In a decision issued March 24, 2021, all seven of Pennsylvania’s Supreme Court justices agreed (in a split decision) that Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) can be enforced only against sellers. In so concluding, the six-justice majority then determined that oil and gas companies are not “sellers” under the UTPCPL when they acquire oil and gas leases from property owners.

Project applicants and agencies alike should think carefully about developing robust analyses that demonstrate the adequacy of water supply.

By Marc T. Campopiano, Diego Enrique Flores, and Lucas I. Quass

Mark Twain is often credited with saying, “Whiskey is for drinking; water is for fighting over.” This remains true in California, where drought conditions, climate change, and population growth throughout the state’s history have made water an increasingly valuable and regulated resource. The legal landscape involves complex questions related to water quality, water sustainability, and competing claims to water rights. One notable area of controversy involves the adequacy of water supply for new development projects.

Two decades ago, in 2001, the state legislature enacted Senate Bill (SB) 610 and SB 221 to promote sustainable long-term water planning. Collectively, SB 610 and SB 221 require public agencies to determine whether adequate water supply exists for certain large development projects as part of the environmental review process under the California Environmental Quality Act (CEQA) by, in part, requesting water supply assessments (WSAs) from water service providers.

On March 17, the U.S. Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that puts forth 28 questions directed at manufacturers and formulators of per- and polyfluoroalkyl substances (PFAS). The agency intends to use the ANPRM and comments it receives to initiate formal rulemaking to establish effluent limitations guidelines (ELGs) for facilities that manufacture or blend PFAS with other chemicals or products, likely at least initially as an amendment to the existing guidelines governing the “Organic Chemicals, Plastics and Synthetic Fibers” (OCPSF) industrial sector.

The Supreme Court recently heard oral argument in Cedar Point Nursery v. Hassid (No. 20-107), a case that has generated considerable amicus participation and press coverage.  In that case, union organizers, relying on a California law, entered the property of a fruit nursery with bullhorns in hand in order to urge unionization directly to the employees.  Cedar Point argued that the California access regulation is a taking of property under the Fifth Amendment because it interferes with its fundamental right to exclude persons it does not wish to have on its property.  The Ninth Circuit rejected the takings claim, and the Supreme Court granted certiorari.  During oral argument on March 22, the Court appeared to be seeking a way to draw a line between per se takings and the government’s right to access property for traditional police and enforcement purposes.  How the Court’s opinion deals with this issue remains to be seen.

In one of the latest developments in the Biden administration’s recent initiatives to strengthen environmental, social, and governance (ESG) efforts in the United States, the U. S. Department of Labor (DOL) announced last week that it would not enforce a final rule requiring fiduciaries subject to ERISA to evaluate investment opportunities based upon financial performance factors, rather than ESG metrics. The DOL stated that the final rule “created a perception that fiduciaries are at risk if they include any environmental, social and governance factors in the financial evaluation of plan investments.”

Water in jug poured into glass on wood with nature background. World Water Day

Indicating its intention to move forward aggressively to address growing legacy chemical concerns, the U.S. Environmental Protection Agency in February took two steps towards regulating certain per- and polyfluoroalkyl substances (PFAS) in drinking water.

First, the EPA re-proposed the Fifth Unregulated Contaminant Monitoring Rule (UCMR5) to collect data on 29 PFAS in drinking water.…

A bridge off Peahi Road above the Kaupakalua Reservoir and Dam (Kehaulani Cerizo/The Maui News Via AP)

The State of Hawaii has not shown up on this blog before, but last week’s dam breach and evacuations have earned it a coveted spot.

On March 8, the Kaupakalua Dam in Maui overtopped, prompting evacuation orders downstream. The 138-year-old earthen dam overtopped during heavy rains and is scheduled to be removed this summer.

According to the state’s Department of Land and Natural Resources, the dam’s owner was sent a notice of deficiency in early 2020 that set a schedule for addressing its deficiencies, and in October the owner submitted an application to remove it entirely. In February 2021, the Department issued a formal Notice of Violation for failing to install a real-time reservoir water level gauge with readings accessible on the internet. This is required by state statutes. Apparently, the previous gauge was stolen in 2018.

ASTM International publishes the accepted standard for performance of Phase I environmental assessments to evaluate a property’s environmental condition and assess potential liability for any contamination.   U.S. EPA’s “All Appropriate Inquiries” Rule (AAI) recognizes the current ASTM Phase I standard,  ASTM 1527-13, is consistent with the requirements of AAI and can be used to satisfy…

As part of implementation of its Final Adopted Winery General Order, the State Water Resources Control Board (“SWRCB” or “Board”) will be holding a Winery General Order Fees Stakeholder Meeting on March 15 from 1:00-3:00 PM via Webcast. The updated notice for the Fees Stakeholder Meeting can be found here.

In addition…