UPDATE – Regulatory Relief in the Environmental Arena Lags Behind

After several national trade organizations, such as the American Petroleum Institute, petitioned EPA for regulatory relief during the COVID-19 crisis, EPA provided some relief on March 26, 2020. Susan Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum to “all governmental and private sector partners” announcing that EPA “will exercise [its] enforcement discretion … if regulated entities take the steps applicable to their situations, as set forth in this policy.” For noncompliance that occurs during the time the policy is in place, the policy announced in the memorandum “will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy.”

Importantly, the policy is retroactive to March 13, 2020. EPA will apply the policy to actions, inactions, or omissions that occur while the policy is in effect even after the policy terminates.

Although the policy announces that EPA will utilize its enforcement discretion, it placed numerous conditions on the application of that discretion. A failure to meet the necessary conditions will likely result in an enforcement action by EPA. If you need help and assistance regarding compliance obligations during the COVID-19 crisis, please contact us or seek other legal assistance. Continue reading “UPDATE – Regulatory Relief in the Environmental Arena Lags Behind”

Regulatory Relief in the Environmental Arena Lags Behind

At this time, the primary environmental regulatory agencies have done very little to assist regulated entities address the impacts of COVID-19 on personnel and compliance. While the governors urge or mandate that people stay at home, EPA, the Louisiana Department of Environmental Quality (LDEQ), and Texas Commission of Environmental Quality (TCEQ) have, for the most part, not relaxed monitoring and reporting requirements. However, the American Petroleum Institute (API) has petitioned EPA for regulatory relief.

In Texas, Governor Abbott has urged people to stay at home but, as of this writing, has not issued an order. In Louisiana, though, Governor Edwards did issue an order on March 22, 2020. Proclamation No. 33 JBE 2020. It states that “all individuals … are under a general stay-at-home order and are directed to stay home unless performing an essential activity.” To determine what is an essential activity, the Governor adopted the Department of Homeland Security’s guidance issued through the Cybersecurity & Infrastructure Security Agency (CISA). See www.cisa.gov/identifying-critical-infrastructure-during-covid-19. Continue reading “Regulatory Relief in the Environmental Arena Lags Behind”

Are SEPs On Their Way Out?

The US Department of Justice announced it will no longer include environmental projects in settlements of environmental cases in which civil penalties are sought. This decision casts great doubt on the future of Supplemental Environmental Projects, or SEPs. Over the years, SEPs have been popular with EPA and industry, proven valuable in settling cases, and directed resources in a manner that benefits the environment.

In its 2015 Update of its SEP Policy, EPA defined a SEP as “an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.” The project goes beyond what could legally be required in order for the defendant to return to compliance and secures environmental and/or public health benefits in addition to those achieved by compliance with applicable laws. Continue reading “Are SEPs On Their Way Out?”

The Scope of Jurisdictional Waters Has Been Narrowed

Image result for water clipartNearly three years after issuing an executive order on the subject, the Trump Administration has finalized the Navigable Waters Protection Rule to narrow the scope of waters subject to federal regulation under the Clean Water Act.

In 2015, the Obama Administration finalized the Clean Waters Rule which generally expanded the jurisdiction of EPA and the Corps of Engineers over “waters of the United States.” The rule was challenged in district and appellate courts throughout the country. After various court rulings, including one by the Supreme Court, the Clean Waters Rule became effective in only about half the states, creating a patchwork of regulation. Upon assuming office, President Trump issued an executive order in which he directed that a new rule be considered which mirrored the more limited jurisdictional view announced by Justice Antonin Scalia in prior rulings. Not surprisingly, the Navigable Waters Protection Rule adopts the narrower view.

Continue reading “The Scope of Jurisdictional Waters Has Been Narrowed”

EPA Rescinds Major Provisions in Obama-Era RMP Rule

The Trump administration has rescinded and modified several major provisions in the Risk Management Program (RMP) rule that was added in the closing days of the Obama administration.

The Obama administration initiated the amendments to the RMP rule in the wake of the April 2013 West Fertilizer Co. explosion in West, Texas. President Obama issued Executive Order 13650, which called for enhanced information collection and sharing and modernization of rules and regulations. Following the issuance of the Executive Order, the EPA proposed amendments to the RMP rule in March 2016. After the proposal, the Bureau of Alcohol, Tobacco, Firearms, and Explosives concluded the West Fertilizer Co. explosion was not an accident but caused by arson. Nevertheless, the EPA moved forward, finalizing the amendments in January 2017.

Continue reading “EPA Rescinds Major Provisions in Obama-Era RMP Rule”

New York’s Case Against Exxon Fails Miserably

In a ruling that will likely have implications for climate change litigation across the United States, a state judge in New York has dismissed the New York Attorney General’s suit against ExxonMobil Corporation. The 55-page opinion issued by Jude Barry Ostrager is a scathing rebuke of the AG’s case.

Over the three and one-half years of investigation and legal proceedings, Exxon produced millions of pages of documents and dozens of people were deposed or interviewed. The AG made several claims against Exxon in the original petition, which Judge Ostrager called “hyperbolic.” At trial, the AG claimed that Exxon committed equitable and common law fraud and otherwise violated certain state laws, including the Martin Act which generally relates to misrepresentations associated with the sale or distribution of stocks or securities. The trial lasted twelve days and eighteen witnesses testified. Continue reading “New York’s Case Against Exxon Fails Miserably”

Objective Facts About Cancer In Louisiana’s Industrial Corridor

Locating along the Mississippi River in Louisiana provides a great deal of advantages to petrochemical facilities, such as access to natural gas and a global transportation network. These advantages have created an Industrial Corridor in the Louisiana parishes along the river, such as Ascension, East Baton Rouge, Iberville, St. Charles, St. James, St. John the Baptist, and West Baton Rouge.

One claim that is repeatedly made in opposition to new facilities or facility expansions is that people residing in the Industrial Corridor have a greater incidence and mortality from cancer. However, objective data contradicts these claims and establishes that cancer rates and deaths are lower than, or there is no significant difference from, the rest of the state. Continue reading “Objective Facts About Cancer In Louisiana’s Industrial Corridor”

The 2015 WOTUS Rule Is Repealed

The EPA and the Corps of Engineers have taken the first of two steps to repeal and replace the definition of ‘waters of the United States’ promulgated by the Obama Administration in 2015 (the 2015 Rule).  The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act to regulate navigable waterways, tributaries, and their adjacent wetlands.  The 2015 Rule had been widely criticized as being overly expansive because more waterways, tributaries, and wetlands were considered to be subject to jurisdiction.

When it was published, the 2015 Rule spawned lawsuits in multiple district courts and appellate courts, ultimately resulting in a patchwork of regulation.  In 22 states, the 2015 Rule applied, but in the rest of the states, the pre-2015 rule applied.  When the Trump Administration took office, it vowed to repeal the 2015 Rule (Step One) and replace it (Step Two) with a new definition that would clearly define where federal jurisdiction begins and ends in accordance with the CWA and Supreme Court precedent.  The Step Two proposal for a new definition was published in December, 2018. Continue reading “The 2015 WOTUS Rule Is Repealed”

The Upcoming Battle Over Water Quality Certifications

Section 401 of the Clean Water Act (CWA) states that a federal agency may not issue a permit to conduct any activity that may result in any discharge into waters of the U.S., unless the state where the discharge would originate either issues a water quality certification or waives the certification requirement. Under Section 401, an applicant for a federal permit must submit a request for a certification to the state, which has a reasonable period of time (not more than a year) to grant the certification, grant the certification with conditions, deny the certification or waive the opportunity.

Congress enacted Section 401 as an exercise in cooperative federalism to allow states to help protect the water quality of federally regulated waters within their borders in collaboration with federal agencies. In recent years, though, several states that oppose the construction of natural gas pipelines have denied Section 401 certifications or used Section 401 to delay the issuance of the federal permit. For example, upon submittal of the certification request, the state would request more and more information to avoid the beginning of the review timeframe.

Continue reading “The Upcoming Battle Over Water Quality Certifications”

A Few Hurdles to Facility Siting

A modern industrial facility requires a large tract of land ideally located in an area designated for industrial use that has access to an existing transportation matrix for raw materials and products. In Louisiana, for example, the industrial corridor along the Mississippi River offers ready access to natural gas pipelines, rail transportation, and barge and ship loading and unloading.

However, when such large tracts are available, there is inevitably a community within a mile or two of the proposed location. Further, local governments in these communities are increasingly enacting ordinances that mandate local approval of facilities. These two developments present hurdles to successfully obtaining the necessary authorizations to begin construction. Continue reading “A Few Hurdles to Facility Siting”