Environmental Litigation and Regulation

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On December 3, 2018, the EPA published a final rule in the Federal Register (83 FR 62268) making the 2017 amendments effected as of that day.  In doing so, the EPA noted that it had no discretion in the matter as the U.S. Court of Appeals for the District of Columbia Circuit Court issued its…

On May 30, 2018, EPA finally promulgated modifications to its 2015 definition of solid waste rule (2018 DSW Rule).[1] EPA promulgated the 2018 DSW Rule in response to the D.C. Circuit’s decision on EPA’s 2015 definition of solid waste rule.[2]

EPA’s revisions to the definition of solid waste rule essentially implement the vacaturs…

Facilities subject to a Part 70 air operating permit are afforded an “affirmative defense” to liability for civil penalties for releases to air that exceed technology-based permit limitations, provided they strictly adhere to both the requirements of the “upset” rule in LAC 33:III.507.J and General Condition N of the Part 70 General Permit Conditions referenced…

On May 17, 2018, the Environmental Protection Agency (“EPA”) released a proposed revision to the Risk Management Program (“RMP”) rule following its reconsideration of the Obama era revisions.  The proposal strips out much of those additions.  According to the Rule Fact Sheet, the reconsidered rule will maintain consistency with the Occupational Safety and Health Administrations’…

On December 7, 2017, the Environmental Protection Agency (“EPA”) released a memorandum entitled, “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability.”[1] In the NSR memo, EPA announced its intention to drop its long-standing position that the Agency can use its own…

After contesting the construction of the Dakota Access pipeline, environmental advocacy groups have turned their attention to the proposed Bayou Bridge pipeline in South Louisiana. The Bayou Bridge pipeline is a 162-mile-long, 24-inch-wide proposed pipeline which will cross the Atchafalaya Basin to connect facilities in Lake Charles, Louisiana to crude oil refineries in St. James…

On January 9, 2018, a split panel of the United States Fifth Circuit Court of Appeals affirmed an order from the district court, denying a motion to remand a matter removed under the Class Action Fairness Act (“CAFA”). The 2-1 decision In Warren Lester, et. al. v. Exxon Mobil Corp., et. al., No. 14-31383,…

On September 1, 2017, the Louisiana Department of Environmental Quality (“LDEQ”) updated the emergency order that was issued by the Governor of Louisiana on Thursday, August 24, 2017. That earlier emergency order put the entire State of Louisiana under a declaration of emergency and was to remain in place until Friday, September 22, 2017, unless…

On August 30, 2017 the D.C. Circuit denied environmental and labor groups’ request to stay the Tump EPA’s final rule delaying the Obama-era amendments to the EPA’s Risk Management Program (“RMP”) rule. The RMP rule implements Section 112(r) of the Clean Air Act and requires facilities that use extremely hazardous substances to develop and update…

On August 28, 2017, the Environmental Protection Agency (“EPA”) approved an emergency fuel waiver for areas for Louisiana affected by Hurricane Harvey. The waiver is an effort to minimize or prevent problems with the supply of gasoline. Sixteen parishes in the state are required to sell low Reid vapor pressure (“RVP”) gasoline,[i] having a…