Enforcement and Litigation

Environment, Health & Safety enforcement and litigation

US EPA periodically issues compliance advisories and enforcement alerts that highlight the agency’s enforcement efforts related to specific regulations and regulatory provisions. One recent EPA enforcement alert targets air emissions from stationary engines subject to the RICE NESHAP under 40 CFR Part 63, Subpart ZZZZ and new source performance standards in 40 CFR Part 60

The Sixth Circuit issued an order on September 9, 2022 granting review of a class certification from March 7, 2022 that certified a class of roughly 11.8 million Ohio residents claiming injuries from per- and polyfluoroalkyl substances, or PFAS.

Background

Filed in 2018 in the Southern District Court of Ohio, the lawsuit alleged the named

Litigation seeking to broaden the application of Pennsylvania’s Environmental Rights Amendment, Pa. Const. art. I, §27 (“ERA”) was rejected on August 6, 2021, when the Commonwealth Court of Pennsylvania dismissed an amended petition for review filed by the Pennsylvania Environmental Defense Foundation (“PEDF”) challenging the Pennsylvania Department of Conservation and Natural Resources’ (“DCNR”) State Forest Resource Management Plan (“SFRMP”).  Pennsylvania Environmental Defense Foundation (“PEDF”) v. Commonwealth, No. 609 M.D. 2019 (Pa. Cwmlth. 2021).

PEDF sought declaratory relief regarding DCNR’s SFRMP published in 2016.  Specifically, PEDF asked the Commonwealth Court to: (1) declare certain statements made by DCNR in the SFRMP in violation of the ERA, and (2) compel DCNR to amend the SFRMP to make it comport with DCNR’s responsibilities to manage the resources consistent with its duties as a trustee under the ERA.  According to PEDF, in 2016, DCNR amended its SFRMP to support management decisions based on economic principles.  PEDF also raised issues related to DCNR’s mission statement regarding extraction and sale of oil and gas for the benefit of DCNR and the Commonwealth.  Additionally, PEDF asked the Commonwealth Court to require DCNR to include an evaluation of the degradation of resources caused by past and present oil and gas development in the SFRMP, and to implement measures into the SFRMP that remedy the alleged degradation.

The Commonwealth Court granted DCNR’s preliminary objections and dismissed all counts.  With respect to the requests by PEDF to declare DCNR is in violation of the ERA based on specific statements in the SFRMP, the Commonwealth Court held that the SFRMP does not create legal requirements or regulations, meaning DCNR is not mandated to take any actions by the SFRMP.  Therefore, the Commonwealth Court found declaratory judgment would be inappropriate.  Similarly, the SFRMP lacked “concreteness” with respect to whether PEDF’s claims were ripe for review.  As such, PEDF’s claims would bring the court into “the realm of speculation and conjecture.”  Finally, the Commonwealth Court determined that the relief seeking general pronouncements of law with respect to DCNR’s statements runs against the proscription against advisory opinions, because there was no justiciable dispute or controversy within the meaning of the Declaratory Judgments Act.  42 Pa.C.S. §§7531-7541.

Continue Reading Court rejects attempt to scrutinize nonbinding state agency policy under Pennsylvania’s Environmental Rights Amendment

The European Commission has opened a consultation on a potential legislative proposal on substantiating green claims made when advertising and marketing products. The proposals are intended to implement one aspect of the European Green Deal which states, among other things, that “Companies making ‘green claims’ should substantiate these against a standard methodology to assess their

The California legislature is sending a bill (SB 1044) to Governor Gavin Newsom that would significantly affect the use of per- and polyfluoroalkyl (“PFAS”) chemicals in firefighting foam.

Specifically, the bill prohibits the manufacture, sale and use of class B firefighting foam containing intentionally added PFAS chemicals.  Class B foams are used to

In a historic act, U.S. EPA proposed the nation’s first-ever greenhouse gas (GHG) emissions standard for aircraft on July 21, 2020. (Proposed Rule). Once the Proposed Rule is published in the Federal Register, the public will have 60 days to submit comments. There will likely be significant push back from environmental groups on the Proposed Rule; so it may be important to provide industry comments, where appropriate. U.S. EPA has stated it is hoping to issue a final rule in 2021.

Continue Reading U.S. EPA takes historic action on aviation emissions

On July 9, 2020, the Fifth Circuit held that the mechanical integrity requirements of the Occupational Safety and Health Administration (OSHA) process safety management (PSM) standard for highly hazardous chemicals applies to emergency stops that would only be activated after a release. The case—Sanderson Farms v. Occupational Safety and Health Review Commission (OSHRC)—centered on the application of the PSM standard’s mechanical integrity element, 29 C.F.R. § 1910.119(j), specifically (1) whether that element applies to emergency shutdown equipment, and (2) the requirements to inspect and test such equipment. Petitioner, Sanderson Farms, Inc. (Sanderson), argued that the mechanical integrity requirements did not apply to emergency stops because they only activate after a release and are therefore responding to another component’s mechanical failure.

Continue Reading Fifth Circuit upholds OSHA’s interpretation of PSM standard

A group of 15 states and the District of Columbia agreed to collaborate on advancing and accelerating the market for electric medium- and heavy-duty vehicles, including large pickup trucks and vans, delivery trucks, box trucks, school and transit buses, and long-haul delivery trucks (big-rigs). The goal of this initiative is to ensure that 100 percent

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?

Continue Reading ICYMI: June sees major U.S. Supreme Court environmental activity