Environmental Law Posts, from members of Post & Schell’s Environmental Group, are intended to provide current updates and analysis of judicial opinions, emerging regulatory issues, and potential risks and liabilities in environmental law.
Among utility companies nationwide, there is justifiable alarm over the Montana United States District Court’s April 15, 2020, ruling vacating Nationwide Permit 12 (NWP12). NWP12 provides an expedited process for obtaining federal approval to conduct certain linear utility projects that impact wetlands. These projects include oil and gas pipelines, electrical lines, and phone, internet, and TV cable lines.
As the COVID-19 crisis continues, the ways in which businesses engage in everyday activities is evolving at a pace more rapid than most of us have ever seen in our lives, and hopefully will ever see again. Among these changes is the way businesses address environmental compliance obligations. Two of the more important questions regarding environmental compliance are: (1) Can a business continue environmental investigation and remediation field work?; (2) Can a business cease or reduce its performance of operational compliance obligations?
In these trying times, offering our clients the support they need is of the utmost importance to the Environmental Group at Post & Schell. The past few weeks have left us all navigating uncharted waters, taking each day as it comes, and facing and addressing new and previously unheard of challenges.
Last year, we reported on a Pennsylvania Superior Court decision that addressed the possible waiver of the attorney/client and attorney/work product privileges when the work product is shared with an outside consultant. In Bousamra v. Excela Health, the Superior Court held that when an email from outside counsel was forwarded to a third-party public relations consultant, both the attorney/client privilege and the attorney/work product privilege were waived. That decision was appealed to the Pennsylvania Supreme Court and, in a recently announced decision, the Court has addressed both of those issues.
Recent Case Offers Five Lessons for Corporate Managers on Avoiding Personal Liability for Environmental Violations
Few topics cause as much discomfort for corporate managers as the question of whether they can be held personally liable for environmental violations committed by the companies they manage. When a manager commits an affirmative, unlawful act, the case is fairly clear. But what about when the violation results from a manager's failure to act? Recently, in Schlafke v. DEP, the Pennsylvania Environmental Hearing Board addressed just that question, providing five lessons for managers.
My colleague Michael Canavan and I recently examined this problem in an article for The Legal Intelligencer's Energy & Environmental Law Supplement ("Environmental Quality Board: Is It Time to Make it Truly Independent?"). There are a variety of issues that keep the EQB from delivering on its assigned power and duties, including the fact that the board has had little or no staff throughout its 50-year history placing many of its presumed duties back on the DEP.
As the desirability of mixed use development continues to increase, so too will the need to ensure that remediation will allow all intended uses. On that point, one of our manufacturing clients recently found itself in a surprising dilemma when it decided to modify the planned use of the property. The client decided to not only acquire a bigger facility to accommodate increased operations, but also to engage in side-activities that it hoped would be lucrative, fun, and beneficial to the community.
The Pennsylvania Supreme Court is about to address the question of whether sharing legal advice with outside consultants engaged by the client results in a waiver of the attorney-client privilege or attorney work product privilege. The Superior Court has already partially addressed this question. Last summer in Bousamra v. Excela Health, 167 A.3rd 728 (Pa. Super. 2017), the Superior Court ruled that both the attorney-client privilege and the attorney work-product privilege were waived when an email from outside counsel was shared with an outside consultant. The Supreme Court has granted allocator (Bousamra v. Excela Health, 5 WAP 2018) and the initial briefs in the Supreme Court are due this week.
Scott Pruitt, the fourteenth Administrator of the United States Environmental Protection Agency (EPA), recently appeared on The New York Times' The Daily podcast, where he outlined his vision for the EPA, discussed his view of its societal role, and answered questions about specific goals he sought to accomplish during his time at the helm of the EPA.
We were reminded recently of the inherent limitations on the accuracy of asbestos sampling. The lessons learned (again) were: (1) that the appropriate scope of pre-acquisition environmental diligence should be carefully considered, and (2) that laboratory analysis should not automatically be accepted as accurate.
Commonwealth Court Affirms PUC's Exclusive Jurisdiction over the Siting of Intrastate Pipeline Facilities
On February 20, 2018, the Commonwealth Court affirmed the dismissal of the Delaware Riverkeeper Network and others' challenge to Sunoco Pipeline, L.P's construction of the Mariner East 2 pipeline in West Goshen Township. In so doing, the Court reiterated the Pennsylvania Public Utility Commission's exclusive jurisdiction over public utility facilities, including the ME2 pipeline, and rejected the attempt of West Goshen Township to regulate the construction of the ME2 pipeline through its zoning powers.