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.
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?
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.
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.
Often, decisions of the Supreme Court of the United States (SCOTUS) only impact a narrow range of entities and circumstances.Â However, several recent and pending cases related to environmental issues and land use will instead impact a wide-range of property owners.Â
On March 29, 2017, the Commonwealth Court issued its decision in Snyder Brothers, Inc. v. Pennsylvania Public Utility Commission (1043 C.D. 2015). The decision appears to be a simple legal interpretation of the statutory definition of "stripper well" in a manner beneficial to Snyder Brothers and potentially generally beneficial to the unconventional natural gas industry. However, media attention and political reactions have far outstripped the Court's basic legal analysis. The decision has been cited as a harbinger of diminished impact fee revenue; as a reason to amend Act 13; and, not unexpectedly, as a justification for a new severance tax. The reactions, while not unexpected, are perhaps overstated.
Recently, the Pennsylvania Department of Environmental Protection (DEP) issued a press release announcing its internal review of the expedited review process for the Erosion and Sediment Control General Permit (ESCGP-2). At the same time, DEP made available an Internal Review document discussing its audit of the expedited review process.