E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

Last week, U.S. District Judge Alan S. Gold announced his intention to strip the Florida Dept. of Environmental Protection (FDEP) of its authority to issue permits under the Clean Water Act and return that power to the U.S. EPA.  See Miccosukee Tribe v. USA et al., No. 1:04-cv-21448 (S.D. Fl. Apr. 26, 2011).  In response, the FDEP stated that the judge is "essentially federalizing Florida's Everglades restoration permitting process."  The opinion clarifed his April 2010 opinion, in which he said the U.S. EPA, FDEP and the South Florida Water Management District had failed to enforce the Clean Water Act.

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From Hamilton Hackney of GT Boston:

As noted in a previous post, as well as in August 2009 and October 2010 GT Alerts, it is no secret that the Federal Trade Commission (FTC) has stepped up its regulatory efforts to address deceptive environmental marketing claims, including initiating enforcement cases and proposing revisions to its “Guides for the Use of Environmental Marketing Claims” (the so-called Green Guides). However, manufacturers of consumer products should not forget that state regulators often possess independent authority to take action against alleged greenwashing.

A recent example is a settlement announced by the Massachusetts Attorney General’s Office in a case brought against EarthTronics, Inc., a manufacturer of compact fluorescent light bulbs.  See Massachusetts v. EarthTronics, Inc., No. 11-1448E, (Mass. Super. Ct.). CFLs contain mercury, which in Massachusetts triggers an obligation to comply with the state’s Mercury Management Act (MMA). Passed in 2006, this statute bans the use of mercury in certain consumer products and imposes various notification, labeling, end-of-life, and consumer education requirements for products that are not subject to the ban. In 2009, the Massachusetts Department of Environmental Protection (MassDEP) issued a notice of enforcement to EarthTronics for failing to comply with the MMA, and EarthTronics paid a $6,000 penalty.

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From Hamilton Hackney of GT Boston:

The recent dismissal of a stormwater citizens suit may offer some lessons for potential targets of similar suits in the future.  Conservation Law Foundation v. Patrick, C.A.No. 06-11295 (D. Mass. Apr. 14, 2011).  Brought in 2006 by three environmental advocacy groups, the case alleged the Massachusetts Department of Transportation (MassDOT) failed to comply with its NPDES Small Municipal Separate Storm Sewer System (MS4) permit.  Following trial in 2008, the court found that MassDOT has contributed to exceedances of water quality standards at three sites, that its Stormwater Management Plan failed to comply with the terms of the MS4 permit, and that MassDOT was not adequately assessing the effectiveness of its stormwater control measures.  The court declined to grant the plaintiffs’ request for injunctive relief at that time, and allowed MassDOT to proceed on an unspecified schedule to address these deficiencies.

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From David G. Mandelbaum of GT Philadelphia:

As discussed previously, the Delaware River Basin Commission (DRBC) proposed regulations that would govern natural gas drilling in the Delaware River Basin.  New York Attorney General Eric T. Schneiderman announced yesterday that New York plans to sue the federal government if it does not conduct an environmental review prior to approving any regulations that would allow natural gas drilling in the Basin.  Schneiderman contends that a National Environmental Policy Act (NEPA) review of the environmental impacts of drilling must be conducted before any regulations are finalized.

In May 2009 and June 2010, DRBC Executive Director Carol R. Collier subjected production wells and then exploratory wells to preconstruction review by the Commission.  In May 2010, the Commission announced a moratorium on granting approvals for those wells until adoption of regulations.  If the regulations are delayed, development of natural gas resources would be frozen until regulations are adopted.

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 From Marc Davies of GT Philadelphia:

In its June 2, 2010, Toxicological Review of Formaldehyde Inhalation Assessment, EPA indicated that formaldehyde is a known human carcinogen.  The publicity associated with this assessment has already caught the attention of toxic tort lawyers who believe that formaldehyde exposure cases could arise in the same manner, and with the same proclivity, as benzene litigation.

Formaldehyde, similar to benzene, presents an indoor air issue because of its use in so many applications that we take for granted.  Think "new carpet" or "new car" smell.  Now substitute "formaldehyde" for "new" and the breadth of potential litigation against a wide array of manufacturers and service providers becomes apparent.

Formaldehyde may also become an additional thorn in the side of heavy industry seeking to renew Title V permits under the Clean Air Act for ambient air pollutants.  42 U.S.C. §§ 7661 et seq.; 40 C.F.R. Parts 70-71.  Many combustion sources have formaldehyde emissions, such as compressor stations.  Previous experience litigating over the treatment of formaldehyde emissions in Title V permits reveals limited information or experience with technologies or other methods to test for, or ultimately reduce, formaldehyde emissions.  EPA's recent assessment now threatens to turn up the heat on formaldehyde.  Industry may not like this "new car smell."

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