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June 27, 2012

D.C. Circuit Upholds EPA’s Climate Change Regulations

By: Jonathan Kalmuss-Katz — Filed under: Administrative Law, Clean Air Act, Climate Change Law — Posted at 2:40 pm

The nation’s first limits on greenhouse gas (“GHG”) emissions survived a major legal challenge yesterday, as the District of Columbia Circuit Court of Appeals upheld two Environmental Protection Agency (“EPA”) climate change regulations on the merits and dismissed challenges to two others for lack of standing.  The unanimous ruling from a three-judge panel (which included one of the Court’s most conservative members) resolved consolidated lawsuits filed by states, industry trade associations, and other opponents of the embattled climate regulations.

The litigation challenged four separate, but inter-related, rules: (1) EPA’s threshold finding that GHG emissions endanger public health or welfare, and are thus properly subject to regulation under the Clean Air Act (the “endangerment finding”); (2) a rule limiting car and light truck GHG emissions (the “tailpipe rule”); (3) a rule governing the timing of implementation for stationary source GHG limits (the “timing rule”); and (4) a rule increasing the initial regulatory thresholds for stationary source GHG controls, so only the largest emitters are covered first (the “tailoring rule”).

The Court decisively rejected scientific and legal challenges to the endangerment finding and tailpipe rule, relying heavily upon the Supreme Court’s 2007 Massachusetts v. EPA decision affirming EPA’s authority to regulate GHGs under the Clean Air Act.  The Court brushed away claims that EPA had improperly relied upon prior studies and surveys by non-EPA scientists in defending its endangerment finding – with a robust endorsement of EPA’s reliance on the scientific method: “This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”  The Court also observed that EPA could properly make its endangerment finding as a precautionary measure, to protect public health and the environment, despite alleged uncertainty about the predictive accuracy of climate change models.

The Court proceeded to find that, in light of the endangerment finding, the tailpipe rule was compelled by Massachusetts v. EPA, and that implementation of vehicle emission limits required EPA to control stationary source GHG emissions as well under the Clean Air Act.  Rejecting three alternate statutory interpretations advanced by the various Petitioners – which would have limited regulation to mobile sources only – the Court held that “EPA’s interpretation of the governing CAA provisions is unambiguously correct.”

Finally, the Court ruled that because the timing and tailoring rules increase flexibility and relieve regulatory burdens, they actually serve to “mitigate Petitioners’ purported injuries.”  As a result, none of the Petitioners had standing to challenge these rules.  Although the Petitioners invited the Court to create regulatory chaos by subjecting even small businesses to immediate regulation, thereby inviting Congressional reform of the Clean Air Act, the mere possibility that Congress might enact corrective legislation were the tailoring rule to be overturned was considered too speculative to confer standing.  This holding may have been the Court’s most significant, as the tailoring rule – which departed from the Clean Air Act’s express regulatory thresholds – was widely viewed as the most vulnerable on the merits.

The challengers could still seek to appeal the panel’s decision to the full D.C. Circuit or the Supreme Court.  They are also expected to pursue legislation curtailing or eliminating EPA’s climate change authority.  The ruling may also reignite discussions of comprehensive climate legislation, which has languished since the House approved a broad-reaching global warming bill on June 26, 2009 – three years to the day before the Court’s recent climate change decision.

For more information on the Court’s ruling or U.S. climate regulation, contact Jeffrey Gracer or Jonathan Kalmuss-Katz.



June 26, 2012

Supreme Court Rules that Jury Must Determine Facts Leading to Criminal Fines in RCRA Case

By: Ed Roggenkamp — Filed under: RCRA, Supreme Court — Posted at 12:20 pm

On June 21, 2012, the Supreme Court ruled in Southern Union Co. v. United States that the Sixth Amendment’s guarantee of a jury trial – and the corresponding requirement that a jury must decide, beyond a reasonable doubt, all facts leading to criminal liability – applies to criminal fines under RCRA. Because the ruling applies broadly to all criminal fines, it may affect criminal enforcement of other federal and state environmental laws as well.

Southern Union had been convicted by a jury of one count of violating RCRA by knowingly storing liquid mercury without a permit.  Violations of RCRA are punishable by fines of up to $50,000 per day of violation.  The jury’s verdict form stated that Southern Union had unlawfully stored mercury “on or about September 19, 2002 to October 19, 2004” – a period of 762 days – but the jury was not asked to specify the number of days of violation and did not do so.  Hence Southern Union argued that the jury had only necessarily found them guilty of one day’s violation, and that increasing the fine above $50,000 would therefore violate a previous Supreme Court decision, Apprendi v. New Jersey, which held that the Sixth Amendment right to a jury trial in criminal cases prohibits a judge from deciding facts that increase a criminal defendant’s maximum potential sentence.

The rule of Apprendi had generally been applied to prison sentences, but courts had reached differing decisions on whether it applied to criminal fines.  The trial court in Southern Union decided that Apprendi applied to criminal fines, but that the jury had effectively found a 762-day violation.  It calculated the maximum fine for that violation at $38.1 million, and imposed a $6 million fine and a “community service obligation” of $12 million.  The appeals court affirmed the amount of the verdict, but held that Apprendi did not apply to criminal fines.

The Supreme Court reversed, holding that Apprendi applies to criminal fines. Since the jury’s verdict did not specify the number of days of violation, the verdict was limited to a single violation, with a maximum penalty of $50,000.  Justices Breyer, Kennedy and Alito dissented from the Court’s decision.   

This ruling has potentially broad implications for criminal prosecution of environmental violations, since several other environmental statutes – including the Clean Water Act, the Toxic Substances Control Act, and numerous provisions of the New York Environmental Conservation Law – include criminal fines that are keyed to the number of days of violation.  Any prosecution under those statutes will now require that the jury decide, beyond a reasonable doubt, the number days of violation committed by the defendant.  Those statutes also provide for civil penalties, including daily fines, which are not covered by the 6th Amendment or affected by the Supreme Court’s ruling.

For further information, contact Dan Riesel or Michael Lesser.



June 20, 2012

Chambers Awards SPR Environmental Law Practice with Top Ranking

By: Peng Deng — Filed under: Announcements — Posted at 1:59 pm

For yet another year, Sive, Paget & Riesel (SPR) has been recognized for its exceptional environmental law practice in New York in the 2012 edition of Chambers USA:  America’s Leading Lawyers for Business. The firm received the top ranking (Band 1) in the Environment: New York category, and several SPR lawyers were ranked among the state’s top environmental attorneys.

According to Chambers, SPR is an “outstanding environmental law boutique” that “advises on the regulatory aspects of many of New York’s major infrastructure projects, both in the public and private sectors,” and “maintains a stellar litigation practice which frequently advises on major Superfund cases.” “One of the few boutique environment firms left in New York,” SPR is recognized by its peers as a “major competitor in the local market.” Chambers also notes that SPR’s vast experience allows it to bring “comprehensive cost-effective solutions to emerging development, business, real estate, and litigation problems that involve almost all aspects of environmental law.”

Based on research from interviews with clients and other lawyers, Chambers highlighted the following SPR lawyers:

  • Daniel Riesel, an “active litigator” and an “experienced figure at the New York Bar,” is regarded as a “dean in the environmental field.”
  • David Paget is admired for his “superb advice” and possesses “tremendous depth of knowledge” from “having written widely on environmental law.”
  • Mark Chertok has an “encyclopedic knowledge of a wide range of environmental issues, including environmental litigation,” which is complemented by his “practical approach” to problem-solving.
  • Jeffrey Gracer is a “consummate transactional-side lawyer” who “spans the divide between regulatory and transactional work,” and is “thorough, practical and loved by clients.”
  • Michael Bogin is noted for his “considerable expertise of Superfund cases” and “knowledge of wetlands and water law.”

Read the full Chambers report here.

Read more about SPR’s practice areas here, and see examples of our work here.

Peng Deng is a Paralegal at Sive, Paget & Riesel.



June 14, 2012

Appellate Court affirms that SEQRA does not mandate economic feasibility analysis

By: Jonathan Kalmuss-Katz — Filed under: Land Use & Development, New York Environmental Law — Posted at 10:52 am

On June 6, 2012, a New York appellate court upheld the environmental review of a 16-lot subdivision in the Town of Cortlandt, New York, ruling that the State Environmental Quality Review Act (“SEQRA”) mandate to take “hard look” at the environmental and socioeconomic impacts of government actions does not require analysis of a project’s economic feasibility.  Sive, Paget & Riesel, P.C. represented the Planning Board in the appellate proceedings of Kirquel Development, Ltd. v. Planning Board of the Town of Cortlandt, 2012 NY Slip. Op. 4342 (2d Dept. 2012).

The subdivision site contains extensive wetlands, Town-regulated steep slopes, and forests that provide habitat and migration corridors for local wildlife.  Following more than three years of review and deliberation, the Planning Board conditionally approved a 16-lot residential subdivision – containing three fewer lots than the property owner had ultimately requested.  The owner filed suit, arguing that additional lots were required to make the project profitable and that the Planning Board was required to analyze the alleged infeasibility of its approval under SEQRA.  The Petitioner also challenged a series of development conditions imposed by the Planning Board.

The Supreme Court in Westchester County and the Appellate Division, Second Department upheld the 16-lot density, with the Second Department holding that “[c]ontrary to the petitioner’s contention, SEQRA does not require a lead agency to take a ‘hard look’ at the economic feasibility of a project.”  This ruling builds upon a trio of First Department decisions from the 1990s, which first established that “financial feasibility of a project … is not an appropriate subject of review” under SEQRA. 

The Second Department also reinstated five conditions that the Supreme Court had overturned, affirming the Planning Board’s authority to condition subdivision approval upon the completion of infrastructure improvements and other specified work to the satisfaction of the Town’s Director of Technical Services.  These conditions had been challenged as an unconstitutional delegation of authority under the New York and United States Constitutions.

For more information on the Kirquel decision and local government responsibilities and obligations under SEQRA, contact Daniel Riesel, Jon Kalmuss-Katz, or Ed Roggenkamp.



June 10, 2012

EPA Considers More Flexible Regulations for Cooling Water Intake Structures

By: Scott Elliott — Filed under: Administrative Law, Clean Water Act — Posted at 11:31 am

On May 31, EPA posted a Notice of Data Availability (“NODA”) in advance of forthcoming regulations which may provide a more flexible interpretation of Clean Water Act Section 316(b)’s Best Technology Available (“BTA”) requirement for facilities that operate cooling water intake structures (“CWIS”).

Section 316(b) requires facilities to adopt BTA minimizing adverse environmental impacts from fish being drawn into CWIS (known as entrainment) or trapped against screens at the front of an intake structure (known as impingement), where fish may be harmed or killed.

In a 2011 proposed rule governing existing power plants and manufacturing facilities, EPA recommended case-by-case, site-specific determinations of BTA to prevent entrainment, but  appeared to favor the installation of travelling screens as the uniform national BTA standard for preventing impingement. Travelling screens can be costly, if not impossible, to install, depending on the size of the facility and site conditions.

In a move that would provide more options for CWIS operators, the NODA sets forth a number of alternatives to this one-size-fits-all approach to BTA for impingement.  Specifically:

  • In defining BTA, the new regulations may permit a facility to adopt “any technology it chooses so long as it will achieve the required impingement limitation.”   EPA is also considering giving credit for impinged fish survivability and for fish that a facility excludes from becoming impinged in the first place.
  • EPA may also establish a “de minimis” impingement category that would effectively eliminate BTA requirements for facilities with very low impingement rates.  While most facilities would probably not fall into this category, this exemption would be critical to those that could make this showing.
  • EPA is considering whether to allow establishment of impingement controls on a site-specific basis, either in all cases or limited to those circumstances in which the facility demonstrated that the national controls were not feasible. Under such an approach, rather than meeting a specific, pre-determined standard a facility could seek a site-specific BTA for both entrainment and impingement mortality.
  • The permit director may be authorized to determine species of concern that would be subject to the impingement mortality standard in the rule. Other species, such as clupeidae, would potentially be excluded from the standard, a critical distinction for certain facilities and industries.
  • Perhaps most significantly, EPA is suggesting a new “streamlined” regulatory process for facilities that simply opt to employ modified travelling screens with fish returns, which EPA considers to be pre-approved BTA.  Here, as long as the owner or operator of a facility complies with the specified operational conditions, the impingement mortality limitations would be deemed to have been met. Subsequently, the owner or operator would not have to conduct any biological monitoring to show compliance with the impingement mortality limitations. In subsequent permit terms, and in the absence of major changes to the operation of the intake structure or the biology of the source water, EPA expects the permit director would waive any further requirement for a study or compliance monitoring for the facility.

EPA will solicit comment on the NODA, and public input will be considered before the 316(b) regulations are finalized.  For more information about EPA’s cooling water intake structure regulations, contact Michael Bogin.

Scott Elliott is a Summer Associate at Sive, Paget & Riesel.




June 5, 2012

Judge Orders EPA to Issue Overdue Proposed Rule on Particulate Matter Air Quality Standards

By: Priya Murthy — Filed under: Administrative Law, Clean Air Act — Posted at 7:58 pm

On May 31, a federal judge in the District of Columbia issued an order giving the EPA one final week to issue its proposed rule updating standards for particulate matter air pollution. The American Lung Association, the National Parks Conservation Association, and 11 states, including New York and California, had asked the court to compel EPA to review the standards and to propose any revisions based upon the latest scientific data.  (American Lung Ass’n v. EPA, D.D.C., No. 1:12-cv-243, 5/31/12).  The proposed regulations are more than six months overdue according to the October 2011 statutory deadline, and they must meet requirements set by a federal appeals court in 2009.

Particulate matter is a form of air pollution consisting of small particles suspended in air, such as dust or soot. It is a common byproduct of combustion processes, like those conducted in power plants and factories. Diesel truck exhaust is also a notable source of airborne particulate matter. Inhalation of particulate matter can cause asthma, lung cancer, cardiovascular issues, birth defects, and premature deaths in humans.

The Clean Air Act requires EPA to review and consider revising air quality standards every five years. EPA last revised the particulate matter standards in 2006, which means the new standards were due in 2011. Additionally, in 2009, EPA had been ordered to revisit its 2006 particulate matter standards to provide a better explanation of why particular standards were sufficient to protect the public health while providing an adequate margin of safety for children and other vulnerable subpopulations. Since that court’s finding, the EPA has not produced new standards and has allowed the 2011 statutory deadline to pass by without publication of a proposed rule.

Last week’s order states that EPA must sign a proposed rule by Thursday, June 7, 2012. It also requires that EPA seek expedited publication of the rule in the Federal Register, and that the agency hold a public hearing within two weeks of such publication. This hearing has already been scheduled for June 11. Following the hearing, the agency will accept comments for seven weeks. The court order did not set a deadline for the final rule; the EPA has said it needs until August 2013, while the ALA, Earthjustice, and NPCA are vying for its publication this December. The federal judge who issued the order has encouraged both sides to reach an agreement on a deadline before the June 11 hearing.

Priya Murthy is a Summer Associate at Sive, Paget & Riesel.