Green Building Law Update

Environmental Law and Sustainability for Business

Archives: Environmental

Understand How EPA Does Not Expect to Seek Penalties during COVID-19 Pandemic

The U.S. Environmental Protection Agency announced last Thursday retroactively beginning March 13, 2020, a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA’s admittedly unprecedented temporary “enforcement discretion policy” applies to civil violations during the COVID-19 outbreak as a response to the deleterious effect on a wide variety of businesses. … Continue Reading

LEED can Help Mitigate Legal Risks in ESG Disclosures

By Stuart Kaplow on March 8, 2020 Posted in Environmental, LEED

Public companies in the U.S. find themselves at a dynamic time of emergent environmental, social and governance (“ESG”) disclosures. Vocal socially conscious investors, activist stockholder environmental proxy proposals, and the like are driving companies to make ESG statements. This blog post highlights the legal risk associated with ESG disclosures and proffers that with green building … Continue Reading

179D Tax Deduction Allocated from Government Buildings

By Stuart Kaplow on February 23, 2020 Posted in Codes and Regulations, Energy, Environmental, Green Building

On December 20, 2019, the President signed legislation reviving the Section 179D energy efficient commercial building tax deduction and while much has been written about the much needed boost to green building, little has been said about the enormous benefits available from government owned buildings. The § 179D federal tax deduction was brought back from … Continue Reading

One Trillion Trees

By Stuart Kaplow on February 16, 2020 Posted in Climate Change, Environmental

The One Trillion Trees Initiative was launched at the World Economic Forum last month. When President Trump announced that the United States would join the tree planting initiative on January 21 in Davos among more than 3,000 world government, business, and NGO leaders, more than half of whom joined the commitment, it garnered little reaction … Continue Reading

Migratory Bird Treaty Act Will Apply Only to Intentional Takes

By Stuart Kaplow on February 9, 2020 Posted in Codes and Regulations, Environmental, Solar Panel, wind turbine

Last week, the U.S. Fish and Wildlife Service proposed a rule clarifying that the scope of the Migratory Bird Treaty Act only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act. As I described in a 2017 blog post, … Continue Reading

Phase l Assessments for Tenants are the Hottest Environmental Issue in 2020

By Stuart Kaplow on January 19, 2020 Posted in Environmental, Federal

The hottest environmental topic for business in 2020, as a result of an amendment to the Superfund law for the first time making clear that tenants can qualify as bona fide prospective purchasers, protected from cleanup costs from the presence of hazardous substances on a property, is prospective tenants are now ordering Phase l Environmental … Continue Reading

When Trees Sue for their Own Environmental Preservation

By Stuart Kaplow on January 5, 2020 Posted in Codes and Regulations, Environmental

In the new decade American environmental law will likely expand to include you being sued by the trees. I don’t mean being sued by the Lorax or someone else who “speaks for the trees” but rather the trees will have standing to sue to confront environmental degradation and the like. This movement to empower nature … Continue Reading

PFOA Contamination is Found in 49 States

By Stuart Kaplow on November 17, 2019 Posted in Environmental, Legal

Two weeks ago, New York Attorney General Letitia James commenced a civil suit against the nation’s largest chemical manufacturers and several firefighting foam makers for what the complaint alleges is contamination of water supplies across the state with PFOAs, averring strict liability for public nuisance, strict products liability for defective products, strict products liability for … Continue Reading

An HREC is Not a REC in a Phase I Environmental Site Assessment

By Stuart Kaplow on November 3, 2019 Posted in Environmental, Federal

I review a large number of Phase I environmental site assessments, and year in, year out, the largest number of questions I field are about Historical Recognized Environmental Conditions. The environmental professionals who perform those assessment generally do not take heed of Eduardo Galeano’s quote, “History never really says goodbye. History says, ‘see you later.’” … Continue Reading

FTC Finds Truly Organic is Not

By Stuart Kaplow on October 27, 2019 Posted in Environmental, Federal, Green Washing

By way of a federal court order that became final last month, Truly Organic Inc. and its founder will pay $1.76 million to settle a Federal Trade Commission greenwashing complaint alleging that their nationally marketed bath and beauty products are neither “certified organic” nor “vegan” as falsely claimed. According to the FTC’s complaint, in this … Continue Reading

Government to Allow Less Lead in Drinking Water

By Stuart Kaplow on October 20, 2019 Posted in Environmental, Federal

EPA is expected to publish this week in the Federal Register the first proposed regulatory revisions to the National Primary Drinking Water Regulation for lead in more than 30 years. The United States has made tremendous progress in lowering children’s blood lead levels (.. children are a good data set analogous to the broader population). … Continue Reading

ESG Disclosure Simplification Act Passes Committee But Will Fail

By Stuart Kaplow on October 13, 2019 Posted in Environmental, Federal, Sustainability

On September 20, 2019, the Financial Services Committee in the U.S. House of Representatives passed H.R. 4329, the ESG Disclosure Simplification Act of 2019. The bill would require all public companies to disclose “environmental, social, and governance [ESG] metrics” as material information about the company. Although there is little if any chance that the bill … Continue Reading

LEED Offers Companies a Response to Declining Bird Populations

By Stuart Kaplow on October 6, 2019 Posted in Environmental, LEED

Condor in the Cordillera Huaywuash, Peru

In response to a much publicized new study on North American bird populations that appeared in the journal Science last month, we received a significant number of inquiries from businesses about what an appropriate response might be from a responsible company? The study found “cumulative loss of nearly three billion birds since 1970, across most … Continue Reading

EPA Rolls Back Proposed “Waters of the United States” Definition

By Stuart Kaplow on September 15, 2019 Posted in Environmental, Federal

Last Thursday the EPA and Department of the Army announced that the agencies are repealing a 2015 rule that had proposed to expand the definition of “waters of the United States” under the Clean Water Act. Despite claims from some activists that “the sky is falling” with this change in environmental regulation, the real impact … Continue Reading

Radon Caused More Than 21,000 Deaths Last Year

By Stuart Kaplow on September 8, 2019 Posted in Environmental, Green Building

Radon causes more than 21,000 lung cancer deaths in the U.S. every year. Despite that it is totally preventable, radon is the number one lung cancer killer in nonsmokers. Radon is widely described as the primary source of indoor and household air pollution in the U.S. High radon levels are found in every state. Levels … Continue Reading

State Law Trumps on Location of Solar Panels

By Stuart Kaplow on July 28, 2019 Posted in Energy, Environmental, Solar Panel

There will be a brief hiatus in regular blog posts during the month of August. I am in Peru walking slowly up the very big hill that is Siula Grande (.. in lieu of blog posts, read the book or watch the movie, “Touching The Void” about the first guys to summit this mountain). “Here … Continue Reading

Cannabis Manufacturer Charged with RCRA but No CDS Violations

By Stuart Kaplow on July 21, 2019 Posted in Environmental, Federal

In a criminal case that says significantly more about the prosecution than the indictment on its face, the Federal government is prosecuting a leading cannabis industry manufacturer and distributor for criminal transportation of hazardous waste. The Resource Conservation and Recovery Act (“RCRA”) was enacted in 1976 to ensure that all hazardous waste generated in the … Continue Reading

EPA Cancels Pesticide Registrations to Save the Bees

By Stuart Kaplow on June 2, 2019 Posted in Codes and Regulations, Environmental, Federal

In a rare move, the EPA issued product cancellation orders for certain pesticides effective May 20, 2019. The pesticides contain neonicotinoids that, despite their widespread use have become controversial when laboratory studies reported a link between neonicotinoids and declining bee populations, although a link has not been replicated in field studies. Neonicotinoids are compounds in … Continue Reading

Recycled Restaurant Waste Cooking Oil Can Trigger Insurance Pollution Exclusion

By Stuart Kaplow on May 12, 2019 Posted in Environmental, recycling

In a case having broad implications given the wide mandatory recycling of restaurant waste cooking oil across the country, in a decision filed on April 29, 2019, a federal appeals court held that contaminated recycled fat could trigger the “pollution exclusion” in an insurance policy. In Restaurant Recycling, LLC v. Employer Mutual Casualty Company, Restaurant … Continue Reading

Maryland Bans Polystyrene and Enacts 31 other New Environmental Laws

By Stuart Kaplow on April 28, 2019 Posted in Environmental, State

The Maryland General Assembly, the state’s legislative body meets in regular session for 90 days each year beginning the second Wednesday in January to act on more than 2,500 pieces of legislation. On sine die, when the legislature adjourned at midnight on the 90th day, on April 8, 2019, a total of 864 bills and … Continue Reading

Nurdles are the Environmental Calamity of 2019

By Stuart Kaplow on April 21, 2019 Posted in Codes and Regulations, Environmental

A year ago, I thought a nurdle was a cricket term for a score by deflecting the ball rather than striking it. But in the last twelve months I learned that a nurdle is also a term for a small, lentil size, pellet of plastic that serves as raw material in the manufacture of plastic … Continue Reading

Tenants Order Phase l to Avoid Hazardous Substance Liability

By Stuart Kaplow on March 31, 2019 Posted in Environmental, Federal

It has been a year since the omnibus spending bill signed on March 23, 2018 amended the Superfund law, for first time making clear that tenants can qualify as bona fide prospective purchasers, protected from cleanup costs from the presence of hazardous substances on a property; but tenants are only now beginning to order Phase … Continue Reading

On the 25th Anniversary of Lead Based Paint Disclosures

By Stuart Kaplow on March 10, 2019 Posted in Environmental, Federal

Use of lead is not new. Lead was one of the first metals discovered by man and was in use before 3000 BC. Beginning in 753 BC, the ancient Romans used lead for making water pipes and kitchen cookware. Today many believe lead poisoning was the culprit for the infertility of Julius Caesar (.. who … Continue Reading