Earlier this month, the Fifth Circuit held that sovereign immunity protected a number of state agencies and universities from Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) liability. Generally stated, sovereign immunity is a legal doctrine that prohibits private individuals from bringing civil lawsuits or criminal prosecutions against the state. State immunity from lawsuits is provided by the Eleventh Amendment, while the Supreme Court has established a similar rule for suits against the federal government. Sovereign immunity is not absolute, of course. The states and federal government may waive immunity or consent to the lawsuit.
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New revisions to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) have been enacted as part of the Brownfields Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). Key changes include extension of the Bona Fide Prospective Purchaser (“BFPP”) defense to tenants, increased funding for remediation grants and new authorizations for federal and state funding through 2023.
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Released in November, the Federal Government’s Climate Science Special Report (CSSR) concluded that “it is extremely likely that human activities… are the dominant cause of the observed warming since the mid-20th century.” Unsettling climate-related weather events have become increasingly common over the last few years, and according to the United States Global Change Research Program (USGCRP), these trends are expected to continue in the coming decades. Thousands of studies have been conducted around the world that document a wide array of changes in the environment, and conclusions reached in the CSSR are based on extensive evidence. This report directly contradicts the Trump administration’s stance on the issue, as the recently released National Security Strategy did not include climate change as a major threat to the U.S.
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On Tuesday, October 10, Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a Notice of Proposed Rulemaking (NPRM) that would effectively repeal the Clean Power Plan (CPP or “rule”). The CPP focused on reducing carbon emissions from electric-generating power plants to combat global warming. As we previously reported, the Supreme Court granted an unprecedented stay of the rule in early 2016 after several challenges by states and industry groups. Interestingly, as Oklahoma Attorney General, Administrator Pruitt was one of 27 attorney generals to challenge the rule.
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Four years after beginning the process, the New York State Department of Environmental Conservation (“NYSDEC”) issued its proposed amendments to the New York State Environmental Quality Review Act (“SEQRA”) regulations (“SEQRA Regulations”). According to NYSDEC, the “principal purpose of the amendments is to streamline the SEQR[A] process without sacrificing meaningful environmental review.”
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The New York State Public Service Commission (“PSC”) recently issued an order that will shape New York’s energy portfolio for years to come. The Clean Energy Standard (“CES”), issued and effective August 1, 2016, is a bold initiative that mandates renewable energy supply 50 percent of the State’s electricity needs by 2030. New York seeks to achieve this goal by focusing on three major areas: (1) large utility scale solar, wind and other renewables; (2) offshore wind; and (3) subsidized nuclear power. The expectation is that by 2030, New York greenhouse gas emissions will be reduced by 40 percent from 1990 levels.
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CA-2016-07-19Through an interim final rule effective August 1, 2016, the U. S. Environmental Protection Agency (“EPA”) is increasing the maximum daily penalties it may assess for environmental violations that occurred any time after November 2, 2015. Any violation of an environmental statute enforced by the EPA, i.e., Clean Water Act, Clean Air Act, TSCA, RCRA, CERCLA and EPCRA, may now have a penalty that is up to 150 percent higher than the previous daily maximum. For example, a Class I violation of EPCRA carries a statutory maximum penalty of $25,000 under 42 U.S.C. 11045(a). Now, the maximum daily civil penalty for that violation is $53,907.
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