Archives: Environmental

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COVID-19 and the Risk from Recirculated Air in Buildings

The Federation of European Heating, Ventilation and Air Conditioning Associations (REHVA) has in recent days issued guidance on how to occupy commercial and public buildings, from offices to schools, “in order to prevent the spread of the coronavirus.” As Americans begin to end coronavirus lockdowns, which were of course intended to keep hospitals from being … Continue Reading

Supreme Court Permits State Law Claims Against Superfund Property

In an instructive environmental law decision last week, the U.S. Supreme Court held that the federal Superfund statute (the Comprehensive Environmental Response, Compensation and Liability Act) does not preclude owners of adjacent contaminated land from pursuing state laws claims for money damages for nuisance, trespass and strict liability, but any cleanup of that land cannot … Continue Reading

Maryland is First State to Legislate Permitted Use of PFAS

Prior to the just concluded session of the Maryland legislature, the State’s laws and regulations were silent with regard to PFAS chemicals including PFOA. At worst, Maryland could have been criticized along with the Federal government and other states, for failing to regulate PFAS as a hazardous substance. But then, some days ago Maryland did … Continue Reading

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

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

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

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

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

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

Top 10 Environmental Blog Posts for the Roaring ‘20s

As we begin the new decade of the Roaring ‘20s we are incredibly excited about the prospects for environmental law. We are supremely confident that our business philosophy of “environmental risk as an opportunity” remains right for the times. This blog will continue in 2020 providing strategic intelligence on environmental law, including critical insights into … Continue Reading

PFOA Contamination is Found in 49 States

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

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 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

ESG Disclosure Simplification Act Passes Committee But Will Fail

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

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

Cannabis Manufacturer Charged with RCRA but No CDS Violations

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
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