On June 20, 2017, the Pennsylvania Supreme Court, in a majority decision, established a binding, heightened standard of review for challenges brought under Pennsylvania’s Environmental Rights Amendment. See Pa. Environmental Defense Foundation v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017) (PEDF).  The Court’s decision in PEDF affirmed and expanded upon the Court’s 2013 plurality decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), which the Commonwealth Court had refused to follow. Read More »

Share | Email| Comments|  Topics: Act 13, Decisions of Note, Environmental Rights Amendment, Oil and Gas, Pennsylvania, Private Right of Action

Earlier this month, the Superior Court of Pennsylvania issued a decision that has broad implications for the manner in which Pennsylvania lawyers and their clients communicate with outside consultants, including environmental consultants. In BouSamra v. Excela Health, No. 1637 WDA 2015, 2017 PA Super 235 (July 19, 2017), the Superior Court held that a company waived the attorney-client privilege when it forwarded an email containing legal advice to one of its consultants, a public relations firm. The decision calls into question whether outside consultants should be involved in privileged legal discussions unless the consultant is actively involved in facilitating legal advice from counsel to client. Read More »

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Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Defense Costs, Indemnification, Insurance, Insurance Coverage, Medical Monitoring, Negligence, New York, Remediation, Second Circuit, Superfund, Toxic Torts

UPDATE: 

This past Thursday, the U.S. Court of Appeals for the District of Columbia Circuit delayed for two weeks its mandate which required the U.S. Environmental Protection Agency to lift its 90-day stay on portions of its methane rule for new oil and gas infrastructure.  The Court issued the mandate after determining that the EPA lacked authority under the Clean Air Act to issue the stay on the Obama-era regulations as further discussed in the original blog post below.  The order delaying the mandate indicates that the Court is providing EPA with time to “determine whether to seek panel rehearing, rehearing en banc, or pursue other relief” with respect to the mandate.  Thus, the methane rule is again on hold for the next several weeks while EPA decides whether and how to challenge the Court’s lifting of the 90-day stay.     

ORIGINAL POST:

Last week, the U.S. Court of Appeals for the District of Columbia Circuit struck down a 90-day stay imposed by the U.S. Environmental Protection Agency on portions of its methane rule for new oil and gas infrastructure, finding the agency lacked authority under the Clean Air Act to issue the stay. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. July 3, 2017).  The methane rule, which establishes “New Source Performance Standards” for fugitive emissions of methane and other pollutants by the oil and natural gas industries, was finalized in June 2016 by the Obama administration.  Notably, the Court’s 2-1 decision puts back into effect the June 3, 2017 deadline for regulated entities to conduct an initial monitoring survey to identify leaks from equipment. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, D.C. Circuit, Emissions, EPA, Procedure, Rulemaking