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Federal Environmental Law Archives

Supreme Court Declines to Weigh in on CERCLA Subrogation Case

Sometimes the Supreme Court's silence can be just as powerful as a decision. Or as James Joyce said about "absence" - it's the "highest form of presence."

Environmental Disaster Highlights the Need for TSCA Reform

Love Canal, New York; Cuyahoga River, Ohio; Times Beach, Missouri; Hopewell, Virginia; Three Mile Island, Pennsylvania. These are the sites of some of the worst environmental contamination in our nation's history. Each of these disasters drew significant public attention, and incited the political will to confront similar environmental hazards more systematically.

Supreme Court Broadly Construes EPA's Clean Air Act Authority

Confounding its critics for the seeming intrusion of politics into all of its decisions, on April 29, 2014, the Supreme Court issued its decision in the EPA v. EME Homer City Generation and American Lung Assn. v. EME Homer City Generation matters. In a 6-to-2 decision, the Court ruled to uphold EPA's Cross-State Air Pollution Rule, which requires increased emissions reductions from 27 continental upwind states. This is a major victory for EPA, and reinforces its authority to act under the Clean Air Act ("CAA") to combat climate change.

U.S. Supreme Court to Review EPA Regulation of Greenhouse Gases under the Clean Air Act

Go to the head of the class if you know the difference between CAFE standards and CAFO standards: in January of 2011, new corporate average fuel economy ("CAFE") standards went into effect, requiring all automobile manufacturers to curb the amount of greenhouse gases ("GHGs") emitted from the tailpipes of Model Year 2012 cars. These revised CAFE standards were jointly designed by the National Highway Traffic and Safety Administration and the Environmental Protection Agency ("EPA"), and issued under the motor vehicle program (Title II) of the Clean Air Act ("CAA"). Before this time, the annually-updated CAFE standards did not include a GHG curb, and GHGs were not regulated under any part of the CAA.

Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol

The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.

EPA Excludes Certain Solvent-Contaminated Rags from RCRA Regulation

In a move that has made industry insiders "ecstatic," EPA Administrator Gina McCarthy signed a final rule on July 22, 2013 which will exclude certain solvent-contaminated industrial rags or wipes from regulation under the federal Resource Conservation and Recovery Act. The new rule excludes solvent-contaminated reusable wipes from regulation as solid waste (40 CFR 261.4(a)), and excludes solvent-contaminated disposable wipes from regulation as hazardous waste (40 CFR 261.4(b)(18)) under RCRA.

What does the President's Climate Action Plan mean for New York City?

After the cap and trade program died in Congress in 2009, and the successor to the Kyoto Protocol never appeared at the 2009 Copenhagen Climate Conference, climate change stagnated on the national agenda of the United States. With a hyper-partisan Congress, it became apparent that the political will to address climate change through the legislature simply did not exist. However, in June of 2013, President Obama introduced a roadmap for climate action that sought to address climate change while sidestepping congressional involvement entirely.

When Does the Discovery of Historic Contamination Qualify as a "Sudden and Accidental" Release?

Many insurance policies contain a "pollution exclusion" which seeks to exclude coverage for losses arising from pollution, except in the case of a "sudden and accidental" release. "Sudden and accidental" may bring to mind a burst pipe or overturned tanker truck, but a recent decision in the United States District Court for the Southern District of New York suggests that the interpretation can be much more complicated.

EPA Announces New Tenant Protections Under Superfund

EPA has just extended to tenants the Bona Fide Prospective Purchaser ("BFPP") protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements. 

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