Environment, Land & Resources

Aftermarket Defeat Devices and the Clean Air Act – Are Citizen Suits A Threat?

Posted in Air Quality and Climate Change

A recent federal court decision in Utah renews the question of whether defeat device and tampering prohibitions constitute “an emission standard or limitation”.

By Arthur F. Foerster

A non-profit citizen group, Utah Physicians for a Healthy Environment, is seeking nearly US$1.5 million in costs and attorneys’ fees after successfully prosecuting a citizen action in Utah federal court for violations of the defeat device and tampering provisions of the Clean Air Act (CAA, or the Act).[i] Section 304 of the CAA authorizes persons to enforce compliance with “an emission standard or limitation” or an “order” issued by the US Environmental Protection Agency (EPA) or a state with respect thereto, after notice is provided and so long as the EPA or state is not already litigating an action to require compliance with the standard, limitation, or order.[ii]

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COVID-19-Related Derogations Under the EU Biocidal Products Regulation and Italian National Guidance

Posted in Environmental Regulation, European Environmental and Public Law

Economic operators are facing a number of practical and legal questions as EU and national authorities work to facilitate the supply of biocidal products.

By Cesare Milani and Federica Rizzo

The COVID-19 crisis has increased demand for disinfectants, hand cleaners, and other biocidal products, resulting in general shortages across most EU Member States. Many companies are currently working to increase the supply of such products and are considering shifting production.

EU companies and non-EU economic operators (through their EU importers) and regulatory authorities are striving to make fast-track procedures fully available via derogation to the lengthy pre-market authorisation procedures established under the EU Biocidal Products Regulation (BPR) and other relevant regulations. In this respect, many questions have arisen surrounding: (i) which legislation applies; (ii) what is the competent regulatory body; and (iii) how to deal in practice with the legal and technical requirements in a timely and cost-effective manner. Continue Reading

US Supreme Court: Some Discharges Through Groundwater Require Permit

Posted in Environmental Litigation, Project Siting and Approval

Decision concludes a permit is required if such discharges are the “functional equivalent” of a direct discharge to navigable waters.

By Janice Schneider, Maria Hoye, and Ethan Prall

On April 23, 2020, the Supreme Court of the United States issued an opinion in County of Maui, Hawai’i v. Hawai’i Wildlife Fund, holding that the Clean Water Act (CWA) requires a permit for certain discharges through groundwater. Specifically, a permit is required if there is a “direct discharge” from a point source to navigable waters, or if a given discharge is the “functional equivalent” of a direct discharge when that discharge passes through groundwater before reaching navigable waters.[1]

In establishing this new functional equivalence test, the Court rejected both the argument that allowing any regulation of discharges through groundwater would expand the CWA’s scope without warrant, and the contrary argument that every discharge that is “fairly traceable” from a point of discharge to navigable waters must be regulated under the CWA. When applying the test, the Court explained that several factors — most centrally, time and distance — are relevant to determining whether a discharge through groundwater is the functional equivalent of a direct discharge.

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EU Commission Sets out Major Climate and Sustainability Proposals

Posted in Air Quality and Climate Change, Contaminated Properties & Waste, Environmental Regulation, European Environmental and Public Law

The EU Commission aims to enshrine into law the 2050 climate-neutrality target and has taken further steps to establish a unified EU “green” classification system.

By Paul A. Davies, Michael D. Green, and Federica Rizzo

The European Green Deal, presented on 11 December 2019, provides a roadmap with actions aimed at boosting the efficient use of resources and the circular economy, decarbonising the energy sector, and investing in environmentally friendly technologies.

On 4 March 2020, the EU Commission (the Commission) published its Proposal for a Regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (the proposed European Climate Law). This year, the Commission will also present measures to increase the EU’s greenhouse gas emission reduction target for 2030, which will require additional investments of €260 billion a year by 2030, and to promote a climate-neutral EU by 2050. Continue Reading

California Response to COVID-19: What Hotel Owners Need to Know

Posted in California

The Governor has issued an Executive Order that permits commandeering of hotels and other places of temporary residence for the state’s response to COVID-19.

By Winston P. Stromberg, Lucas I. Quass and Cody M. Kermanian

As part of California’s continued response to the COVID-19 outbreak, on March 12, 2020, Governor Gavin Newsom issued Executive Order N-25-20, which, among other measures, permits the state to commandeer real property, such as hotels, for the treatment and quarantine of COVID-19 patients. Specifically, the Executive Order provides as follows:

The California Health and Human Services Agency and the Office of Emergency Services shall identify, and shall otherwise be prepared to make available — including through the execution of any necessary contracts or other agreements and, if necessary, through the exercise of the State’s power to commandeer property — hotels and other places of temporary residence, medical facilities, and other facilities that are suitable for use as places of temporary residence or medical facilities as necessary for quarantining, isolating, or treating individuals who test positive for COVID-19 or who have had a high-risk exposure and are thought to be in the incubation period.

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FAQ: EU Commission’s New Circular Economy Action Plan

Posted in Air Quality and Climate Change, Contaminated Properties & Waste, Environmental Regulation, European Environmental and Public Law

The Action Plan is part of the European Green Deal promoting actions to boost the efficient use of resources by moving to a cleaner and more competitive Europe.

By Paul A. Davies, Michael D. Green and Federica Rizzo

On 11 March 2020, the European Commission published its Communication to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions laying down the details of a new “Circular Economy Action Plan For a Cleaner and more Competitive Europe”.

The first Circular Economy Action Plan, which entered into force in 2018, led to the adoption and implementation of measures regulating the entire lifecycle of products, from production and consumption to waste management and the creation of a market for secondary raw materials. Continue Reading

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