Archives: Environmental

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EPA 2020 Enforcement Offers Insight

The Environmental Protection Agency’s has released the results of its 2020 enforcement and compliance efforts and those results offer significant insight that business can benefit from. In the first 5 months of fiscal year 2020, EPA was on track to significantly exceed traditional numeric metrics in many categories with more compliance monitoring activities in the … Continue Reading

PFAS in a Phase I Environmental Site Assessment?

The question de riguer in commercial real estate transactions is if PFAS is included in a Phase I Environmental Site Assessment? As made clear by the January 14, 2021 EPA action, the response is “no” that the standard practice for environmental site assessments in the vast majority of places does not consider PFAS, however, .. … Continue Reading

Former Public Officials Indicted on Criminal Charges in Flint Water Crisis

Michigan prosecutors last Thursday announced that 9 individuals have been indicted on a total of 42 counts related to a series of alleged actions and inactions that created the Flint water crisis. Interestingly, the Chief Judge of the Seventh Circuit in Genesee County appointed Judge David Newblatt to act as a one-man grand jury to … Continue Reading

HREC in a Phase l is Not a Recognized Environmental Condition

Among the most misunderstood term in a Phase I environmental site assessment is the Historical Recognized Environmental Condition. The environmental professionals who perform these assessments by and large do not take heed of Eduardo Galeano’s quote, “History never really says goodbye. History says, ‘see you later.’” By way of background, a Phase I environmental site … Continue Reading

Maryland becomes First State to Ban Polystyrene this Thursday

During the 2019 legislative session, the Maryland General Assembly enacted what will be the first statewide ban of expanded polystyrene foam. In the Spring of 2019 law makers did not foresee a pandemic that would shift restaurant dining (not to mention school meals and much more) to carry out in transportable food containers, but today … Continue Reading

Court Adopts New Evidentiary Standard for Science

In 2020 when science and politics appear to have collided in a car wreck, confidence of the public in scientists is at an all time low. That observed, the public does not often think about the role courts have in accepting scientific theories. Last week Maryland’s highest court drew attention to this vital unsettled matter … Continue Reading

I Just Read my 1000th Phase I Environmental Site Assessment this Year

For those concerned about the state of the environmental industrial complex during the coronavirus disease 2019 pandemic, I can report that last Friday I reviewed my 1,000th Phase I Environmental Site Assessment this year. In context, last year I did not hit that 1,000 mark until late September, and while it is an unscientific indicator, … Continue Reading

EPA Proposes First Greenhouse Gas Emissions Limits for Aircraft

Last Wednesday the Environmental Protection Agency proposed greenhouse gas emissions standards for airplanes used in commercial aviation and large business jets. “This standard is the first time the U.S. has ever proposed regulating greenhouse gas emissions from aircraft,” according to EPA Administrator Andrew Wheeler. And as much as I have railed against more and regressive environmental … Continue Reading

A Force Majeure Decision during the COVID-19 Pandemic

There has been much speculation and supposition about the interplay of force majeure provisions in leases and other contracts in response to government orders closing businesses during the coronavirus disease 2019 (COVID-19) pandemic, but now there is an authoritative court decision that may provide persuasive authority. In a motion in a Bankruptcy case the landlord … Continue Reading

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 disease 2019 (COVID-19) lockdowns, which were of course intended to keep … 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
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