Animal Welfare: U.S. Supreme Court Petitioned to Accept Appeal Challenging Constitutionality of California’s Proposition 12 On September 27, 2021, the National Pork Producers Council (NPPC) and American Farm Bureau Federation (AFBF) filed a petition for writ of certiorari in the U.S. Supreme Court seeking to have California’s Proposition 12 declared unconstitutional as a violation of…

The Environmental Protection Agency (EPA) has initiated two rulemaking actions, both expected to be proposed in early 2022, that could change the way the Clean Water Act (CWA) is administered across the country. Together, these actions would elevate tribal rights in water quality regulatory decision-making and could provide EPA with significantly greater authority to regulate discharges on and upstream of tribal lands.

In an opinion filed on August 24, and certified for partial publication on September 22, 2021, the Third District Court of Appeal reversed a judgment upholding Placer County’s EIR for a 94-acre resort development project in the Olympic (formerly Squaw) Valley area – site of the 1960 Winter Olympics near the iconic Lake Tahoe.  Sierra Watch v. County of Placer (Squaw Valley Real Estate, LLC, Real Party in Interest) (2021) 69 Cal.App.5th 1.  The published portions of the 51-page opinion found faults in the EIR’s description of the environmental setting and related water and air quality impact analyses, and errors in its analysis and mitigation of construction noise impacts.  Nearly half of the opinion remained unpublished; those portions of it (1) upheld the EIR’s climate change analysis (rejecting appellant Sierra Watch’s arguments challenging it as meritless, moot, or forfeited), (2) upheld most of the EIR’s wildfire impacts analysis (finding merit in one of appellant’s eight arguments, relating to underestimation of evacuation times), and (3) held the EIR’s traffic impacts analysis improperly relied on deferred mitigation.  (The unpublished portions of the opinion will not be discussed further in this post.)

On September 22, 2021, Justice Peter Lynch of the New York State Supreme Court, Albany County denied the petitioners’ application in Town of Copake v. New York State Office of Renewable Energy Siting, No. 905502-21 (Sup. Ct. Albany Cty. Sept. 24, 2021), rejecting a challenge to regulations promulgated by the New York State Office of Renewable Energy Siting (ORES). Justice Lynch’s decision comes following an earlier ruling that denied the petitioners’ application for a temporary restraining order. These rulings have now twice affirmed the validity of the ORES regulations, which will play an important role in helping New York State to achieve its aggressive renewable energy goals.

Per- and polyfluoroalkyl substances (“PFAS”) are a group of man-made chemicals that contain nearly 5,000 different compounds. PFAS are ubiquitous and can be found in a variety of everyday products, including stain- and water-resistant fabrics and carpeting, cleaning products, cookware, paints, and fire-fighting foams.

While PFAS compounds remain largely unregulated at the federal level, the…

On 19 August, the sentencing remarks of Mr Justice Johnson were published in relation to the recent £90 million fine issued to Southern Water for sewage pollution.  The remarks provide a full breakdown and description of how this record fine was calculated, and provide comments and conclusions on a number of issues that are likely to be of relevance in other cases.

In his introductory remarks, Mr Justice Johnson provides initial indications on a number of points that are reflected in the sentencing principles, namely that the company had been fined for what were considered to be substantial amounts for similar offences between 2013 and 2016, but that there was “no evidence that the Defendant took any notice of the penalty imposed or the court’s remarks. Its offending simply continued”, and “history shows that fines of hundreds of thousands or low millions of pounds have not had any effect on the Defendant’s offending behaviour.” Accordingly, the Judge felt “It is necessary to set a fine which will bring home to the management of this and other companies the need to comply with laws that are designed to protect the environment.”, while expressing some sympathy for shareholders who  “have no direct responsibility for the offending”. The Judge felt that if a substantial fine “results in large institutional investors taking a more active role in ensuring that the companies that they invest in comply with the law, then that is not inconsistent with the purposes of sentencing, which include the reduction of crime.”

Against that backdrop, Mr. Justice Johnson applied sentencing principles based on the Environmental Offences Definitive Guideline (rejecting the Environment Agency’s submission that the guideline was not applicable because of the scale and nature of these offences).  The guideline process assesses the seriousness of the offence, first, based on the culpability of the Defendant and the level of harm (or risk of harm) caused, followed by consideration of the company turnover and then additional factors that increase or decrease the seriousness of the offending.

Below is a break down of the application by Mr Justice Johnson of the sentencing principles to the facts of this case:

The current administration’s focus on climate change has prompted a renewed interest in carbon capture, utilization, and sequestration (CCUS). In July of this year, the White House Council on Environmental Quality (CEQ) issued a report to Congress stating the Biden administration “is committed to accelerating the responsible development and deployment of CCUS to make it…