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Following on from our recent post regarding Environmental Protection Agency (EPA) policy and the controversy surrounding it , on May 13, 2020, seven states brought an action in the Southern District of New York against the EPA to challenge the agency policy under which the EPA has stated it “will not” enforce a wide range

Post COVID-19 stay-at-home orders (SAHO) – and as we go back to “normal” – what is the likelihood of a sudden resurgence in new or deferred Superfund cleanups, and associated construction?

It is impossible to ignore that fact (and EPA must be aware of it) that construction jobs can and will be important to economic recovery. Construction work provides good, well-paying jobs, which will be critical to restarting the economy, and that is paramount. EPA, especially Office of Land and Emergency Management,  will recognize they have a key role to play in those efforts.Continue Reading Companies Beware: Will EPA ramp up mandated ‘clean up’ as part of perceived economic ‘stimulus’ package?

1) Superfund deals don’t block state-law claims

On April 20, 2020, the Supreme Court of the United States (SCOTUS) issued an opinion allowing Montana residents to maintain state-law claims against a company for a Superfund site that is already covered by a settlement agreement with the U.S. Environmental Protection Agency (EPA).Continue Reading ICYMI: Major April U.S. Supreme Court Environmental Decisions

On April 15, 2020, a federal district court in Montana issued an order vacating the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12 under the federal Clean Water Act (CWA) due to the Corps’ failure to meet its obligations under the federal Endangered Species Act (ESA). The court remanded NWP 12 to the Corps for compliance with the ESA. In the meantime, however, the court prohibited the Corps from permitting “any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.”Continue Reading Montana federal court vacates Nationwide Permit 12 for pipelines and other linear projects

The Pennsylvania Department of Environmental Protection (DEP) announced that it will continue to enforce all environmental laws and regulation for the duration of the state’s COVID-19 disaster duration. This policy takes a much stricter stance on environmental obligations than the U.S. Environmental Protection Agency’s (EPA) temporary policy of enforcement discretion issued on March 26, 2020. Where the EPA will not pursue penalties for certain violations and failures to meet environmental obligations, DEP announced that “[a]ll permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.”

Despite this seemingly hardline approach, DEP does offer some guidance to businesses facing challenges during the COVID-19 crisis.Continue Reading Pennsylvania continues to enforce all environmental laws and regulations during COVID-19 pandemic

The Texas Commission on Environmental Quality (TCEQ) announced that it will exercise enforcement discretion on a case-by-case basis as opposed to the EPA’s broader temporary enforcement policy issued on March 26, 2020.

Under its more tailored approach, the TCEQ has not relaxed any limits on air emissions or discharges to water. Similarly, the TCEQ has not relaxed any reporting requirements related to emissions or discharges exceeding those limits. The TCEQ continues to monitor and ensure safe drinking water and safe management of waste.Continue Reading TCEQ implementing a more tailored case-by-case enforcement policy than the U.S. EPA in response to COVID-19

As governments and health authorities institute increasingly strict responses to COVID-19, companies worldwide face unprecedented challenges in meeting their otherwise “business as usual” contractual and regulatory obligations. While these challenges span all areas of business, this post focuses on particular environmental obligations and associated risks.

The U.S. Environmental Protection Agency (EPA) recently instituted a temporary enforcement discretion policy, in keeping with which the agency will not seek penalties for certain violations. As part of this policy, the EPA encourages companies to make use of force majeure provisions in consent decrees and settlement agreements. However, contractual obligations between two private parties are not covered by the EPA policy, leaving companies struggling to find how to: a) utilize a force majeure provision to their advantage; and b) block counter-parties from claiming force majeure against the companies’ business objectives, or mitigate the impact of such claims.Continue Reading COVID-19 induced force majeure applied to environmental obligations

In response to the backlash regarding the EPA’s implementation of a temporary enforcement discretion policy, the EPA administrator, Andrew Wheeler, described the temporary policy as “very mild” in comparison to the agency’s actions in prior crises.

On March 26, 2020, the EPA issued a memorandum implementing a temporary enforcement discretion policy due to the coronavirus pandemic. Under the policy, the EPA will not seek penalties for certain missed environmental obligations.

The EPA’s policy received mixed reactions from both states and environmental groups. While some states have issued their own enforcement discretion policies, other states, like New York and California, have stated that they will continue to enforce environmental obligations and implement rules.  Similarly, environmental groups are not pleased with this temporary policy. Erik Olson, an attorney with the Natural Resources Defense Council, described the policy as similar to “a bank turning off all of its security cameras and all of its alarms and then telling people ‘please be good.’”Continue Reading EPA responds to criticisms of its new temporary enforcement discretion policy