Environmental Lawyer Blog

By SEDINA L. BANKS

In a long-anticipated decision, the Ninth Circuit Court of Appeals ruled this week that stormwater – largely rainwater – that runs off of logging roads into streams and rivers must be permitted under the Clean Water Act (CWA). This decision (Northwest Environmental Defense Center v. Brown) will have far-ranging impacts that will result in permits being required under the CWA for logging operations on both private and public land.

The case began in 2006, when the Northwest Environmental Defense Center (NEDC) brought suit against the Oregon Department of Forestry, members of the Oregon Board of Forestry in their official capacity and various timber companies contending that the defendants violated the CWA by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater runoff that flowed from logging roads into ditches, culverts, and channels and then into forest streams and rivers. The logging roads, which are owned by the Oregon Department of Forestry and Oregon Board of Forestry, are primarily used by the defendant timber companies to gain access to logging sites and to haul timber out of the forest. The logging roads were designed and constructed with systems of ditches, culverts and channels that collect and convey stormwater runoff. The court found that the stormwater eventually deposits large amounts of sediment from timber hauling on the logging roads into the streams and rivers. The sediment then adversely affects fish.

Continue reading "Logging Road Stormwater Runoff Subject to the Clean Water Act" »

By SEDINA L. BANKS

Bringing to mind the old adage “canary in a coalmine,” the Environmental Protection Agency (EPA) announced this week its innovative water quality software aptly named “Canary.” Developed by EPA scientists in collaboration with the Department of Energy (DOE), the Canary software can help detect chemical and biological contaminants including pesticides, metals and pathogens in drinking water.

Continue reading "There’s a “Canary” in My Water – EPA Software Detects Hazardous Contaminants in Drinking Water Systems" »

By SEDINA L. BANKS

As we previously reported, in December of last year, EPA determined that climate change caused by emissions from greenhouse gases endangered the public welfare and the environment. These so-called “endangerment findings,” while not directly imposing requirements on industry or other entities, paved the way for future EPA action to address climate change. In response to EPA’s endangerment findings, 10 petitions were filed urging EPA to reconsider its findings under the Clean Air Act. The parties argued, among other things, that the climate science could not be trusted, questioning the findings of the Intergovernmental Panel on Climate Change (IPCC), the U.S. National Academy of Sciences, and the U.S. Global Change Research Program. After months of consideration, in an over 200-page response, EPA denied the petitions, finding that the science to support EPA’s endangerment findings is “robust, voluminous and compelling.” Further legal challenge is most certainly to follow.

Continue reading "EPA Refuses to Reconsider its Greenhouse Gas Endangerment Findings" »

By SEDINA L. BANKS

As reported by the Los Angeles Times, the U.S. Environmental Protection Agency (EPA) designated the entire 51-mile, concrete lined Los Angeles River a “traditional navigable water,” under the Clean Water Act on Wednesday. Although it may be hard to picture the Los Angeles River as a navigable waterway on par with the mighty Mississippi, EPA made the designation based “on a myriad of factors including the river’s current and historical navigation by water craft, current commercial and recreation uses, and established local plans for restoration of the river.” The designation clarifies the Los Angeles River’s legal status
under the Clean Water Act and strengthens the protection to the small streams and wetlands that make up the 834-square mile Los Angeles River watershed. It also helps ensure the health and safety of those who use the river. While many Angelenos have reason to applaud this designation, it may make it more costly and difficult to develop along the river because developers will have to comply with the Clean Water Act.

Continue reading "What’s Coming Down the River – How EPA’s Designation of the Los Angeles River as a “Navigable Waterway” May Impact Future Development" »

By SEDINA L. BANKS

The Ninth Circuit recently joined the Eighth and Tenth Circuits in finding that non-settling parties can intervene in litigation to oppose settlements between the U.S. Environmental Protection Agency and other settling responsible parties under the Comprehensive Environmental Response, Compensation and Liability Act or CERCLA. This decision is significant because it may delay and raise the cost of these settlements and may actually discourage them from being made at an early stage. (Read the Ninth Circuit case here, United States v. Aerojet General Corporation)

Continue reading "It’s Not Over Yet – Parties Can Join in Litigation to Oppose EPA Settlements, Court Says" »

By SEDINA L. BANKS

It has been an interesting week for the regulation of greenhouse gas emissions with the unveiling of Senator Kerry and Lieberman’s energy and climate change legislation and the Environmental Protection Agency’s (EPA) plans to regulate greenhouse gases. However, Congress’s emergence in the regulation of greenhouse gases may preempt the steps California has already taken and limit EPA’s regulatory authority.

On May 12, 2010, Senators John F. Kerry, Democrat of Massachusetts and Joseph I. Lieberman, Independent of Connecticut, released the long-delayed climate change bill to address greenhouse gases. The energy and climate change legislation, entitled the “American Power Act,” seeks to reduce greenhouse gas emissions by 17 percent from 2005 levels by 2020 and 83 percent by 2050. The just under 1,000 page legislation includes plans for the use of domestic clean energy, plans for the reduction of greenhouse gas emissions and a federal cap-and-trade program, among other provisions. The introduction of this bill is the Senate’s equivalent to the House’s climate change legislation, entitled the American Clean Energy and Security Act, which the House passed in June 2009.

Continue reading "The Race to Regulate Greenhouse Gases " »

By SEDINA L. BANKS

In March, we reported that the EPA signed a proposed rule that will require petroleum and natural gas facilities emitting 25,000 metric tons of carbon dioxide equivalent or more to report GHG emissions including methane, carbon dioxide and nitrous oxide. [Click here to read prior post on this issue] EPA will hold public hearings today on the proposed rule.

Continue reading "Public Hearing Held Today on EPA’s Proposed Rule to Require Petroleum and Natural Gas Facilities to Report GHG Emissions" »

By SEDINA L. BANKS

On March 22, 2010, EPA signed a proposed rulemaking that would require petroleum and natural gas facilities emitting 25,000 metric tons of carbon dioxide equivalent or more to report GHG emissions including methane, carbon dioxide and nitrous oxide. The proposed rule amends the GHG Mandatory Reporting Rule that was issued on October 30, 2009, which excluded the petroleum and natural gas facilities from the reporting requirements pending further study.

Continue reading "EPA Proposes to Require Petroleum and Natural Gas Facilities To Report GHG Emissions" »

By SEDINA L. BANKS

On March 15, the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District ruled that the South Coast Air Quality Management District violated the California Environmental Quality Act or CEQA when it failed to prepare an environmental impact report before approving a major refinery project in the Los Angeles area. (Read the case here.)

The closely-watched decision was important because it established that a project’s environmental impacts should be assessed by comparing the potential impacts to existing conditions, instead of the maximum permitted conditions. The court also found that even if a project proponent has a “vested right” to continue its operations at a certain level, CEQA requires the public agency to still consider the project’s true impacts.

Continue reading "California Supreme Court Rules that Air District Must Use Existing Conditions as the Baseline for Environmental Review" »

By SEDINA L. BANKS

On December 7, 2009, the EPA issued two findings regarding GHGs: (1) GHGs threaten the public health and welfare of current and future generations and (2) the combined emissions of the GHGs from new motor vehicles and new motor vehicle engines contribute to the GHG pollution which threatens public health and welfare. EPA took this action directly in response to the landmark United States Supreme Court decision, Massachusetts v. EPA, 549 U.S. 497 (2007). In Massachusetts, the Supreme Court found that GHGs fit within the Clean Air Act’s definition of air pollutants and ordered EPA to determine whether or not emissions of GHGs from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.

Continue reading "EPA Takes the First Step Toward Federal Regulation of GHGs in Finding that GHGs Are an Endangerment to the Public Health and Welfare" »