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Environmental Blog

  • 17
  • April
  • 2018

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Federal Offshore Regulatory Agencies Announce Increased Civil Monetary Penalties for 2018

Like death and taxes, the specter of civil penalties remains ever-present. In the federal offshore energy regulatory environment, monetary penalties have increased once again in 2018. Spurred on by increases in the Consumer Price Index, each of the federal Bureau of Safety and Environmental Enforcement (“BSEE”), the federal Bureau of Ocean Energy Management (“BOEM”), and the U.S. Coast Guard (“Coast Guard”), have adjusted their civil penalty amount during 2018 to account for inflation. Consequently, offshore facility lessees or permittees or vessel operators incurring violations in 2018 after the effective date that such monetary penalty increases became effective will be subject to the bolstered penalty amounts.

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  • 20
  • March
  • 2018

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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.

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  • 13
  • March
  • 2018

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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.

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  • 06
  • March
  • 2018

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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).

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