Green Power
Gardere Leads the Way in ABA-EPA Law Office Climate Challenge
Showing the firm’s commitment to sustainability, Gardere announces its participation in the ABA-EPA Law Office Climate Challenge. As an Energy Star Partner, Gardere commits to reducing its energy use by at least 10%. The firm is working with EarthPeople, LLC, a Dallas-based sustainability firm, to identify and develop opportunities for energy efficiency and resource conservation. Efforts to reach this goal are well underway in Gardere’s Houston, Dallas, and Austin offices. Gardere’s participation in the Climate Challenge is spear-headed by the firm’s environmental section.
Link to Texas Lawyer article.
Link to Greenbiz News article.
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EPA Recognizes Cities, Companies for Commitment to Green Power
Dallas and Houston are now among the top 25 cities purchasing renewable energy, with a combined impact equivalent to removing 84,000 vehicles from the road. The list of top green purchasers is published by the EPA as part of its Green Power Initiatives which sets a nationwide challenge for cities and companies to increase their use of power which generated from renewable resources. Among the 850 partner organizations, fifty-three Fortune 500 companies are participating in EPA’s challenge with Intel Corporation and Pepsi Co. outranking other companies in their purchase of green power by at least 50%.
For more on the EPA’s Green Power Partnership, click here.
Link to the EPA Region 6 Press Release on Top Green Power Purchasers.
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Case Updates
Fourth Circuit Sends CWA Citizen Suit Back to District Court
In December 2003, a South Carolina district court entered an order awarding civil damages to an environmental group in a Clean Water Act citizens suit addressing discharges from Gaston Copper Recycling Corp.’s facility under a NPDES permit. An en banc Fourth Circuit decision held that the environmental group had standing through one of its members, which owned property downstream from the discharge area. After plaintiff’s revealed that its one member establishing its standing died before the 2003 order, the Fourth Circuit re-examined the citizen suit standing issue, which requires that at least a member of the plaintiff organization be among those parties affected by the alleged violations. On Feb. 7, 2008, the Fourth Circuit remanded the case to the district court to determine whether plaintiffs can establish standing through two additional members.
Link to the Fourth Circuit decision in Friends of the Earth, Inc. v Gaston Copper Recycling Corp. (PDF: 43KB)
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Gardere Files Amicus Brief in Lead Paint Public Nuisance Appeal
Gardere recently filed an amicus curiae brief in the Supreme Court of Rhode Island in support of the Defendants’ appeal from the adverse public nuisance verdict regarding lead-based paints. The brief was filed on behalf of The Coalition for Public Nuisance Fairness and The Property and Casualty Insurance Association of America. Gardere was assisted in this effort by Thomas Lyons of Strauss, Factor, Laing and Lyons in Providence, RI. Gardere’s brief focused entirely on a “seminal error” by the trial court -- its erroneous conclusion that it was not required to defer or even consider the priorities set by the Rhode Island legislature. Once “liberated” from these constraints, the trial court inexorably proceeded to expand the tort of public nuisance beyond any rational limitations. The brief stresses the primacy of the legislature’s role, the importance of judicial deference to its goals, and provides comprehensive argument and authorities to support its position that the trial court erroneously failed to consider the entire “tapestry” of Rhode Island law before making its sweeping decision.
Download Amicus Curiae Brief filed by Rick Faulk and John Gray. (PDF: 39MB)
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New Hampshire Seeks Rhode Island’s Model for its MTBE Litigation
New Hampshire Attorney General Kelly A. Ayotte announced that she is moving forward with a legal action against manufacturers and refiners of MTBE alleging contamination of New Hampshire’s water supply. While that move may have not surprised many, on pages 4 and 5 of a new pleading, she asks the court to adopt the litigation model that was used by Rhode Island’s Attorney General to sue former manufacturers of lead paint. She lauded this model because it removed the state’s burden of identifying whose product is causing the alleged injury or nuisance. If adopted, this Rhode Island model presents a significant threat to known and accepted product liability laws.
Download New Hampshire's MTBE pleading. (PDF: 7MB)
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City of Houston Seeks Relief from Texas Petrochemicals, Inc.
The Texas Petrochemicals, Inc. facility located near the Houston Ship Channel is the target of a recent lawsuit by the City of Houston stemming from two emissions incidents in 2006. The City became aware of the releases while investigating odor complaints from neighbors. The petition claims that the unauthorized releases of chemicals including butadiene violated the plant’s air permits and Texas’ regulation against nuisance conditions created by air emissions and that Texas Petrochemicals failed to accurately report the incidents. The City seeks penalties of $400,000, attorney fees, costs of court, and costs of its investigation in addition to a permanent injunction prohibiting the plant from violating the Texas Clean Air Act.
For more information about this case, contact Diana Larson at 713.276.5458.
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District Court Allows PRP to Seek Joint & Several Liability
On Dec. 21, 2007, the federal district court for the District of Kansas held that a potentially responsible party may seek joint and several liability in a claim filed under CERCLA’s section 107. The court in Raytheon Aircraft Company v. United States disagreed with the government’s position that section 107’s joint and several liability remedy should be reserved for the government, as an enforcer of CERCLA, or innocent parties seeking to recover their response costs from responsible parties. The court reasoned that the incentives a joint and several liability remedy provides, such as rapid and voluntary responses to hazardous waste sites, are “very much in play regardless of whether the party asserting a cost recovery claim is the United States, an innocent party or a PRP."
The court noted that regardless of whether the plaintiff is a PRP, it found no unfairness in shifting the burden of proof to the defendant to establish that the harm is divisible and the degree to which a PRP plaintiff is responsible. Furthermore the court noted a defendant’s ability to seek an equitable allocation of response costs through a contribution counterclaim under CERCLA’s section 113.
For more information about this case, contact Jon Bull at 214.999.4050.
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D.C. Circuit Overturns EPA Mercury Emissions Rules
On Feb. 8, 2008, the D.C. Circuit vacated two EPA rules that would have regulated mercury emissions by coal-fired and oil-fired power plants using performance standards and a cap and trade program. In 2000, EPA listed coal-fired and oil-fired power plants as sources of hazardous air pollutants (HAPs) regulated under Section 112 of the Clean Air Act.
One of the challenged rules was EPA’s 2005 action delisting these sources, which would have removed them from specific and stringent emissions controls requirements under Section 112. The second rule, in 2006, created more flexible regulation of these sources under Section 111, including performance-based standards for new plants, a national emissions cap and state emissions allowances for new and existing plants, and a cap and trade program. New Jersey and 14 other states filed petitions challenging EPA’s rules.
The court held that EPA did not make findings explicitly required by Section 112 of the Act to de-list these sources and vacated EPA’s delisting. Because the Act requires EPA to regulate listed sources using pollution control requirements under Section 112, the court vacated EPA’s Section 111 cap and trade and performance standard regulations.
Download State of New Jersey v. EPA opinion. (PDF 51KB)
Link to ENewsUSA story.
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Jurors Side with Railroad Tie Factory
On Feb. 11, 2008, a jury in the 96th Judicial District Court of Tarrant County, Texas returned a verdict finding that Burlington Northern Sante Fe Railway Company (BNSF) was not responsible for the plaintiff’s stomach cancer. Linda Faust alleged that her illness was caused by toxic chemicals from her husband’s workplace at a railroad tie factory in Somerville, Texas.
She alleged that she was exposed to coal-tar creosote when she washed her husband’s work clothes and she sought at least $6 million in damages. In the month-long trial, defense attorneys argued that plaintiff had presented no scientifically reliable evidence, and that Ms. Faust’s cancer had been caused by her smoking and by Helicobacter pylori bacteria. Numerous other lawsuits by Somerville residents are pending against BNSF and against Koppers Inc., the current owner of the Somerville factory.
Link to Fort Worth Star Telegram article.
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Legislative/Rulemaking
TCEQ Takes Final Action on Asarco Smelter Permit
On Feb. 15, 2008, the TCEQ approved renewal of an air permit for the ASARCO smelter facility in El Paso. TCEQ’s action completes an important step in paving the way for the company to restart operations at the facility, which it has not operated since 1999. TCEQ approved a five-year permit, rather than a 10-year permit. It also required some additional conditions, including submission of a maintenance plan and installation of additional emissions monitoring equipment. Before ASARCO restarts smelting operations, TCEQ must make a finding that ASARCO is not in violation of the Texas Clean Air Act.
Link to: TCEQ page.
Link to KVIA news story.
Link to Environmental News Service story.
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Air Permitting Changes for Rock Crushers Proposed
Noting that regulation of rock crushers through the existing permit by rule had potential issues with enforceability and determination of compliance, TCEQ announced a draft Standard Permit on Feb. 15, 2008. The draft Standard Permit would replace the existing permit by rule authorizing eligible permanent rock crusher and certain concrete crusher facilities. The draft permit addresses concerns regarding nuisance dust, ambient air quality, and potential adverse health impacts associated with these operations. It includes requirements for compliance recordkeeping, updated technical requirements and preconstruction notice, as well as setback requirements and opacity and visible emissions limits. TCEQ will hold a public meeting on March 18, 2008 and it has set a March 21, 2008 deadline to receive comments on the draft Standard Permit.
Download TCEQ Summary document. (PDF: 1MB)
View TCEQ press release.
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TCEQ Proposes Amendments to Utility Rules
The TCEQ will hold a public hearing on Feb. 26, 2008 concerning proposed rule amendments to 30 TAC Ch. 291 implementing changes to the Water Code passed in 2007. The amendments cover a wide range of statutory changes. Among these, the amendments allow for surcharges by a water or sewer utility to reflect changes in documented energy costs without a contested case hearing. They allow a retail public sewer utility to contract with a retail public water utility service to provide consolidated billing for the same service area. And they allow a municipality to extend a Certificate of Convenience and Necessity (CCN) to an area outside its extraterritorial jurisdiction under certain conditions.
Download TCEQ summary. (PDF: 49KB)
Download proposed rules. (PDF: 236KB)
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