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Court Rules DOJ Enforcement Directive Arbitrary and Capricious

A U.S. District Court in Arizona has ruled that DOJ’s narrow interpretation of the requirements for a criminal misdemeanor under the Endangered Species Act went beyond unreviewable prosecutorial discretion, and its policy was...more

Tenth Circuit Reverses Ruling Limiting Endangered Species Act Jurisdiction Over Intra-State Species

The Tenth Circuit U. S. Court of Appeals dashed the hopes of property rights activists by overturning a district court decision that the Fish and Wildlife Service (FWS) had no jurisdiction under the Endangered Species Act...more

On Remand from Supreme Court, Hawkes Wins Challenge to Army Corps’ Wetland Determination

As described on this site last year, the Supreme Court first affirmed the right to challenge wetlands jurisdictional determinations by the Army Corps of Engineers. On remand, plaintiff Hawkes Company, a peat mining company...more

Pennsylvania Federal Court Decides a Novel CERCLA Issue: When Is the Current Owner Not the Current Owner?

The U.S. District Court for the Eastern District of Pennsylvania issued a decision on an aspect of CERCLA for which it found almost no prior court precedent – the temporal aspect of the term “current owner or operator” –...more

State Water Board Cleans Up Its Water Quality Enforcement Policy

On August 4, 2016, the California State Water Resources Board (State Water Board) issued a draft rule amending its 2010 Water Quality Enforcement Policy. The proposed amendments are intended to provide additional clarity,...more

Ninth Circuit Rejects Application of CERCLA to Aerial Emissions

In the long-running saga of efforts by the State of Washington and the Confederated Tribes of the Colville Reservation to attach CERCLA liability to a smelter in British Columbia, the smelter owner, Teck Industries, won a...more

7/29/2016  /  CERCLA , Motion to Dismiss , RCRA

Fish and Wildlife Service Supports Renewable Developers and Proposes Revised Eagle Incidental Take Permit Reviving 30-Year...

On May 4, 2016, the United States Fish and Wildlife Service (FWS) released a draft rule and Programmatic Environmental Impact Statement (PEIS) analyzing the impact of the proposed rule on eagles, and extending the duration of...more

Could the US Be “Aiding and Abetting” Cape Wind MBTA Violations?

In the latest legal wrangling over the long-delayed Cape Wind Associates’ wind farm off Nantucket, during oral argument judges on the DC Circuit suggested that by permitting the wind farm, the US might be aiding and abetting...more

DOJ Signals More Aggressive Stance On Environmental Crimes

The Department of Justice announced on December 17, 2015, that it would intensify enforcement of environmental and safety laws by adding in environmental criminal counts to worker safety prosecutions. The worker safety issues...more

Passive Owner Fined Nearly $160MM for DWH Spill

One unanswered question from the Deepwater Horizon litigation was the Clean Water Act civil penalty liability that would be imposed – or not – on Anadarko Petroleum, a passive owner of a 24% interest in the BP lease. On...more

BP has settled its Clean Water Act penalty claims, but important questions remain to be decided

The United States and BP lodged their proposed settlement of the remaining claims by the US in connection with the Deepwater Horizon explosion and spill with the US District Court today. Comments to the Justice Department are...more

Corporate Wrongdoing: More Civil and Criminal Liability for Individuals?

The US Department of Justice has issued a memorandum to all of its prosecuting Divisions, directing changes to the principles applied by DOJ in prosecuting civilly or criminally individuals who engage in corporate misconduct....more

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty...more

Windfarm Industry Suffers Setback as Court Rejects 30 Year Eagle Permit Rule

On August 11, 2015, a district court in Silicon Valley remanded a U.S. Fish and Wildlife Service (FWS) rule issued in 2013 that had extended the potential term of incidental take permits under the Bald and Golden Eagle...more

Creative Lawyering In RCRA Criminal Action Fails to Find Favor with the Ninth Circuit

The Resource Conservation and Recovery Act, the federal law that regulates management of hazardous waste, is complicated and compliance can be tricky... but not impossible. Our experience is that good faith efforts to comply...more

July 1 Deadline for General Industrial Stormwater Permits in California

Beginning July 1 of this year, there’s a new program in town! A new general industrial stormwater permit kicks in in California. Companies with an existing stormwater permit will have to apply for a new permit, and prepare a...more

USFWS Launches New Regulatory Program Under the Migratory Bird Treaty Act

The US Fish and Wildlife Service issued a Notice of Intent to prepare a Programmatic Environmental Impact Statement (PEIS) to evaluate the potential environmental impacts of an incidental take program under the Migratory Bird...more

Court at the Fox River Site Opens Door to Superfund Divisibility

On May 19, a district court ruled that a company had established divisibility for its liability at a major downstream segment of the Fox River mega-site in Wisconsin, capping its liability for that segment at 28%. This same...more

Ninth Circuit Rejects CERCLA Settlement, Declines to Give Deference to State Agency

On August 1, 2014, a divided panel of the Ninth Circuit reversed a district court’s approval of a multi-party settlement at an Arizona waste site. State of Arizona v. Ashton Company Incorporated Contractors and Engineers, et...more

8/6/2014

Fifth Circuit Rejects Application of Sackett to Corps’ Jurisdictional Determination

In Belle Company, LLC et al v. USACE, No. 13-30262 (July 30, 2014), the Fifth Circuit rejected an effort to apply the Supreme Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), to a determination by the Army Corps of...more

Comment Period Extended on Expansion of Critical Habitat Rules

The Fish and Wildlife Service and National Oceanic and Atmospheric Administration announced last week that they are extending the deadline for comments on new critical habitat rules from July 11 to October 9, 2014. The...more

Fish and Wildlife Announces In-Depth Review of Eagle Management Policy

The U.S. Fish and Wildlife Service announced last week that it intended to conduct either a NEPA environmental assessment (EA) or an environmental impact statement (EIS) concerning its bald and golden eagle management...more

One Step Closer… Fifth Circuit Affirms BP Loss on CWA Liability Regarding Gulf Spill

The Deepwater Horizon spill in the Gulf of Mexico occurred over four years ago, accompanied by numerous stories trumpeting the fact that BP would likely pay as much as $25 billion to the United States in civil penalties...more

EPA Proposes to Amend All Appropriate Inquiries Rule to Remove References to 2005 ASTM Standard for Phase 1 Assessments

Yesterday, the EPA published for comment notice of its intent to amend the “All Appropriate Inquiries Rule,” 40 CFR part 312, to remove references to ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase...more

Statutes of Repose Unaffected by CERCLA Requirement that State Law Incorporate Discovery Rule in Statutes of Limitation

On June 9, in CTS Corp. v. Waldburger, et al., No. 13-339, the U.S. Supreme Court held 7-2, that the Fourth Circuit erred in holding that CERCLA Section 9658 applied to the application of the North Carolina statute of repose,...more

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