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National Ambient Air Quality Standards, or NAAQS, can be hard enough for states to attain given the sources of air pollution within their own borders.  But add cross-boundary air pollution from upwind states to the mix, and downwind states in particular are left in a real bind: despite their best efforts, these states are unable to control the upwind sources of air pollution that can contribute significantly to their own NAAQS non-attainment.
Continue Reading SCOTUS Upholds EPA’s Good Neighbor Provision, To Relief of Downwind States

Valves, pumps, connectors, and other component parts are the crucial joints in an industrial plant’s skeletal system. Without them, movement—or in the case of a refinery or chemical manufacturing facility, processing—would be impossible. And, just as with skeletal joints, without proper care and maintenance, normal wear and tear can cause component parts to become arthritic…

This week, EPA finalized its Tier 3 emission standards designed to reduce air pollution from passenger cars and trucks. The rule establishes new vehicle emissions standards and reduces the sulfur content of gasoline by two-thirds, with an implementation date of 2017. According to EPA, the new standards will help to reduce tailpipe and evaporative emissions from passenger cars, light-duty trucks, medium-duty passenger vehicles and some heavy-duty vehicles. The gasoline sulfur standard in particular will make emission control systems more effective for both existing and new vehicles, and will enable manufacturers to meet the more stringent vehicle emissions standards, since removing sulfur allows the vehicle’s catalyst to work more efficiently. The EPA says that the more stringent tailpipe emission standards and reduced sulfur
Continue Reading EPA Finalizes Emissions Standards for Vehicles and Fuel

On February 20, 2014, the New York State Department of Environmental Conservation (“NYSDEC”) announced streamlined procedures for environmental easements.  There has been a significant push from the regulated community for process reform given the resources and length of time that have been required to get necessary easements in place.
Continue Reading NYSDEC Announces Streamlined Procedures for Environmental Easements

On Wednesday, EPA published its proposed New Source Performance Standards (“NSPS”) for greenhouse gas emissions in the Federal Register. In its proposed regulations, EPA expresses its determination, despite industry and internal Scientific Advisory Board evidence to the contrary, that Carbon Capture and Recycling (“CCR”) is a viable technology. This is a huge boon for CCR technology, as until now the efficacy of the R – recycling – had been the subject of intense debate. While Carbon Capture and Sequestration is a generally accepted practice, the viability of recycling residual gas and using it as feedstock for other products had, until now, been in dispute.
Continue Reading Carbon Capture and Recycling Is Viable, Says EPA, to An Industry In Decline

In an intriguing post on Law & The Environment, Seth Jaffe notes that, in part because of the ongoing sequester and budgetary concerns, EPA’s future enforcement efforts may rely more heavily on citizen groups. Quoting Cynthia Giles,  the Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance, as saying that “we have far too much noncompliance, widespread noncompliance in some of the largest sectors,” and that “EPA is looking for new ways to catch violations as they occur,” Jaffe notes that the Agency’s first overture to more citizen group involvement may be seen in its recent update to ECHO, its online enforcement database.
Continue Reading EPA’s Future Enforcement Strategy: More Citizen Suits?

In the CERCLA context, knowing whether a cleanup action is a “removal” or “remedial” action is crucial to the length of time allowed for the cleanup, the amount of money that may be spent on the cleanup, and the statute of limitations for recovery of costs incurred as part of the cleanup. Generally, the statute of limitations for the recovery of costs related to a removal action is three years from the date of completion of the removal action, whereas the statute of limitations related to a remedial action is six years after the initiation of physical on-site construction of the remediation – meaning contribution lawsuits must often be brought while a remedial action is on-going. The determination of whether an action is removal or remedial can, therefore, be dispositive on whether an action is time-barred.
Continue Reading Second Circuit Clarifies “Removal” vs. “Remedial” Action Under CERCLA

Today, the Supreme Court granted certiorari to six petitions brought by state and industry groups challenging the EPA’s greenhouse gas emissions regulations for stationary sources. The petitions are seen by many as a sequel to Massachusetts  v. EPA, a 2007 Supreme Court decision directing EPA to determine whether greenhouse gas emissions endangered public health or welfare and, if so, to regulate them accordingly. Two years later, EPA made what is known as an “endangerment finding” concerning the risks posed by greenhouse gases, thereby paving the way for it to set limits on greenhouse gas emissions from both vehicles and stationary sources.
Continue Reading Supreme Court Agrees to Hear GHG Emissions Sequel to Mass v. EPA

In what will be a precedent-setting decision of national importance, today the New York State Court of Appeals agreed to hear Norse Energy’s appeal of the Third Department’s decision upholding the Town of Dryden’s municipal ban on hydraulic fracturing for natural gas extraction. The Third Department and lower State Supreme Court both upheld the Town’s ban on hydraulic fracturing on the grounds that a full blown ban on an activity does not constitute “regulation” for preemption purposes under New York State’s Oil, Gas and Solutions Mining Law. The validity of the Third Department’s reasoning, and the Town’s underlying authority, will be reviewed by the Court of Appeals sometime this fall.
Continue Reading Update! – New York State Court of Appeals Takes On Fracking Ban Case

We must invest in New York State’s environmental infrastructure, says Republican State Senator Mark Grisanti and Democratic Assembly Member Robert Sweeny, both Chairs of Environmental Conservation Committees in the State Legislature.   Last week, Grisanti and Sweeny introduced legislation to create a $5 billion environmental bond to finance efforts to address New York State’s “crumbling infrastructure above and below ground.”  A high priority on the lawmakers’ list is the State’s aging combined sewage and storm water systems, some of which have not been updated in over a century.  Aging and limited-capacity storm water systems are responsible for significant sewage overflows throughout New York State.  Other bond funds would be earmarked to protect water resources,
Continue Reading $5 Billion Environmental Bond Act Introduced in New York State Assembly