Category Archives: Environmental

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Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

NINTH CIRCUIT ISSUES MAJOR CERCLA DECISION FINDING THAT ARRANGER LIABILITY CANNOT BE BASED ON CONTAMINATION DEPOSITED ON A SITE BY THE WIND Pakootas v. Teck Cominco Metals, No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th Cir. July 27, 2016). The Ninth Circuit issued an important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) decision that will likely have broad impact in limiting the scope of … Continue Reading

Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

COLORADO CITY FRACKING BANS PREEMPTED BY STATE LAW City of Longmont v. Colo. Oil and Gas Ass’n, 369 P.3d 573 (Colo. 2016), 2016 Colo. LEXIS 442; City of Fort Collins v. Colo. Oil and Gas Ass’n, 369 P.3d 586 (Colo. 2016), 2016 Colo. LEXIS 443. In two concurrent opinions, the Colorado Supreme Court invalidated the … Continue Reading

President Obama Signs Major Overhaul of TSCA Changing the Way The EPA Regulates Toxic Substances In Commerce

President Obama just signed a bill amending the Toxic Substances Control Act (“TSCA”), changing the way the EPA regulates chemicals. For the last 25 years, the EPA has regarded TSCA’s principal control provision as unworkable and refused to rely on it after an adverse ruling in response to the EPA’s effort to regulate asbestos. The … Continue Reading

New LA Ordinances “Clean Up, Green Up” Industry in Residential “Toxic Hotspot” Neighborhoods

On June 4, 2016, two new Los Angeles ordinances will go into effect under the Clean Up, Green Up (CUGU) initiative.  The initiative aims to improve air quality and residential quality of life in areas with high concentrations of industrial uses.  The new laws will impose additional citywide code requirements, and create new development standards … Continue Reading

A Proposition 65 Violation May Be Lurking in Your Cash Register Receipt

Many consumer-facing businesses have learned to identify high-risk Prop 65 targets:  soft, flexible plastics; faux and colored leathers; and any kind of brass or metal that may contain lead or other heavy metals.  But businesses need to take action to avoid Prop 65 liability based on a new culprit: bisphenol-A (BPA) that may be lurking … Continue Reading

Only When a Permit is Required: The Supreme Court Caps the EPA’s Authority to Regulate Greenhouse Gas Emissions from Stationary Sources

Utility Air Regulatory Group v. EPA et al. 573 U.S. ____ (2014) On June 23, 2014, the United States Supreme Court held that the Environmental Protection Agency (EPA) overstepped its authority under the Clean Air Act when it attempted to regulate greenhouse gas emissions from stationary sources not already subject to a permit controlling emissions of … Continue Reading

California Passes Landmark Green Chemical Laws

On August 28, 2013 the California Office of Administrative Law (“OAL”) approved California Department of Toxic Substances Control’s (“DTSC”) Safer Products Regulations. These regulations will go into effect on October 1, 2013. These important regulations, also referred to as “Green Chemical” regulations, establish a process to identify and prioritize consumer products containing chemicals of concern, … Continue Reading

Governor Brown Signs SB 4 Regulating Hydraulic Fracturing Well Stimulation Treatments

Hydraulic fracturing continues to increase, but regulations have lagged behind the practice. Hydraulic fracturing (sometimes called well stimulation treatment) is used as means to extract and explore underground oil and gas. SB 4 is an attempt by California legislature to regulate and oversee the practice of hydraulic fracturing, or “fracking,” and other well stimulation treatments. … Continue Reading

EU Carbon Trading System Wins Parliament’s Support

Today the European Parliament approved a proposal to delay the issue of 900 million emissions allowances (each representing the right to emit one metric ton of carbon dioxide or greenhouse gas equivalent, or CO2e). The purpose of the measure is to ease supply pressure in the European Union Emissions Trading System (EU-ETS), which has been trading CO2e allowances … Continue Reading

Recent Federal and International Developments Good for California Cap and Trade

Plans announced by the White House today (June 25) show a credible pathway to meet targets pledged by the President pursuant to the Copenhagen Accord (reduction of greenhouse gas emissions 17% below 2005 levels by 2020). Relatedly, last month the Obama administration increased the assumed social cost of greenhouse gas emissions used for cost-benefit analysis … Continue Reading

Can California Cap and Trade if Brussels Stumbles?

By Jeffrey Rector  Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some view this as the beginning of the end of the European Union’s ten-year carbon cap-and-trade experiment. A … Continue Reading

What Will It Cost for California to Save the World? California Conducts its First Greenhouse Gas Cap-and-Trade Auction

By Whitney Hodges, Randy Visser & Olivier Theard  The landmark Global Warming Solutions Act of 2006 (“AB 32”) tasked the California Air Resources Board (“ARB”) with reducing greenhouse gas (“GHG”) emissions to 1990 levels by 2020. In adopting a scoping plan assembling a number of differing, but complementary, GHG reduction strategies, the ARB included a “cap-and-trade” program as one … Continue Reading

Flame Retardant Commonly Used in Furniture Added to Proposition 65 Chemical List

By Meredith Jones-McKeown The chemical commonly known as “TDCPP” or “Tris” [Tris(1,2-dichloro-2-proply) phosphate)] is commonly used as a flame retardant in home furnishings (couches, chairs, pillows, and ottomans) as well as automotive products (seat padding, overhead liners, foams, and infant car seats). In October 2011, California’s Office of Environmental Health Hazard Assessment (OEHHA) listed TDCPP … Continue Reading

Revising Flammability Standards to Reduce Flame Retardants in Furniture

By Heather Zinkiewicz On June 18, 2012, Governor Brown directed the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (“Bureau”) to recommend changes to California’s four-decade-old flammability standard for upholstered furniture. Specifically, Governor Brown is seeking to reduce toxic flame retardants in furniture while still providing fire safety. Toxic flame retardants are … Continue Reading

Comment Period to Close On Petition to FDA for Mandatory Labeling of All Foods Produced Using Genetic Engineering

By Robert Uram On March 27, 2012, the comment period will close on a petition filed by the Center for Food Safety that calls for the FDA to issue new regulations requiring labeling of all foods produced using genetic engineering (GE). Docket No. FDA-2011-P-0723 (Filed October 12, 2011). Unlike many other developed countries – such … Continue Reading

Recent Water and Pesticide Regulatory Guidance

By Heather Plocky The State Water Board has recently released two documents: a "Citizen’s Guide to Working with the California Water Boards” and "Annual Budget Pre-Approval Frequently Asked Questions.” The Department of Pesticide Regulation ("DPR”) has recently released "A Guide to Pesticide Regulation in California.” These documents clarify and explain certain water and pesticide regulations, … Continue Reading

Proposition 65 Private Party Settlement Guidance Provides Clarity and a Limitation on Releases in the Public Interest

By Heather Plocky In January, the Attorney General released a guidance document that details what the state will and will not approve in future private Proposition 65 lawsuit settlements[1]. This guidance provides clarity to both plaintiffs and businesses and is intended to limit the scope of any “public interest release” that plaintiffs can offer.… Continue Reading

Governor Brown Signs Two Bills Intended to Protect Children From Toxic Exposures

By Olivier Theard In an effort to protect children (and, to a lesser extent, adults) from toxic exposure, California has banned the use of the controversial chemical Bisphenol A (BPA) in baby bottles and sippy cups, and has eliminated certain loopholes in the existing ban on lead and cadmium in jewelry. These laws follow earlier … Continue Reading

Carbon Dioxide Emissions Not Subject to Federal Common Law Nuisance Claims

American Electric Power Co., Inc. v. Connecticut (June 20, 2011, No. 10-174) __ U.S. __ By Robyn Christo & Micah Bobo In the battle over climate change, the Supreme Court once again set an important precedent in American Electric Power Co., Inc. v. Connecticut (“American Electric Power”). In an 8-0 decision written by Justice Ginsburg … Continue Reading

U.S. Supreme Court to Review Two Cases With Potentially Significant Consequences for Wetlands and Waterways

By Keith Garner The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.… Continue Reading

Reliance on Statutory Requirements to Mitigate Environmental Impacts Proper Under CEQA

Oakland Heritage Alliance v. City of Oakland (May 19, 2011, A126558) __ Cal.App.4th __ By Maria Pracher & Robyn Christo In this case, the Court of Appeal for the First Appellate District rejected all of petitioner’s arguments regarding the adequacy of the seismic impact analysis and mitigation measures in a revised Environmental Impact Report (“EIR”) prepared … Continue Reading

Superior Court’s Injunction Preventing California’s Cap and Trade Program Has Been Stayed…Right?

By Randolph C. Visser and Whitney Hodges Until recently, Association of Irritated Residents v. California Air Resources Board proceeded along the litigation path as smoothly as any environmental challenge might. However, things took an unexpected twist last week that has left unanswered questions and many spectators baffled.… Continue Reading

Municipalities Are Responsible For Discharges Of Stormwater Regardless Of The Ultimate Source Of Pollution

Natural Resources Defense Council v. Los Angeles County, United States Court of Appeals for the Ninth Circuit, Case No. 10-56017 (March 10, 2011) By Elizabeth Anderson The Ninth Circuit Court of Appeals held that environmental groups were entitled to summary judgment after presenting evidence that the Los Angeles County Flood Control District ("District") had illegally … Continue Reading

California Court Issues Tentative Ruling Enjoining AB 32 Implementation

By Whitney Hodges On January 21, a San Francisco Superior Court issued a proposed decision that could significantly delay the implementation of the Global Warming Solutions Act of 2006 (“AB 32”). In Association of Irritated Residents, et al. v. California Air Resources Board, Case No. CPF-09-509562, the Court held that the California Air Resources Board (CARB) failed … Continue Reading
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