Permitting and Litigation for Private Commercial Developments

Court Narrows Scope of NWP 12 Ruling; Corps Appeals to Ninth Circuit

Last month, we wrote about a recent decision from the US District Court for the District of Montana vacating Nationwide Permit (“NWP”) 12, the general permit issued by the Army Corps of Engineers (“Corps”) for pipelines and other utility projects. On May 11, the court narrowed the scope of the decision, vacating and enjoining the…

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EPA Issues Interim COVID-19 Guidance on Site Field Work Decisions

On April 10, 2020, the Environmental Protection Agency (EPA) released a memorandum providing interim guidance on site field work decisions due to the impacts of COVID-19 (Field  Guidance). The Field Guidance is applicable to cleanup and emergency responses  where EPA is the lead agency, or has direct oversight of or responsibility for the work being…

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Wartime Regulation Does Not Render Government an Operator Under CERCLA, Third Circuit Rules

On May 4, 2020, the Third Circuit issued a decision in PPG Industries v. United States, a case which considered whether the government’s involvement at a chromium processing plant during World War II made it an “operator” liable for cleanup costs under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  The…

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New Presidential Executive Order Restricts Purchase of Bulk-Power System Equipment

On May 1st, President Trump issued an Executive Order on Securing the US Bulk-Power System.  The Executive Order prohibits certain transactions involving bulk-power system electric equipment and may have important consequences for renewable energy developers.  It also establishes a task force to address national security issues in energy-related procurement by federal agencies and in the…

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U.S. Supreme Court’s Latest CERCLA Decision Could Mean a Tangle for Future Litigation

On April 20th, 2020, the United States Supreme Court held in Atlantic Richfield Co. v. Christian that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) does not prevent state courts from hearing state law claims by landowners seeking property damages and additional environmental remediation at federal Superfund sites beyond an EPA-approved remedy. Complicating this…

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EPA and Army Corps of Engineers Publish Final “Waters of the United States” Rule

On April 21, 2020, the Environmental Protection Agency and the U.S. Army Corps of Engineers (together, the “Agencies”) published a final rule in the Federal Register redefining the term “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”).  The Agencies previously issued pre-publication notice of the final rule on January 23, 2020. …

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Nationwide Permit for Pipelines and Utility Projects Vacated on ESA Grounds

On April 15, 2020, the United States District Court for the District of Montana issued a decision in Northern Plains Resource Council v. U.S. Army Corps of Engineers, vacating Nationwide Permit (“NWP”) 12, a general permit issued by the Army Corps of Engineers (“Corps”) for pipelines and other utility projects. The case was brought, in…

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Clarity Or Confusion: The Ever Evolving Guidance Concerning Permissible Essential Construction In New York

On April 9, Empire State Development issued updated guidance that appears to expand the definition of what is considered “essential construction” for the purposes of exemption from the work-at-home requirements under Executive Order 202.6.  E.O. 202.6 bans all construction in the State except for projects deemed “essential,” which the State says includes “roads, bridges, transit…

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NY’s Governor Cuomo Signs Law Introducing One-Stop Shop for Renewable Energy Project Permitting

On April 3, 2020, with the passage of the Accelerated Renewable Energy Growth and Community Benefit Act, New York adopted sweeping changes to the siting of large-scale renewable energy projects.[1] The new law will streamline and accelerate the permitting and construction of renewable energy projects, and is intended to help New York achieve the Climate…

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Clarity Begins to Emerge Concerning Permissible Essential Construction In New York

A number of state and local agencies have issued guidance on the ban on non-essential construction that was announced by Governor Cuomo on March 27, 2020.  Friday’s amendment to the guidance regarding work-at-home requirements under Executive Order 202.6 bans all construction in the State except for projects deemed “essential,” which the State says includes “roads,…

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