X

Reset Password

Username:

Change Password

Old Password:
New Password:
We have completed your request.

Environmental Blog

  • 24
  • August
  • 2018

Author:

Share on:

Fifth Circuit Opinion Confirms Federal Courts Closed for Cleanup Claims Against the State of Texas; State Courts Still an Option?

In a recent opinion, United States Oil Recovery Site Potentially Responsible Parties Group (“USOR Site PRP Group”) v. Railroad Commission of Texas, No. 17-20361, 2018 WL 3649653, (5th Cir. Aug. 1, 2018) the United States Court of Appeals for the Fifth Circuit confirmed that sovereign immunity bars claims in federal court by private parties against states and state agencies under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “Superfund”), 42 U.S.C. § 9601 et seq.

Read More
  • 14
  • June
  • 2018

Author:

Share on:

EPA Memorandum Expands Headquarters Role in Enforcement Referrals to DOJ

Earlier in the year we posted blogs discussing policy changes at EPA and DOJ that signaled changes in federal enforcement and a rethinking of the use of third-party payments. EPA has since announced another enforcement-related procedure that could signal a major change in the way EPA conducts enforcement. In March of this year the EPA Assistant Administrator for Enforcement Susan Bodine issued Interim Procedures for Providing Early Notice of Civil Judicial Referrals (U.S. EPA, March 23, 2018). Under these interim procedures, the EPA regional case teams are to brief the Regional Administrator on cases to be referred to DOJ, and to copy the Assistant Administrator with these briefing materials. If requested by the Assistant Administrator, the regions are directed to send the referral to the EPA Assistant Administrator prior to sending the referral to DOJ.

Read More
  • 20
  • March
  • 2018

Author:

Share on:

New EPA, DOJ Policies Alter Enforcement Landscape

New enforcement polices announced by the EPA and the DOJ presage possible changes in the way environmental enforcement will be conducted at the federal level. Consistent with the overall themes of the Trump administration of cooperative federalism and a focus on compliance, new EPA policies state that the agency will defer to the states as the primary enforcing entities, and will encourage the use of more informal enforcement approaches to bring about compliance. In addition to these EPA-specific polices, the DOJ announced a policy limiting the use of agency guidance in affirmative civil enforcement cases. The new DOJ policy, while not limited to environmental cases, is expected to be especially relevant to enforcement in the environment and natural resources area.

Read More
  • 13
  • March
  • 2018

Author:

Share on:

Consent Decree Dispute Highlights Changes in SEP, Mitigation Projects Due to New DOJ Settlement Policy

Controversy surrounding a Clean Air Act consent decree has served to highlight changes in environmental enforcement brought about by a June 5, 2017 memorandum from the United States Attorney General announcing a general prohibition on settlement payment to third parties. Memorandum for All Component Heads and United States Attorneys, Prohibition on Settlement Payments to Third Parties, (Office of the Attorney General, June 5, 2017) (“June 5 Memorandum”). Attorneys in the environmental community immediately recognized that this prohibition would have implications for environmental settlements that included Supplemental Environmental Projects (“SEPs”) (projects undertaken in settlements by defendants, that are not required for compliance, that result in a reduction in penalties, see Issuance of the 2015 Update to the 1998 U.S. Environmental Protection Agency Supplemental Environmental Projects Policy (U.S. EPA March 10, 2015) (“SEP Policy”), as well as mitigation projects (projects undertaken by defendants as part of the overall injunctive relief to mitigate alleged harms due to past violations and which do not generally result in a penalty reduction), see Securing Mitigation as Injunctive Relief in Certain Civil Enforcement Settlements (2nd edition) (U.S. EPA Nov. 14, 2012) (“Mitigation Policy”). After the Attorney General Policy was announced, the Environmental and Natural Resources Division (“ENRD”) of the Department of Justice issued guidance on the application of the June 5 Memorandum to cases handled by ENRD. Settlement Payments to Third Parties in ENRD Cases, (Office of the Acting Assistant Attorney General, ENRD, January 9, 2018) (“ENRD Policy”). This policy sets forth a limited exception to third-party payments when the payments directly remedy harm to the environment.

Read More
  • 06
  • March
  • 2018

Author:

Share on:

Corporate Officer Individual Liability for Environmental Violations Upheld by the Texas Supreme Court

The Texas Supreme Court recently reinstated an assessment of civil penalties against a corporate official for violations of the Texas Water Code. In State of Texas v. Morello, No. 16-0457 (February 23, 2018), the Court overturned the decision by the Austin Court of Appeals, which had held that a corporate official could not be personally liable for environmental violations unless the individual had engaged in “tortious” or “fraudulent” acts. The Supreme Court, in looking at the plain meaning of the Water Code, held that “under an environmental regulation applicable to a ‘person,’ an individual cannot use the corporate form as a shield when he or she has personally participated in conduct that violates the statute.” Slip op. at 12 (emphasis added).

Read More

Filter By

Sign Up for Updates

Receive e-mail news and alerts from the V&E Environmental team.

Top Posts

Follow Us On Linkedin

Contributors

Margaret E. Peloso

Margaret E. Peloso Partner

Carrick Brooke-Davidson

Carrick Brooke-Davidson Counsel

Jennifer Cornejo

Jennifer Cornejo Associate

Theresa Romanosky

Theresa Romanosky Senior Associate

Brandon M. Tuck

Brandon M. Tuck Senior Associate

Ross Woessner

Ross Woessner Associate

Jay Rothrock

Jay Rothrock Senior Associate