04/12/2013 - Deal Think: 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 - 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.
03/12/2012 - 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.
03/08/2012 - 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 - The IP Beacon, August 2011
A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.
08/16/2011 - It's Not Easy Being Green: The Ins and Outs of Environmental Touts
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
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