Latest Blog Posts

October 2, 2014 11:45 AM | Posted by Mike Comodeca

At a national conference on the Endangered Species Act (ESA) in San Francisco last month, a major topic of discussion was the recent settlement agreement that ended litigation between the U.S. Fish and Wildlife Service (“the Service”) and two major environmental groups.  The settlement agreement is noteworthy because it requires the Service to take action over the next few years to determine whether to list an additional 251 species.  As of May 2014, the Service had listed 97 of these species.  

One species that will be listed pursuant to the settlement agreement is the northern long-eared bat.  The listing of the bat as “endangered” will affect a large part of the country since the bat’s range includes the following 38 states: Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

September 12, 2014 8:25 AM | Posted by Mike Comodeca
The 2014 Missouri Water Seminar was recently held in Columbia, Missouri.  The Water Case Law Update session highlighted three recent court cases that attempted to expand the Supreme Court’s landmark ruling in Sackett v. EPA, 132 S.Ct. 1367 (2012).  In Sackett, the Supreme Court held that an administrative compliance order (ACO) issued by EPA concerning alleged wetland violations was subject to judicial review because it constituted “final agency action”.   Before Sackett was decided, recipients of ACOs had to wait to sue until either the regulatory agency issued an adverse permitting decision or decided to initiate an enforcement action.
September 3, 2014 1:11 PM | Posted by Andrew Brought

On September 9, 2014, Andrew Brought of Spencer Fane will be one of the panelists in the ABA's Presentation Environmental Compliance Certifications: What Your Clients Need to Know Before They Sign.

July 25, 2014 11:39 AM | Posted by Michael Comodeca
On July 10, EPA Administrator Gina McCarthy spoke to the Agricultural Business Council of Kansas City in an attempt to ease concerns over the Administration’s proposed rule to clarify the reach of the Clean Water Act (CWA).  The proposed rule, issued jointly by EPA and the Army Corps of Engineers, seeks to specify by regulation the scope of the CWA following the 2006 Supreme Court decision in Rapanos v. United States. The competing tests for CWA jurisdiction issued by the Court in Rapanos have complicated efforts to determine when smaller waters, wetlands, and ephemeral streams are subject to CWA jurisdiction and would require government permits before they can be impacted. In response to mounting criticism of the proposed rule from a number of stakeholders, McCarthy tried to reassure the audience, saying, “We don’t believe that we are expanding jurisdiction.”
July 11, 2014 11:08 AM | Posted by William Brady
In another “end run” around the state’s General Assembly, proponents of greater restrictions on oil and gas exploration in Colorado are again employing the initiative process, this time to authorize local governments to enact laws within their geographic boundaries more restrictive than state law, and even go so far as to potentially ban all exploration activity.  Alongside a companion ballot language challenge allowing for more restrictive statewide setback requirements (the subject of a prior article, (Colorado Supreme Court Approves Ballot Measure Language Restricting Fracking), the Colorado Supreme Court ruled that two ballot initiatives permitting a state constitutional amendment allowing for more restrictive local control did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013).
July 10, 2014 3:29 PM | Posted by William Brady
In an “end run” effort around the state legislature, proponents of more restrictive oil and gas well setback requirements in Colorado are employing the initiative process to achieve more restrictive minimum setbacks than present state law permits. On June 30th, the Colorado Supreme Court ruled that three potential ballot initiatives permitting a state constitutional amendment requiring the more restrictive setbacks did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013).
July 8, 2014 3:08 PM | Posted by William Brady
According to a new study in the journal, Science, an increase in the number of earthquakes in central Oklahoma likely arises from the use of underground injection wells to dispose of treated wastewater from oil and gas fracking operations. The study, funded in part by the U.S. Geological Survey (“USGS”)and the National Science Foundation (“NSF”), focused on Oklahoma earthquakes and injection well practices. The research was led by Cornell University and included researchers from the University of Colorado, Boulder.
July 7, 2014 12:02 PM | Posted by Admin
Spencer Fane is proud to announce that Mike Hockley, a Partner in our Kansas City office, has been awarded the Overland Park Rotary’s highest honor, The Ben Craig Distinguished Service Award.
June 23, 2014 5:36 PM | Posted by James Price
Earlier today, June 23, 2014, the United States Supreme Court dealt a blow to EPA’s current approach to regulating greenhouse gas emissions (GHGs) through its air permitting program for new or expanding stationary sources. Utility Air Regulatory Group v. Environmental Protection Agency. No. 12-1146, ___ U.S. ___, June 23, 1014. The Court said it left intact EPA’s ability to regulate 83 percent of such GHG emissions, compared to the 86 percent EPA championed under its approach. Nevertheless, in its ruling the Court undercut key foundations of EPA’s current GHG regulatory approach. This ruling will require EPA to re-think many aspects of its approach to GHGs and will give opponents increased leverage in the upcoming discussions.
June 19, 2014 3:32 PM | Posted by William Brady
The Ventura County Star reported on June 17th that the California Department of  Conservation, Division of Oil, Gas and Geothermal Resources (the "Division”), has modified its proposed hydraulic fracturing regulations mandated by last year’s Senate Bill 4, requiring well operators to conduct real-time seismic monitoring. The modified regulations specify that they apply both to offshore and on shore oil drilling operations. Most drilling off the California coast, however, occurs in federal waters that are beyond the reach of state regulations.
June 18, 2014 9:31 AM | Posted by Andrew Brought
On June 17, 2014, EPA issued a proposed rule in the Federal Register, 79 Fed. Reg. 34480, proposing to amend the standards and practices for satisfying All Appropriate Inquiries (AAI) under CERCLA. In particular, EPA is proposing to remove references to the 2005 Phase I ESA Standard ASTM E1527-05 as satisfying AAI.