We are excited to introduce you to Troutman Pepper. Effective today, Troutman Sanders and Pepper Hamilton have merged to form a new law firm, Troutman Pepper (Troutman Pepper Hamilton Sanders LLP), with more than 1,100 attorneys in 23 cities across the country.

The combination expands both the capabilities and the presence of the firm in the U.S., and notably brings new depth to the combined firm’s Environmental Practice, which focuses on health and safety, natural resources, pipelines and litigation and includes more than 50 attorneys in 10 offices nationwide. The Environmental Practice is further supported by attorneys in other practices like Real Estate, Financial Services and Litigation, among others.

The legacy Troutman Sanders Environmental Practice Group was already one of the largest and oldest in the country, and the Troutman Pepper combination strengthens our national capabilities by adding expertise in the Northeast, Midwest and West Coast.

The combined firm offers increased benefits and services to our clients, while retaining the same high commitment to client care that has been a hallmark of both firms. Our environmental expertise across the country includes a broad range of industries, from utilities to airlines to pipelines and manufacturing. The areas of continued focus for the Troutman Pepper combined Environmental Practice Group include:

Rankings like Chambers USA, The Legal 500 and Best Lawyers® consistently list Troutman Pepper as a go-to environmental firm. We are recognized by Chambers USA in Georgia, North Carolina and Virginia, with individuals recognized in Georgia, Illinois, New York, North Carolina and Virginia. The Legal 500 recognizes Troutman Pepper nationally in three environmental disciplines: Regulatory, Litigation and Transactional.

U.S. News & World Report – Best Lawyers “Best Law Firms” 2020 National Rankings

  • Named “Law Firm of the Year” for Energy
  • Nationally ranked in Tier 1 for Environmental Law
  • Nationally ranked in Tier 1 for Litigation: Environmental
  • Nationally ranked in Tier 2 for Oil and Gas Law

U.S. News & World Report – Best Lawyers 2020 National Rankings

  • 15 individuals ranked for Environmental Law
  • 8 individuals ranked for Litigation – Environmental

Please continue to follow our Environmental Law & Policy Monitor and Pipelaws blogs to receive the latest news, analysis and commentary on your industry. You can read more about Troutman Pepper and our hallmark focus on client care at troutman.com.

In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.

On June 19, the United States District Court for the Northern District of California denied a motion for a nationwide preliminary injunction that was filed by California and sixteen other states and cities (“Plaintiffs”). Plaintiffs filed a lawsuit challenging the Rule and, on May 21, filed a motion for a nationwide preliminary injunction to prevent the Rule from taking effect. In the first ruling of its kind, Judge Richard Seeborg found that the Plaintiffs had not met the standard for a preliminary injunction and denied the motion. The Court found that the Plaintiffs had not shown a likelihood of success on the merits of their legal challenge and rejected the Plaintiffs’ claims that an injunction was warranted to avoid irreparable injury.

Addressing the likelihood of success on the merits, the Court noted that the Agencies’ interpretation of the term “waters of the United States” is ultimately entitled to deference, and should be upheld if it is a reasonable interpretation of the term. The Court emphasized that Congress had failed to clearly define the term in the statute and that there had been a shifting interpretation of the term between administrations. The Court acknowledged that interpretative changes motivated by a change in administration are not inherently unreasonable and concluded that the Agencies’ current interpretation—even if it is inconsistent with the Agencies’ 2015 interpretation of the term—is likely not inconsistent with the text, structure, and purpose of the CWA.

The Plaintiffs had also argued that they were likely to succeed on the merits because the Rule reflected such a significant shift from the Obama rule and the scientific foundation for the Obama rule. In denying the injunction, the Court noted that the Agencies had provided an explanation for the policy change and articulated why they discounted the scientific underpinning used to justify the 2015 rule.

The Court also rejected Plaintiffs’ argument that the environment would suffer irreparable harm if the Rule takes effect. While the Court acknowledged that withdrawing protections afforded by the 2015 rule may immediately manifest in some waters and wetlands, the Court concluded that Plaintiffs’ arguments relied on speculative assumptions. The Court added that Plaintiffs likely failed to show that the alleged harms apply equally across the county, weighing against the grant of a nationwide injunction. Finally, the Court abstained from determining whether the Rule served the public interest, reasoning that such a determination would have required the Court to improperly scrutinize the Agencies’ policy decisions.

On the same day, Judge William J. Martinez of the District of Colorado (an Obama appointee) reached an opposite conclusion and granted a request for a preliminary injunction, concluding that the Rule contradicts the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). Specifically, Judge Martinez concluded that the Rule impermissibly implements the jurisdictional test put forth by the four-Justice plurality in Rapanos authored by Justice Scalia rather than Justice Kennedy’s concurring opinion. Given the Rule’s contradiction of Justice Kennedy’s concurring opinion in Rapanos, Judge Martinez determined that the plaintiffs would likely succeed in challenging the Rule and halted its implementation in Colorado during the pendency of the trial.

Similar lawsuits remain pending in federal district courts in Arizona, Washington, New Mexico, South Carolina, and Massachusetts, which could result in the Rule’s suspension on a state or nation-wide basis. For more information on these cases or the implications, please contact Andrea Wortzel, Fitzgerald Veira, Byron Kirkpatrick, Brooks Smith, Patrick Fanning, Ashley Cameron, or Rich Pepper.

This week, the U.S. Environmental Protection Agency (EPA) crystalized a new requirement that facilities manufacturing, processing, or otherwise using any of 172 different per- and polyfluoroalkyl substances (PFAS) submit Toxics Release Inventory (TRI) reports by July 1, 2021, for calendar year 2020. The EPA created the TRI Program in 1986 under the Emergency Planning and Community Right-to-Know Act to provide the public with information regarding releases of chemicals that the EPA has concluded may pose a threat to human health and the environment. Facilities that manufacture, process, or use listed chemicals above established threshold quantities must annually report to the EPA the amounts released or otherwise disposed. Continue Reading EPA Requires TRI Reporting of PFAS for Year 2020

Under the Clean Water Act, stormwater is considered a nonpoint source. Accordingly, benchmark standards and best management practices have been used to manage stormwater discharges. At least in California, that all changes on July 1, 2020, as amendments to California’s Statewide General Permit for Storm Water Discharges Associated with Industrial Activities (“Industrial General Permit” or IGP) go into effect. The amendments include effluent limits for a variety of substances based on Total Maximum Daily Loads (TMDLs) adopted for impaired waterways – ranging from copper and other metals to nitrogen and phosphorus to fecal coliform and even trash for certain waterways.

In recognition of the difficulties associated with meeting effluent limits for stormwater discharges, the amended IGP provides compliance options with significant incentives for stormwater capture and infiltration. In addition, the amended IGP supports requests for additional time to meet the new standards. New options and incentives that will be available for dischargers under the amended IGP include:

  • New On-Site Compliance options that allow dischargers to meet a standard for stormwater capture and/or diversion and to be “deemed in compliance” with many IGP requirements.
  • New Off-Site Compliance incentives that support partnerships between dischargers, local governments and organizations to develop watershed-based stormwater projects.
  • Expanded consideration of Time Schedule Orders (TSOs) that can allow additional time to implement Best Management Practices (BMPs) to meet new requirements.

The amended IGP also includes more rigorous discharge testing standards, based on the federal Sufficiently Sensitive Methods Rule.

For more information on the California IGP or other stormwater compliance issues, contact Angela Levin, angela.levin@troutman.com, Andrea Wortzel, andrea.wortzel@troutman.com, or Louise Dyble, louise.dyble@troutman.com.

As businesses across the country begin to re-open, many will be hypervigilant about the safety of indoor spaces. While stay-at-home orders may be lifting, business owners and their employees may have significant trepidation about the risks of returning to their workspaces and public venues. Building owners and property management companies will be called upon to address concerns about the safety of their tenant spaces and public areas, and the adequacy of measures taken to ensure the protection of building occupants. However, while building owners and property managers must necessarily focus on addressing the concerns arising directly from potential exposure to the COVID-19 virus, they should not ignore other potentially significant concerns associated with reopening their properties. One such concern is the stagnant conditions that may develop in a building’s water system during periods of extended disuse, which can lead to an enhanced risk for the spread of the Legionella bacteria that can cause Legionnaire’s disease, creating potential health risks for tenant, worker, and other user populations. Continue Reading After the Stay-At-Home Order: Water Management Best Practices for Re-Opening Buildings

As anticipated, the Environmental Protection Agency (EPA) announced on June 18, 2020, that it will not regulate perchlorate, a substance primarily found in rocket fuel and munitions, under the Safe Drinking Water Act (SDWA). Before determining to regulate a chemical or substance under the SDWA, the EPA must consider whether (1) the contaminant may have an adverse effect on the health of persons; (2) the contaminant is known to occur or there is a substantial likelihood that the contaminant will occur in public water systems with a frequency and at levels of public health concern; and (3) in the sole judgment of the Administrator, regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems. 42 U.S.C. § 300g-1(b)(1)(A). In its announcement, the EPA concludes that perchlorate does not meet these criteria for regulation. Continue Reading EPA Declines to Set Drinking Water Limits for Perchlorate

The U.S. Supreme Court issued its opinion in the consolidated cases U.S. Forest Service v. Cowpasture River Preservation Assn. (Case No. 18-1584) and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Assn. (Case No. 18-1587) addressing the U.S. Forest Service’s authority to issue authorization for the Atlantic Coast Pipeline to cross beneath the Appalachian Trail. Reversing the Fourth Circuit’s December 2018 decision, the Court held that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way on lands within the George Washington National Forest owned by the Forest Service over which the Trail crosses.

Continue Reading U.S. Supreme Court Reverses Fourth Circuit, Holds U.S. Forest Service Has Authority to Grant Right-of-Way Beneath Appalachian Trail

The New Jersey Department of Environmental Protection (NJDEP) recently amended its rules under the New Jersey Safe Drinking Water Act (NJ SDWA) to address per- and poly-fluoroalkyl substances (PFAS). NJDEP adopted the amendments on March 31, 2020, and published them in the New Jersey Register on June 1, 2020. 52 N.J.R. 1165(b). The United States Environmental Protection Agency (EPA) began the process for establishing drinking water standards for certain PFAS compounds in February 2020; however, with these amendments, New Jersey now has some of the most stringent PFAS drinking water requirements in the United States. Continue Reading New Jersey Adopts Stringent PFAS Drinking Water Rules and Adds Compounds to List of Hazardous Substances

On June 1, the Environmental Protection Agency (EPA) released a final rule clarifying substantive authorities and procedural requirements for water quality certifications under section 401 of the Clean Water Act (CWA). EPA’s August 2019 notice of proposed rulemaking (NOPR) (summarized in our previous post) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping substantive and procedural changes to its section 401 regulations in conformance with its interpretation. EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in adopting new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (TAS) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements. Continue Reading Long-Awaited EPA Rule Overhauls Section 401 of Clean Water Act

Today, June 1, 2020 marks the opening of the window to submit data for the four-year reporting period under the Chemical Data Reporting Rule (CDR Rule) of the Toxic Substances Control Act (TSCA). The CDR Rule requires manufacturers (including importers) of substances listed on the TSCA Chemical Inventory to submit data to EPA every four years. Companies subject to the CDR Rule should be aware of several developments that affect reporting requirements and procedures this reporting period.

Continue Reading Chemical Data Reporting Cycle Begins June 1 with Extended Deadline and New Exemptions