Troutman Sanders has formed a new group, Species Strategies and Solutions (S3), which will track policy, regulatory, legislative, and litigation developments regarding federally-protected wildlife and plants.  Initiatives to address infrastructure projects, and how those initiatives relate to species-related review requirements, will also be featured.  S3 will be focused primarily on national-level species-related developments that have the potential to affect construction and operation of projects in those sectors. S3 is not a lobbying or advocacy group; rather, its purpose is to facilitate a better understanding of the issues associated with compliance with the Endangered Species Act, and strategies for addressing those issues. Continue Reading Troutman Sanders Forms Group Focused on Species Issues

On April 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater.  80 Fed. Reg. 67838 (Nov. 3, 2015).

Continue Reading EPA Letter Announces Plans to Reconsider Power Plant ELG Rule and Intent to Request to Stay Pending Litigation

On September 27, 2016, the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) published a final rule finalizing changes to the regulations concerning listing and de-listing petitions under the Endangered Species Act (“ESA”). The revisions clarify and enhance the procedures by which the Services evaluate these petitions under section 4(b)(3) of the ESA.  The Services initially proposed revisions to the petitions process in May 2015, but narrowed the revisions in a re-proposal issued in April 2016.  The rule becomes effective October 27, 2016. Continue Reading Federal Agencies Revise Endangered Species Act Listing Petition Process

In the wake of the Supreme Court’s decision in CTS Corp. v. Waldburger and recent modifications to North Carolina’s 10-year statute of repose, some have questioned how the repose period applies to  environmental indemnity agreements.   N.C.G.S. 1-52(16) provides that a cause of action for personal injury or property damage may not be brought more than ten years after the defendant’s last act or omission giving rise to the claim.  Though the legislature recently added an exception to the repose period for claims associated with consumption of – or exposure to – contaminated groundwater, it does not explain when the repose period begins to run on enforcement of environmental indemnity agreements.  The Middle District of North Carolina recently held that the repose period does not start to run until the indemnitor fails to honor its agreement to make the indemnitee whole. Continue Reading North Carolina’s Statute of Repose Does Not Impose Time Limits on Environmental Indemnity Agreements

Earlier this week, the governors of ten states in the Mid-Atlantic and Northeast took the first step towards asserting control over portions of nine other states’ authority to regulate air pollution.  The petitioning states, all of which are members of the 13-state Ozone Transport Region (the “OTR”), asked EPA to require the following upwind states to join the OTR: Continue Reading Northeastern States Seek Power over Nine States’ Air Quality Programs

The Third Circuit has joined the growing chorus of federal courts holding that a violation of the New Source Review program – i.e., failure to obtain a pre-construction permit before modifying a facility – is a discrete violation that only occurs once, at the time construction of the project begins. As a result, the Third Circuit – like the Eleventh, the Eighth, and (most recently) the Seventh Circuits – held that the five-year statute of limitations precludes civil penalties and citizen suits filed more than five years after a “major modification.” Continue Reading Third Circuit Dismisses Stale NSR Enforcement Action Against Subsequent Owner