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Recent amendments to the National Environmental Policy Act (NEPA), which Congress included in the Fiscal Responsibility Act of 2023 (FRA), aim to streamline federal environmental review by imposing time limits, clarifying the scope of review and agencies’ roles, and narrowing some key definitions. Most of the amendments simply codify regulatory definitions or agency practices already in effect, so the practical impact of the changes is likely to be limited. Nonetheless, the amendment of NEPA is noteworthy in its own right and could signal a new willingness in Congress to address a process often seen as cumbersome and prone to delay.…

Continue Reading NEPA Amendments Aim To Streamline Environmental Review But Largely Codify the Status Quo

On June 10, 2023, a jury in Portland, Oregon found PacifiCorp and Pacific Power (collectively, “PacifiCorp”) liable for negligence, trespass, and nuisance based on a series of four wildfires that occurred during Labor Day weekend in 2020. PacifiCorp prevailed against the plaintiffs on the claim of inverse condemnation. With respect to the tort-based claims, the jury awarded approximately $72 million in compensatory damages to 17 plaintiffs. The jury later found PacifiCorp liable for $18 million in punitive damages, or one quarter of the compensatory damages that the jury awarded to the 17 plaintiffs. The jury’s liability findings apply to a broader class of owners, whose damages will need to be individually proven in a yet-to-be defined second phase of proceedings. Post-verdict motion practice and appeals may affect the jury’s findings.…

Continue Reading Beyond Inverse Condemnation in Wildfire Litigation: An Oregon Jury Finds Utility Liable for Negligence, Trespass and Nuisance

On May 19, 2023, California Governor Gavin Newsom proposed a legislative package of 10 bills reforming the California Environmental Quality Act (CEQA) intended to speed up construction of clean energy projects by streamlining regulations for solar, wind, and battery storage projects, transit and regional rail infrastructure projects, water storage projects, and the Delta Tunnel plan. The proposed measures were designed as mechanisms to accelerate such projects to completion in order to maximize California’s share of federal infrastructure dollars available through the Infrastructure Investment and Jobs Act and Inflation Reduction Act (IRA) and expedite the implementation of projects that meet the state’s ambitious economic, climate, and social goals.…

Continue Reading CEQA Reforms for Clean Energy Projects: Still Possible Despite Senate Budget Committee Rejection?

In a long-anticipated decision on the reach of the Clean Water Act (“CWA”), the Supreme Court significantly narrowed the scope of the wetlands and other waters subject to the CWA’s protections. The Court’s opinion in Sackett v. Environmental Protection Agency, released May 25, 2023, limits waters of the United States (“WOTUS”) to “relatively permanent” water bodies such as streams, oceans, rivers and lakes, and to wetlands with a “continuous surface connection” to those water bodies. The Court’s holding removes a wide swath of previously-protected wetlands from the CWA’s permitting requirements, likely eliminates jurisdiction for many ephemeral and intermittent streams, and spells all but certain doom for the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency’s recent rulemaking adopting a new definition of WOTUS for CWA purposes.…

Continue Reading Supreme Court Narrows Scope of Waters Protected by the Clean Water Act in Sackett v. EPA

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on Wednesday published a final rule defining “Waters of the United States,” or WOTUS, which determines the extent of federal regulatory authority under the Clean Water Act. 88 Fed. Reg. 3004-3144 (Jan. 18, 2023). The new rule largely reinstates the longstanding definition of WOTUS first adopted in 1986, as modified by the Supreme Court’s opinion in Rapanos v. United States,547 U.S. 715 (2006). But the final rule comes as the Supreme Court again considers the proper scope of WOTUS in Sackett v. Environmental Protection Agency, which will likely determine the viability of the new definition.…

Continue Reading Turbulence Ahead for the Clean Water Act: Agencies Redefine “Waters of the United States” as SCOTUS Prepares to Rule in Sackett v. EPA

After unexpected controversy earlier in the year, on December 15, 2022 the U.S. Environmental Protection Agency (EPA) issued a Final Rule unambiguously recognizing the ASTM International Standard E1527-21 for Phase I Environmental Site Assessments (ESAs), with an effective date of February 13, 2023.[1] EPA’s express endorsement of the standard as meeting the requirements of the All Appropriate Inquiry (AAI) Rule[2] is essential to ensuring that the Phase I ESA fulfills its fundamental purpose: protection for prospective purchasers (and lessees) of property from liability for pre-existing contamination by petroleum products or hazardous substances regulated under the Comprehensive Environmental Response and Cleanup Liability Act (CERCLA).[3]…

Continue Reading EPA Endorses New Standard for Phase I Environmental Site Assessments

California has approved a new, alternative “Safe Harbor” warning label for foods containing acrylamide, a naturally-occurring byproduct that occurs during high-heat cooking. Whether the new regulation moots the California Chamber of Commerce’s (“CalChamber”) ongoing legal battle against Proposition 65 (“Prop 65”) warning labels[1] remains to be seen.…

Continue Reading California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide In Foods Turns Up the Heat In Ongoing First Amendment Challenge to Proposition 65

This article was originally published at FoodNavigator-USA.

Federal and state agencies are considering restrictions or bans of individual ‘forever chemicals’ PFAS (Perfluoroalkyl and polyfluoroalkyl compounds) or PFAS as a class, while at least 24 putative class actions targeting packaged goods purportedly containing PFAS were filed from January 1 to August 1, 2022 alone. So how widely used are PFAS in the food industry, and how can firms protect themselves from litigation?…

Continue Reading PFAS and Food Packaging: Regulatory Changes Create Ripple Effects for PFAs-Related Litigation

The U.S. Fish and Wildlife Service (the “Service”) published a proposed rule listing the tricolored bat as an endangered species under the Endangered Species Act (“ESA”). The tricolored bat occurs in portions of 39 states, including Texas, Iowa, and Oklahoma, which contain a significant concentration of utility-scale wind projects. In combination with the Service’s proposed “endangered” designation for the northern long-eared bat, the new proposed rule could complicate wind energy project permitting across the country.…

Continue Reading U.S. Fish and Wildlife Service Proposes Listing Tricolored Bat as Endangered Under Endangered Species Act

The group of chemicals known as PFAS (per- and poly-fluoroalkyl substances) are high on the federal regulatory agenda for 2022, as implementation of EPA’s “PFAS Strategic Roadmap” proceeds. One potential consequence will be new additions to California’s “Prop 65 List” of chemicals known to cause cancer or reproductive harm. Already, two PFAS substances are subject to Prop 65 warning and labeling requirements (PFOA and PFOS), with a third (PFNA) subject to enforcement starting in 2023. New federal Health Advisory Levels (HALs) announced on June 15, 2022 may provide the basis to add another two PFAS to the list (PFBS and GenX).…

Continue Reading PFAS Regulations Could Open Floodgates to Prop 65 Enforcement – Assess & Manage Your Exposure Now