Environmental Litigation and Regulation

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The U.S. Supreme Court issued an opinion June 19, 2006 in Rapanos v. United States and Carabell v. United States, cases focusing on the extent of the jurisdiction of the Corps of Engineers (“COE”) over wetlands under the Clean Water Act (“Act”).  The Act allows the Corps to regulate “navigable waters of the United States.”  However, “navigable waters” under the Act is defined as “the waters of the United States, including the territorial seas” and are not limited to waters that are “navigable” in the traditional sense.  33 U.S.C. §1362(7).  For years the Corps interpreted the Act expansively to assert jurisdiction over virtually all wetlands regardless of how remote the connection to a navigable water, using the Commerce Clause as a basis. That was prior to the Supreme Court decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 167, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”), which held that “isolated” wetlands do not fall within the jurisdiction of the Corps and that wetlands must be adjacent or have a “significant nexus” to navigable waters to fall within the Corps’ jurisdiction.  Following SWANCC, the Corps and the courts have wrestled with the meaning of “isolated” and “significant nexus,” with the Corps ever seeking to retain the broadest jurisdiction. .
Continue Reading Wetlands Jurisdiction…More Questions Than Answers

Distinguished fellow blogger Stephen Holzer, at Environmental Legal Blogs has an excellent short analysis of the U.S. Supreme Court Decision in Rapanos v. United States. Check it out here, and check out his blog frequently for similar insightful posts. His concluding comment on the case:

“Nonetheless, for those of us accustomed over the last 40-50 years to seeing the Supreme Court rarely put brakes of any kind on the federal government’s appetite for expansion, today was indeed one for the books.”
Continue Reading Stephen Holzer (Environmental Legal Blogs) Analyzes Supreme Court Decision on Clean Water Act

Louisiana’s Title V permit program requires each permit to contain “a schedule of compliance consistent with LAC 33:III.517.E.4.” Under Section 517.E.4, and its federal counterpart 40 C.F.R. 70.6(c), the permit application must contain a “narrative description of how the source will achieve compliance and a compliance schedule” with respect to “any applicable requirements with which the source is not in compliance at the time of permit application submittal.” The schedule proposed must “resemble and be at least as stringent as that contained in any judicial consent decree or administrative order or compliance order to which the source is subject.” Id. Progress reports are required at least every six months. Id.
Continue Reading When Is a Compliance Schedule Required In a Title V Permit?

Senate Bill 655 has now cleared the House Natural Resources Committee and goes to the full House. It has already passed the Senate. Here is the current text of the act.

Under the current law, La. R.S. 30:2015.1, anyone suing for damages for the “evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water” has to provide written notice to the Department of Natural Resources (DNR) and the Department of Environmental Quality (DEQ), who then have the right to intervene in the lawsuit. “Usable ground water” is statutorily defined as Groundwater Classification I or II under DEQ’s RECAP regulations.
Continue Reading SB655 – Remediation of Oil and Gas Sites

On March 17, 2006, the Court of Appeals for the D.C. Circuit vacated EPA’s final Equipment Replacement Provision rulemaking which attempted to establish a bright-line test for routine maintenance, repair and replacement (RMRR) in New York v. EPA, No. 03-1380 (D.C. Cir. 2006). To vacate a rule is to rescind and set it aside entirely (as opposed to a remand which would have sent it back to the agency for further justification.)
Continue Reading D.C. Circuit Vacates Equipment Replacement Provision (ERP) Rulemaking

Kean Miller is pleased to announce that 12 lawyers, formerly in the Admiralty & Maritime, Construction, and Energy practice areas with Lemle & Kelleher, have joined the firm in the New Orleans office.

“We are very excited to welcome these distinguished attorneys to our law firm. They are an outstanding resource for our clients. Our offices are located in Louisiana’s major port cities — New Orleans, Baton Rouge and Lake Charles — and this esteemed group brings over 150 years of combined experience in maritime issues, admiralty law, marine insurance, oil & gas, drilling and exploration, pipelines, construction, and energy law to our clients.” said Gary A. Bezet, managing partner of the 121-lawyer firm.
Continue Reading Kean Miller Adds 12 Attorneys in Admiralty & Maritime, Construction, and Energy Practice Groups – New Orleans Office Triples in Size

As cleanup from Hurricane Katrina and its aftermath progresses, the Air & Waste Management Association is proud to announce that its 99th Annual Conference & Exhibition will take place in New Orleans as originally scheduled, June 20-23, 2006. With the theme, “Healthy Environments: Rebirth & Renewal,” the conference is expected to bring nearly 3000 of the world’s leading environmental professionals to New Orleans.

In addition to the program tracks that attendees are accustomed to, the conference will feature a special session devoted to waste management responses to Hurricane Katrina, focusing on the analysis, transportation, disposal, and cleanup of debris and potentially contaminated soil and sediment. Papers also will address environmental readiness to aid in responses to future natural disasters. Also featured at the conference:

*The Keynote Program, with a presentation by Shell Oil Company President John Hofmeister on the company’s plans for energy diversification;
*A symposium dedicated to Particulate Matter and Health;
*An Exhibition on the latest technologies used in the Katrina cleanup, as well as other environmental products and services; and
*More than 160 sessions covering a range of air, environmental, and waste issues.
Continue Reading New Orleans to Host Air & Waste Management Association’s 99th Annual Conference & Exhibition in June 2006

Several recent developments concerning the Spill Prevention, Control, and Countermeasure (SPCC) regulations occurred in December 2005 that may have a major impact on Louisiana facilities. First, the EPA released the long awaited SPCC “Guidance for Regional Inspectors.” The Guidance is intended to assist regional inspectors in reviewing a facility’s implementation of the rule, but will also be beneficial for regulated facilities in determining how particular provisions of the rule may be applied.
Continue Reading EPA Releases Guidance Document and Proposed Amendments to Spill Prevention, Control, and Countermeasure Rules

Reproduced with permission from Toxics Law Reporter, Vol. 20, No. 47, pp. 1067-1069 (Dec 8, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com In the wake of two hurricanes, many Louisiana industries, businesses, and citizens are left with a monumental task of cleaning up the damages caused by the storms. Many Louisianians also face the somewhat unknown future of what potential liability lies ahead under various environmental statutes and programs. After the storms, the State of Louisiana and the federal government temporarily eased many requirements under various environmental regulatory programs so that immediate actions could be taken to preserve property and protect lives. Significant questions remain, however, as to how these agencies are going to use their enforcement discretion in the future with respect to events that occurred during and after the storms.
Continue Reading The “Act of God” Defense Under Select Environmental Programs Applicable in Louisiana

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 795-797 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com The damages caused by Hurricane Katrina in Louisiana, Mississippi, and Alabama constitute the largest natural disaster in U.S. history. Hurricane Katrina’s impact on insurers and their policyholders have already set in motion what will probably be one of the largest legal and public policy storms to hit the United States in modern times. Nowhere will the storm be more evident than in disputes involving wind and water damage coverage. The eye of the coverage storm is already manifesting itself in coastal areas of Louisiana, Mississippi, and Alabama.
Continue Reading Wind Versus Flood Coverage and Hurricane Katrina