On December 17, 2015, the U.S. Senate overwhelmingly passed legislation that would overhaul the Toxic Substances Control Act — S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.”  S. 697 is sponsored by Sens. Tom Udall, D-N.M., and David Vitter, R-La., with 60 bipartisan cosponsors, representing 38 states.
Continue Reading Senate Passes Historic TSCA Reform Bill

In a memo directed to all federal law enforcement officials, including the Assistant Attorney General for the Environment and Natural Resources Division, the U.S. Department of Justice (DOJ) outlined a new policy that prioritizes the prosecution of individuals for corporate misconduct. Traditionally, DOJ has pursued companies — not individual corporate officials and managers — for alleged corporate wrongdoing. In its new policy, DOJ makes it clear that law enforcement officials will also target the individuals responsible for alleged company misconduct. Notably, these changes will be implemented in DOJ’s U.S. Attorneys Manual (USAM). This formal revision to the USAM reflects a concerted effort to fully implement the new policy outlined in the memo in future investigations. Because violations of environmental laws may lead to both civil and criminal enforcement by EPA and DOJ, this shift will have a direct impact on corporations and the individuals within those corporations that are responsible for environmental management decisions.
Continue Reading New DOJ Policy Targets Individuals (Not Just Companies) For Alleged Violations of Environmental Law

The Sixth Circuit today issued an order staying the applicability of the EPA and Army Corps’ recently promulgated Clean Water Rule. The stay applies nationwide.

A coalition of private parties, industry groups, and more than 30 states challenged the Rule asserting that it unlawfully expanded the jurisdictional reach of the Clean Water Act. A coalition of state petitioners asked the Court to enter a stay with the Court today concluding that a stay was appropriate because, among other things, there was a likelihood that the petitioners would succeed on the merits.
Continue Reading Sixth Circuit Issues Stay of WOTUS Rule

Yesterday the Third Circuit released its decision in Bell v. Cheswick.  In this case, a putative class of 1,500 property owners sued GenOn, claiming that fly ash and unburned coal combustion by-products from its 570-megawatt Springdale plant settled on and devalued their properties.  The federal district court for the Western District of Pennsylvania held that such state common law nuisance, trespass, and negligence claims were preempted by the Clean Air Act (CAA), which extensively regulated air emissions from the plant. 
Continue Reading Third Circuit Holds Nuisance Claims Are Not Preempted by the Clean Air Act

In May, Senators Frank Lautenberg, D-NJ and David Vitter, R-LA introduced a bipartisan bill that would overhaul the Toxic Substances Control Act (TSCA). While the Senate has debated the concept of TSCA reform for several years now, the introduction of this bipartisan bill represents the start of a serious
conversation about reforming the nation’s primary