In the News

Haynes and Boone in the Texas Lawyer: Power Players: Texas Energy Attorneys Prepare to Advise Clients on Obama Administration's Climate-Change Proposals

Texas energy and environmental lawyers say the Obama administration's climate change proposals, unveiled earlier this month, offer a lot of fodder for client discussions, and they expect future lawsuits to target the federal government's new plans. >>

Jeff Civins in Texas Lawyer: Science-Teacher-Turned-Lawyer Ponders Carbon Capture

Jeff Civins taught science in New York City schools before he graduated from the University of Texas School of Law, where he teaches a seminar on environmental litigation. >>



Recent Publications

Recent Developments in Clean Air Act Enforcement Tactics May Spell Increased Risk for Many Companies

Despite diminishing enforcement budgets for state and federal agencies, a combination of technological and regulatory developments could significantly increase risk of enforcement activity in coming months and years. >>

American College of Environmental Lawyers Guest Article: Texas Railroad Commission on Track to Address Quakes

Over 30 earthquakes jolted the area in and around the City of Azle, Texas —20 miles north of Fort Worth—last November through January. >>

Who's Who Legal August 2014 Roundtable

Haynes and Boone Partner Jeff Civins participates in an international environmental roundtable discussion for Who’s Who Legal. >>

EPA Greenhouse Gas Proposal Published - the Clock is Now Ticking

Consistent with President Obama’s Climate Action Plan, EPA today published two sets of proposed rules, which it refers to as “carbon pollution standards,” relating to greenhouse gas emissions from fossil fuel-fired electric generating units - for existing stationary sources (79 Fed. Reg. 3480) and for modified and reconstructed sources (79 Fed. Reg. 34980). >>

CTS Corp. v. Waldburger - Supreme Court Refuses to Disturb Statutes of Repose

The Comprehensive Environmental Response, Compensation and Liability Act, commonly referred to as CERCLA or Superfund, does not contain any provision for a private cause of action for personal injury or property damage relating to the release of hazardous substances. >>



Jeff Civins

Partner

Austin


600 Congress Avenue
Suite 1300
Austin, Texas 78701
T +1 512.867.8477
F +1 512.867.8691

Areas of Practice

Education

  • J.D., University of Texas at Austin School of Law, 1975, with honors; Order of the Coif
  • M.S., Chemistry, Pennsylvania State University, 1970
  • A.B., Chemistry, Brandeis University, 1967

Bar Admissions

  • Texas

Court Admissions

  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. Court of Appeals for the Ninth Circuit
  • U.S. Court of Appeals for the District of Columbia Circuit
  • U.S. District Court for the Western District of Texas
  • U.S. District Court for the Southern District of Texas
  • U.S. District Court for the Northern District of Texas
Jeff Civins

Jeff Civins has practiced all aspects of environmental law since 1975, assisting clients in compliance matters, transactions, and litigation.

As an adjunct professor at the University of Texas School of Law, Jeff taught a seminar on Environmental Law Concerns to Business in 1987 and has taught a seminar on Environmental Litigation each Spring since 1992. He also is on the Advisory Board of the Law School's Center on Energy, the Environment and International Dispute Resolution.

Jeff is the organizer and co-editor of the Thomson Reuters Texas Practice 2-volume treatise on Texas Environmental Law (1997, 2005 and 2013 editions), a former chair of the Environmental and Natural Resources Law Section of the State Bar of Texas, and standing chair of the section's annual Texas Environmental Superconference. Prior to law school, Jeff taught science in New York City schools.

Selected Client Representations

  • An oil and gas company in obtaining a dismissal of an EPA Clean Air Act general duty clause enforcement action regarding a release of air emissions.
  • ExxonMobil as a designated expert on state air quality enforcement in a federal Clean Air Act citizen suit involving its Baytown Complex.
  • SWEPCO as an expert witness before The Texas Public Utility Commission on prudence in resolving environmental litigation regarding its pulverized coal-fired power plant in Arkansas.
  • A multinational energy company in environmental counseling regarding its proposed multi-billion dollar gas to liquids facility on the Gulf Coast.
  • Consolidated Graphics in environmental due diligence, counseling, and contract drafting relating to its merger with RR Donnelly and in its own acquisitions of various other printing companies and assets.
  • EOG in environmental counseling in its negotiations with ExxonMobil regarding a joint venture to conduct oil and gas exploration and production activities at the King Ranch.
  • Deutsche Bank in environmental counseling regarding its loan to fund construction of a $7.5 M biomass-to-energy facility on the island of Kaua’i.
  • A manufacturer in negotiating a settlement for de minimis PRPs in the Malone Services Company Superfund Site.
  • An energy company in negotiating a settlement for de minimis PRPs in the SESCO State Superfund Site.
  • An oil and gas company in environmental counseling and in settlements of TCEQ administrative and State of Texas judicial air quality enforcement actions involving gas exploration and development.
  • An oil and gas company in environmental counseling and settlement of EPA Clean Water Act wetlands administrative enforcement action involving pipeline construction.
  • An oil and gas company in working with EPA and TCEQ in "deflexing" its air quality permits.
  • An investment firm in evaluating potential environmental risks associated with hydraulic fracturing.
  • A metals recycler in negotiating settlement of a state Superfund enforcement action.
  • The Department of Treasury in environmental due diligence of General Motors Company assets.
  • Lenders on environmental issues with the TXU Buyout and with issuance of a series of new notes.
  • Asarco, Inc. in a series of environmental estimation hearings in bankruptcy court involving historical operations in Coeur D’Alene, Omaha, and Tacoma.
  • American Airlines in settling litigation in bankruptcy court with United Airlines regarding contamination at JFK Airport.
  • An energy company in the air quality permitting of a gas-fired power plant in Madisonville, Texas.
  • El Paso Corporation in negotiating a RCRA/CERCLA consent order with EPA Region 6 and a comparable order with TCEQ and as a plaintiff in related private party Superfund litigation in federal district court in Houston.
  • A national real estate company on environmental issues relating to the sale of its national portfolio of commercial properties.
  • A state medical school in NEPA issues associated with the development of a level 4 bio-containment facility in Galveston.
  • An energy trade association with regard to NEPA issues associated with oil and gas development in New Mexico.
  • The State of Texas in litigating and settling federal Clean Water Act enforcement cases in federal district courts in Houston and Tulsa against an independent energy company for more than 300 pipeline oil spills in six states.
  • Chemical Waste Management in permitting a hazardous waste incinerator facility in Port Arthur, Texas.
  • Marathon Battery in settling claims regarding the Marathon Battery NPL Superfund site involving contamination of the Hudson River and an adjacent cove, marsh, and former battery manufacturing facility.

Honors

  • Selected for inclusion in Austin Business Journal's list of Who's Who in Energy, 2013
  • Finalist for Texas Lawyer's Go-To Guide - Environmental (2012)
  • Best Lawyers' 2010 Austin Environmental Lawyer of the Year
  • Top Environmental Lawyers in Texas (One of 3 Star Performers) - Chambers USA: America's Leading Lawyers (2003-2014)
  • Best Lawyers in America -  Environmental Law (1989-2015); Litigation-Environmental (2012-2015); Water Law (2012-2015)
  • The International Who's Who of Environment Lawyers (2006-2010, 2012-2014)
  • Texas Super Lawyer (2003-2014); Top 50 Lawyers in Central and West Texas (2003-2012); Top 100 Lawyers in the State (2008-2009)
  • Martindale Hubbell® Law Directory with a Peer Review Rating of AV® Preeminent™
  • Top-Notch Environmental Lawyer - Texas Lawyer (2007)
  • Austin Business Journal Best of Business Attorneys - Environmental (2005)

Selected Publications and Presentations

  • "Texas Railroad Commission on Track to Address Quakes," Blog Post, American College of Environmental Lawyers, August 28, 2014.
  • "Managing Environmental Risks," co-presenter, June 24, 2014.
  • "Virtual RoundTable - Environmental Law 2014," Corporate LiveWire, 2014.
  • "Has the Standard for Performing a Phase I Environmental Site Assessment Changed? Yes and No," Blog Post, American College of Environmental Lawyers, December 17, 2013.
  • "Temporary contamination - Ain't that a non-compensable shame?" Blog Post, American College of Environmental Lawyers, December 12, 2013.
  • "Environmental Aspects of Business Transactions," with B. Phillippi, Chapter 33, Volumes 45-46, Thomson Reuters Texas Practice, Environmental Law, 2013 and 2014.
  • "Impacts of Federal Environmental Laws on Oil and Gas Production," with M. Mendoza, presentation and article, National Oil and Gas Royalty Conference, Houston, Texas, October 22, 2013.
  • "Corporate Sustainability," with C. Davis, P. Braddock, and L. Burt, presentation, American College of Environmental Lawyers, Annual Meeting, Boston, MA, October 10-12, 2013.
  • "Less Lessee Liability – A Critique of EPA’s New Superfund BFPP Guidance," Blog Post, American College of Environmental Lawyers, March 14, 2013.
  • "Ethics for Energy Lawyers," with M. Mendoza, presentation and article, UTCLE Renewable Energy Institute, Austin, Texas, January 29-30, 2013.
  • "The Expanding Controversy Over Shale Oil and Gas Development: Is It All It's Cracked Up To Be--Regulatory Overview and Responses to Fracing," with K. Golemon and K. Warren, presentation, American College of Environmental Lawyers, Annual Meeting, Washington, D.C., October 18-20 , 2012.
  • "Shale Gas: Lessons and Implications of the American Experience for Europe - Perceived Environmental Concerns and U.S. Regulatory Responses," Webinar with Lawrence Graham, September 7, 2012.
  • "Do states have an independent, fiduciary obligation under the 'Public Trust Doctrine' to protect air quality and to do so by regulating greenhouse gases?" Blog Post, American College of Environmental Lawyers, July 30, 2012.
  • "Base fracking regulations on facts," Guest Commentary, Houston Business Journal, April 20, 2011, and Austin Business Journal, March 30, 2012.
  • "Sack(ing)ett To The EPA," with M. Mendoza, Law 360, March 22, 2012.
  • "Ground(water)-Breaking Decision," Law360, March 9, 2012.
  • "Superfund's Transactional Defenses and the No Affiliation Prerequisite," with M. Mendoza, 239 Envtl. Due Diligence Guide (BNA) 231:2321, Jan. 2012 and Daily Envtl Report (BNA) March 9, 2012.
  • "Drafting Real Estate Contracts to Address Environmental Concerns," with M. Mendoza, State Bar of Texas Advanced Real Estate Drafting Course, Irving, Texas, March 1, 2012.
  • "Environmental Due Diligence and CERCLA All Appropriate Inquiry ("AAI") - The Three Bear Paradigm," Tarrant County Bar Association, March 25, 2011, presentation.
  • "Environmental Laws Pertaining to Offshore Oil and Gas Operations," SMU Dedman School of Law, Dallas, Texas, March 11, 2011, presentation to representatives from Vietnamese Ministry of Justice.
  • "Framework for the Environmental Regulation of the Use of Fossil Fuels for Energy Environmental Federalism: Background and Overview;" Essential Administrative and Environmental Law for Energy Projects Conference, University of Texas School of Law CLE program, November 18, 2010, Austin, TX, article and presentation.
  • "The Practical Impacts of Burlington Northern," with M. Mendoza, American Bar Association Section of Environment, Energy, and Resources as part of "Environmental Issues in Region 6: Recent Developments and Hot Topics" June 14-15, 2010, presentation and paper.
  • "Ethics and Sustainability," Air & Waste Management (A&WMA) Spring Environmental Law and Regulatory Symposium, Austin, Texas, April 15, 2010, presentation.
  • "Public Participation, in the Development of Carbon-Related Projects, from Inception, through Transport to Injection," University of Texas CLE, Carbon and Climate Change, Austin, Texas (Feb. 17-18), panelist presentation and article.
  • "Acquiring, Developing, and Disposing of Brownfields Sites," Environmental Regulation & Enforcement Conference, Washington D.C., January 21-22, 2010, panelist presentation and article - "Transactional Environmental Due Diligence - What diligence is due?" with M. Mendoza, January 5, 2010.
  • "Environmental Due Diligence - Counting Carbon," with M. Mendoza and A. Sencenbaugh, Natural Resources and Environment, ABA Section of Environment, Energy and Resources, Fall 2009.
  • "Law360 Q&A," September 8, 2009.
  • "Corporate Dealmaking in a Carbon Conscious World," with M. Mendoza, State Bar of Texas 8th Annual Advanced In-House Counsel Course, July 30, 2009, presentation and article.
  • "The Carbon Revolution: Answering the Call," with M. Mendoza, Texas Bar Journal, April 2009.
  • "Climate Change Disclosures - Avoid the Heat," with M. Mendoza, Texas Lawyer, February 2009.
  • "The Carbon Revolution," UT CLE 2009 Carbon and Climate Change Conference, Austin, Texas, February 3-4, 2009, presentation and article, with M. Mendoza.
  • "Green Claims - Disclosure and Liability," Conference Board EH&S Legal Council, Houston, Texas, January 14, 2009; presentation.
  • "When It Comes to Eco-Marketing, It's Not Easy Being Green," with M. Mendoza, Austin Business Journal, November 21, 2008.
  • "Corporate Sustainability and Social Responsibility: A Legal Perspective," with M. Mendoza, Texas Bar Journal, May 2008.
  • "Corporate Marketing as 'Carbon Neutral' - Legal Issues," with J. Braddock, 2008 Carbon and Climate Change Conference, UTCLE, April 24-25, 2008.
  • "Environmental Law Issues for Investors and Lenders," National Webinar and Audio Conference, A.S. Pratt & Sons, June 27, 2007.
  • "Reconciling Shareholder Value Creation with Stakeholder Interests - Corporate Sustainability," Panel Chair, Institute for Excellence in Corporate Governance - 4th Annual National Conference, UT Dallas, October 26, 2006.
  • "Doing Environmental Due Diligence," American College of Real Estate Lawyers Quarterly, (May 2006) and ABA-SEER Environmental Transactions and Brownfields Committee Newsletter, November 2006.
  • "All Appropriate Inquiries - Are They Appropriate?" with M. Mendoza, BNA Environmental Due Diligence Guide, Jan. 19, 2006, No. 167; and BNA EHS Strategies, January 2006, No. 1.
  • "Transactional Environmental Due Diligence - What diligence is due?" with M. Mendoza, Natural Resources & Environment, ABA-SEER, Winter 2006.
  • "Public Participation in Environmental Permitting and Enforcement Proceedings," with Iris Gibson, University of Texas School of Law Administrative Law Conference, June 28-29, 2005.
  • "The Third Party and Transaction-Related Defenses," with M. Mendoza and C. Fernandez, ABA-SEER Environmental Litigation & Toxic Torts Committee Newsletter, July 2005.
  • "Fundamentals of Environmental Law," State Bar of Texas Ten Minute Mentor.
  • "Proper environmental due diligence should be part of a stock acquisition," Austin Business Journal, December 3-9, 2004; Dallas Business Journal; Birmingham Business Journal.
  • "Who's Liable Now? New Federal Brownfields Legislation," with B. Phillippi, Texas Bar Journal, December 2002; reprinted in Real Estate Issues, Winter 2003-2004.
  • "Practical Advice for Defense Counsel in Mass Toxic Tort Cases," with M. Mazzone and E. Kohn, Texas Lawyer, November 2001.
  • "Water Issues for Oil & Gas Producers," Southwest Legal Foundation, 2001.

 Memberships

  • Fellow, American College of Environmental Lawyers (2011-present)
  • Member and Former Chair, Environmental and Natural Resources Law Section, State Bar of Texas
  • Standing Chair, Annual Texas Environmental Superconference (1990-present)
  • Member, Advisory Board, University of Texas School of Law Center for Global Energy, International Arbitration and Environmental Law
  • Member, Administrative Law and Litigation Sections, State Bar of Texas
  • Member, American Bar Association, Sections of Environment, Energy, and Resources, and of Litigation and Administrative Law
  • Member and Former Chair, Air and Waste Management Association, Central Texas Chapter
  • Texas Bar Foundation
  • Former Member, University of Texas Law School Alumni Association Executive Board
  • Chair, Leadership Circle, Former Board Member and President, Communities-In-Schools, Central Texas Chapter

Selected Representative Experience


Sale of Newpark Completion and Well Testing Assets
Represented Newpark Resources, Inc. in connection with its sale of Newpark Drilling Fluids, LLC well-testing and completion assets to Wright Foster Disposals, a portfolio company of Prospect Capital Corporation.

Houston Unlimited Inc. Metal Processing v. Mel Acres Ranch, No. 13-0084 (Tex. 2013)
Submitted amicus curiae brief and presented oral argument on behalf of the Texas Oil & Gas Association in support of a petition for review dealing with the appropriate remedy for harm due to environmental contamination that is subsequently remediated to state agency standards.

Online Publications

09/25/2014 - Recent Developments in Clean Air Act Enforcement Tactics May Spell Increased Risk for Many Companies
Despite diminishing enforcement budgets for state and federal agencies, a combination of technological and regulatory developments could significantly increase risk of enforcement activity in coming months and years.

08/29/2014 - American College of Environmental Lawyers Guest Article: Texas Railroad Commission on Track to Address Quakes
Over 30 earthquakes jolted the area in and around the City of Azle, Texas —20 miles north of Fort Worth—last November through January.

08/28/2014 - ACOEL Blog Post: Texas Railroad Commission on track to address quakes
Over 30 earthquakes jolted the area in and around the City of Azle, Texas - 20 miles north of Fort Worth - last November through January.

08/01/2014 - Who's Who Legal August 2014 Roundtable
Haynes and Boone Partner Jeff Civins participates in an international environmental roundtable discussion for Who’s Who Legal.

06/24/2014 - Managing Environmental Risks
A presentation discussing environmental risks and how to manage them.

06/18/2014 - EPA Greenhouse Gas Proposal Published - the Clock is Now Ticking
Consistent with President Obama’s Climate Action Plan, EPA today published two sets of proposed rules, which it refers to as “carbon pollution standards,” relating to greenhouse gas emissions from fossil fuel-fired electric generating units - for existing stationary sources (79 Fed. Reg. 3480) and for modified and reconstructed sources (79 Fed. Reg. 34980).

06/09/2014 - CTS Corp. v. Waldburger - Supreme Court Refuses to Disturb Statutes of Repose
The Comprehensive Environmental Response, Compensation and Liability Act, commonly referred to as CERCLA or Superfund, does not contain any provision for a private cause of action for personal injury or property damage relating to the release of hazardous substances.

04/14/2014 - Virtual Roundtable - Environment Law 2014
Partner Jeff Civins participated in an international virtual roundtable discussing recent developments in environmental law globally, including issues relating to energy development and sustainability.

12/17/2013 - American College of Environmental Lawyers Guest Article: Has the Standard for Performing a Phase I Environmental Site Assessment Changed? Yes and No
Purchasers and lessees of commercial or industrial properties know to obtain Phase I environmental site assessments to identify the presence of contamination - so-called recognized environmental conditions (RECs) - because of the very substantial liabilities these conditions may create.

12/13/2013 - American College of Environmental Lawyers Guest Article: Temporary Contamination – Ain’t That a Non-Compensable Shame?
A “stigma” is a mark of shame. When applied to real estate, stigma refers to an unfavorable quality in a property that makes it less attractive.

11/25/2013 - Has the Standard for Performing a Phase I Environmental Site Assessment Changed? Yes and No
Purchasers and lessees of commercial or industrial properties know to obtain Phase I environmental site assessments to identify the presence of contamination - so-called recognized environmental conditions (RECs) - because of the very substantial liabilities these conditions may create.

10/02/2013 - TCEQ Audit Guidance Updated to Reflect Legislative Changes Authorizing Use by Prospective Purchasers
In September 2013, the Texas Commission on Environmental Quality updated its guidance on the use of the Texas Environmental, Health, and Safety Audit Privilege Act to reflect changes recently made by the 83rd Texas legislature to allow prospective purchasers of facilities to take advantage of the protections afforded by the Act.

04/12/2013 - DealThink: Environmental Due Diligence: How Much Diligence is Due?
You are general counsel of a publicly-traded medical device company. Your company’s Board has identified a publicly-held X-ray and CT scan component manufacturer that it would like to acquire. The target is a Delaware corporation based in California, with additional manufacturing facilities in Utah and Kentucky; within the past three years, it has sold two mothballed manufacturing facilities. It sends salespeople to 15 different states, but due to its Internet presence, it ships components worldwide. It also provides support services for its component parts within the continental United States.

03/14/2013 - ACOEL Blog Post: Less Lessee Liability - A Critique of EPA’s New Superfund BFPP Guidance
In December 2012, EPA issued revised enforcement guidance to assist agency personnel in exercising enforcement discretion regarding the treatment of tenants under Superfund’s bona fide prospective purchaser (BFPP) defense.

01/25/2013 - New EPA Guidance on Tenant Liability under Superfund
On December 5, 2012, EPA issued revised enforcement guidance to assist agency personnel in exercising enforcement discretion regarding the treatment of tenants under Superfund’s bona fide prospective purchaser (BFPP) defense.

07/26/2012 - TCEQ Announces Opportunity for Regulated Entities to Register to Review their Compliance History Ratings Prior to Release to the Public
Pursuant to statutory changes enacted in its 2011 Sunset Review, the TCEQ has created a website that allows companies and persons subject to its regulations to review the agency’s proposed compliance history rating, for a 30-day period prior to that rating being made available to the public.

04/20/2012 - Oil and Gas Operations, Including Hydraulic Fracturing, Subject to New Air Quality Regulation - EPA Issues Final Rules Under the New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Programs
In order to comply with a court-ordered schedule, EPA Administrator Lisa Jackson on April 17, signed final rules that subject additional oil and gas operations, including hydraulic fracturing, to air quality regulation under the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs) programs, and impose new and amended requirements under both programs.

04/02/2012 - EPA Proposes Greenhouse Gas Emission Standards for New Electric Generating Units
In response to a court order, EPA has announced proposed rules that would establish new source performance standards (“NSPS”) applicable to greenhouse gas emissions from new, fossil fuel-fired power plants (“power plants”). The proposal is a highly controversial one, which will effectively prohibit the construction of coal-fired power plants that do not capture carbon.

03/22/2012 - Supreme Court Rules on Pre-Enforcement Review Under the Clean Water Act - Sacketts Sack EPA
On March 21, 2012, the United States Supreme Court issued a unanimous decision in the much-publicized case of Sackett v. EPA (No. 10-1062), less than three months after oral argument, holding that the Sacketts were not precluded from judicially challenging EPA’s issuance of an administrative compliance order.

03/12/2012 - BNA Daily Environment Report Guest Article: Superfund's Transactional Defenses and the No Affiliation Prerequisite
To encourage brownfield redevelopment, Congress has enacted various defenses to superfund liability that require parties to show they have no affiliation with potentially responsible parties.

03/12/2012 - Law360 Guest Article: Ground(water)-Breaking Decision
On Feb. 24, 2012, two years after oral argument, the Texas Supreme Court issued its watershed decision in Edwards Aquifer Authority (the Authority) v. Day.

03/08/2012 - Haynes and Boone Webinar: Private Capital Quarterly Energy - An Analysis of Fracking Developments
The Investment Funds and Energy groups of Haynes and Boone, LLP presented the Private Capital Quarterly Energy Webinar, "An Analysis of Fracking Developments."

03/01/2012 - Drafting Real Estate Contracts to Address Environmental Concerns
Environmental laws sweep broadly, regulating a wide range of business activities. The obligations and liabilities they create affect not only ongoing businesses, but also business transactions, including real estate transactions, stock transactions, financings and leases.

02/27/2012 - Ground(water) Breaking Decision
On February 24, 2012, two years after oral argument, the Texas Supreme Court issued its watershed decision in Edwards Aquifer Authority (the “Authority”) v. Day. The Court’s long-awaited decision included two significant pronouncements on groundwater that are likely to have ripple effects throughout the water community and could open the flood gates to a wave of litigation.

12/20/2011 - Some Perspective and Recent Developments Regarding Superfund’s Transactional Defenses
To encourage Brownfields development, Congress amended Superfund to add three transactional defenses to potentially responsible party liability: (1) innocent purchaser (IP); (2) bona fide prospective purchaser (BFPP); and (3) contiguous property owner (CPO).

12/07/2011 - EPA to Regulate Fracing Substances under the Toxic Substances Control Act
EPA recently made an announcement of interest to those in the oil field services sector as well as in the energy sector itself. On November 23, the agency announced that it was granting in part a petition by Earthjustice to initiate rulemaking under the Toxic Substances Control Act (TSCA), relating to chemical substances and mixtures used in oil and gas exploration or production.

08/16/2011 - It's Not Easy Being Green: The Ins and Outs of Environmental Touts

08/16/2011 - The IP Beacon, August 2011
A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.

08/11/2011 - New EPA Oil and Gas Air Quality Standards
In order to comply with a court-ordered schedule, EPA Administrator Lisa Jackson on July 28 signed a 604-page package that proposes to subject additional oil and gas operations to regulation under the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPS) programs and to impose new and amended requirements under both programs.

06/21/2011 - American Electric Power v. Connecticut: Greenhouse Gas Regulation Derails Common Law Claims
On June 20, 2011, Justice Ginsburg delivered the unanimous opinion of the U.S. Supreme Court in American Electric Power Company, Inc. v. Connecticut, holding that the Clean Air Act and EPA action under it displaced the federal common law nuisance claims against CO2 emitters that plaintiffs sought to pursue.

01/31/2011 - Key Concepts of Environmental Law
Environmental laws sweep broadly, regulating a wide range of business activities. Environmental laws create obligations and liabilities that affect not only ongoing businesses, but business transactions as well. They also may form the basis for, or otherwise be relevant to, litigation. Set forth below is an overview of environmental programs and a discussion of their effects on real estate and on business transactions and of their relevance to litigation.

01/06/2011 - Feds Convene Meeting to Discuss Regulations Curtailing Offshore Natural Gas Venting
In a move that indicates significant regulatory changes may be coming to deepwater operations, federal authorities are eyeing new rules curtailing venting of natural gas in the Gulf of Mexico.

08/31/2010 - August 31, 2010 TCEQ Meeting to Discuss Oil And Gas Air Quality Permitting Changes
The TCEQ will hold an informational meeting today (August 31) from 9:30 A.M. until 3:00 P.M. (CST), to discuss the proposed changes to the air quality permit by rule and standard permit for oil and gas production facilities.

08/24/2010 - Recent Statutory and Regulatory Developments Related to Hydraulic Fracturing in New York, Pennsylvania, West Virginia and Ohio
The use of hydraulic fracturing, sometimes called "fracking," has made it economically possible to produce hydrocarbons, mainly gas, from the central Appalachian region of the eastern United States. Shale gas development from the Marcellus Shale is focused in four states: New York, Pennsylvania, West Virginia and Ohio.

08/05/2010 - EPA/TCEQ Dispute Over Greenhouse Gas Emissions Heats Up
The public dispute between EPA and the Texas Commission on Environmental Quality (TCEQ) over air quality issues continues to intensify. The latest salvo is a strongly worded letter from the state of Texas to EPA on the issue of air quality permitting of greenhouse gases.

06/14/2010 - The Practical Impacts of Burlington Northern
On May 4, 2009, the United States Supreme Court issued its opinion in two consolidated cases, Burlington Northern and Santa Fe Railway Co. v. United States (“BNSF”) (No. 07-1601) and Shell Oil Company v. United States, (“Shell”) (No. 07-1607), 129 S. Ct. 1870 (2009), on the related issues of joint and several liability and arranger liability under Section 107 of the Comprehensive Environmental Response Compensation and Liability Act, commonly referred to as CERCLA or Superfund.

05/25/2010 - U.S. Senate Bill Looks to Move Cap-and-Trade Plans Forward - EPA Issues Final Tailoring Rule
There have been two significant new developments in the regulation of greenhouse gases (“GHG”). One is the long awaited introduction of new draft legislation that sponsors hope will bridge the disagreements that have prevented the passage of comprehensive GHG legislation. The other is the issuance, on May 13, 2010, of EPA’s greenhouse gas tailoring rule, the final piece of EPA’s multiple promulgations to commence control of GHG from stationary sources.

04/06/2010 - TCEQ Proposes Restrictions on Standard Permits and Permits By Rule
On April 14, 2010, the Texas Commission on Environmental Quality (“TCEQ”) Commissioners are scheduled to consider proposing new rules that would significantly restrict the ability of companies who rely upon Standard Permits and Permits by Rule (“PBR”) for air quality authorizations to install new facilities or expand or modify existing facilities.

03/30/2010 - EPA Sets Timeline for Regulating Greenhouse Gases in Permits
The EPA said Monday that it will begin regulating greenhouse gas emissions no earlier than January 2, 2011. The EPA announcement came in its March 29, 2010 decision regarding reconsideration of the December 18, 2008 memorandum from then EPA Administrator Stephen Johnson (“the Johnson Memorandum”) that addressed when air pollutants become regulated pollutants under the federal Clean Air Act (“the Act”).

03/25/2010 - More Proposed Regulation of Oil and Gas Operations: Greenhouse Gas Reporting and Changes to Air Permits
Over the last several years, the environmental agencies have increased their focus on air quality issues associated with oil and gas production activities. On March 23, 2010, both EPA and the TCEQ announced new proposals that would increase air quality regulation of the oil and gas industry.

02/11/2010 - SEC Clarifies Climate Change Disclosure Obligations
On February 2, 2010, the Securities and Exchange Commission (the “SEC”) announced guidance regarding public companies’ disclosure obligations related to climate change. On February 8, 2010, the SEC published that guidance in the Federal Register, at which time it became effective. As a result, calendar year-end companies with upcoming annual reports on Form 10-K should evaluate whether their disclosures concerning climate change are consistent with the new guidance.

02/02/2010 - SEC to Clarify Climate Change Disclosure Obligations
On January 27, 2010, the Securities and Exchange Commission (the “SEC”) voted to provide interpretive guidance on SEC disclosure requirements as they apply to business or legal developments relating to the issue of climate change.

01/08/2010 - EPA Proposes Revised Ozone Standard
On Jan. 6, Environmental Protection Agency Administrator Lisa Jackson announced that the EPA is proposing to revise downward the primary National Ambient Air Quality Standard (NAAQS) for ozone. The primary standard was established to protect human health. The agency also proposes to develop a new secondary standard, established to protect public welfare. 

01/05/2010 - Transactional Environmental Due Diligence - What Diligence is Due
Enacted in 1980, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) discouraged parties from acquiring, financing, and developing contaminated properties - so-called Brownfields - by dramatically changing the scope of liability and corresponding risks for parties dealing with such properties.

12/07/2009 - EPA Issues Greenhouse Gas Endangerment Finding
On December 7, 2009, EPA Administrator Lisa Jackson announced EPA’s finding that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (“the endangerment finding”). Administrator Jackson also made a related finding that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (“the cause or contribute finding”). These findings have far reaching impacts on commercial and industrial operations, including many that have not previously been regulated under the federal Clean Air Act (“CAA”).

10/02/2009 - Greenhouse Gas (GHG) Regulatory Update: Three New Proposed Actions Continue the Debate
Greenhouse gas (“GHG”) regulatory developments to address climate change concerns continue. On September 23, 2009, we noted EPA had finalized its GHG reporting rules. On September 30, 2009, three new proposals were released, two of which, if adopted, would initiate air quality regulation of GHGs.

09/23/2009 - EPA Releases Final Rules for Reporting Greenhouse Gas Emissions
On September 22, 2009, EPA released its final rules for the reporting of greenhouse gas (GHG) emissions, impacting a wide range of businesses. The importance of these reporting requirements is enhanced because of the likelihood that either Congress will adopt a cap and trade GHG reduction program, EPA will move to regulate GHG under the existing federal Clean Air Act, or both.

09/15/2009 - Environmental Due Diligence - Counting Carbon
This article provides background information on the concept of carbon constraints and available options to reduce carbon. It then discusses how carbon constraints create assets and liabilities and makes suggestions as to how to identify those assets and liabilities through due diligence.
Published in Natural Resources & Environment, Volume 24, Number 2, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission.

09/11/2009 - EPA Proposes Disapproval of Certain Texas Air Quality Permitting Programs
In a widely publicized announcement, EPA is proposing to formally disapprove certain aspects of the air quality permitting of the Texas Commission on Environmental Quality (“TCEQ”). If adopted, the EPA proposal could have significant ramifications for companies that have relied upon those aspects of the Texas program that provide flexibility for making changes at existing plants without the need for amending existing permits.

07/30/2009 - Corporate Dealmaking in a Carbon Conscious World
On June 16, 2009, the Obama Administration released a report entitled, “Global Climate Change Impacts in the United States,” that “confirms” that “global warming observed the past 50 years is due primarily to human induced emissions” of so-called greenhouse gases (GHGs) - collectively referred to simply as “carbon” - and is producing “immediate and local impacts.”

07/08/2009 - House Passes American Clean Energy and Security Act
On June 26th, the House of Representatives narrowly passed the American Clean Energy and Security Act (“ACES”), H.R. 2454. The bill will next be considered by the Senate, with some predicting a full Senate vote held in October. Because of the significance of this bill and the material effect it will have on many sectors of the economy, we thought it would be useful to summarize the House-passed version.

05/05/2009 - Supreme Court Limits Superfund Liability – In Two Ways
The United States Supreme Court yesterday handed down its eagerly awaited opinion in the consolidated cases of BNSF v. U.S. and Shell Oil Company v. U.S., on the issues of arranger liability and joint and several liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), or Superfund. On both issues, the Court ruled eight to one in favor of the potentially responsible parties, and those rulings should have positive repercussions for defendants in other cases involving these issues.

04/20/2009 - EPA Proposes Greenhouse Gas Endangerment Finding and that Greenhouse Gases from Motor Vehicles Contribute to Air Pollution
On April 17, 2009, EPA Administrator Lisa Jackson issued a long awaited proposal that would have EPA formally “find” that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (the “endangerment finding”). Administrator Jackson also issued a related proposal that would have EPA determine that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (the “cause or contribute finding”). These proposals are the latest developments in the controversial issue of whether EPA should regulate greenhouse gases to protect against the adverse impacts of global warming and are sure to generate significant debate.

04/07/2009 - EPA Sheds Light on Availability to Tenant of Bona Fide Prospective Purchaser Defense to Avoid CERCLA Liability
Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund, tenants—as well as landlords—may be considered present or past owners or operators of contaminated properties, and thus liable as "potentially responsible parties" (PRPs) for the substantial costs of investigating and remediating contamination, regardless of fault. Recently, the Environmental Protection Agency (EPA) issued guidance regarding the availability of a particular CERCLA defense to tenants. Although there are other arguments and defenses against liability, prospective tenants may wish to consider the protections afforded by this defense and the steps necessary to take advantage of it.

04/01/2009 - Draft Global Warming Bill Released
On March 31, 2009, U.S. Representatives Waxman and Markey released draft global warming legislation: The American Clean Energy and Security Act of 2009. The 648-page draft bill consists of four titles addressing clean energy, energy efficiency, reducing global warming pollution, and transitioning to a clean energy economy.

04/01/2009 - The Carbon Revolution: Answering the Call
This article provides basic information regarding GHGs, touching on the science and the law. It then identifies measures an individual manufacturer can take to address GHGs, especially carbon in the form of CO2, discussing some of the legal issues raised by those measures. Finally, it explains the relationship between carbon management and sustainability and then offers a conclusion.

03/16/2009 - EPA Proposes Rule for Greenhouse Gas Emissions Reporting
On March 10, 2009, EPA released its proposed rule for the reporting of greenhouse gas (GHG) emissions. This proposed rule is mandated by the Fiscal Year 2008 Consolidated Appropriations Act (H.R. 2764; Public Law 110-161) and will require a wide range of businesses to track and report their GHG emissions.

02/18/2009 - EPA Reconsideration of Carbon Dioxide in Air Quality Permits
On February 17, 2009, EPA Administrator Lisa Jackson issued a response to the Sierra Club’s Petition for Reconsideration of the December 18, 2008 memorandum issued by Ms. Jackson’s predecessor, Stephen Johnson (“the Johnson memorandum”), regarding reviewing carbon dioxide in air quality Prevention of Significant Deterioration (“PSD”) permits. This action is of interest to those seeking PSD permits, as well as those concerned about carbon dioxide regulation generally.

02/09/2009 - Companies Must Be Cautious When Making Green Claims
Texas Lawyer
While no overarching federal program addresses climate change and greenhouse gases (GHGs), many companies are voluntarily decreasing their emissions. When they inform investors, customers and regulators of those actions, legal liability can result should their claims prove inaccurate or misleading. Lawyers should be aware and prepared to advise their clients of these risks.

Companies provide climate change information to their investors in securities filings, Web sites and reports to nongovernmental organizations (NGOs) such as the Carbon Disclosure Project. They may tout their products’ green credentials to customers in multimedia advertisements and product labels. As a result, liability may arise under the common law, state deceptive trade practices acts, the Federal Trade Commission Act, and the Securities and Exchange Act.

02/06/2009 - Justice Department Targets Coal-Fired Power Plants
Since the November elections, there has been intense speculation regarding what environmental policies the Obama administration might adopt, particularly those involving enforcement and coal-fired power plants. An indicator of what is to come may be the February 4, 2009 announcement from the Department of Justice that it is filing a Clean Air Act enforcement action against Westar Energy for alleged violations of the new source review (“NSR”) permit requirements at a coal-fired power plant in Kansas.

02/03/2009 - The Carbon Revolution
The lyrics to the Beatles song, “Revolution,” can be applied, with some poetic license, to changes effected by the “Carbon Revolution,” as well as to changes in the turbulent 60s about which it was written. With the belief that the generation of carbon dioxide (CO2) by the burning of fossil fuels contributes to global warming, which in turn produces destructive changes in our environment, many are singing off the same page: “We all want to change the world,” to combat increased global warming - in an open-minded and constructive way.

12/29/2008 - Clean Air Interstate Rule Reinstated
In an unusual action, the U.S. Court of Appeals for the District of Columbia reversed its earlier ruling that would have vacated the entirety of the Clean Air Interstate Rule (“CAIR”).

12/22/2008 - EPA Administrator Says Carbon Dioxide is not a “Regulated Pollutant”
In a December 18, 2008 interpretative memorandum, EPA Administrator Stephen Johnson provided an answer to the Environmental Appeals Board’s decision on In re: Deseret.

12/03/2008 - EAB’s Decision Leaves Permitting Up in the Air
In its recent decision in In re: Deseret Power Electric Cooperative, the Environmental Appeals Board (“EAB”) of the U.S. Environmental Protection Agency (“EPA”) addressed whether and to what extent CO2 emissions needed to be considered in air quality permitting. 

11/21/2008 - When It Comes to Eco-Marketing, Its Not Easy Being Green
Austin Business Journal
Many believe that corporate America wouldn’t go green without governmental arm-twisting, but the fact is corporations are on the sustainability bandwagon, and the government is finally catching up. However, in marketing themselves as green companies, the maxim “no good deed goes unpunished” applies, and companies that are marketing themselves as green face legal risks.

06/28/2008 - Public Participation in Environmental Permitting and Enforcement Proceedings

05/01/2008 - Corporate Sustainability and Social Responsibilty: A Legal Perspective
This article provides an introduction to the concept of corporate sustainability and its legal ramifications.

04/24/2008 - Corporate Marketing as “Carbon Neutral” - Legal Issues

05/01/2006 - Doing Environmental Due Diligence

01/24/2006 - All Appropriate Inquiries-Are They Appropriate?

07/01/2005 - The Third Party and Transaction-Related Defenses of CERCLA: An Overview
As appeared in the Environmental Litigation and Toxic Torts Committee Newsletter, July 2005, Volume 7, Number 1, Section of Environment, Energy, and Resources, American Bar Association.

12/01/2002 - New Federal Brownfield Legislation

11/19/2002 - Fifth Circuit Reverses Aviall

10/15/2001 - Water Quality Enforcement

02/15/2001 - Water Issues for Oil & Gas Producers

11/01/2000 - Concerns to Mortgage Lenders under U.S. Environmental Laws

08/26/1999 - Environmental Laws and Regulations Involving Water

12/14/1998 - On the Water Front