Environmental & Energy Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Environmental & Energy Litigation Committee’s practice points in this archive.

2020

The Navigable Waters Protection Rule: Streamlining Waters of the United States
By Elizabeth M. Weaver and H. Joseph Drapalski – May 26, 2020
Recent EPA action clarifies scope of “waters of the United States” under the Clean Water Act.

SCOTUS Allows State-Law Remedy Challenge, but Requires EPA Approval for PRPs
By Elizabeth K. Miles – May 4, 2020
Atlantic Richfield v. Christian leaves the door open to state-court jurisdiction over state-law claims that seek a broader remedy than approved by the EPA.

EPA’s Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19
By Karen Aldridge Crawford – April 16, 2020
New EPA guidance provides additional criteria to be considered when determining whether site field work should continue or be suspended.

EPA Issues Temporary COVID-19 Policy on Enforcement
By Karen Aldridge Crawford – March 31, 2020
The EPA will exercise "enforcement discretion" for noncompliance resulting from the COVID-19 pandemic.

Court Grants Summary Judgment in Favor of Two CERCLA Contribution Defendants
By James P. Ray – March 30, 2020
The Lammers Barrel decision provides an interesting analysis of areas that one might normally consider prone to factual disputes.

2019

A Hit and a Miss (Regardless of Which Side You Are On)
By Karen Aldridge Crawford – August 28, 2019
In the last few days, both the regulated community and environmental groups each chalked up one win and one loss.

Valuation of Properties Potentially Impacted by PFAS
By Orell C. Anderson – April 27, 2019
So far, only eight states have numerical PFC standards.

RCRA Citizen Suits: You Must First Provide Notice
By Matthew P. Coglianese – April 9, 2019
What can you do if you have a contaminated piece of property and you would like to have it cleaned up?

Context Defeats Dictionary Definition in Texas Insurance Row
By Jack Edwards – February 1, 2019
A recent case shows the importance of careful drafting of all contracts—not just insurance policies.

2018

EPA Proposes Site for NPL Based Solely on Vapor Intrusion Pathway
By James P. Ray – April 4, 2018
The agency chose to score the Mississippi site under the Hazard Ranking System only on the subsurface intrusion component of the soil exposure and subsurface intrusion pathway.

A Decade Later: Industry Successful in Latest Challenge to 2015 "Verified Recycler Exclusion"
By Karen Aldridge Crawford – March 12, 2018
The D.C. Circuit has handed down an opinion vacating additional portions of the EPA's 2015 rule, severing and clarifying others.

2017

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Lender Beware: Lender Held Liable for Borrower’s Failure to Release Mineral Lease
By Tyler L. Weidlich – September 22, 2017
Gloria’s Ranch should concern oil-and-gas lenders in Louisiana.

ZECs and RECs: A Quick Look at the EPSA v. Star Decision on Nuclear Plant Subsidies
By Frederick M. Lowther – July 20, 2017
The climate change agenda, whether pursued aggressively or with greater measure, will inevitably involve social costs that are real, not imaginary.

EPA Prioritizes and Centralizes Superfund Cleanups
By Elizabeth M. Weaver and H. Joseph Drapalski – June 23, 2017
The EPA’s traditional reliance on its regional offices to take the lead in Superfund cleanups is coming to an end.

Colorado High Court Affirms Award of Expert Fees in Water Case
By Jack Edwards – June 21, 2017
Given the "technical nature" of the case, it was "only natural" the well owners would rely on an expert to explain the case and counter the landowner’s expert.

SCOTUS Reigns in States’ Exercise of General Personal Jurisdiction
By Karen Aldridge Crawford – June 8, 2017
BNSF Railway Co. v. Tyrrell was related to a FELA case for injuries from on-the-job exposure to carcinogenic chemicals while employed by BNSF.

First Circuit Rules Puerto Rico Municipal Ordinances Are Preempted
By Karen Aldridge Crawford – June 8, 2017
The court determined that the ordinances could not be enforced to the extent they directly conflicted with commonwealth law as promulgated by the Puerto Rico Environmental Quality Board.

Controversy and Challenges with EPA’s New Source Performance Standards for Oil and Gas
By Environmental & Energy Litigation Committee – May 15, 2017
Key highlights from the February 22, 2017, webinar.

Trump Administration Orders Narrowing of the Waters of the United States Rule
By Joseph Drapalski – March 8, 2017
Despite the executive order’s decisive language, the legal quagmire surrounding the waters of the United States should remain in place for years to come.

EPA Issues New Directive on Remediation of Contaminated Sediments
By Paul M. Hauge – January 30, 2017
A new memorandum seeks to clarify earlier guidance documents based on the agency’s experience at almost 70 "Tier 1" sediment sites.

2016

Supreme Court Holds Wetlands Jurisdictional Determinations Are Appealable
By Stewart D. Fried – June 1, 2016
Landowners with real property in or near a water of the United States are likely to benefit from the Court's recent decision.

Supreme Court Stays EPA's Clean Power Plan
By Courtney Scobie – February 17, 2016
This is the first time the Supreme Court has ever issued a stay on regulations before an initial review by a federal appeals court.

NY Supreme Court Upholds Decision Voiding Fracking Water Sale Agreement
By Meghan Carter – February 15, 2016
The decision voids a water sale agreement and a lease agreement for failing to comply with state environmental review requirements.

TransCanada Takes Two Separate Legal Actions after Keystone XL Rejection
By Courtney Scobie – February 2, 2016
The company has filed a lawsuit against the U.S. government, and signaled its intent to petition for arbitration against the State Department under NAFTA.

Ohio Supreme Court Holds Lease Not Perpetual, Not Subject to Implied Covenants
By Lyle Brown, Karen Kahle, and Amy Smith – February 2, 2016
This opinion impacts several cases currently pending in Ohio appellate courts.

2015

Obama Administration Rejects Keystone XL Pipeline
By Courtney Scobie – November 17, 2015
TransCanada said it plans to reapply to build the pipeline and is confident the pipeline would eventually be built.

Former BP Engineer Pleads Guilty in Deepwater Horizon Obstruction Case
By Courtney Scobie – November 17, 2015
Mix will serve six months’probation and pay no fine.

Texas and West Virginia Sue Obama Administration over New Clean Air Regulations
By Courtney Scobie – October 28, 2015
The regulations aim to reduce carbon emissions from power plants.

Wisconsin District Court Reconsiders CERCLA Divisibility Decision
By Ted A. Warpinski – October 26, 2015
The motion comes on the heels of the court's May 15, 2015, decision that NCR had successfully established its defense that the PCB contamination in the Fox River was divisible.

EPA Proposes New Methane Regulations
By Jack Edwards – October 15, 2015
The regulations are part of President Obama’s Climate Action Plan to cut methane emissions from the oil and gas industry by 40 to 45 percent from 2012 levels by 2025.

Pipeline Company Wins $32.9 Million Judgment in Contract Case
By Ryan Van Steenis – September 30, 2015
The court based federal jurisdiction on interstate gas pipeline tariffs.

WOTUS Stayed as Tomorrow’s Effective Date "Looms"
By Karen Aldridge Crawford – August 28, 2015
A North Dakota district court granted a preliminary injunction motion by 13 states.

TX High Court Rules for Producer in Natural-Gas-Compression Case
By Christina A. Denmark – July 27, 2015
The court focused on the contract language in finding that a pipeline operator could not deduct compression costs from its payments to the producer, and was not entitled to a five-year extension of their agreement.

SCOTUS Remands EPA's Regulation of Mercury and Other Hazardous Air Pollutants from Power Plants
By Karen Aldridge Crawford – June 29, 2015
The Court ruled that the Mercury Rule must be remanded for consideration of costs as a necessary step in determining whether the regulation is “appropriate and necessary.”

Texas Outlaws Local Fracking Bans
By Courtney Scobie – June 15, 2015
The law is a direct response to the city of Denton’s recently passed fracking ban and immediately went into effect, as it was passed by more than a two-thirds majority in both chambers.

Oil and Gas Industry Permitting under Heightened Scrutiny in 2015
By David M. Loring – April 20, 2015
An update on aggregation.

Arranger Liability Decision from Fourth Circuit Expected Soon
By Geoff Rathgeber – March 20, 2015
The appeal involves the “intent to dispose” standard for arranger liability that the Supreme Court set out in Burlington Northern v. United States.

Nebraska Legislator Proposes Repeal of Eminent Domain Law
By Courtney Scobie – March 18, 2015
The bill would repeal the eminent domain law that Nebraska passed in 2012 to facilitate the building of the Keystone XL pipeline.

Texas Legislature Considering Blocking Cities from Banning Fracking
By Courtney Scobie – March 16, 2015
Several bills would make it difficult, if not impossible, for municipalities to pass outright bans on hydraulic fracturing.

PA Environmental Regulators Propose New Drilling Rules
By Courtney Scobie – March 12, 2015
The proposal would toughen drilling regulations for shale-gas producers.

Obama Vetoes Keystone XL Pipeline Bill; Senate Fails to Override
By Courtney Scobie – March 10, 2015
Republicans have stated that they plan to add Keystone XL to another bill that may be more difficult to veto.

Ohio Supreme Court Prohibits Municipality from Restricting Fracking
By Noah Nadler – March 2, 2015
A recent case supports the notion that state legislatures can prohibit municipalities from placing additional restrictions on drilling by creating a state regulatory scheme governing such operations.

TX High Court Declines to Address Trespass Issue in Wastewater Migration Case
By Christina A. Denmark – March 2, 2015
We can expect additional lawsuits from future plaintiffs claiming neighboring wastewater injections constitute trespass.

TX High Court Decision a Cautionary Tale for Oil and Gas Operators
By Christina A. Denmark – March 2, 2015
Oil and gas operators should now be even more careful to ensure that their regulatory filings are correct and consistent.

CERCLA Update: Cleanup Costs Cannot Be "Sliced and Diced"
By Doug Arnold and Geoff Rathgeber – February 27, 2015
Courts will not entertain arguments that certain cleanup costs were incurred “voluntarily” as a means to “repackage” a section 113 claim into a section 107 claim.

Interior Department Proposes Drilling off Atlantic Coast
By Kristen W. McDanald – February 25, 2015
The Obama administration unveiled an Outer Continental Shelf Oil and Gas Leasing Draft Proposed Program, garnering criticism from industry supporters and environmentalists alike.

CA Court Issues Important Decision on Underground Regulations
By Damien M. Schiff – February 18, 2015
The court of appeal’s decision in CARF will have important impacts not just on the recreational-fishing industry, but also on all citizens who may be subject to the regulatory jurisdiction of California administrative agencies.

Federal Court Rules Local Fracking Ban Unconstitutional
By Tyler L. Weidlich – February 6, 2015
Judge James Browning ruled, at the outset, that the New Mexico ordinance violated the Supremacy Clause of the U.S. Constitution by attempting to discard protected rights of corporations.

NJ Supreme Court: No Time Limits to Spill Act Contribution Claims
By Kevin J. Bruno and Kevin R. Doherty – February 5, 2015
The court's decision in Morristown Associates v. Grant Oil Co. once and for all closes the door on the statute-of-limitations defense.

Three Shell Affiliates Fined by EPA for Violating Clean Air Act
By Courtney Scobie – January 28, 2015
Motiva Enterprises LLC, Equilon Enterprises, and Deer Park Refining Limited Partnership have agreed to pay a $900,000 civil penalty.