The Future of Environmental Law Under a Trump Administration

Hogan Lovells
Justin A. Savage, Andrew C. Lillie, Jennifer L. Biever and Adam M. Kushner

November 10, 2016

The election of Donald Trump as the 45th President of the United States may spur the most significant changes to U.S. environmental laws since the 1970s. While some of those anticipated changes may be quickly implemented, most will take considerable effort and collaboration to make happen, and others are unlikely to be implemented at all. Our views on the Trump Administration’s likely impacts on environmental law are discussed below in the form of responses to questions we expect to be most common in the aftermath of the election results. Overall, we expect promotion of infrastructure projects, fossil fuels and manufacturing to be top priorities that will guide how the Trump Administration addresses environmental regulation.

There is, of course, inherent uncertainty to any analysis of how the Trump Administration might shape environmental law. Never having held elective office, Mr. Trump has no record of prior environmental policies to provide insight into his likely approach, and his populist movement has defied prediction and all political conventions. In this atmosphere of uncertainty, however, we hope to shed some light on the baseline questions about the future of environmental regulation in the United States.

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Spoliator Alert! Discarding Your Pipes, Sumps and Slabs Can Cost You

Cole Schotz PC
Salma T Chand

November 11, 2016

The New Jersey Appellate Court recently upheld a spoliation claim against a plaintiff company that sued prior owners for violations of New Jersey’s Spill Compensation and Control Act and common law claims of nuisance and negligence.

In 18-01 Pollit Drive v. Engel, Docket No. A-4833-13T3, the new owner of a former printing facility site discovered contamination during redevelopment activities and filed a contribution suit against several former owners for investigation and remediation costs. The owner’s expert concluded that contamination under the building came from an acid dilution sump pit and sewer piping under the concrete slab floor. To demonstrate the timing and source of the discharges of contamination, the owner’s expert relied on photos of the pipe, the sump pit and concrete floor, samples of piping from another location on the site, and data derived from sludge in the sump pit and soil from under the sump, all of which had been excavated and discarded before defendants’ experts could examine them. Defendants argued that their experts needed to examine the original pipe, sump pit and concrete floor and filed motions to dismiss the action on spoliation grounds.

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New Jersey Court Holds that “PRP” Letter Constitutes a Suit

Clyde & Co LLP
Daren McNally, Barbara Almeida and Matthew Gennaro

October 28, 2016

The Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”) authorizes private causes of action to recover damages resulting from hazardous waste pollution. Often, this process begins with the Environmental Protection Agency (“EPA”) issuing a notice letter to a potentially responsible party for the pollution (a “PRP”) to inform it that it may be subject to liability for future remediation costs. A PRP’s failure to respond to this notice—known as a “PRP letter”—may result in significant fines or, subsequently, a formal lawsuit.

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Is Your Waste Coming or Going? EPA Revises Hazardous Waste Export-Import Rules and Reforms Generator Rules

Pierce Atwood LLP
Lisa A. Gilbreath and Kenneth F. Gray

November 15, 2016

In late October 2016, the United States Environmental Protection Agency (EPA) adopted two final rules that will very shortly change procedures for those who export or import Resource Conservation and Recovery Act (RCRA) hazardous waste and – in the long run – allow important changes for hazardous waste generator management practices.

First, EPA finalized significant revisions to RCRA hazardous waste export-import regulations. These revisions are generally consistent with EPA’s 2015 proposed rule and implement the more stringent transboundary shipment rules of the Organization for Economic Cooperation and Development. The rules provide one consolidated and streamlined set of requirements applying to all exports and imports, some of which are effective at the end of December.

In general, the revisions affect four groups: (1) all persons who export or import (or arrange for the export or import of) hazardous waste for recycling or disposal, including universal waste; (2) all facilities that receive imports of such hazardous wastes for recycling or disposal; (3) all persons who export, or arrange for the export of, conditionally excluded cathode ray tubes being shipped for recycling; and (4) all persons who transport any export and import shipments.

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