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.

The Supreme Court yesterday reversed EPA’s “Tailoring Rule,” but affirmed EPA’s authority to regulate greenhouse gas (GHG) emissions under the Clean Air Act Prevention of Significant Deterioration permit program.  Writing for a five-member majority, Justice Antonin Scalia ruled that EPA could not “tailor” the PSD statutory permitting thresholds to exclude small GHG emitters from PSD program requirements.

The Decision.   On April 29, the U.S. Supreme Court reversed and remanded the D.C. Circuit’s 2012 decision that vacated EPA’s Cross-State Rule.  The decision was 6-2 with Justices Scalia and Thomas dissenting.  Justice Alito had recused himself from this case and therefore did not participate in the decision.

Sean Sullivan, an Environmental and Natural Resources Partner in Raleigh, NC, was part of the presenting faculty for the 2014 Carolinas Air Pollution Control Association’s Spring Meeting April 16-18 in Asheville, North Carolina. Sean discussed the EPA’s Risk and Technology Review program providing a description of the methodology for the RTR process and a summary of RTR outcomes for individual source categories.

A key defense to violations of the Clean Air Act may no longer be available for excess emissions during unavoidable malfunctions.  EPA’s current policy is that civil penalties are not appropriate if the violation was unavoidable, so long as the source can prove it did everything possible to manage the situation properly.  However, the D.C. Circuit just rejected EPA’s authority to provide an affirmative defense for excess emissions that occur due to a malfunction.  The decision, Natural Resources Defense Council v. EPA, largely upheld EPA’s cement MACT standard in the face of numerous challenges, but the court’s decision to eliminate EPA’s affirmative defense for malfunctions may have much broader implications for all facilities regulated under the Clean Air Act.

On April 15, 2014, one year and one day before the compliance deadline, the U.S. Court of Appeals for the D.C. Circuit fully upheld EPA’s Mercury and Air Toxics Standards (MATS).  As a result, all existing coal- and oil-fired  electric utility units will be required to meet specific, numeric emission limits for mercury, particulate matter, and acid gases next year.

(Reposted from Corporate Counsel by Marlisse Silver Sweeney from March 28, 2014) –

If your company is “going green” this year, or at least advertising to customers that it is, Ronald Urbach in Madison Avenue Insights warns that it’s not as easy as composting.

Last year, “the FTC (Federal Trade Commission) alone settled 14 separate enforcement actions based on what it considered to be misleading or deceptive environmental marketing claims,” he says, adding that “green claims” were also the subject of many attorney general investigations, private litigation and self-regulatory actions.