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

In my monthly column in The Legal Intelligencer/Pennsylvania Law Weekly, I examine two recent Pennsylvania Environmental Hearing Board appeals which address aggregation of air emission sources under the Clean Air Act and the Pennsylvania Air Pollution Control Act.  The cases, Group Against Smog and Pollution v. Department of Environmental Protection, EHB Docket No. 2011-065-R, and Clean Air Council v. Department of Environmental Protection, EHB Docket No. 2011-072-R, consider whether, and how, air emissions from natural gas wells, gathering systems and compressor stations should be aggregated.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From Marvin Kirsner of GT Palm Beach County:

The 4th Circuit held this week that a federal district court has jurisdiction over a case challenging a local carbon tax, even though the Tax Injunction Act generally deprives federal courts of jurisdiction in state or local tax controversies. This case should be very helpful to companies challenging a local tax that is in the nature of a punitive regulatory fee, especially where the tax is structured to apply to a single company.

This case, GenOn Midatlantic, L.L.C. v. Montgomery County, No. 10-1882 (5th Cir. June 20, 2011), involves a Montgomery County, Maryland “tax” on carbon emissions. The county imposed a tax at the rate of $5 per ton of carbon dioxide emitted, but the tax only applies to companies that emit more than 1 million tons of carbon annually. If the 1 million ton annual threshold is reached, then the tax applies to the first ton emitted.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From Hamilton Hackney of GT Boston:

As revealed in a recent bankruptcy case, purchasers of contaminated property need to have a very clear understanding of their contractual remedies before proceeding with self-help. The case (In re Evans Industries, Inc., No. 10-30387 (5th Cir., June 21, 2011)), involved the sale of the debtor’s assets as a part of a Chapter 11 bankruptcy plan. The debtor/seller (Evans) had operated a business that made, filled and distributed steel drums and containers at five facilities. The purchaser (Greif) paid $11,250,000 for the bulk of Evans’ assets, and had continued to operate the drum/container business at the five facilities. However, $1,657,500 of the purchase price was placed in a holdback escrow account to fund certain expenses arising under the asset purchase agreement. 

Greif subsequently incurred $650,000 removing and properly disposing of hundreds of barrels containing hazardous waste at several of Evans’ former facilities. Greif then submitted a claim for reimbursement for its expenses from the holdback account. The bankruptcy court, and the federal district court on appeal, both ruled that Greif had no contractual right to seek reimbursement from the holdback account. Greif then appealed to the Fifth Circuit, which affirmed the lower court rulings.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As mentioned earlier, the United States Supreme Court, in AEP v. Connecticut, No. 10-174, had before it the issue of whether state attorneys general or environmental groups may sue owners of fossil-fuel-fired power plants under the federal common law of public nuisance for the plants' alleged contribution to climate change.  On June 20, the Supreme Court issued its opinion, which by a vote of 8-0 (Sotomayor, J. recused) found the Clean Air Act displaced any right to bring a public nuisance claim.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From Al Malefatto of GT West Palm Beach and Kerri Barsh of GT Miami:

As we wrote earlier, in New Hope Power Company and Okeelanta Corporation v. United States Army Corps of Engineers and Steven L. Stockton, U.S. District Judge K. Michael Moore of the Southern District of Florida enjoined the U.S. Army Corps of Engineers' from enforcing its guidance documents, which modified the Corps's interpretation of its wetlands regulations.

The Corps, and other parties, appealed Judge Moore's decision, but last month the appellants voluntarily dismissed those appeals.  Click here and here to see the two orders of dismissal.  Stay tuned to see if the Corps decides to promulgate new regulations to determine whether prior converted crop lands may be regulated as wetlands under Section 404 of the Clean Water Act, if those lands are no longer used for agricultural purposes.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From Hamilton Hackney of GT Boston:

First, the Bad News

The Supreme Court has rejected a long-running challenge to one of the most-feared enforcement tools for compelling cleanups at federal Superfund sites: Section 106 Unilateral Administrative Orders (UAOs). The Court refused to review a ruling from the D.C. Circuit Court of Appeals that upheld USEPA’s use of UAOs in the face of claims by General Electric that UAOs were unconstitutional. See General Electric Co. v. United States, No. 10-871 (June 6, 2011), cert. denied.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In his monthly column in The Legal Intelligencer/Pennsylvania Law Weekly, David Mandelbaum of GT Philadelphia examines the trend of seeking an award of attorney fees under the Pennsylvania Clean Streams Law (CSL) from the Pennsylvania Department of Environmental Protection (DEP), and the implications for the DEP, public interest groups and industrial permitees. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link