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Environmental
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May 01, 2024
AI Is Top Of Mind For Companies — And Securities Regulators
As references to artificial intelligence in securities filings soar, attorneys say companies must ground their disclosures in fact and be upfront about risks posed by AI in order to avoid the wrath of regulators, who promise to crack down on misleading claims.
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May 01, 2024
Tax Credit Transfer Regs Show IRS Caution In Rulemaking
The IRS and Treasury's final rules on the sale and transfer of green energy credits maintained a strict reading of the statute while making few changes, a sign of caution by regulators amid judicial scrutiny of the government's rulemaking authority.
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May 01, 2024
PG&E, KKR In Exclusive Talks For Partial Sale Of Power Biz
Pacific Gas & Electric Corp. is in exclusive talks with private equity giant KKR to sell a minority interest in its subsidiary, Pacific Generation LLC, to KKR's infrastructure strategy in a deal that would reduce customer rates by more than $100 million over the next two decades.
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April 30, 2024
Feds Say Treaties Don't Protect Utah Tribe In Land Row
Efforts by a Utah tribe to restore public lands to a trust status that would prevent federal officials from illegally accessing the property are based on a false premise, the United States said, arguing that two 19th century laws support its bid to dismiss the case.
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April 30, 2024
PolyMet Must Give Up More Info In Mining Land Swap Suit
A federal judge has declined to sanction a Minnesota mining company in a discovery challenge by the Fond du Lac Band of Lake Superior Chippewa but ordered it to produce certain previously withheld information in the tribe's bid to undo a land swap for copper and nickel mining.
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April 30, 2024
Minn. Tribes Seek Support For Five 'Land Return' Bills
More than 20 Minnesota-based groups have urged state lawmakers to vote in favor of five "land return" bills that would give back state-owned lands to Native American tribes, saying the measures support the legal return of Indigenous lands along with their continued use by the public.
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April 30, 2024
Final Biden Enviro Review Regs Puts Onus On Agencies
The Biden administration on Tuesday finalized its second round of revisions to regulations governing federal agencies' environmental reviews, but how agencies weave the new guidelines into their project permitting processes will be where the regulatory rubber hits the road, experts say.
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April 30, 2024
5th Circ. Questions Texas' Standing In SEC Proxy Rule Battle
The Fifth Circuit appeared skeptical Tuesday of a Texas-led challenge to a U.S. Securities and Exchange Commission regulation that will require fund managers to make it easier for investors to identify ESG issues on corporate ballots, with the judges wondering whether the Lone Star State and others had standing to bring the lawsuit.
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April 30, 2024
3rd Circ. Preview: Kavanaugh Classmate Takes On HuffPost
The Third Circuit's May lineup will find the court weighing HuffPost's battle with an allegedly libeled former classmate of U.S. Supreme Court Justice Brett Kavanaugh and claims by consumers alleging they bought defective Bayer antifungal medicine.
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April 30, 2024
EPA, Sunoco Reach $2.4M Deal Over Ohio Oil Pipeline Spill
The U.S. Environmental Protection Agency and the state of Ohio have reached a more than $2.4 million deal with two pipeline companies over the discharge of approximately 450 barrels of crude oil into the Buckeye State's Oak Glen Nature Preserve more than 10 years ago.
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April 30, 2024
Pa. Schools Say Railcar Cos. Must Face Derailment Claims
Pennsylvania school districts have told a federal judge that railcar companies cannot evade allegations they negligently shipped toxic chemicals in retrofitted tank cars during last year's Norfolk Southern derailment in East Palestine, Ohio, saying the environmental and health harms in their communities can be tied to the companies' conduct.
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April 30, 2024
Camp Lejeune Litigants Balk At Bellwether Pick Process
The leadership group for former residents of Camp Lejeune who claim that contaminated drinking water caused their diseases has told the North Carolina federal court overseeing their case that it's too soon to limit trials to just plaintiffs who allege only one disease.
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April 30, 2024
EPA Chief Faces House Appropriators Hostile To Agency Regs
Former Interior Secretary Ryan Zinke grilled U.S. Environmental Protection Agency Administrator Michael Regan at a congressional budget hearing Tuesday, telling him a new coal-fired power plant emissions rule threatens to increase ratepayer costs.
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April 30, 2024
DC Circ. Axes Challenges To FERC Gulf Pipeline Approval
The D.C. Circuit on Tuesday upheld federal energy regulators' approval of a natural gas pipeline project in Louisiana and Mississippi, rejecting arguments from environmentalists that claimed that the certification was the product of a botched environmental review.
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April 30, 2024
5th Circ. Backs La. Enviro Dept. In Gas Facility Permit Dispute
A Fifth Circuit panel upheld the Louisiana Department of Environmental Quality's permitting decision for a liquefied natural gas export facility, rejecting concerns raised by the Sierra Club that the facility's emissions will surpass national ambient air quality standards.
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April 30, 2024
8th Circ. Orders BASF Damages Trial In Herbicide Row
An Eighth Circuit panel on Tuesday once again directed a Missouri federal court to hold a trial to assess punitive damages for BASF Corp. in litigation alleging the sale of herbicide-resistant seeds led to the destruction of a farm's peach trees when herbicide drifted from neighboring farms.
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April 30, 2024
IRS Updates Guidance For Clean Jet Fuel Tax Credits
The Internal Revenue Service released guidance Tuesday that updated an environmental model that manufacturers of a low-carbon alternative to conventional jet fuel, such as ethanol, can use to qualify for a new tax credit and provided a safe harbor for producers to meet the incentive's requirements.
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April 30, 2024
EPA Finalizes Methylene Chloride Ban
The U.S. Environmental Protection Agency on Tuesday finalized a rule banning all consumer uses and most industrial and commercial uses of methylene chloride, a chemical regulators say can increase cancer risks and cause reproductive damage with repeat exposure.
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April 29, 2024
Amazon Files $200M Countersuit Over Solar Projects' Fallout
Amazon claims a California-based private equity firm reneged on a pair of 15-year deals to sell it power from two new solar developments, launching a suit in Washington state court following competing allegations in California that the retail giant tried to sabotage the projects after signing the deals.
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April 29, 2024
9th Circ. Upholds NRC's Exemption For Diablo Canyon Plant
A Ninth Circuit panel ruled Monday that the U.S. Nuclear Regulatory Commission did not act arbitrarily or capriciously when it allowed Pacific Gas & Electric Co. to belatedly renew its license to continue operating California's last remaining nuclear power plant.
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April 29, 2024
US, Tribes Defend Water Rule Against States', Biz Groups' Suit
The federal government and several Native American tribes on Friday asked a North Dakota federal judge to toss a lawsuit by two dozen states challenging a rule defining the reach of the Clean Water Act's jurisdiction.
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April 29, 2024
Biden Admin's Border Wall Plan Must Be Vacated, Court Told
Texas and Missouri again urged a federal judge Monday to vacate the Biden administration's plan to redirect congressional funding for a southern U.S. border wall as the White House pushed back, saying it would be an overreach to eliminate its directive.
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April 29, 2024
Builders Say State Rulemaking At Stake In Mich. PFAS Case
A homebuilders' group has backed industrial giant 3M in urging the state's highest court to preserve a lower court ruling wiping out limits on forever chemicals, with a trade group official saying the decision could affect other state agency rulemaking.
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April 29, 2024
Fruit Co. Must Face Pollution Suit From Tribe, Enviro Groups
A Michigan federal judge has ruled a fruit and vegetable company can't escape claims it unlawfully contaminated nearby wetlands with polluted wastewater discharges, saying the company's defense essentially ignores the primary theory of liability put forward by a Native American tribe and two environmental groups.
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April 29, 2024
IRS To Open $6B 2nd Round Of Advanced Energy Tax Credits
The IRS will start taking applications May 28 from project owners seeking to get part of a $6 billion second round of tax credits for developments that will support the clean energy industry, such as solar glass manufacturing and metal recycling facilities, the agency said Monday.
Expert Analysis
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Series
Serving As A Sheriff's Deputy Made Me A Better Lawyer
Skills developed during my work as a reserve deputy — where there was a need to always be prepared, decisive and articulate — transferred to my practice as an intellectual property litigator, and my experience taught me that clients often appreciate and relate to the desire to participate in extracurricular activities, says Michael Friedland at Friedland Cianfrani.
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Fears About The End Of Chevron Deference Are Overblown
While some are concerned about repercussions if the U.S. Supreme Court brings an end to Chevron deference in the Loper and Relentless cases this term, agencies and attorneys would survive just fine under the doctrines that have already begun to replace it, say Daniel Wolff and Henry Leung at Crowell & Moring.
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Former Minn. Chief Justice Instructs On Writing Better Briefs
Former Minnesota Supreme Court Chief Justice Lorie Gildea, now at Greenberg Traurig, offers strategies on writing more effective appellate briefs from her time on the bench.
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California Shows A Viable Way Forward For PFAS Testing
The U.S. Food and Drug Administration has no good way of testing for the presence of specific per- and poly-fluoroalkyl substances in food packaging — but a widely available test for a range of fluorine compounds that's now being used in California may offer a good solution, says Vineet Dubey at Custodio & Dubey.
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Stay Interviews Are Key To Retaining Legal Talent
Even as the economy shifts and layoffs continue, law firms still want to retain their top attorneys, and so-called stay interviews — informal conversations with employees to identify potential issues before they lead to turnover — can be a crucial tool for improving retention and morale, say Tina Cohen Nicol and Kate Reder Sheikh at Major Lindsey.
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Ruling In La. May Undercut EPA Enviro Justice Efforts
A Louisiana federal court's recent decision in Louisiana v. U.S. Environmental Protection Agency will likely serve as a template for other states to oppose the EPA's use of disparate impact analyses in Title VI civil rights cases aimed at advancing environmental justice policies and investigations, say Jonathan Brightbill and Joshua Brown at Winston & Strawn.
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Calif. High Court Ruling Has Lessons For Waiving Jury Trials
The California Supreme Court’s recent decision in TriCoast Builders v. Fonnegra, denying relief to a contractor that had waived its right to a jury trial, shows that litigants should always post jury fees as soon as possible, and seek writ review if the court denies relief from a waiver, say Steven Fleischman and Nicolas Sonnenburg at Horvitz & Levy.
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Take AG James' Suit Over Enviro Claims As A Warning
New York Attorney General Letitia James' recent suit against JBS USA Food Co. over allegedly misleading claims about its goal to reach net zero by 2040 indicates that challenges to green claims are likely to continue, and that companies should think twice about ignoring National Advertising Division recommendations, say attorneys at Kelley Drye.
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8 Tips As GCs Prep For New SEC Climate Disclosure Rules
The U.S. Securities and Exchange Commission's recently adopted rules governing climate-related disclosures represent a major change to the existing public company disclosure regime, so in-house counsel should begin to evaluate existing systems and resources related to emissions data, and identify the changes that will need to be made, say attorneys at Bracewell.
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What New Waste Management Laws Signal For The Future
Several states have enacted extended producer responsibility and recycling labeling laws that will take effect in the next few years and force manufacturers to take responsibility for the end of life of their products, so companies should closely follow compliance timelines and push to innovate in the area, say attorneys at Perkins Coie.
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Del. Supreme Court Insurance Ruling Aids In Defining 'Claim'
The recent Delaware Supreme Court decision in Zurich v. Syngenta, finding that a presuit letter did not constitute a claim for insurance purposes, sets out a three-factor test to help policyholders distinguish when a demand rises to the level of a claim, says Lara Langeneckert at Barnes & Thornburg.
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Series
Spray Painting Makes Me A Better Lawyer
My experiences as an abstract spray paint artist have made me a better litigator, demonstrating — in more ways than one — how fluidity and flexibility are necessary parts of a successful legal practice, says Erick Sandlin at Bracewell.
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Securing A Common Understanding Of Language Used At Trial
Witness examinations in the Georgia election interference case against former President Donald Trump illustrate the importance of building a common understanding of words and phrases and examples as a fact-finding tool at trial, says Reuben Guttman at Guttman Buschner.
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How Fieldwood Ch. 11 Ruling Bolsters Section 363 Confidence
The Fifth Circuit’s recent ruling in Fieldwood Energy’s Chapter 11 cases, which clarified that challenges to integral aspects of a bankruptcy sale are statutorily moot under Section 363(m) of the U.S. Bankruptcy Code, should bolster the confidence of prospective purchasers in these sales, say attorneys at V&E.
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Opinion
Proposed MDL Management Rule Needs Refining
Proponents of the recently proposed Federal Rule of Civil Procedure 16.1 believe it may enhance efficiency in multidistrict litigation proceedings if adopted, but there are serious concerns that it could actually hinder plaintiffs' access to justice through the courts — and there are fundamental flaws that deserve our attention, says Ashleigh Raso at Nigh Goldenberg.