In a one paragraph, unsigned order issued July 6, 2020, the U.S. Supreme Court reinstated most uses of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for pipeline and utility trenching and construction, dredge and fill, and maintenance, inspection, and repair activities in or adjacent to wetlands and other waters of the United States. The Court’s order carves out and continues to disallow use of NWP 12 for the Keystone XL pipeline (the actual target of plaintiffs’ lawsuit). For our earlier alerts on this fast-moving litigation see here, and here, and here.
Latest Posts
| 07.07.2020 |
|
| 06.29.2020 |
Accidental chemical releases in the workplace and offsite into the environment continue to be a high-priority enforcement area for both the U.S. Environmental Protection Agency and the U.S. Department of Labor’s OSHA, including releases of anhydrous ammonia and other toxic and flammable substances under the agencies’ RMP and PSM programs. |
| 06.23.2020 |
California Judge Denies Nationwide InjunctionThis is an updated version of a previous blog to include recent developments. Something to do during lock-down: track the twists and turns of the multiple court challenges to the Waters of the U.S. (WOTUS) rule; a fascinating pass-time. |
| 05.28.2020 |
The partial vacation of Nationwide Permit 12 (NWP 12) will remain in place for now as the Ninth Circuit today denied emergency motions for a partial stay pending appeal. In its May 28, 2020, Order (available here) the Ninth Circuit held that appellants “have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.” |
| 05.28.2020 |
This is an updated version of a previous blog to include recent developments. On May 22, 2020, Colorado joined the surge of lawsuits challenging the Waters of the United States (“WOTUS”) rule issued in April by the Trump administration. See the link below to the Colorado lawsuit filed in federal court in Colorado as well as links to other similar lawsuits in other jurisdictions. |
| 05.20.2020 |
On May 19, OSHA issued two enforcement memos regarding COVID-19. The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports. These two memos are summarized below. |
| 05.15.2020 |
This week the U.S. District Court for the District of Montana restored use of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for some utility line construction and maintenance activities (primarily for non-pipeline projects) by restricting the scope of its earlier vacation of the permit, while the Ninth Circuit ruled on an initial round of briefings in the government’s request for an emergency stay. The District Court’s April 15 decision has been the source of significant disruption because it not only blocked application of the popular nationwide permit to the Keystone XL pipeline (the subject of the litigation), but also barred any and all other uses of the permit. See our earlier alert here. |
| 05.07.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITORIn County of San Mateo, California v. Peabody Energy Corp. (In re Peabody Energy Corp.), the Eighth Circuit (Judges Arnold, Gruender and Shepherd) agreed that the Bankruptcy Court (Judge Schermer) did not abuse its discretion when it held that litigation against Peabody by various California municipalities was barred by the terms of Peabody’s confirmed chapter 11 plan of reorganization. In so doing, the Court placed particular weight on the presumed intent of the plan drafters in defining exceptions from discharge – a rule of interpretation that may prove significant. |
| 05.05.2020 |
On May 1, 2020 in the Northern District of California, 17 States, the District of Columbia and New York City joined the menagerie suing to prevent implementation of the “waters of the United States” (“WOTUS”) rule. The Plaintiffs include the states of California, New York, Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington and Wisconsin, the Commonwealths of Massachusetts and Virginia, the North Carolina Department of Environmental Quality, the District of Columbia, and the City of New York. |
| 04.23.2020 |
US Supreme Court Says Superfund Statute Allows Landowners to Seek Additional Remediation in State Court, but Delays Additional WorkOn April 20, 2020, the United States Supreme Court issued its long-awaited decision allowing 98 private landowners in Montana to pursue a restoration damages claim against Atlantic Richfield Co. (as successor to the Anaconda Copper Mining Co.) based on Montana common law nuisance, trespass, and strict liability claims. Atlantic Richfield Co. v. Christian, et al, slip op., 590 U.S. ___ (April 20, 2020). After giving with one hand however, Chief Justice Roberts (writing for the Court) took with the other, and held that on remand, if the landowners persuade a Montana jury of their entitlement to restoration damages, absent EPA’s consent, they still may not use that right until after EPA’s approved cleanup is completed and the site is delisted from the NPL. |