In a yet-to-be published Opinion rendered September 28, 2017, the Kentucky Supreme Court, in a matter of first impression, dealt with whether the Clean Air Act (CAA) preempts state common law tort claims for damages or injunctive relief where harm is alleged to result from air pollutant emissions authorized by a permit issued by a regulatory authority entrusted to carefully balance environmental and economic factors. In Brown-Forman Corporation and Heaven Hill Distilleries, Inc. v. George Miller, ___S.W.3d__ (2017), 2017 WL 4296968, Plaintiff seeks to certify a class action based upon the alleged accumulation of “whiskey fungus” on surfaces in proximity to Defendants’ alcoholic beverage production and warehousing operations. In addition to seeking class certification for alleged damages to both real and personal property, Plaintiffs brought claims based upon Continue reading Kentucky Supreme Court Holds that Compliance with a Regulatory Air Permit Precludes Injunctive Relief for an Alleged Nuisance
Last week, the United States Supreme Court agreed to decide whether the Sixth Circuit Court of Appeals is the proper venue for challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” At least 30 states and multiple industry groups challenged the rule in federal courts across the country. In February 2016, the Sixth Circuit ruled that it, not the federal district courts, has jurisdiction to decide challenges to the rule. That appeals court ruling led to the consolidation of more than 100 challenges in the Sixth Circuit.
The United States Supreme Court will now decide whether the Sixth Circuit erred when it held that it had jurisdiction to review challenges to the Clean Water Rule. Note, the Supreme Court will not decide the merits or validity of the rule at this time. A decision in this case is expected by July of this year.
Max Bridges, Associate in the Firm’s Natural Resources & Environmental Service Team, wrote an article that was published in the fall edition of the Kentucky Rural Water Association‘s Waterproof Magazine. The article, “EPA’s Muddy ‘Waters of the U.S.’ Rule,” describes the history of the Clean Water Act with regard to the “waters of the United States,” and explains how certain aspects of the Clean Water Rule have yet to be clarified.
Please click here to read the full article.
Max Bridges and George Seay, members of Wyatt’s Natural Resources & Environmental Service Team, will be presenting at the 29th Annual Kentucky Professional Engineers in Mining Seminar. They will be speaking on the topic “Environmental Update Including the Stream Protection Rule, and what Constitutes Criminal Behavior Following the Don Blankenship Trial.”
Please click here to access the agenda and registration information.
On Monday, the United States Supreme Court rejected an appeal from 20 states seeking to block the MATS rule from taking effect while the EPA undertakes a second determination whether regulating power plant mercury emissions is appropriate and necessary. As previously discussed on this blog, the MATS rule was promulgated pursuant to Section 112 of the Clean Air Act to limit emissions of mercury and other hazardous air pollutants from coal- and oil-fired electric utility steam generating units. To regulate hazardous air pollutants from electric utility steam generating units, Section 112 of the Act requires the EPA to evaluate hazards reasonably anticipated to occur from emissions occurring after other Clean Air Act mandates are in place, and determine whether regulating the emissions with a Section 112-based standard is appropriate and necessary. In June 2015, the Supreme Court ruled that the EPA failed to comply with the Clear Air Act when it made its “appropriate and necessary” determination without considering compliance costs. However, the Supreme Court remanded the case to the Continue reading Supreme Court Rejects Challenge to MATS Rule
On May 12, the EPA finalized a set of regulations that will reduce methane, volatile organic compounds, and toxic air emissions in the oil and gas industry. The final rule will target emissions from new or modified oil and gas wells. According to the Agency, the rule will prevent 11 million metric tons of carbon dioxide equivalent emissions in 2025. While the new standards will not apply to the vast numbers of existing rigs, well pads, and auxiliary equipment, the EPA indicated that it plans to regulate these sources as well by issuing an information request on the oil and gas industry regarding existing operations. The EPA states that the information received “will provide the foundation for developing regulations to reduce methane emissions from existing oil and gas sources.”
Methane is the second most prevalent greenhouse gas emitted in the United States from human activities. The EPA estimates that Continue reading EPA Issues Final Rule to Cut Methane Emissions from Oil and Gas Industry
On Monday, the U.S. Court of Appeals for the Sixth Circuit concluded that it has jurisdiction to review challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency (EPA) and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” But there has been intense opposition to the rule and it is now subject to more than 20 separate challenges filed by numerous states and interest groups. A number of these challenges were consolidated in the Sixth Circuit and in October, the Sixth Circuit stayed the rule nationwide, concluding that the challengers demonstrated a “substantial possibility of success.”
In yesterday’s decision, the Sixth Circuit panel concluded that it has jurisdiction to hear the consolidated challenges to the Clean Water Rule under Sixth Circuit precedent and 33 U.S.C. § 1369(b)(1) of the Clean Water Act. Unless the EPA or the Army Corps can obtain a hearing on this jurisdiction question before all of the Judges of the Sixth Circuit and/or it’s reviewed by the U.S. Supreme Court, and in either case, have the decision overturned, the Sixth Circuit will be the first court to decide the validity of the Clean Water Rule.
Yesterday, by a 5-4 vote, the U.S. Supreme Court issued a stay of the Obama Administration’s “Clean Power Plan,” regulations promulgated to limit CO2 emissions from the electric power sector. A coalition of 27 states is challenging the regulations in the U.S. Court of Appeals for the District of Columbia; this is the first time the Supreme Court has stayed a regulation before the Court of Appeals completed its review. The Supreme Court’s Order issuing the stay says it will remain in effect until the Court of Appeals has ruled on the coalition’s challenge, and if the coalition subsequently petitions the Supreme Court to consider the regulations, when the Supreme Court has either denied that petition or granted the petition and issued its own decision. As a result, the regulations likely will not become effective, if ever, before the President leaves office. As previously discussed on this blog, the Clean Power Plan is designed to reduce CO2 emissions from fossil-fueled power plants by 32 percent from 2005 levels by 2030, and each state has individual emission goals.
Max Bridges, a member of Wyatt’s Natural Resources & Environmental Service Team, will be presenting at the Kentucky Chamber of Commerce‘s 14th Annual Environmental Conference on February 9-10 in Lexington. Mr. Bridges will be speaking on the topic “Real Estate and Environmental Issues Selected Statutes and Predevelopment Planning.” The presentation will focus on issues under the major environmental laws that impact real estate development including issues arising under the Clean Water Act, Endangered Species Act, Comprehensive Environmental Response, Compensation, and Liability (CERCLA), and other federal and state laws. It will also address pre-development planning and how to avoid liabilities.
To view the full agenda, click here.
To register, click here.
In November, the Sixth Circuit Court of Appeals held that the Clean Air Act (CAA) does not preempt state common law tort claims. It reached this conclusion in an action by property owners who allege that ethanol emissions from Diageo Americas Supply whiskey aging warehouses harm their property. Merrick v. Diageo Americas Supply, Inc., 14-6198, 2015 WL 6646818 (6th Cir. Nov. 2, 2015). The plaintiffs, on behalf of a putative class, allege that the ethanol emissions combine with condensation to promote the growth of an unsightly and difficult to remove “whiskey fungus.” They filed a class action lawsuit in federal District Court alleging that under the Kentucky common law of negligence, trespass and nuisance, they are entitled to an injunction mandating that Diageo capture and control the emissions, and recover damages. Diageo sought to have the action dismissed, arguing that plaintiffs’ state law claims are preempted by the CAA because they “conflict with the Clean Air Act methods for regulating emissions and, therefore, that allowing such claims to proceed would frustrate the purposes and objective of the Act.” Id. at *4. The District Court rejected this defense but certified the question to the Sixth Circuit Court of Appeals.
Writing for the three-judge panel of the Sixth Circuit, Judge Rogers affirmed the District Court’s decision to reject Diageo’s preemption defense: “The Clean Air Act’s text makes clear that the Act does not preempt such claims,” he wrote. Id. at *1. In addressing arguments that a Continue reading Sixth Circuit Rejects Clean Air Act Preemption Argument