? Insurance losses are growing. Why? While there were large earthquakes in 2011, the bigger long-term concerns are extreme weather events and an increasing number of people and resources located in areas subject to such events.… More

Late last week, the New Jersey Department of Environmental Protection adopted a rule providing itself with the authority to waive environmental regulations in limited circumstances. According to the Daily Environmental Report, opponents of the regulation immediately attacked the rule, saying that it

is an attack on environmental protections and will open up New Jersey’s regulatory system to pay-to-lay. This rule will not only undo 30 years of environmental protections but will create more pollution,… More

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging appropriate flexibility in complying with NEPA. I’m not sold.

In fairness,… More

Over the first two decades of CERCLA, the rule gradually emerged that parties which settled their liability were restricted to contribution claims under Section 113(f)(1) and would be entitled to contribution protection under Section 113(f)(c)(2). Moreover, in order to ensure the effectiveness of that settlement scheme, courts routinely ruled that claims against settling parties were all barred by contribution protection regardless whether those claims had been asserted in the form of direct CERCLA cost recovery claims under Section 107 or as common law tort claims for negligence,… More

Yesterday, MassDEP released its Final Action Plan for Regulatory Reform. It pretty consistent with the draft package I summarized last October. There is some good stuff in the package, but it really is baby steps. MassDEP’s own ground rules precluded the adoption of any changes that could not be described as Pareto improvements– If any stakeholder would be made worse off,… More

Arguments about liability for the sale of “usable wastes” are as old as Superfund. The fact patterns involving the sale of usable wastes can be varied; however, the cases seem to be governed by the following simple but never explicitly stated rule: a party will be held liable if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance.… More