New York’s Department of Environmental Conservation (DEC) recently proposed an environmental “audit incentive” policy, which is similar to the United States’ Environmental Protection Agency’s (EPA) long standing self-audit policy. In its draft policy, DEC encourages participation by waiving or reducing penalties for environmental violations that regulated entities discover through an environmental audit, and expeditiously report… Continue Reading
The US Supreme Court’s forthcoming decision in Koontz v. St. Johns River Water Management District promises to be one of the most important property rights rulings in many years. In addition to affecting a wide range of real estate development projects that are subject to local, state or federal permit requirements, the decision may also… Continue Reading
The New York State Department of Environmental Conservation (DEC), in conjunction with the New York State Energy Research and Development Authority (NYSERDA), is currently accepting public comments on several proposed changes to the DEC’s regulations governing New York’s participation in the Regional Greenhouse Gas Initiative (RGGI). DEC’s proposed changes, which are based on updates to… Continue Reading
In this week’s Pennsylvania Law Weekly and Legal Intelligencer, I write about the motivations behind EPA’s potential delay of issuing a final rule that would limit carbon emissions from new power plants. The agency appears to be playing a high stakes game of political chicken that could provoke congress to pass standalone cap-and-trade legislation. Read Is EPA Playing Chicken With… Continue Reading
On Friday, March 15, 2013, the Florida Department of Environmental Protection (DEP) announced an Agreement in Principle with the U.S. Environmental Protection Agency on the new criteria for Florida’s waters that would limit nitrogen and phosphorus, two nutrients commonly blamed for algae blooms and other water quality problems. The EPA Agreement in Principle is intended to resolve a lengthy and contentious dispute between EPA and environmental advocacy groups… Continue Reading
Section 613 of the Pennsylvania Solid Waste Management Act (“SWMA”), Pa. Stat. Ann. tit. 35, § 6018.613, allows the Commonwealth or any municipality to recover the “costs of abatement” of “a public nuisance” under SWMA from a person who “causes a public nuisance” if the plaintiff government has in fact abated the nuisance. This provision… Continue Reading
My October Environmental Practice Column in the Pennsylvania Law Weekly considers issues presented by the intersection of the bar on pre-enforcement review and reliance on ”institutional controls.” These issues come up in federal Superfund matters under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-75. However, the discussion was motivated by a September 4 ruling by… Continue Reading
On Friday, October 5, 2012, the U.S. Supreme Court granted certiorari in Koontz v. St. Johns River Water Management District, an appeal from the Florida Supreme Court. The questions presented in Koontz are twofold : (1) whether the government can be held liable for a taking when it refuses to issue a land-use permit on… Continue Reading
My September column for the Pennsylvania Law Weekly and Legal Intelligencer considers a question that arises from time to time: can EPA or a state agency sue to convert its administrative order into a judicial order without being able to prove that the defendant is out of compliance? Read Administrative Action: Must There be Noncompliance… Continue Reading
The Commonwealth Court, one of Pennsylvania’s two intermediate appellate courts, invalidated provisions of the Oil and Gas Act Amendments of 2012 (“Act 13″) intended to limit local regulation of natural gas development, particularly development of the Marcellus Shale. The court issued its opinion in Robinson Township v. Public Utility Comm’n, No. 284 M.D. 2012, on… Continue Reading
Last week was a busy week for federal stormwater regulators in New England, with the announcement that three separate stormwater-related enforcement cases had been settled. Two of these cases involved municipal sewer systems operated by Boston and Gloucester and the third involved a horse race track that the regulators determined was a concentrated animal feeding… Continue Reading
In a 2-1 decision issued today, the U.S. Court of Appeals for the District of Columbia Circuit ruled in EME Homer City Generation, L.P v. EPA, that the U.S. Environmental Protection Agency exceeded its statutory authority in adopting the Cross State Air Pollution Rule (CSAPR or Transport Rule). The D.C. Circuit found that EPA’s Transport Rule exceeded the agency’s authority on 2 separate grounds, both of which violated… Continue Reading
Section 107(a) of CERCLA says that section 107(b) lists the only defenses to a cost recovery claim, but it turns out there are many more. David Mandelbaum’s monthly column in Pa. Law Weekly explores what this means.
On April 12, 2012, EPA issued a Draft Title VI Supplement to its Plan EJ 2014. David Mandelbaum’s monthly column in the Legal Intelligencer / Pennsylvania Law Weekly asks
“where does environmental justice stand?”
February’s column in the Pennsylvania Law Weekly / Legal Intelligencer considers the “environmental debts” that often arise in transactions or otherwise. Managing Environmental Obligations: Tracking Environmental Debtors, 35 Pa. L. Weekly 196 (Feb. 28, 2012).
Gov. Paterson vetoed the NY moratorium on all fracking, but imposed a ban on horizontal, high-volume fracking by executive order. The DRBC proposed regulations and curtailed pending hearings.
David Mandelbaum’s monthly column for September considers the legal options facing a landlord whose tenant vacates, leaving hazardous or otherwise regulated materials behind.