Baker McKenzie’s North America Energy response team recently surveyed a number of key oil and gas producing jurisdictions across the United States — representing approximately 90% of domestic oil production — to assess how these jurisdictions are responding to the recent collapse in the oil price from a regulatory perspective. No two jurisdictions are identical in their response, and our analysis reveals a range of approaches. Texas, Oklahoma, and North Dakota are responding pro-actively,…
A recent decision out of the Southern District of Indiana joins a small number of decisions that have considered what is required for a buyer to satisfy all appropriate inquiries and qualify as a bona fide prospective purchaser (“BFPP”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” also known as “Superfund”). The case, Van Duprin LLC v. Moran Elec. Serv., No. 16-cv-01942 (S.D. Ind. March 30, 2020), highlights the fact that even though…
On April 15, the U.S. District Court for the District of Montana held that the Army Corps of Engineers failed to comply with the Endangered Species Act consequently must reconsider its Nationwide Permit (NWP) 12, which authorizes discharges under Section 404 of the Clean Water Act associated with the construction, maintenance or repair of pipelines, electrical lines, cable lines, and other utilities. The case, Northern Plains Resource Council v. U.S. Army Corps of Engineers, No.…
This week the U.S. Supreme Court continued its plain language approach to interpreting CERCLA, allowing property owners’ state law claims for restoration of their properties to proceed in Montana even though resolution of the claims may require additional work than the U.S. EPA-determined remedy. See Atlantic Richfield Co. v. Christian, et al, No. 17-1498 (Slip Op. April 22, 2020).The decision creates uncertainty for parties responsible for cleaning up sites under CERCLA where there are pending…
The issue of enforcement during the COVID-19 outbreak became contentious this week, when the Natural Resources Defense Council (NRDC) filed a lawsuit against U.S. EPA in the U.S. District Court for the Southern District of New York over the temporary regulatory enforcement policy that U.S. EPA issued three weeks ago on March 26. NRDC’s April 16th lawsuit follows its April 1st Petition to U.S. EPA asking the Agency to issue an emergency rule requiring that…
On March 30, 2020, the United States Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”), on behalf of the Department of Transportation, finalized the long-signaled rule establishing new carbon dioxide and fuel economy standards for light-duty vehicles. Per the final rule, carbon dioxide (“CO2”) emission standards and corporate average fuel economy (“CAFE”) standards for light-duty vehicles will now increase in stringency at 1.5 percent per year over the course of model…
Companies around the country are continuing to assess the operating status of their businesses as the COVID-19 crisis evolves and changes on a daily basis. Amidst the flurry of state Shelter-in-Place (“SIP”) orders over the past week, industrial enterprises across a wide range of sectors – chemicals, energy, mining, agriculture, pharmaceuticals and steel – along with manufacturers providing equipment and supplies to these industries, have been positioning themselves as ”essential businesses” required to keep their…
Earlier this week, we provided guidance on the development of an “Environmental Action Plan” to address potential environmental regulatory and compliance challenges arising from the COVID-19 crisis. Our recommendations included – in the context of limited or unavailable EHS staff or resources and in response to plant shutdown orders – (i) a prioritized assessment of potential risks to human health and the environment and compliance concerns with permits or cleanup order obligations, (ii) effective communication…
Following California Governor Gavin Newsom’s shelter-in-place order in response to the COVID-19 emergency, California’s State Water Resources Control Board and the nine California Regional Water Quality Control Boards confirmed this week that they consider compliance with orders, permits and regulations to be an “essential function” under the order. The announcement does clarify that there is a mechanism for regulated entities to seek specific relief when a Water Board order or requirement cannot be timely met…
Operational Disruptions The ever-evolving COVID-19 crisis continues to pose significant challenges for industrial enterprises across the United States. Until very recently, the engines of industry continued to hum while the broader world wrestled with this unprecedented public health crisis. However, with growing constituencies across the public and private sector calling for more aggressive action on social distancing and with states now beginning to issue strict shelter-in-place orders, more and more manufacturing facilities are closing their…