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Blogs & Resources

ACOEL members contribute regularly to the ACOEL Blog, writing on topics of current interest in their respective fields. Recently-published blogs are featured below, or you can search the ACOEL blog archive using the search feature.

 

Current Blogs

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New Jersey Broadens Brownfield Redevelopment Incentives
June 17, 2021

Posted on June 17, 2021 by David B. Farer The New Jersey Economic Recovery Act of 2020 (ERA), signed into law by Governor Phil Murphy on January 7, 2021 (Senate Bill 3295),  is comprised of an array of programs that include a broadening of New Jersey’s incentives for developers...

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Just How Absolute is the Absolute Pollution Exclusion?
June 16, 2021

Posted on June 16, 2021 by Thomas M. Hnasko Despite the myriad CERCLA cases on the books, there is little – if any – jurisprudence dissecting the so-called “absolute pollution exclusion” in a comprehensive general liability insurance policy and the insurers’ obligation to defend the insured where the complaint...

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Transforming a 3000 Acre Steelmaking Complex from Hazardous Waste Site to a Restoration Success
June 15, 2021

Posted on June 15, 2021 by Ridge Hall In 1959 Bethlehem Steel’s Sparrows Point facility, located on the Patapsco River near the mouth of Baltimore Harbor, was the biggest steelmaking facility in the world. With close to 40,000 employees, Sparrows Point over many decades produced the steel that built...

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U.S. Policy on Cuba: Is It Safe to Go Back into the Water?
June 10, 2021

Posted on June 10, 2021 by Daniel Whittle On Valentine’s Day 2015, Cuban and American scientists went fishing off the north coast of Cuba, setting out from Cojimar, the small town where Hemingway kept his boat. They were hoping to catch a rare longfin mako shark, put a satellite...

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Bidding Adieu to the Connecticut Transfer Act … and Welcoming a New Remedial Approach
June 07, 2021

Posted on Jun 7, 2021 by Pamela Elkow In September 2020, during a special legislative session, Connecticut took the plunge and passed Public Act 20-9, a statute that will sunset the Connecticut Transfer Act, and replace it with a release-based reporting and remedial program addressing historical releases throughout the...

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The Aftermath of McGirt
June 04, 2021

Posted on June 4, 2021 by L. Mark Walker In 1997, Jimey McGirt, an enrolled member of the Seminole Nation, was convicted in an Oklahoma District Court of molesting, raping and sodomizing a four-year-old girl – his wife’s granddaughter.  For this, the State sentenced him to 1,000 years plus...

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Get the Lead Out
June 04, 2021

Posted on June 4, 2021 by Robert Kaplan The toughest question I ever got in Flint was in a church basement on the north side of town. At the time, I was heading up the EPA Region 5 response to the drinking water crisis. A mother asked me simply,...

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The New Environmental and Human Rights Treaty in Latin America and the Caribbean You Should Know About
June 03, 2021

Posted June 3, 2021 by Susan Kath The Escazú Agreement came into force in April 2021 with 12 ratifications (out of a possible 33) from Latin American and Caribbean countries. Guided by a secretariat at the Economic Commission for Latin America and the Caribbean, it is the first environmental...

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Love Canal Revisited
June 02, 2021

Posted June 2, 2021 by Ed Tormey It was 41 years ago that one of the more bizarre events in U.S. environmental history took place:  two U.S. EPA officials were “kidnapped” by an angry environmental group in a working class neighborhood in New York.  As many of you know,...

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CAN WE BLAME THIS ON THE ‘RONA?
May 28, 2021

Posted May 28, 2021 by Lloyd Landreth Being the Husband and Father of 3 medical professionals who have been on the front-lines of COVID-19, I am the last person to make a joke of the pandemic.  At the same time, like many of you, I am worn-slick with the...

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I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is
May 26, 2021

Posted May 26, 2021 by Seth Jaffe On May 24th, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA.  I have previously commented on the Court’s tendency to treat CERCLA as much more straightforward and unambiguous...

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Reflections of a Retired Environmental Lawyer
May 19, 2021

On December 31, 2020, I retired after working more than 40 years in the environmental field—two as an engineer, 30 as a lawyer, and 10 as a climate change advocate. This was my third and hopefully final attempt at retiring from paid work. Now comes the interesting part. Many of...

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Mainers Opposing Clean Renewable Energy? What’s Wrong?
May 18, 2021

Mainers are generally regarded as an environmentally sensitive and enlightened populace. The state boasts cleaner water and air than many other states, significant and beautiful natural features, and progressive environmental laws. Yet Mainers are questioning whether to accept a new 145-mile electric transmission line that will bring...

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Environmental Law—sick unto death with that long agony?
May 17, 2021

Environmental policy swings like a pendulum without regard to permanency, thus creating unique challenges to environmental improvement. We see pendulums in all areas of our lives—longcase clocks, playground swings, even desk ornaments. It has been said that pendulums demonstrate that the Earth is huge because the swinging motion of...

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I May Agree With This EPA On Most Issues, But I Still Don’t Like Guidance
May 17, 2021

One of the results of the November election that makes me happiest is that I can now go back to being part of the loyal opposition. In other words, I know that the Administration and I share a common mission and common goals. We also often share...

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Smoke Plumes, Pigs & Poultry – Do Right-to-Farm Laws Checkmate Tort Class Actions?
May 14, 2021

According to some critics, recent amendments to Florida’s Right-to-Farm law are intended to defeat class action litigation brought against the economically important sugar industry. The lawsuit involves pre-harvest burns of sugar cane fields south and east of Lake Okeechobee which are visible from satellites and generate particulate matter...

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Mississippi Hasn’t Got a Chance (Bless its Heart), But its Original Action Against Tennessee is Still a Case to Watch
May 12, 2021

Mississippi thinks Tennessee is stealing its groundwater, and it has filed an original action in the United States Supreme Court to stop it. State of Mississippi v. State of Tennessee, City of Memphis, and Memphis Light, Gas & Water Division, S. Ct. Orig. No. 143. The suit is directed...

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Determining Disparate Impacts in Environmental Justice Communities: Does Friends of Buckingham v. State Air Pollution Control Board Provide the Roadmap?
May 07, 2021

It has long been recognized that minority and disadvantaged communities are subject to higher levels of pollution than more affluent non-minority areas. This fact is the basis of the need for Environmental Justice to ensure that the past disparate impacts to these areas are addressed and not further exacerbated...

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How Are We Really Going to Get to Net Zero?
May 05, 2021

Late last month, the Washington Legislature passed the “Climate Commitment Act”, a piece of sweeping climate legislation that includes, among other provisions, an economy-wide cap-and-trade system. Washington was not far behind Massachusetts, which enacted its “next generation roadmap” bill in late March. This friendly competition among states...

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Let Me Introduce You
May 04, 2021

I wrote a limerick. I won a book. And I encountered the climate feminist -- not a single person; a movement of female leaders “rooted in compassion, connection, creativity and collaboration.” The book, All We Can Save: Truth, Courage, and Solutions for the Climate Crisis, is a collection of...

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Transfer of NPDES Authority for Oil and Gas Discharges to Texas—The Implementation Phase
April 30, 2021

On January 15, 2021, the U.S. Environmental Protection Agency (EPA) transferred Clean Water Act Section 402 authority to Texas to issue National Pollutant Discharge Elimination System (NPDES) permits for discharges from oil and gas facilities in Texas. The transfer came in response to a delegation request from the State...

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Critically Examining Environmental Justice Critiques of GHG Auction-Cap-and-Trade
April 29, 2021

The Biden Administration has pledged to put the nation on track to achieve carbon neutrality by 2050 and simultaneously to promote environmental justice. Both goals are achievable and, indeed, are complementary. Their complementary nature is exemplified by the two existing North American regional programs for capping and reducing greenhouse...

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New York City is Taking on GHG Emissions from its Building Sector
April 27, 2021

In June 2017, the City of New York announced its commitment to achieve emission reductions consistent with the goals of the Paris Agreement. Three months later, it released a plan entitled 1.5°C: Aligning New York City with the Paris Climate Agreement, which detailed the near-term and long-term actions it...

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A Win for the Chesapeake Bay
April 13, 2021

The Chesapeake Legal Alliance recently won a notable victory for the Assateague Coastal Trust in a successful challenge to the Maryland Department of Environmental Protection’s issuance of a state NPDES general permit for wastewater discharges that failed to control ammonia emissions from animal feeding operations polluting the waters of...

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Reflections from My Octopus Teacher
April 08, 2021

Since the pandemic started, like many people, I have watched way more TV than I had previously watched. Recently, my daughter suggested we watch a film entitled My Octopus Teacher on Netflix. (I will be honest, the title did not generate great enthusiasm in me, but I reluctantly agreed...

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Houston Highway Tests Biden’s Promise of Equitable Infrastructure
April 07, 2021

The Biden Administration has acknowledged the racist history of the U.S. interstate highway system and its ongoing negative impacts on many Black neighborhoods. Presidential Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies (Jan. 26, 2001). Last week, the Administration announced its...

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Interior Secretary Debra Halland: Restorer of Balance?
April 05, 2021

Debra Halland made history when the Senate voted 51-40 on March 15, 2021 to confirm her to be Secretary of the Department of the Interior (DOI). She is the first Native American ever to serve in a cabinet position. DOI has a budget of more than $12 billion and...

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Canada Given Green Light to Carbon Pricing: Why the Supreme Court of Canada’s Decision Should Matter to Those South of Our Northern Border
April 01, 2021

On March 25, 2021, the Supreme Court of Canada upheld the Greenhouse Gas Pollution Pricing Act (“GGPPA”), which establishes a national pricing benchmark for greenhouse gas (“GHG”) emissions. Reference re Greenhouse Gas Pollution Pricing Act, case numbers 38663, 38781, and 39116. Several provinces challenged the law, arguing that it...

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A Property Right To Exclude Others: Cedar Point Nursery’s Implications For Regulatory Enforcement
March 30, 2021

The Supreme Court recently heard oral argument in Cedar Point Nursery v. Hassid (No. 20-107), a case that has generated considerable amicus participation and press coverage. In that case, union organizers, relying on a California law, entered the property of a fruit nursery with bullhorns in hand in...

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The Massachusetts Climate Bill is Very Much “Not Dead”
March 23, 2021

In January, when Governor Baker vetoed the Legislature’s effort to go big on climate, my colleague Zach Gerson made clear that the bill was not even “mostly dead.” I am pleased to say that Zach’s diagnosis was correct. The climate bill is very much alive.

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A pencil and calculator on top of a printout of graphs, charts, and figures.
Thirteen Years Later, D.C. Circuit Says “Reasonable Possibility” Provision of NSR Rule Is Good Enough
March 17, 2021

On March 5, the U.S. Court of Appeals for the D.C. Circuit denied a challenge to a more than decade-old EPA rule related to the records that source owners must keep in order to support claims that certain of their activities are not subject to EPA’s New Source Review...

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STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD
March 16, 2021

The American College of Environmental Lawyers (“ACOEL”) announces its annual Stephen E. Herrmann Environmental Writing Award (“Herrmann Award”) for the 2020-21 academic year. Stephen E. Herrmann is a distinguished, nationally recognized environmental lawyer. For some forty years, Mr. Herrmann has been a leader in the area of environmental...

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Loving—and Living with—the Neutrality of Administrative Law
March 15, 2021

One salutary feature of administrative law—the core practice of many environmental litigators—is its predominant neutrality. There is nothing partisan about the principles that an agency must draw a “rational connection between the facts found and the choice made” when issuing regulations; must base important decisions on “genuine” not “contrived”...

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Photo of a factory with active smoke stacks
THE CLEAN POWER PLAN IS DEAD. LONG LIVE THE CLEAN POWER PLAN!
March 04, 2021

The Obama administration adopted the Clean Power Plan to reduce power sector greenhouse gas emissions in line with its commitments under the Paris Agreement climate accord. The Clean Power Plan invoked Clean Air Act § 111(d)’s “Best System of Emissions Reductions” to require states to implement low-carbon electricity dispatch...

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Lower Granite Dam, Snake River, Washington (earthen berm portion at left) Photo: US Army Corps of Engineers
FIGMENTS OF THE IMAGINATION
March 02, 2021

I first saw Grand Coulee Dam as a 10-year old. My family and I were on our way to Spokane, Washington to attend Expo ’74, officially titled the “International Exposition on the Environment.” Expo ’74 was notable for being the first environmentally themed World’s Fair. It...

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Cost-Benefit Analysis Is Very Complicated — And Very Important
March 01, 2021

It’s only a slight rhetorical exaggeration to say that the limited bandwidth left to environmental issues other than climate change in recent years has been largely occupied by concerns about PFAS – Per-and polyfluoroalkyl substances, also known as “Forever chemicals.” A fascinating story in Bloomberg Environment & Energy...

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“Go back to where you came from” – a personal journey
August 07, 2019

Posted on August 7, 2019 by Brenda Mallory The first time that I remember being told “go back to where you came from,” I was 18. Although not the first time I was targeted because of my race, it was the first time I remember those words. I had...

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“DISCARDED” or “NOT DISCARDED”: That Is the Question (or “Asked and (finally) Answered!”)
July 31, 2019

Posted on July 31, 2019 by Karen Crawford On July 2, 2019, the D.C. Circuit Court of Appeals denied a petition brought by an environmental group for review of EPA’s Transfer-Based Exclusion for secondary hazardous materials in California Communities Against Toxics v. EPA (D.C. Cir. July 2, 2019) (No. 18-1163). ...

SEARCH BLOGS

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New Jersey Broadens Brownfield Redevelopment Incentives
June 17, 2021

Posted on June 17, 2021 by David B. Farer The New Jersey Economic Recovery Act of 2020 (ERA), signed into law by Governor Phil Murphy on January 7, 2021...

image resources
Just How Absolute is the Absolute Pollution Exclusion?
June 16, 2021

Posted on June 16, 2021 by Thomas M. Hnasko Despite the myriad CERCLA cases on the books, there is little – if any – jurisprudence dissecting the so-called “absolute...

image resources
Transforming a 3000 Acre Steelmaking Complex from Hazardous Waste Site to a Restoration Success
June 15, 2021

Posted on June 15, 2021 by Ridge Hall In 1959 Bethlehem Steel’s Sparrows Point facility, located on the Patapsco River near the mouth of Baltimore Harbor, was the biggest...

image resources
U.S. Policy on Cuba: Is It Safe to Go Back into the Water?
June 10, 2021

Posted on June 10, 2021 by Daniel Whittle On Valentine’s Day 2015, Cuban and American scientists went fishing off the north coast of Cuba, setting out from Cojimar, the...

image resources
Bidding Adieu to the Connecticut Transfer Act … and Welcoming a New Remedial Approach
June 7, 2021

Posted on Jun 7, 2021 by Pamela Elkow In September 2020, during a special legislative session, Connecticut took the plunge and passed Public Act 20-9, a statute that will...

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The Aftermath of McGirt
June 4, 2021

Posted on June 4, 2021 by L. Mark Walker In 1997, Jimey McGirt, an enrolled member of the Seminole Nation, was convicted in an Oklahoma District Court of molesting,...

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Get the Lead Out
June 4, 2021

Posted on June 4, 2021 by Robert Kaplan The toughest question I ever got in Flint was in a church basement on the north side of town. At the...

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The New Environmental and Human Rights Treaty in Latin America and the Caribbean You Should Know About
June 3, 2021

Posted June 3, 2021 by Susan Kath The Escazú Agreement came into force in April 2021 with 12 ratifications (out of a possible 33) from Latin American and Caribbean...

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Love Canal Revisited
June 2, 2021

Posted June 2, 2021 by Ed Tormey It was 41 years ago that one of the more bizarre events in U.S. environmental history took place:  two U.S. EPA officials...


ACOEL PRESS RELEASES

ACOEL Announces New Website
March 2, 2021

The American College of Environmental Lawyers is pleased to announce the availability of its new website to ACOEL members...

ACOEL announces the admission of 27 new active Fellows for 2020
October 1, 2020

ACOEL is pleased to announce the admission of 27 new active Fellows for 2020. The names of our new...