A recent ruling from the District of South Carolina holds that jurisdictional determinations ("JDs") that do not find jurisdictional wetlands - "negative" JDs - are judicially reviewable.  In doing so, the court reaffirmed existing case law in the Fourth Circuit, a traditionally conservative circuit, and acknowledged two separate avenues for citizens to challenge a "negative" JD. The first is under the Administrative Procedures Act (the "APA") as a final agency action; the second is under the Clean Water Act (the "CWA") citizen suit provision as a nondiscretionary act or duty of the Corps.

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The U.S. Supreme Court today handed down its widely anticipated decision in American Elec. Power Co. v. Connecticut, No. 10-174 (June 20, 2011). In an 8-0 decision, the Court held that the Clean Air Act and EPA regulation thereunder displace any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants.  Notably, the Court also affirmed the Second Circuit's exercise of jurisdiction in the case as a result of a 4-4 tie among the justices. (Justice Sotomayor did not participate in the case because she was a member of the Second Circuit panel that heard the case prior to her elevation to the Supreme Court.)

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Judge Ernest H. Goldsmith has entered his final Order in Association of Irritated Residents v. California Air Resources Board, Case No. CPF-09-509562 (Cal. Super Ct. May 20, 2011), enjoining CARB from further implementing the State's cap-and-trade program.

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In a troubling development for local governments, the U.S. Court of Appeals for the Ninth Circuit recently held that NDPES storm sewer permittees, such as counties and municipalities, are on the hook for polluted discharges from their systems notwithstanding the diverse sources for—and potentially very difficult task of controlling—stormwater.  The court concluded, “the Clean Water Act does not distinguish between those who add and those who convey what is added by others.”  

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EPA has committed to increasing public access to chemical information and, last week, manifested that commitment by rejecting five companies' claims that certian informaiton submitted in TSCA health and safety studies was confidential business information (CBI).  For future filings, companies subject to TSCA should bear in mind EPA's reason for rejecting these CBI claims in order to ensure that submitted information is adequately and appropriately protected.

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On February 3, 2011, the Target Corporation entered a court-enforced settlement in California establishing penalties and future obligations for the management of hazardous wastes in over 180 Target stores and distribution centers throughout the state. 

This settlement reflects exceptionally onerous terms for hazardous waste from ordinary retail operations.  The reality is that the federal and state hazardous waste schemes were developed primarily with the manufacturing sector in mind and simply are not a good fit for retail and distribution operations. Nonetheless, California has succeeded in using these rules to inflict significant pain on Target and also in branding the company as an environmental villain, contrary to common sense.

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Yesterday, the D.C. Circuit lifted the stay on EPA’s Federal Implementation Plan (“FIP”) for GHG permitting in Texas.  Now, GHG permitting may move forward in Texas and will be implemented by EPA.

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U.S. EPA was obligated under court order to issue by January 16 maximum available control technology ("MACT") requirements for the overwhelming majority of sources of urban hazardous air pollutants—including boilers.  EPA was granted a minor extension of this deadline until January 21.  The ultimate issuance of the MACT standards should be noted because MACT is typically very stringent and often entails significant compliance costs.

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On November 17, 2010, EPA’s notice of and request for comment on its PSD and Title V Permitting Guidance for Greenhouse Gases (the “Guidance”) was published in the Federal Register.  EPA is accepting comments on the Guidance through December 1, 2010.  The Guidance is important because it details EPA’s view on how the Clean Air Act’s Prevention of Significant Deterioration and Title V programs should be applied to stationary source greenhouse gas emissions beginning on January 2, 2010 (the date these programs first apply to stationary source greenhouse gas emissions as a function of the Light-Duty Vehicle Rule and the Tailoring Rule). 

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M2C2 Partner Doug Cloud presented at the October 27, 2010 meeting of the Georgia Board of Natural Resources regarding the Board's consideration of the implementation of EPA's Greenhouse Gas Tailoring Rule in Georgia.  A summary of the issues Doug addressed is attached here.

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Mowrey Meezan Coddington Cloud LLP partners Bob Mowrey and Kipp Coddington have again appeared on Who’s Who Legal list of top environmental lawyers in the world.  In the 2010 edition of International Who’s Who of Environment Lawyers, Bob is one of only seven lawyers listed from Georgia and Kipp is one of only six lawyers listed from Virginia.

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On October 8, 2010, the Federal Aviation Administration issued a Safety Alert for Operators addressing the risks in transporting lithium batteries in cargo by aircraft.

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Even a casual reading of EPA's Fiscal Year 2011-2015 Strategic Plan makes clear that climate change is at the very top of the agency's agenda.  But how far is EPA willing to go in order to achieve reductions in greenhouse gas (GHG )emissions?  One clue is found in the agency's discussion of its enforcement priorities.

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The U.S. Court of Appeals for the Fifth Circuit has issued the first appellate-level interpretation of the U.S. Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Railway Co. v. United States, 129 S. Ct. 1870 (2009).  In Celanese Corp. v. Martin K. Eby Construction Co., No. 09-20487, 2010 U.S. App. LEXIS 19518 (5th Cir. Sept. 20, 2010), the Fifth Circuit appears to have considerably strengthened the proposition that a robust intent element must be met to establish that a party “arranged” to dispose of a hazardous substance under CERCLA.  This decision along with Burlington Northern will in certain circumstances significantly improve the legal position for a number of parties that have long been routinely (and somewhat casually) swept up in CERCLA’s liability net by the government and aggressive cost-recovery/contribution plaintiffs.

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The U.S. DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has denied a request by the Dangerous Goods Advisory Council (DGAC) to extend the comment period for PHMSA’s July 27, 2010 proposed rule HM-233B – “Hazardous Materials Transportation: Revisions of Special Permits Procedures.”  See 75 Fed. Reg. 43,898 (July 27, 2010).

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Companies that send materials exhibiting a hazardous characteristic for certain offsite recycling activities without managing them as hazardous wastes should pay special attention to the D.C. Circuit’s August 6, 2010 decision in Howmet Corp. v. EPA. 

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On July 27, 2010, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) proposed significant revisions to the agency’s regulations governing the issuance and renewal of special permits (attached).  The proposed rules are a response to significant congressional pressure placed on PHMSA to revise the agency’s process for issuing and renewing special permits.  Most significantly, the proposed rules would impose new and significant substantiation requirements, which may require certain applicants to perform analyses of potential failure modes and consequences associated with the transportation permitted under the special permit.  The deadline for submitting comments to PHMSA is Thursday, August 26, 2010.

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Mowrey Meezan Coddington Cloud LLP partners Doug Cloud, Bob Mowrey and David Meezan will be featured on panels at the 5th Annual Georgia Environmental Conference, which will be held in Savannah, Georgia on August 25-27, 2010. Please visit http://www.georgiaenet.com/ for registration information.

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