Environmental due diligence is a critical component of any property transaction where potential environmental risks are a concern—minimize risks and protect yourself from...
Oral arguments are set for Feb. 17 in a closely-watched Ninth Circuit appeal over chemical leaks from wooden public utility poles that will test the reach of federal environmental laws ( Ecological Rights Found. v. Pac. Gas & Elec. Co. , 9th Cir. App., No. 15-15424, motion for argument filed 1/19/17 ).
The Ecological Rights Foundation brought the citizen suit against Pacific Gas & Electric Co. for alleged discharges of dioxins and other chemicals from treated wood stored at four California PG&E facilities.
ERF has an ally in the Department of Justice, which filed a friend-of-the-court brief in support of a key element of the appeal. DOJ also filed a motion Jan. 19 asking to be allowed to present oral argument in the case.
The government contends that the seepage from the poles is a “solid waste” that is properly regulated by the Resource Conservation and Recovery Act.
RCRA is a solid waste law disposal law that authorizes citizen suits to remedy “imminent and substantial endangerments to health and the environment.”
ERF contends that solid wastes regulated under RCRA includes chemicals that drip from the treated poles, leach into the soil and migrate into San Francisco Bay and Humboldt Bay through storm water. But PG&E successfully argued in the Northern District of California that RCRA doesn’t apply because it overlaps with another federal environmental law, the Clean Water Act.
The federal government says RCRA’s so-called anti-duplication provision should be applied on a case-by-case basis, not the “categorical” rule applied by the lower court.
It points to a long-standing interpretation of the two statutes by DOJ’s Office of Legal Counsel that Congress intended any overlap to be construed harmoniously.
The Aqua Terra Aeris Law Group represents the Ecological Rights Foundation in the appeal.
Schiff Hardin represents Pacific Gas & Electric.
The government's friend-of-the-court brief is available at http://www.bloomberglaw.com/public/document/Ecological_Rights_Foundation_v_PGE_Docket_No_1515424_9th_Cir_Mar_/3.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)