Section 401 of the Clean Water Act (“CWA”) provides states and tribes with a mechanism by which they may address the impacts of federally issued permits and licenses, such as dredge and fill permits issued under CWA § 404 and National Pollutant Discharge Elimination System permits under § 402. Pursuant to § 401, a federal agency cannot issue a permit or license for an activity that may result in a discharge to a water of the…

The Third Circuit recently concluded that the owner of a remediated site could be liable under Section 107(a) of CERCLA for remediation costs incurred prior to its acquisition of the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem. LLC 906 F.3d 85 (3d Cir. 2018). The facts of the case are straightforward enough. Trainer Custom Chemical (“Trainer”) purchased property (“the Site”) at a tax sale knowing that it was contaminated. At the time…

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.…

On August 21, 2018, the Environmental Protection Agency (“EPA”) proposed a new rule which would replace the Obama-era Clean Power Plan (“CPP”) and establish new emissions guidelines for states to address greenhouse gas (“GHG”) emissions from electric-generating power plants. As background, the CPP was stayed by the Supreme Court in a 5-4 decision in February of 2016 before the rule ever went into effect. More recently, in October 2017, the EPA announced its intention to…

Earlier this month, the United States Environmental Protection Agency (“EPA”) issued a memorandum that defines Adaptive Management (“AM”) and calls for its expanded implementation at Superfund sites across the country. The push for AM derives from one of many recommendations made by the EPA Superfund Task Force (“STF”), which was established by former EPA Administrator Scott Pruitt. As we previously reported, one of the former Administrator’s main priorities while in office was to revamp…

Last Thursday, Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (“NYSDEC”) announced the first major update to New York’s State Environmental Quality Review Act (“SEQRA”) regulations in over 20 years. SEQRA establishes a process to systematically consider environmental factors early in the planning stages of actions that are directly undertaken, funded or approved by local or state agencies. Seggos believes the updates will “streamline the environmental review process and encourage…

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.…