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Trump Track: Be Careful What You Ask For

The Trump Administration has taken the position that the President not only has the power under the Antiquities Act of 1906 to unilaterally establish national monuments, but also the unfettered authority to reduce in size or...more

Trump Track: Who’s Driving This Train?

On Thursday, January 4, 2018, the Department of the Interior (DOI) announced a proposal to open 25 of its 26 offshore planning areas for leasing for oil and gas drilling, reversing an Obama Administration drilling plan that...more

Trump Track: Polluters Play?

On December 11, 2017, the NY Times’ headline read: Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers. The article reviews EPA enforcement during the first nine months of the...more

12/12/2017  /  Enforcement , EPA , Trump Administration

Trump Track: EPA’S Sue and Settle Process – Justification or Rejection?

As noted in this space, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred to by the...more

11/30/2017  /  EPA , FRCP 24(a) , Trump Administration

$13mm NRD Settlement in 2003 Oil Spill Illustrates Long Tail on OPA Natural Resource Damage Claims

On October 17, 2017, the U.S. and the States of Rhode Island and Massachusetts lodged what was acknowledged as a “unique” settlement with a tug boat owner and operator for natural resource damages resulting from a 2003 marine...more

Trump Track: Test for EPA’s Sue and Settle Process

As noted previously on this blog, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred...more

Trump Track: EPA Sue and Settle Fix?

On October 16, 2017, EPA Administrator Pruitt issued a memo to his agency directing that managers take certain steps to curtail the practice known as “sue and settle.” This practice most often is used for relatively quick...more

U.S. Reversed on 100% Allocation to Contractor

The Ninth Circuit Court of Appeals has reversed a district court decision allocating 100% of CERCLA response to costs to a U.S. military contractor, where both the U.S. and the contractor were liable parties. TDY Holdings,...more

Trump Track: Court Blocks Postponement of Methane Rule, But Battle Continues

On October 4, the district court for the Northern District of California in State of California and Sierra Club, et al v. BLM, et al. held that BLM could not postpone its enforcement of various provisions of the Obama-era...more

Trump Track: EPA/DOJ Funding Split

EPA has proposed to end its funding of Superfund enforcement activities by the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD). In its proposed budget for FY 2018, EPA has cut the nearly $26MM...more

Trump Track: WOTUS Wrangle

We have strange bedfellows, as business groups, states and environmentalists maneuver before the Supreme Court over the Obama Administration regulation defining “waters of the US” (“WOTUS”) under the Clean Water Act (CWA)....more

Trump Track: Is Superfund Small Ball Best?

The most active agency in carrying out the Trump agenda in its first year has been the EPA, where there has been a raft of efforts to roll back the regulatory initiatives of the Obama Administration. However, in one area the...more

Trump Track: Executive Order To Speed Infrastructure Projects

On August 15, 2017, President Trump issued yet another executive order (EO) intended to speed environmental review of infrastructure projects. His first executive order with that objective, issued January 24, 2017, was devoid...more

Ninth Circuit Addresses Finality Requirements for CERCLA Contribution Actions

The Ninth Circuit Court of Appeals revived a contribution action under CERCLA, and in the course of ruling, it addressed three issues of first impression in the Circuit regarding contribution litigation under CERCLA. Asarco,...more

8/18/2017  /  CERCLA , DOJ , EPA , RCRA

Trump Track: Pruitt Moves to Streamline Superfund Process, Accelerate Pace of Cleanups

On May 22, 2017, EPA Administrator, Scott Pruitt, convened a Superfund Group to examine the existing Superfund process and make recommendations to streamline the process and incentivize parties to accelerate remediation and...more

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

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