Trump Administration Tells EPA to Freeze All Grants, Contracts

Synergy Environmental, Inc.
Brink Young

January 25, 2017

The Trump administration has instructed officials at the Environmental Protection Agency to freeze its grants and contracts. An email went out to employees in the agency’s Office of Acquisition Management within hours of President Trump’s swearing-in on Friday.

The future ramifications at this point are unclear. We will update you as soon as more information becomes available.

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The Trump EPA – Some Things to Expect

Venable LLP
Kyle W. Robisch and Douglas H. Green

January 3, 2017

With just a few weeks before President-elect Trump’s inauguration, and his recent nomination of Oklahoma Attorney General Scott Pruitt—a leading critic and challenger of the Waters of the United States Rule (WOTUS Rule) and the Clean Power Plan (CPP)—as EPA Administrator, the era of the Trump EPA is set to begin. Much has already been written on some of the expected environmental policy changes under the Trump era EPA, such as attempting to dismantle the CCP, modifying the WOTUS Rule, and approving the Keystone XL pipeline.

Beyond these headline grabbing policy changes, however, are some other significant implications for the regulated community. Three areas of particular interest are the role of EPA initiated enforcement actions and citizen suits, opportunities to drive and shape EPA’s environmental priorities, and the future pace and substance of EPA’s implementation of the recent amendments to the Toxic Substances Control Act (TSCA).

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Early January Environmental Odds And Ends

Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender

January 17, 2017

“The old order changeth, yielding place to new.” January 2017 has been a very active month, with several important environmental and federal administrative court rulings being issued, and many significant rules being proposed and finalized. Here’s a selection:

1. NPDES Permit Ruling. On January 9, the U.S. District Court for the Eastern District of Washington issued a ruling that a National Fish Hatchery operated by the U.S. Fish and Wildlife Service has, in effect, been discharging pollutants without a NPDES permit since 1979. The case is Center for Environmental Law and Policy, et al., v. U.S. Fish and Wildlife Service. A National Pollutant Discharge Elimination System (NPDES) permit was issued by the Environmental Protection Agency (EPA) in 1975, with an expiration date of August 31, 1979, but it was never renewed. In 1981, the Service received a letter from EPA stating that the old permit was automatically extended, and the terms of the old permit would remain in effect until a decision is made on a renewal application. EPA stated that this decision was made due to budgetary constraints. However, the permit was never renewed despite several applications being made. The District Court held that the 1981 letter was “manifestly incorrect,” and granted summary judgment to the plaintiffs.

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Clean Power Plan’s Future in Jeopardy Under Trump

Holland & Knight, LLP
William P. Burchette and Beth A. Viola

January 12, 2017


President-Elect Donald Trump has vowed to scrap President Obama’s Clean Power Plan (CPP) rule, the cornerstone of Obama’s environmental legacy. The rule establishes the first national standards to limit carbon pollution from power plants.

Congress has a variety of tools available to invalidate the CPP and agency regulations. Congress can invalidate rules by the Congressional Review Act, appropriation riders or stand-alone legislation.

It is anticipated that the Trump Administration will make the invalidation of this rule a top priority in its first 100 days.

During his campaign, President-Elect Donald Trump vowed to scrap President Obama’s Clean Power Plan (CPP) rule. The CPP is the cornerstone of President Obama’s environmental legacy. The rule establishes the first national standards to limit carbon pollution from power plants. The CPP aims to limit carbon emissions from new and existing power plants, which represent the largest slice of U.S. greenhouse-gas emissions. The final CPP regulation sets a goal of cutting carbon pollution from power plants by 32 percent by 2030, compared with 2005 levels. The rule has long been under attack by the coal industry as it discourages the use of coal-fired power plants and incentives the use of natural gas and renewables. The rule is currently stayed pending judicial review. This alert provides a high-level analysis of the options available for Trump to overturn the regulation.

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Tenth Circuit Rules Bankruptcy Settlement Not a Bar to CERCLA Contribution Action

Manko Gold Katcher & Fox LLP
Diana A. Silva

January 9, 2017

Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.

The case – Asarco, LLC v. Noranda Mining, Inc., Dkt. No. 16-4045 (10th Cir. Jan. 3, 2017) – involves the Lower Silver Creek / Richardson Flat Site located near Park City, Utah, which had been used as a lead and silver ore mine since the 1870s. In August 2005, Asarco, a mining, smelting, and refining company, filed for Chapter 11 reorganization bankruptcy, which included approximately $6.5 billion environmental claims for 52 sites in 19 states. To approve Asarco’s settlement of these environmental claims, the bankruptcy court was required to determine that the settlement was “fair” and “reasonable,” under both bankruptcy law and CERCLA. Because parties that settle their CERCLA liability with the federal government receive protection from third-party contribution claims, to satisfy the “fair and reasonable” standard, the settlement must be “roughly correlated with some acceptable measure of comparative fault” for the settling party. To support its argument that the settlement for the various sites was “fair and reasonable,” Asarco’s former director of environmental services submitted a declaration with the bankruptcy court stating that the settlement was roughly equal to Asarco’s share of liability at the various sites, including the Lower Silver Creek / Richardson Flat Site.

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