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Environmental Blog

  • 24
  • August
  • 2018

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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.

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Collision Course: Colorado Initiative #108 Seeks to Blunt Private Property Owners’ Damages Occasioned by State and Local Government Through Initiative #97

A petition for ballot Initiative #108 was submitted to the Colorado Secretary of State in advance of the August 6, 2018 deadline for proposals to be considered for inclusion on Colorado’s general election ballot on November 6, 2018. Touted as a “property rights” measure, Initiative #108 proposes to amend the Colorado Constitution in order to provide an equal playing field for private property owners seeking just compensation when state or local government takes action diminishing the “fair market value” of their properties.

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Colorado Initiative #97: The Petition Beats the Deadline but is it Enough?

The Office of the Colorado Secretary of State confirmed on Monday, August 6, 2018 that a petition for ballot Initiative #97 was turned in by the deadline period and will be considered for inclusion on the November 6, 2018 general election ballot. As we previously reported, Initiative #97 seeks to establish a 2,500-foot buffer zone that is free of new oil and gas development around defined “occupied structures” and “vulnerable areas” in the state.

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Is the Third Time the Charm? - Initiative #97 Seeks a Five-Fold Increase in Setback Distances Between Homes and New Oil and Gas Development in Colorado

Following on the heels of failed attempts in 2014 and 2016, proponents of greater restrictions against new oil and gas exploration and production activities in Colorado are once again seeking to increase the regulatory setback distance between homes and new oil and gas development in the state. Currently, proponents of a ballot initiative – Initiative #97 – are working to obtain enough signatures to place the proposal on the Colorado ballot in November 2018.

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  • 21
  • June
  • 2018

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Environmental Appeals Board Weighs Challenge to Power Plant’s PSD Permit for EPA’s Dismissal of Battery Storage as BACT for Peak Demand Periods

On May 29, 2018, nongovernmental organizations (“NGOs”), including the Sierra Club, petitioned the U.S. Environmental Protection Agency (“EPA”) Environmental Appeals Board, challenging the federal Clean Air Act Prevention of Significant Deterioration permit issued by EPA Region 9 for the Palmdale Energy Project in California.

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  • 14
  • June
  • 2018

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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.

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Margaret E. Peloso

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