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Legal Issues Jump to new posts
FWS Ordered to Explain Rio Grande Cutthroat Trout Decision outdoorwire 10/17/19 03:49 PM
On September 26, 2019, the U.S. District Court for the District of Colorado vacated and remanded in part the U.S. Fish and Wildlife Service’s (Service) 2014 determination that listing the Rio Grande cutthroat trout (Oncorhynchus clarki virginalis) under the Endangered Species Act (ESA) was not warranted.

The Rio Grande cutthroat trout is native to high-altitude streams in southern Colorado and New Mexico. In 2008, the Service determined that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species, although listing was precluded by other higher priority listing actions. In evaluating the viability of trout populations, the Service found that only eight populations were “secure,” based on (1) stream length, (2) absence of non-native fish, and (3) population size of at least 2,500 Rio Grande cutthroat trout.

In 2014, the Service determined that listing the Rio Grande cutthroat trout was no longer warranted. Plaintiff Center for Biological Diversity challenged that decision. In contrast with the 2008 determination, the Service estimated that there were 55 populations in “best” or “good” condition, including some populations with fewer than 2,500 fish and as low as 501 fish. The court opined that the administrative record for the Service’s decision did not explain why the Service had apparently lowered its standards for identifying healthy trout populations from its 2008 standards. The court remanded the 2014 determination back to the Service for an explanation of the criteria used to calculate healthy trout populations, following F.C.C. v. Fox Television Stations Inc., 556 U.S. 502, 515 (2009), which held that an agency must provide a detailed justification for a new policy when it “rests upon factual findings that contradict those which underlay its prior policy.”

The Service’s 2014 determination was affirmed in all other respects. The court held that the Service was not required to analyze each of the five statutory factors that govern whether listing of a species under the ESA is appropriate expressly and in seriatim, where the Service addressed the factors holistically as part of its broader analysis, and correlated the risk factors it was considering to the statutory factors. (Section 4 of the ESA provides that a species may be listed based on (1) present or threatened destruction or curtailment of habitat; (2) over utilization for commercial and recreational purposes; (3) disease or predation; (4) the adequacy of existing regulatory mechanisms, and (5) other natural and man-made factors affecting the species. 16 U.S.C. § 1533(a)(1)(A)–(E).)

Source: Lexology
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Access Roundtable Jump to new posts
Separation of Powers Restoration Act would make it easier for courts to strike down federal regulations as unconstitutional outdoorwire 10/17/19 03:42 PM
Have federal agencies been given too much power and leniency by federal courts to write policy?

In a 1984 case dealing with air quality standards set by the Environmental Protection Agency, the Supreme Court ruled that any federal agency rule or regulation should be upheld as constitutional if it was deemed “reasonable” and if Congress hadn’t legislated on the precise issue at question.

The practice which emerged in the subsequent decades has been nicknamed “the Chevron deference,” in which courts usually defer to an inherent presumption of constitutionality regarding federal regulations. This made it far harder, though not impossible, for courts to strike down rules or regulations set by federal agencies as unconstitutional.

Thousands of federal regulations have been issued by agencies ever since, most prominently from the EPA, Education Department, and Department of Health and Human Services. Although it usually makes news when a federal regulation is struck down as unconstitutional, most such regulations have actually been upheld — in no small part because of the Chevron defense.

Although the decision became much more controversial in the subsequent decades, the case Chevron Inc. v. Natural Resources Defense Council was actually a unanimous 6–0 decision at the time. (Three justices did not participate.) Although several of the current conservative justices have criticized the 1984 decision, “There do not appear to be five votes to jettison Chevron just yet,” Daniel Hemel wrote for SCOTUSblog.
What the legislation does

The Separation of Powers Restoration Act would essentially overturn the main ruling in the 1984 Chevron decision, amending federal law to end the practice of courts presuming a federal regulation’s constitutionality.

The bill’s exact text reads: “The court shall not interpret [a] gap or ambiguity as an implicit delegation to the agency of legislative rule making authority, and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law.”

The House version was introduced on March 27 as bill number H.R. 1927, by Rep. John Ratcliffe (R-TX4). The Senate version was introduced the same day as bill number S. 909, by Sen. Ben Sasse (R-NE).
What supporters say

Supporters argue the legislation swings the pendulum back towards the system ostensibly laid out by the Constitution, in which Congress writes the laws rather than an unelected bureaucracy.

“This bill is about Schoolhouse Rock basics,” Sen. Sasse said in a press release. “Congress writes the laws, the Executive Branch enforces them, and the courts resolve cases and controversies. That basic system has been turned upside-down: Unelected bureaucrats that nobody can fire write an avalanche of regulations, and the courts just trust them to interpret the limits of the law and even their own regulations. This bill tries to restore some accountability by making sure that judges don’t automatically defer to Washington’s alphabet soup of bureaucracies.”

“The regulatory state in our country has spiraled out of control,” Rep. Ratcliffe said in the same press release.“By usurping the constitutional powers granted to the Judicial Branch, unelected bureaucrats have effectively formulated their own ‘Fourth Branch’ of government, implementing countless rules and regulations — that hold the force of law — without accountability to the American people. This problem has gotten worse over the past few decades thanks to the current precedent that courts should, in many cases, defer to agencies’ interpretation of federal laws and even the regulations that they author, if deemed ‘ambiguous.’”
What opponents say

To see what opponents would counter, it’s worth examining the 1984 original judicial rationale for establishing the Chevron deference in the first place. The Supreme Court majority opinion argued that executive branch agencies, even though staffed by unelected employees, were nonetheless more accountable to the people — by being led by the elected president — than courts are. Thus, courts should refrain from striking down agency regulations as unconstitutional unless absolutely unavoidable.

“Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences,” Justice John Paul Stevens wrote for the Court. “In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”

“While agencies are not directly accountable to the people, the Chief Executive is,” Stevens continued. “And it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”

“In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.”
Odds of passage

In 2017, the Republican-led House passed the Regulatory Accountability Act of 2017 by a 238–183 vote. Title II of that legislation specified essentially the same policy goal of overturning the Chevron case. The Senate never took the bill up, despite being led by Republicans as well.

All voting House Republicans were in favor, 233–0. Democrats overwhelmingly opposed, 5–183. The five House Democrats in favor were Reps. Jim Costa (D-CA16), Henry Cuellar (D-TX28), Stephanie Murphy (D-FL7), Collin Peterson (D-MN7), and Kurt Schrader (D-OR5).

The current House version has 20 cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee, with passage unlikely because of the chamber’s Democratic control.

The Senate version has 12 cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee, which is more likely.

This article was written by GovTrack Insider staff writer Jesse Rifkin.

Source: GovTrack Insider
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Access Roundtable Jump to new posts
Trump Administration Finalizes New Endangered Species Act Regulations outdoorwire 10/17/19 03:24 PM
The Trump administration recently issued three final rules revising several key aspects of the Endangered Species Act (“ESA”), including: (1) listing species and designating critical habitat under § 4 of the ESA;[1] (2) prohibitions to threatened wildlife and plants under § 4(d);[2] and (3) the § 7 interagency consulting process.[3] The final rules largely mirror the proposed rules from July 2018 and became effective on September 26, 2019.

Democratic lawmakers, state attorneys general, and environmental groups are challenging the new rules. On September 25, 2019, seventeen states, along with Washington, D.C. and New York City, filed suit in the U.S. District Court for the Northern District of California,[4] and environmental groups filed suit on August 21, 2019.[5] Senator Tom Udall (D-NM) has threatened to invoke the Congressional Review Act (“CRA”)[6] to kill the rules, although President Trump would have veto power over such a CRA resolution.[7]

K&L Gates will continue to monitor and provide updates on the implementation and legal challenges of the new ESA rules.

I. Section 4 Revisions

The U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) have made numerous changes to the regulations implementing § 4 of the ESA, specifically pertaining to the listing, delisting, or reclassifying of species and the designation of critical habitat.

a. Factors for Listing, Delisting, or Reclassifying Species

The Services made three changes to the factors for listing, delisting, or reclassifying species under § 4. First, the new rule removes the phrase “without reference to possible economic or other impacts of such determination” from the factors to consider for listing, delisting, or reclassifying species.[8] The Services acknowledged that the ESA prohibits listing agencies from considering economic factors in their listing decisions but asserts that the ESA “does not prohibit the Services from compiling economic information or presenting that information to the public, so long as such information does not influence the listing determination.”[9] Thus, the Services found that it was “in the public interest and consistent with the statutory framework to delete the unnecessary language from our regulation while still affirming that we will not consider information on economic or other impacts in the course of listing determination.”[10]

Second, the Services added a new paragraph to 50 C.F.R. § 424.11 defining how FWS will consider the “foreseeable future.” The ESA defines a “threatened species” as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range[,]”[11] but the term “foreseeable future” is not defined in the ESA or previous implementing regulations. Prior to the new rule, agencies relied on a 2009 opinion from the Department of the Interior, Office of the Solicitor.[12] The new rule is consistent with the 2009 opinion. 50 C.F.R. § 424.11(d) now defines “foreseeable future” accordingly:

In determining whether a species is a threatened species, the Services must analyze whether the species is likely to become an endangered species within the foreseeable future. The term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time.[13]

Third, the Services revised the regulation governing the factors to be considered when delisting a species. The new rule clarifies that when considering whether to delist a species or not, the Services will consider the same standards for listing a species under 50 C.F.R. § 424.11(c).[14] While opponents to the final rule were concerned over the Services removal of the terms “recovery” and “error” from the regulatory text, the Services reasoned that they will “continue to explain in proposed and final delisting rules why the species is being removed from the lists — whether due to recovery, extinction, error, or other reasons. These revisions do not alter, in any way, the Services’ continued goal of recovery for all listed species.”[15]

b. Critical Habitat

The Services made two changes to the critical habitat rule. First, the Services expanded the situations in which a designation of critical habitat may not be “prudent.” The prior regulation set forth two situations in which designation of critical habitat would not be prudent,[16] but the new regulation specifies five circumstances in which a critical habitat designation would not be prudent:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.[17]

Second, the new rule requires the “areas where threatened or endangered species are present at the time of listing to be evaluated first before unoccupied areas are considered” and imposes a “heightened standard for unoccupied areas to be designated as critical habitat.”[18] The new rule responds to the U.S. Supreme Court’s recent holding in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service[19] that “an area must be habitat before that area could meet the narrower category of ‘critical habitat,’ regardless of whether that area is occupied or unoccupied.”[20]

Pursuant to the new rule,[21] unoccupied critical habitat will be designated only “upon a determination that such areas are essential for the conservation of the species” if the “geographical areas occupied would be inadequate to ensure the conservation of the species.” Additionally, for an unoccupied area to be considered essential, there must be “reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.”[22]

II. FWS Rescinds § 4(d) Blanket Rule for Threatened Species

Next, the FWS rescinded its § 4(d) “blanket rule” to better align FWS’s regulatory approach for threatened species with NMFS’s approach. Section 9 of the ESA prohibits the “take” (e.g., action that would harass, harm, capture, or kill) of any endangered species, but the ESA does not explicitly prohibit the take of threatened species. Instead, § 4(d) of the ESA instructs agencies to issue regulations as deemed “necessary and advisable to provide for the conservation of [threatened] species.”[23] Commonly referred to as the “blanket rule,” FWS regulations[24] extend most of the prohibitions for endangered species to threatened species.

NMFS does not have a § 4(d) blanket rule like the FWS. Instead, NMFS promulgates species-specific § 4(d) protections on a case-by-case basis, if warranted, at the time of listing. Under the new rule, FWS adopts NMFS’ approach, and will promulgate a species-specific § 4(d) protections on a case-by-case basis, if warranted, at the time of listing.

III. Section 7 Interagency Consultation Revisions

The Services made several changes to the regulations governing the interagency consulting process required by the ESA. Section 7 requires federal agencies to consult with the Services to insure that any federal action “is not likely to jeopardize the continued existence” of any endangered or threatened species or result in the destruction or adverse modification of critical habitat.[25]

a. Revised § 7 Definitions

The new § 7 Rule revises definitions of several key terms, which has ramifications for the § 7 process. For example, the new rule revises the definition of “destruction or adverse modification” of critical habitat in the jeopardy context by adding the phrase, “as a whole.” The intent of this revision is to clarify that the “final destruction or adverse modification determination is made at the scale of the entire critical habitat designation.”[26] The Services explained, “[s]maller scales can be very important analysis tools in determining how the impacts may translate to the entire designated critical habitat, but the final determination is not made at the action area, critical habitat unit, or other less extensive scale.”[27]

The new rule also revised the definition of “effects of the action”[28] “by collapsing the terms ‘direct,’ ‘indirect,’ ‘interrelated,’ and ‘interdependent’ and by applying a two-part test of ‘but for’ and ‘reasonably certain to occur.’”[29] The new definition reads: '

Effects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

The Services do not intend this new definition to alter how they analyze the effects of a proposed action and assert that they will continue to review all effects (direct, indirect, and the effects from interrelated and interdependent activities) under the revised definition.[30]

Additionally, the new rule created a new, stand-alone definition of “environmental baseline” to make it clear that “‘environmental baseline’ is a separate consideration from the effects of the action.”[31] The definition features a sentence “to clarify that the consequences of ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modify are included in the environmental baseline.”[32] The Services believe this sentence was necessary to clarify what impacts should be incorporated into the environmental baseline and assert that the change is supported by the Supreme Court’s conclusion in National Association of Home Builders v. Defenders of Wildlife.[33]

Lastly, the new rule adds a definition of “programmatic consultation” to codify a consultation technique that has been successfully used for several years to improve efficiency and conservation in consultations.[34]

b. Changes to the § 7 Consultation Processes

The Services made several amendments regarding the formal consultation process. First, the Services clarified what is necessary to initiate the formal consultation process by explicitly describing the type of information the agency needs to provide to the Services with its “initiation package.” Moreover, an agency may now submit National Environmental Policy Act (“NEPA”) analyses or other reports as a substitute for the “initiation package.”[35] Second, the new rule allows the Services to adopt all or part of an agency’s initiation package — which can now include NEPA analyses — in its biological opinions. Third, the Services also added a new provision allowing “expedited consultations” for actions that have “minimal adverse effects or predictable effects based on previous consultation experience.”[36]

The Services also modified the formal consultation process by inserting a new provision, 50 C.F.R. § 402.14(g)(8), which will allow the Services to rely on an agency’s assertion that it will mitigate incidental take without requiring “specific” or binding plans from that agency.[37] Section 7(a)(2) of the ESA requires federal agencies to “insure” that any action does not jeopardize endangered or threatened species or cause the destruction or adverse modification of critical habitat. To satisfy this charge, the Services’ regulation (specifically 50 C.F.R. �� 402.14(g)(8)) details whether and how the Services should consider measures in a proposed action intended to avoid, minimize, or offset adverse effects to listed species or critical habitat. Courts have held “that even an expressed sincere commitment by a Federal agency or applicant to implement future improvements to benefit a species must be rejected absent ‘specific and binding plans’ with ‘a clear, definite, commitment of resources for future improvements.’”[38] In the new rule, however, the Services make it clear that “[m]easures included in the proposed action or a reasonable and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not require any additional demonstration of binding plans.”[39] The Services disagree that the statute requires a “heightened standard of documentation … before the Services can consider the effects of measures included in a proposed action to avoid, minimize, or offset adverse effects.”[40] The Services explain:

Section 7 of the Act places obligations on Federal agencies to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. A Federal agency fulfils this substantive obligation “in consultation with” and “with the assistance of” the Services. In situations where an adverse effect to listed species or critical habitat is likely, the consultation with the Services results in a biological opinion that sets forth the Services’ opinion detailing how the agency action affects the species or its critical habitat. Ultimately, after the Services render an opinion, the Federal agency must still determine how to proceed with its action in a manner that is consistent with avoiding jeopardy and destruction or adverse modification. Thus, the Act leaves the final responsibility for compliance with section 7(a)(2)’s substantive requirements with the Federal action agencies, not the Services.[41]

The Services also revised the rules related to the reinitiation of consultations to clarify that reinitiation applies to all consultations[42] not just formal consultations. The new rule also exempted existing programmatic land plans prepared under the Federal Land Policy and Management Act or the National Forest Management Act from the duty to reinitiate when a new species is listed or when new critical habitat is designated.[43]

For informal consultation, the Services instituted a 60-day deadline, subject to extension by mutual consent of up to 120 days.[44] In one departure from the proposed rule, the Services declined to revise 50 C.F.R. § 402.03 for circumstances in which consultation was not required.

Source: Lexology
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Access Roundtable Jump to new posts
President Issues Executive Orders on Guidance Documents and Transparency outdoorwire 10/17/19 03:20 PM
Seyfarth Synopsis: The regulated community had a pleasant surprise from President Trump this week. The President issued two executive orders that have the stated intent to make closeted or last minute agency guidance and interpretations of federal rules a thing of the past. The orders require notice and publication of the guidance and interpretations along with the creation of comprehensive online databases where they may be easily searched out and found.

President Trump, in another business friendly action, issued two executive orders this week. They were the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Executive Order on Guidance Documents), and the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Executive Order on Transparency). In the President’s Remarks, he noted that “today, we take bold, new action to protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people.”

Many agencies, including the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, and the Department of Labor utilize guidance documents to provide the public, as well as agency enforcement and litigation personnel, with the agency’s interpretation of a policy, procedure or regulation.

The President indicated that the Orders were intended to improve public access to internal agency guidance documents and to protect the public from previously-undisclosed interpretations of regulations. While Courts have been clear that agency guidance documents do not carry the force of law, the U.S. Supreme Court recently upheld judicial use of so-called Auer and Seminole Rock deference – a topic which we have blogged about extensively. While a guidance document itself cannot be legally binding, it could potentially provide an agency an avenue to argue that its interpretation should be accorded judicial deference. This potential argument is addressed in the Executive Order on Transparency, which prevents an agency for arguing that an unpublished guidance document should be accorded deference.

Major changes that the regulated community may look forward to include, from the Executive Order on Guidance Documents, Section 3, Ensuring Transparent Use of Guidance Documents:

(a) Within 120 days of the date on which the Office of Management and Budget (OMB) issues an implementing memorandum under section 6 of this order, each agency or agency component, as appropriate, shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component. The website shall note that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract.

In Section 5 of the Executive Order on Transparency:

Any decision in an agency adjudication, administrative order, or agency document on which an agency relies to assert a new or expanded claim of jurisdiction — such as a claim to regulate a new subject matter or an explanation of a new basis for liability — must be published, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect) before the conduct over which jurisdiction is sought occurs. If an agency intends to rely on a document arising out of litigation (other than a published opinion of an adjudicator), such as a brief, a consent decree, or a settlement agreement, to establish jurisdiction in future administrative enforcement actions or adjudications involving persons who were not parties to the litigation, it must publish that document, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect) and provide an explanation of its jurisdictional implications. An agency may not seek judicial deference to its interpretation of a document arising out of litigation (other than a published opinion of an adjudicator) in order to establish a new or expanded claim or jurisdiction unless it has published the document or a notice of availability in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect).

Source: Lexology
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Wildlife Jump to new posts
Ninth Circuit Orders NMFS To Reassess Dam Decisions outdoorwire 10/17/19 03:17 PM
In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the dams; (2) the Corps’ issuance of licenses to operate existing water diversions and hydroelectric facilities, which it claimed violated the Endangered Species Act by authorizing activities that would take listed fish without an incidental take statement; and (3) NMFS and the Corps’ failure to reinitiate consultation because of allegedly changed circumstances. As we previously reported, the District Court rejected all of FOR’s claims.

The Ninth Circuit found that NMFS’s treatment of the dams as part of the “environmental baseline” was arbitrary and capricious. Prior to 2014, NMFS had treated the dams as part of the “agency action.” Thus, NMFS was required to provide a “reasoned explanation” for considering the dams to be part of the “environmental baseline” in the 2014 BiOp and LOC. The Ninth Circuit found that NMFS failed to adequately explain why it changed its approach, and remanded the BiOp and LOC to NMFS to “reassess.”

The Ninth Circuit also remanded to the district court the question of whether the Corps was taking threatened fish by licensing and granting easements to third parties to operate water diversions and hydroelectric facilities, because the district court had not fully analyzed this claim. However, the Ninth Circuit affirmed the district court’s holding that NMFS and the Corps were not required to reinitiate consultation based on new information, because FOR failed to identify how new information revealed effects that had not been previously considered in the 2014 BiOp and LOC, and because FOR failed to comply with the requirement to provide NMFS with 60 days’ notice of this claim.

Source: Lexology
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All About Access Jump to new posts
OutdoorWire Terms of USe and Privacy Policy outdoorwire 10/07/19 11:18 PM
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0 74 Read More
Legal Issues Jump to new posts
DOJ Significantly Limits the Use of Supplemental Environmental Projects outdoorwire 09/26/19 04:33 PM
The US Department of Justice (DOJ) Environment and Natural Resources Division has announced a major overhaul in the use of Supplemental Environmental Projects (SEPs)—a key penalty mitigation approach commonly used in settlement agreements. In an August 21, 2019 memorandum, DOJ announced that it will no longer allow SEPs as a component of settlements resolving federal claims against state and local governments. The memorandum strongly suggests that this new policy may well extend beyond settlements with states and municipalities, effectively removing what had been an important component of many environmental settlements.


SEPs are environmentally beneficial projects with a nexus to the underlying violation that defendants agree to perform to offset a portion of the penalty amount they would otherwise owe. They have long provided a means by which regulated entities, including state and local governments, could mitigate penalties associated with violations of federal environmental laws. SEPs have been undertaken by entities in many industries, including real estate development, utilities, manufacturing, and oil and gas operations. Examples of SEPs include a Maryland utility agreeing to install solar panels at schools and a community center; an oil refinery in New Jersey agreeing to install electrical hookups to minimize truck idling; a Colorado gas compression company agreeing to purchase wind power over a five-year period; and a shopping mall owner donating 24 acres of land to be used as a buffer zone adjacent to a nature reserve.

The 2019 DOJ memorandum builds on previous DOJ guidance:

June 2017. As discussed in a previous client alert, a 2017 DOJ memorandum first cast doubt on the continuing availability of SEPs. The broad 2017 policy barred any settlement that provided for a “payment or loan to any non-governmental person or entity that is not a party to the dispute.” Since SEPs require that the regulated entity undertake a project related to—but not directly part of—the matter that led to the enforcement action, it was initially thought that SEPs may be prohibited by the 2017 DOJ policy.
January 2018. In January 2018, DOJ clarified in a memorandum that SEPs were explicitly carved out of the 2017 policy.
November 2018. A November 2018 DOJ memorandum cast further doubt on the use of SEPs in certain settlements. The memorandum directed that settlements with state and local governments cannot “extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.” This language was widely understood to discourage (if not prevent) the use of SEPs in such settlements; the August 2019 memorandum both confirms that direction and suggests broader application.

The 2019 Memo

The August 2019 memorandum confirms that SEPs are almost entirely off limits for settlements with state and local governments.1 A key component of DOJ’s rationale is that SEPs are not explicitly authorized by federal or state legislatures and therefore may undermine legislative prerogatives.2

While the prohibition is limited—for now—to settlements with state and local governments, much of the memorandum’s rationale would apply with equal force to settlements with other entities. The memorandum expressly warns that DOJ is “considering revocation” of the carveout of SEPs from the 2017 policy, thereby prohibiting their use. The results of a now-pending broader DOJ review will determine whether SEPs may be used in settlements with any regulated entity.

The End of SEPs?

During the Trump Administration, DOJ has pivoted away from SEPs. For example, in July 2017, citing the 2017 policy, DOJ modified a negotiated settlement agreement in a Clean Air Act case against Harley-Davidson by removing the SEP that was part of the agreement. In light of that unusual step and the latest guidance, DOJ has signaled that regulated entities should prepare for broader unavailability of SEPs—effectively meaning less flexibility in settlement negotiations and a higher likelihood of penalty-only settlements without inclusion of alternative, project-based approaches.

SEPs have been popular among businesses for a variety of reasons. Significantly, no portion of penalties is tax-deductible; however, some portions of the cost of a SEP may be given favorable federal tax treatment under certain circumstances. Also, when properly planned with stakeholder engagement, SEPs have generated community goodwill, and many entities have preferred to have the opportunity to perform such projects in lieu of paying penalties to the Treasury. On the other hand, DOJ’s new position may be welcomed by those who view SEPs as an inappropriate way to benefit nongovernmental entities that are not parties to the dispute. Under either view, without SEPs in the toolbox, efficient resolution of violations of environmental laws will require novel and creative approaches.

Source: Lexology
0 229 Read More
Climate Change Jump to new posts
Environment and climate change in the USA outdoorwire 09/26/19 04:28 PM
Regulatory framework and policy

Domestic legislation

What is the primary environmental legislation in your jurisdiction?

The National Environmental Policy Act is an umbrella procedural statute that requires federal agencies to consider the environmental impacts of their actions.

Several substantive statutes are media-specific:

The Clean Air Act regulates air quality and emissions.
The Clean Water Act regulates water quality and discharges.
The Safe Drinking Water Act establishes drinking water standards for tap water and underground injection rules.
The Resource Conservation and Recovery Act regulates hazardous and solid waste management.
The Comprehensive Environmental Response, Compensation and Liability Act addresses remediation of legacy disposal sites and release reporting.
The Oil Pollution Act provides for oil spill prevention and response.

Other statutes are resource-specific. The Endangered Species Act protects listed endangered and threatened species and critical habitat. Other statutes protect certain species, including the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the Marine Mammal Protection Act. Other statutes govern natural resource planning and development on federal lands onshore and on the Outer Continental Shelf, including:

the Mineral Leasing Act;
the Outer Continental Shelf Lands Act;
the Federal Land Policy and Management Act;
the Mining Law 1872;
the National Forest Management Act;
the National Park Service Organic Act;
the Wild and Scenic Rivers Act;
the National Wildlife Refuge System Administration Act;
the Rivers and Harbors Act; and
the Coastal Zone Management Act.

Additional statutes cover certain products or wastes:

The Toxic Substances Control Act regulates new and existing chemicals and products that contain these chemicals.
Pesticides are regulated under the Federal Insecticide, Fungicide and Rodenticide Act.
Food, drugs and cosmetics are regulated under the Federal Food, Drug and Cosmetic Act.

Still more statutes focus on human health and safety:

The Hazardous Materials Transportation Act regulates transportation of hazardous materials.
The Occupational Safety and Health Act regulates hazards in the workplace.
The Emergency Planning and Community Right-to-Know Act provides emergency planning and notification for hazardous and toxic chemicals.

The federal and state governments share authority to administer some federal environmental programmes (eg, the Clean Air Act and Clean Water Act). States also have their own, sometimes more stringent, environmental laws. Counties, cities and other local government entities may have their own requirements as well.

International agreements

Is your jurisdiction a signatory to any international environmental agreements/commitments?

Yes. For example, regionally, the United States and Canada have an Air Quality Agreement. The United States is also party to the North American Agreement on Environmental Cooperation and the North American Free Trade Agreement and its side agreements, which have environmental aspects.

Multilaterally, the United States is party to, among other agreements:

the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter;
the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.

The United States ratified the Paris Agreement on climate change as an executive agreement in September 2016, but in August 2017 initiated the process for withdrawal, which cannot be effective before November 2020.

The State Department maintains a complete list of international agreements to which the United States is party (www.state.gov/s/l/treaty/tif/index.htm). The United States is not a party to a number of other multilateral environmental agreements.


Which government bodies regulate compliance with environmental legislation and what is the extent of their powers?

The Environmental Protection Agency (EPA) is the lead federal agency for implementing many federal environmental statutes. It directly administers permitting programmes for various industrial operations or delegates such functions to states under continuing EPA oversight.

The US Department of the Interior and the Forest Service implement a variety of laws addressing environmental reviews, wildlife and cultural and historic resources on federally owned or managed lands. Other federal agencies may also have power to administer certain specific programmes.

Each state has at least one agency with responsibility for administering environmental laws and enforcement. Federal and state agencies often share administration and enforcement of environmental laws. States generally take the lead for Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act permits, inspections, and enforcement. The EPA retains significant enforcement authority with regard to alleged violations of these statutes at individual facilities. In other areas the EPA generally takes the lead on enforcement.

Most of these agencies are delegated power by environmental statutes to promulgate their own implementing regulations.

The Department of Justice litigates court cases arising under federal environmental laws on behalf of the federal government, whether as plaintiff or defendant. Individual agencies, their counsel and their adjudicative bodies may handle available administrative appeals before a case reaches a court.


How would you describe current government policy on environmental regulation and how does it compare on an international scale?

The last three decades have largely been devoid of significant environmental legislation, so most environmental policy has developed within federal agencies and courts and at non-federal levels. Generally, international developments mirror current policy trends at the state and local levels more than nationally. The current administration is adding flexibility to and reducing burdens from federal environmental programmes. There is an overall de-emphasis on climate change and proposed major funding cuts for federal environmental agencies. To fill the perceived void, a number of states and localities remain active in proposing and advancing their state-level environmental programmes. However, overall the United States maintains a robust, multifaceted environmental regulatory system relative to other countries.


Activities subject to permit

Which activities require an environmental permit and how are they classified for such purposes?

Certain environmental permits can cover a range of activities but address specific environmental media. For example, the Clean Air Act requires pre-construction and operating permits (New Source Review and Title V). The Clean Water Act authorises permits for point source discharges into waters of the United States and the filling of jurisdictional wetlands.

Other permits authorise and regulate specific activities or industries. Under the Clean Air Act, for example, different facilities and equipment are subject to particular emissions standards. Others authorise mining, well drilling and waste management.

Issuing authority

Which authority issues permits?

Often the Environmental Protection Agency (EPA) or delegated states. Clean Water Act wetlands permits are issued by the US Army Corps of Engineers with EPA oversight. Federal agencies with jurisdiction over federally owned or managed lands may permit surface or subsurface activities on those lands. State and local authorities also may issue or review permits.


What are the procedural and documentary requirements to obtain a permit?

Requirements vary significantly. Typically, agencies require a complete application to explain the proposed activities, any anticipated adverse environmental consequences and any actions to limit or mitigate them. Applicants generally must then address any questions or concerns from the agencies. Public involvement sometimes is required or warranted.


Do any permit fees apply?

Yes, in most cases. Fees vary across programmes. Agencies usually charge fees to recoup their administrative costs from users of the corresponding permit programme.

Validity period and renewal

What is the validity period for permits and how can they be renewed?

Permit terms vary widely, from months to several years. Federal agency regulations for most permit programmes provide whether and how the permits can be renewed, and whether the renewal process differs from the original permitting process.


Can permits be transferred? If so, what procedure applies?

Yes, but it varies. Typically, agencies retain discretion to approve or deny a transfer, and to ensure that the transferee is qualified to hold the permit.


Are permit decisions subject to appeal? If so, what procedure applies?

Mostly yes. Administrative review or appeal procedures differ among agencies. Once administrative remedies have been exhausted, a final agency action may be appealed to federal district court, or in some instances directly to a US court of appeals. Individual environmental statutes or the general venue statute dictate where a lawsuit may be brought. Judicial review follows the Federal Rules of Civil Procedure, the Federal Rules of Appellate Procedure and individual courts’ local rules.


What are the consequences of violating permit rules and decisions?

Federal and state agencies may pursue injunctive relief and require the abatement or cessation of permit violations or environmental harm. Remedial steps may include installing equipment to control emissions, ceasing certain activities or revoking a permit or shutting down a facility. Many environmental statutes also authorise civil and criminal penalties, often calculated on a per-day, per-violation basis. Agencies may – and sometimes must – issue warnings or notices of violations before taking more severe enforcement actions. An agency typically may pursue an administrative enforcement action or sue the violator in federal court. In some instances, absent government enforcement, citizen suits may be brought in federal court against violators.

Environmental impact assessments

Projects subject to assessment

What projects require a preliminary environmental impact assessment?

The National Environmental Policy Act (NEPA) applies to most discretionary federal agency actions, including approving, financing, assisting or conducting plans, projects or programmes, whether regional or site-specific. Certain actions are exempt from NEPA, such as ministerial agency actions or where potentially duplicative environmental reviews are required. In some ‘small handles’ situations where only a small component or minor approval involves a federal nexus, NEPA might not apply to the larger project.

NEPA requires an environmental impact statement for “proposals for… major Federal actions significantly affecting the quality of the human environment”. A less detailed environmental assessment may suffice for a federal agency action with insignificant or unclear impacts. Finally, categorical exclusions apply to categories of agency actions that do not significantly affect the environment individually or cumulatively. An agency can perform more detailed review under NEPA than legally required.

Certain states have laws analogous to NEPA, which vary significantly.

Scope of assessment

What environmental factors and risks fall within the scope of the impact assessment report?

Agencies must consider the direct, indirect and cumulative effects of their actions, including ecological, aesthetic, historic, cultural, economic, social or health considerations. Such effects must:

be reasonably foreseeable;
bear a reasonably close causal relationship to the federal agency action at issue; and
interrelate with environmental considerations.

Through upfront scoping, agencies can determine which types of effects are pertinent to the action at issue and which can be eliminated from further consideration.


Who conducts assessments?

The lead federal agency, with invited assistance by cooperating or participating federal, state, tribal and local agencies with jurisdiction or special expertise. The lead agency also may hire and supervise third-party consultants, typically funded by the project proponent, to prepare the National Environmental Policy Act analysis. The project proponent and public also submit information and comments during this process.


Are the results of impact assessments publicly available?

Yes. Most categorical exclusions are issued without public comment. Environmental assessments are increasingly published in draft form for public comment, before the agency finalises it and issues a finding of no significant impact. An environmental impact statement elicits the most public process, requiring the agency to publish in the Federal Register a notice of intent, a notice that a draft environmental impact statement is available for public comment, and notices of the final environmental impact statement and the record of decision. Agencies now post certain projects to a publicly available dashboard and track their environmental review and permitting progress.


Can the results of an impact assessment be contested? If so, what procedure applies?

Yes, when the agency issues its final decision. Some agencies allow an initial administrative appeal. Final agency actions may be challenged under the National Environmental Policy Act in a federal district court, often where the relevant project is located. The time for filing a complaint is limited by statute and may range from a few months to a few years. Courts evaluate compliance based on the underlying administrative record and apply a ‘rule of reason’ that largely defers to an agency’s ‘hard look’.

Soil pollution


What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?

The Comprehensive Environmental Response, Compensation and Liability Act (Superfund) and similar state laws. The Environmental Protection Agency (EPA) lists sites on the National Priority List based on a hazard ranking system. Liability under the act and state laws is typically strict, joint and several, and retroactive, even to legacy contamination sites. States also implement voluntary clean-up and brownfields programmes aimed at remediating and reusing legacy contaminated soil sites.

Due diligence

What environmental due diligence measures are recommended before concluding land transactions?

The purchaser should conduct environmental due diligence that is proportionate to the anticipated risk depending on the operations at the site, both historical and upcoming. For example, a property with a history of industrial operations will pose a greater risk of latent contamination than a property that has only ever been used to host office buildings. In addition, if the purchaser intends to change the type of operations from industrial operations to operations that may directly affect a vulnerable population (eg, a school or an apartment building), the purchaser should take extra precautions to ensure that the property is sufficiently clean for the intended use.

The purchaser should always:

review environmental studies and reports for the subject property, if available;
review prior purchase agreements and their corresponding schedules to identify environmental concerns and understand historical allocation of environmental liability; and
interview individuals who have actual knowledge of the site’s current and historical operations.

A purchaser desiring environmental protections under the 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation and Liability Act should also conduct “all appropriate inquiries” before purchase, especially if there is a history of on-site contamination or chemically intensive operations. This involves retaining an environmental consultant to conduct a Phase I environmental site assessment, including an evaluation of potential vapour intrusion risk, to better gauge the current condition of the property.

Because information gathered during environmental due diligence can greatly affect the negotiating power of the purchaser, it should be conducted early enough to ensure that the purchase agreement reflects the environmental risk that the purchaser may be assuming.


What remediation and clean-up measures are typically applied and how can remediation costs be recovered?

Under the Comprehensive Environmental Response, Compensation and Liability Act and similar state laws, identified potentially responsible parties (PRPs) typically undertake a remedial investigation/feasibility study. Based on the results, the EPA selects a remedy for the site through a record of decision. Remediation may include a range of steps such as soil/sediment removal, capping, treatment or monitored natural attenuation. Remedies often include adaptive management steps based on ongoing monitoring. Under Sections 107 and 113 of the act, the EPA or PRPs undertaking the remedy can seek cost recovery or contribution of remediation costs from other PRPs; the available remedy and time limits differ by court jurisdictions and type of costs incurred. The EPA or states also can undertake or mandate that PRPs undertake time-critical interim actions to address imminent environmental threats.

Air pollution


How are air emissions regulated? What air quality standards and emission limits apply?

The Clean Air Act requires the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS) for common, criteria air pollutants that endanger public health or welfare nationwide. To date, the EPA has established NAAQS for six pollutants:

particulate matter (coarse and fine);
sulphur dioxide;
nitrogen dioxide;
carbon monoxide, and

The act also requires the EPA to regulate emissions of listed hazardous air pollutants (HAPs). States must adopt state implementation plans (SIPs) to achieve the NAAQS and to control emissions of criteria and hazardous pollutants within their boundaries.

The act requires new or modified sources of air pollutants to obtain pre-construction approval. The preconstruction permit programme requires project proponents to demonstrate that emissions from the new or modified sources will not cause or contribute to an increase in air pollutants that would degrade air quality, and requires installation of certain levels of pollution control equipment depending on the area’s air quality. Following construction, new or modified sources must obtain operating permits, which require compliance with equipment standards (eg, best available pollution control equipment) and emissions limits. These standards and limits vary based on facility type and the nature of emissions. Permitting thresholds, emissions limits and equipment standards are generally more stringent for sources emitting HAPs or located in NAAQS non-attainment areas.

Although the EPA issues permits in some circumstances, most permits are issued by state or local air pollution control agencies under their SIP authority (with EPA oversight). Operating permits are generally required for larger sources and sources that are subject to new source performance standards, HAP standards and acid rain control requirements. Operating permits typically last for five years and include enforceable emissions standards and limitations (which vary by industry or source category), compliance schedules, and monitoring and reporting requirements.

Beyond stationary sources, the EPA has broad authority over mobile sources including aircraft, on-road vehicles and non-road engines and equipment. It sets emission standards for vehicles, imposes testing and certification for engines and controls fuel formulations and additives. Passenger cars and light-duty trucks must meet tailpipe emission standards for various air pollutants and greenhouse gases. Fuel economy standards for model years 2022 to 2025 are currently under review. In August 2016 the EPA finalised a finding that greenhouse gas emissions from certain classes of aircraft endanger human health and welfare, which is a precursor to adopting greenhouse gas standards for aircraft.

The Clean Air Act also requires the EPA to address ozone-depleting substances, acid rain and regional haze. In light of litigation and Trump administration developments, the future of the above regulatory programmes and other initiatives – such as the Clean Power Plan aimed at greenhouse gas emissions reductions from existing power plants – remains uncertain.


What are the consequences of non-compliance with air emissions regulations?

The EPA maintains joint authority with delegated states to enforce violations of the Clean Air Act. The EPA and state agencies may enforce non-compliance with the act through administrative and judicial means. Under the act, the EPA has the authority to seek information from sources, inspect facilities, require monitoring or testing and require document production. The EPA thus may assess a source’s compliance with permit or regulatory requirements. If the EPA determines that a violation has occurred, it may:

issue an administrative compliance order;
issue an administrative penalty order; or
bring a civil or criminal action.

The EPA often seeks injunctive relief specifying the terms and conditions under which a source must come into compliance, and also may seek substantial administrative penalties.

Water pollution


What rules govern the discharge of wastewater and the protection of water resources?

The Clean Water Act requires a permit for any person or entity to discharge either pollutants or dredged or fill material to waters of the United States (which include jurisdictional wetlands). The Environmental Protection Agency (EPA) oversees the former; the US Army Corps of Engineers oversees the latter (subject to EPA veto). Individual states also maintain their own programmes regulating these discharges to surface waters, and may be delegated authority to implement the act within their borders. State law governs extraction of water for consumptive use.


What are the consequences of non-compliance with water pollution regulations?

Non-compliance with water pollution regulations or a permit issued pursuant to such regulations may result in the imposition of civil penalties, injunctive relief or other relief required to remedy damage to the environment caused by the non-compliance. The EPA, states and private citizens may all seek these civil remedies. Knowing or intentional non-compliance also may yield criminal liability.

Waste and hazardous substances


How is ‘waste’ defined in your jurisdiction?

The Resource Conservation and Recovery Act defines ‘solid waste’ as “any garbage, refuse, sludge… and other discarded material”. Under the act, ‘solid’ wastes include solid, liquid, semi-solid or contained gaseous material. Solid wastes classified as ‘hazardous wastes’ include:

certain specifically listed wastes;
wastes that fail generic characteristics of toxicity, reactivity, corrosivity or flammability;
certain mixtures of hazardous wastes and other solid wastes, and residues from treatment of hazardous waste; and
media (eg, soil and debris) that contain hazardous waste.

Under state law, additional provisions may expand the generic characteristics of hazardous waste or the list of wastes identified as hazardous in that state.

Waste handling

What rules and procedures govern the handling of waste, with particular respect to:

(a) Storage?

The Resource Conservation and Recovery Act regulates the storage of hazardous waste. Depending on the size and type of facility, regulations under the act may impose accumulation time limits and technical standards (eg, for containers, tanks, drip pads or containment buildings), as well as training requirements, air emission limitations and the development of contingency plans and emergency procedures.

(b) Transport?

The act requires transporters of hazardous waste to obtain an Environmental Protection Agency (EPA) identification number and comply with the EPA’s hazardous waste manifest system. Exemptions exist for transporters of certain recycled or reclaimed hazardous wastes generated by small-quantity generators. Transporters must also take certain actions in response to discharges or spills of hazardous waste. Transporters must also comply with applicable Department of Transportation regulations that apply to the transport of hazardous materials by rail, aircraft, water vessel or truck. These include recordkeeping, training, manifest, labelling and packaging requirements. The act also restricts the export and import of hazardous waste.

(c) Disposal?

The act requires that certain hazardous wastes meet treatment standards before land disposal. Certain treatment standards are numerical and others require the use of certain treatment technologies. The act also imposes recordkeeping requirements on disposers of hazardous waste.

(d) Recycling/reuse?

EPA regulations and guidance documents help companies to determine whether recycled materials are subject to requirements under the act (ie, whether the recycled materials meet the definition of ‘solid waste’). Recycling standards under the act range from full regulation to full exemption from regulation. Certain recycled materials are:

specifically excluded from the definition of ‘solid waste’ (eg, waste used as an ingredient);
considered solid wastes but not hazardous wastes; or
considered hazardous wastes but are subject to alternative regulatory controls.


What is the extent of a waste producer’s liability after transferral of waste (eg, to a waste disposal agent)?

Under the Comprehensive Environmental Response, Compensation and Liability Act, parties that arrange for waste disposal, treatment or transport may be subject to ongoing liability for improperly managed waste. Companies that transfer waste should carefully consider their potential liability by, for example, obtaining appropriate insurance coverage and negotiating appropriate contractual language with the waste disposal agent.

Waste recovery

Are waste producers bound by any waste recovery obligations?

The Resource Conservation and Recovery Act exempts certain recyclable materials (including certain by-products) and recycling activities from its hazardous waste regulations, generally if specified conditions are met. Federal law does not mandate waste recycling in lieu of disposal. Under various state laws, extended producer responsibility requirements (including recycling targets) may apply for certain products.

Waste disposal agents

How are the business activities of waste disposal agents/landfill operators regulated?

The EPA applies different requirements to different types of landfills, including municipal solid waste landfills, industrial waste landfills and hazardous waste landfills. It imposes design standards on hazardous waste landfills, including the use of a double liner and a leak detection system. Operators are subject to inspection, monitoring and release response obligations, as well as post-closure requirements.

Hazardous substances

What special rules, regulations and safeguards apply to the handling and disposal of hazardous materials?

Subtitle C of the Resource Conservation and Recovery Act regulates generation, treatment, storage, disposal and management of hazardous wastes.

The Hazardous Materials Transportation Act governs transport and handling of hazardous materials.

The EPA requires facilities that produce, handle, process, distribute or store extremely hazardous substances to develop and implement a risk management plan.

The Occupational Safety and Health Act sets general industry standards and specific construction, maritime and agriculture industry standards to limit on-the-job injuries and occupational disease risks for workers. Under this act, employers must provide personal protective equipment and grant employees access to their medical records. Extensive regulations guard against workplace hazards, including standards for process safety management of highly hazardous chemicals and employee exposure to various air contaminants, asbestos and other substances. Licensing, training and certification requirements also apply to certain activities regulated under the act.

Chemical and product regulation


What environmental regulations and procedures apply to the production, transportation and sale of chemicals and other products?

Toxic Substances Control Act reporting, recordkeeping and other requirements may apply to manufacturers (including importers), processors, distributors and users of chemical substances. Manufacturing a non-exempt new chemical substance (not on the inventory under the act) is prohibited unless and until the Environmental Protection Agency (EPA) makes an affirmative finding either that a chemical is not likely to present an unreasonable risk or that manufacture may begin subject to a compliance order imposing restrictions on the new chemical. Designated ‘significant new uses’ of approximately 2,800 chemicals are subject to similar notification and review requirements.

Following amendments to the act passed in 2016, the EPA also has authority to:

prioritise chemicals for in-depth review;
conduct risk evaluations of high-priority chemicals; and
regulate those chemicals found to present an unreasonable risk under the conditions of use.

The EPA further exercises authority under the act to issue either orders or rules requiring testing by manufacturers and processors. For new chemicals (ie, not on the inventory), the EPA must now make affirmative findings (eg, whether a chemical is likely to present an unreasonable risk under the conditions of use) with an order to follow if the ‘likely to present’ finding is made. EPA actions may pre-empt certain state restrictions on chemicals.

As part of the EPA’s current revisions to the inventory under the act, manufacturers and importers of chemicals must submit reports to the EPA regarding the manufacture or import of chemical substances for non-exempt commercial purposes between June 21 2006 and June 21 2016 (look-back period). Those reports are due by February 7 2018. Processors may also notify the EPA of chemical substances which they processed for non-exempt commercial purposes during the look-back period until October 5 2018. The EPA will publish a new version of the inventory which identifies those chemical substances that are considered to be active chemical substances.

The EPA is also prioritising chemicals for possible regulation pursuant to the 2016 statutory amendments to the act. A new EPA rule, effective September 18 2017, sets forth a risk-based screening process and criteria for identifying and designating high-priority substances, which must undergo risk evaluations, and low-priority substances, which do not meet the high-priority screening criteria and will not receive risk evaluations. The EPA should soon begin using this process to evaluate chemicals.

The Consumer Product Safety Improvement Act 2008, implemented by the Consumer Product Safety Commission (CPSC), limits the levels of lead, phthalates and certain chemicals allowed in children’s products. The CPSC also administers the Federal Hazardous Substances Act, which requires precautionary labelling to alert consumers to certain products’ potential hazards. Moreover, the Federal Trade Commission has established ‘green guides’ for environmental marketing claims. States additionally have imposed requirements to regulate and restrict the sale of certain products containing specified hazardous substances.


Types of liability

What types of liability can arise for environmental damage (eg, administrative, civil, criminal)?

There is no US generalised regime for environmental damages. Statutes, regulations and common law can impose various types of liability, including administrative, civil and criminal. Courts in turn establish precedent for liability in cases arising under various environmental laws. Alleged violators may face government administrative actions, civil suits or citizen suits. Only the government can prosecute criminal liability in court.

The government generally follows proportional enforcement. Minor offences may trigger administrative or civil sanctions; more serious and intentional violations trigger more severe sanctions or even criminal charges. The government’s burden of proof is highest in criminal cases.

Some programmes also impose strict liability based on party status. For example, for remediation and cost recovery for contaminated sites, the Comprehensive Environmental Response, Compensation and Liability Act imposes joint and several liability on each potentially responsible party (PRP), including current or former owners or operators, transporters or arrangers who disposed of hazardous substances, absent sufficient evidence to apportion the harm among PRPs or other applicable defences to liability. Separately, the Resource Conservation and Recovery Act authorises the government or private parties to seek relief for “imminent and substantial endangerment” to the environment.

Directors’ and officers’ liability

Can directors and officers be held personally liable for company environmental offences? If so, can liability be limited through insurance coverage and/or contractual indemnities?

Generally not for routine environmental violations. However, some federal environmental statutes, including the Clean Air Act, specifically state that an ‘operator’ or ‘responsible corporate officer’ can include “any person who is senior management personnel or a corporate officer”. In addition, a number of reports submitted to the Environmental Protection Agency and state agencies are required to include formal certifications (under oath) with regard to the accuracy of the information contained therein, which can provide the basis for claims against corporate officers.

More often, various theories under laws governing the internal governance of corporations and other business enterprises can support personal liability of corporate directors and officers under environmental and other public health laws – for example:

The corporate veil is pierced;
The director or officer personally participated in the improper activity; or
The director or officer personally exercised substantial control and supervision over the project in question.

US law generally does not permit liability based only on the corporate position or job title of director or officer. However, federal prosecutors can rely on a range of surrogates to prove the executive’s knowledge. Therefore, criminal charges can be pursued when the directors or officers:

are personally aware of, or involved in, the commission of a crime;
aid and abet a crime;
fail to prevent the commission of a crime by others within the corporation by either turning ‘wilfully blind’ or negligently supervising the conduct of those subject to their control; or
fail to implement preventive measures to ensure that violations do not occur.

Directors’ and officers’ (D&O) liability insurance is available to cover loss incurred by individual directors or officers due to legal actions against them in their capacity as directors and officers, generally including defence costs. Most corporations also contractually indemnify their directors and officers for their individual risk, although some states place limits on corporate indemnification, such as in shareholder derivative and bad-faith suits. Corporations can obtain coverage under D&O insurance for reimbursement of their indemnification obligations, and sometimes for their own liability risk. D&O insurance is not standardised and coverage can vary.

Liability for authorised activity

Can environmental liability arise even in the course of authorised activities (eg, operations subject to environmental permits)?

Yes, but not always. Many environmental statutes and common law causes of action are strict liability in nature and can therefore give rise to liability even for permitted operations. For example, the Comprehensive Environmental Response, Compensation and Liability Act imposes joint and several liability on PRPs to fund the clean-up of contaminated property regardless of whether the activities were permitted. However, the fact that activities are authorised may be considered in allocation among PRPs. By contrast, Clean Air Act or Clean Water Act permits often provide a shield to the permittee for actions in compliance with the permit. The case law is not uniform regarding the scope of the permit shield for different Clean Air Act or Clean Water Act permits and it is important to include clear permit shield language in an individual permit.


What defences are available to environmental offenders?

In civil cases:

statutes of limitations;
ambiguity of statutory or regulatory language;
compliance with a valid permit; and
factual defences.

Limited statutory defences also may be available.

In criminal cases, additional defences include:

lack of knowledge;
the government’s failure to meet its heightened burden of proof; and
other constitutional arguments uniquely applicable to criminal cases (eg, lack of fair notice or void for vagueness).

Liability in share sale/asset purchase

What rules govern the transfer of environmental liability in share sales and asset purchases?

A share purchaser generally acquires all the corporate target’s assets and liabilities, including the predecessor’s environmental liabilities. An asset purchaser may be able to acquire the assets free of environmental liabilities arising from pre-closing regulatory non-compliance by the target and from historic offsite disposal.

However, various courts have held asset purchasers responsible for these types of environmental liabilities. Additionally, an asset purchaser may have ownership-based liability under the Comprehensive Environmental Response, Compensation and Liability Act or state statutes when acquiring contaminated real property. Limited statutory defences apply to entities that qualify as a ‘bona fide prospective purchaser’ or ‘innocent landowner’. State or local property transfer laws also can impose remedial, investigatory and other obligations for property or business transactions, and thereby affect the negotiating position and obligations of the parties.

What environmental due diligence measures are recommended before concluding share sales/asset purchases?

Purchasers should:

check for regulatory compliance of the facilities;
conduct “all appropriate inquiries” under the 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation and Liability Act, including evaluating the target facilities’ environmental conditions and assessing potential liability and costs associated with onsite remediation; and
evaluate the potential liabilities associated with the current and historical generation and offsite disposal of wastes from the target’s operations.

A purchaser of an interest in real property (fee simple or leasehold) also should conduct environmental due diligence specific to the land acquisition.

Lender liability

Can lenders be held liable for environmental offences?

Yes, but some lender defences and safe harbours may be available. Additionally, specialty lender liability insurance policies can provide coverage to lenders against borrower default for risks relating to new, unknown or undisclosed environmental conditions, and sometimes for conditions that are disclosed in a Phase I assessment.

Because the borrower bears the brunt of potential environmental exposure in a real estate or business transaction, its environmental representations in a credit agreement generally have a high threshold for breach. For example, environmental representations may have a qualifier of “except as [would/could] be expected to have a Material Adverse Effect”. While this language is customary, lenders should review the agreement provisions and definitions – particularly the definition of ‘material adverse effect’ or its equivalent – to ensure that they have not made themselves vulnerable to liability for environmental offences under the contract.

Reporting and disclosure obligations

Required reporting

Under what circumstances must environmental damage be reported to the authorities?

Certain releases of hazardous substances or oil must be reported under federal laws and related regulations. Reporting obligations are usually triggered by a hazardous substance release in an amount that meets or exceeds a regulatory reportable quantity or causes a visible oil sheen.

Reporting may also be triggered under individual permits or state law requirements. For example, some states may require facilities that are stationary sources of air pollutants to report any deviation from the conditions outlined in their operating permits, including exceedances of emissions limits.


Is information on environmental damage/compliance available in a public register?

Generally, no. The Environmental Protection Agency (EPA) maintains an enforcement and compliance history online (ECHO) platform, an interactive public database that provides facilities’ compliance history under various federal laws. According to the EPA, ECHO covers over 900,000 regulated facilities nationwide. Some state-level public databases have certain state programme compliance information.


Are regular environmental audits required?

Generally, no. Environmental permits may require audits. The EPA launched an audit policy in 2000 to encourage self-policing by regulated entities to voluntarily identify and report environmental violations. If regulated entities satisfy the auditing conditions in a self-audit, they may enjoy certain incentives in potential enforcement actions (eg, reduced penalties or avoided criminal prosecution).


What environmental disclosures are required in sales transactions?

Many US real estate transactions follow the ‘buyer beware’ rule, which puts the burden on the buyer to inquire about environmental and other issues. Some states imply warranties of fitness or habitability in residential real estate and certain statutes have mandatory disclosure requirements. For example, sales or leases of certain residential properties may require the disclosure of lead-based paint hazards on the properties under the federal Residential Lead-Based Paint Hazard Reduction Act 1992. State laws may also have disclosure requirements.

Federal and state laws also require environmental disclosures in other contexts. For example, the federal law governing pesticides requires certain labelling, as does the state of California for chemicals known to cause cancer or developmental or reproductive toxicity (Proposition 65). Voluntary disclosure also can provide some measure of protection against future claims if the buyer is fully informed and accepts the associated risk.



What types of environmental insurance are available and what do they cover?

Pollution legal liability/premises pollution liability – for environmental contamination discovered during the policy period, including:
first party onsite clean-up;
third-party claims for costs for offsite clean-up, property damage and bodily injury resulting from the contamination;
natural resource damages;
liability for non-owned disposal sites;
civil (but not criminal) fines; and
defence costs.

Contractors pollution liability – for contractors for losses from pollution conditions caused by covered operations, including those caused by subcontractors.
Comprehensive general liability – for third-party claims for bodily injury and property damage arising out of accidents or occurrences. These typically include absolute pollution exclusions, but historical policies before 1986 (especially those before the 1970s) may provide coverage because they do not include absolute or any pollution exclusions.
Directors’ and officers’ liability – for loss incurred by individual directors or officers due to legal actions against them in their capacity as directors and officers, generally including defence costs.
Errors and omissions – professional liability policies can provide coverage to environmental professionals that provide consulting services, such as Phase I or II investigations, environmental auditing and others.
Lender liability – covers lenders against borrower default for risks relating to new, unknown or undisclosed environmental conditions, and sometimes for conditions that are disclosed in a Phase I assessment.
First-party property – although some first-party property policies exclude environmental risks, others provide some coverage for clean-up of the policyholder’s property.
Clean-up cost cap – for contamination clean-ups that exceed projected costs by a certain amount (rarely offered and premiums are often prohibitively high).

Many carriers offer their own specialty lines of coverage and other policies can be written to cover specific environmental risks.

Is environmental insurance mandatory and/or commonly purchased?

Environmental insurance is not mandatory in the United States. Many large companies choose to purchase some form of environmental insurance. Premiums generally are becoming more affordable and it is a viable avenue of risk management, but many smaller companies elect not to obtain insurance or to self-insure for environmental liabilities.



What environmental taxes are levied in your jurisdiction?

Most US environmental programmes are regulation based, not tax based. Some environmental tax programmes do exist. For example, the Oil Pollution Act established a federal trust fund to clean up oil spills, financed by a per-barrel tax collected from the oil industry. An underground storage tank trust fund is funded by taxes on certain motor fuels. A federal tax also applies to use or import ozone-depleting chemicals. The Surface Mine Control and Reclamation Act authorises a reclamation programme for abandoned mine land, which is funded by a coal tax.

Environmental taxes are more prevalent on the state and local levels, including taxes relating to waste and battery disposal, chemicals, petroleum, tires, air emissions, oil spill response, litter control and water quality.

Climate change issues

Emissions, renewables and efficiency

What regulations, targets and/or incentive schemes are in place to:

(a) Reduce greenhouse gas emissions?

The Environmental Protection Agency (EPA) has undertaken a series of regulatory actions and courts have rendered decisions in individual cases addressing greenhouse gas emissions from various sectors, typically under the authority of the Clean Air Act. Most notably, the Supreme Court’s 2007 opinion in Massachusetts v EPA determined that greenhouse gases are an ‘air pollutant’ under the Clean Air Act. The EPA issued its public endangerment finding in 2009 for the six main greenhouse gases recognised by the United Nations, and for greenhouse gas emissions from motor vehicles, as a prerequisite for further greenhouse gas regulation.

Examples of greenhouse gas regulatory efforts resulting from the 2009 endangerment finding and related EPA findings include:

the 2013 Obama Climate Action Plan;
greenhouse gas emission and fuel economy standards for new light-duty vehicles and engines;
greenhouse gas emissions and fuel economy standards for medium and heavy-duty trucks;
steps towards possible aircraft engine greenhouse gas emissions standards;
incorporation of greenhouse gases into stationary source permitting programmes;
new source performance standards for existing and new electric generating units, including the Clean Power Plan; and
new source performance standards for methane emissions from oil and gas facilities

While the overall policy direction has been toward mandatory and incentivised greenhouse gas reductions, that direction and the fate of the EPA’s recent steps are uncertain following the administration change in January 2017. For example, the Trump administration has rescinded the 2013 Climate Action Plan. The Clean Power Plan is in litigation, its effectiveness has been stayed in federal court and the EPA recently proposed to rescind the rule. The EPA is also reconsidering corporate average fuel economy standards and greenhouse gas emission standards for model year 2022-2025 vehicles. Litigation is ongoing and likely against perceived rollbacks by the EPA.

Actions towards greenhouse gas reductions continue at the state and regional levels. The Regional Greenhouse Gas Initiative (RGGI) is a voluntary, market-based greenhouse gas cap-and-trade scheme among several eastern states’ power sectors. RGGI membership continues to grow and change. California has also been a leader in the greenhouse gas area, including passage of AB 32 in 2006 and other meaningful laws since. Several other states have adopted greenhouse gas emission reduction laws, largely focused in the power sector. Cities and municipalities also have measures in place.

(b) Promote renewable energy/energy efficiency?

The United States lacks a comprehensive national policy on renewable energy or energy efficiency. Several federal and state initiatives aim to promote renewable energy development and energy efficiency as a means to reduce greenhouse gas emissions.

Regarding renewable energy, at the state level, binding renewable portfolio standards (RPS) exist in 29 states and Washington DC. Eight other states have non-binding RPS programmes or renewable energy goals. Electric utilities achieve the targets principally through a system of tradeable renewable energy credits. ‘Green’ power programmes allow US customers to purchase low-carbon power from their utility. Net metering programmes are another tool used in 38 states and Washington DC to allow grid-connected customers with onsite renewable energy systems to offset use of electricity and sell excess electricity to their utility. Many states also have adopted feed-in tariff programmes that provide a higher price to consumers generating renewable energy (often solar). Two key statutory federal tax credits – the production tax credit (for wind) and the investment tax credit (for solar) – have financially supported renewable energy development. The Department of Energy loan guarantee programme also backs investment in renewable power, energy efficiency and commercial climate technologies. Federal agencies, mainly within the Department of the Interior, also are taking steps to encourage and streamline permitting for renewable power generation on federally owned or managed lands, with mixed results to date.

Regarding energy efficiency, the Obama administration undertook several executive actions and signed a bill increasing building efficiency standards. The Trump administration, by contrast, has proposed to eliminate all funding for the Energy Star programme and other programmes aimed at research into new technologies, and has declined to finalise rules setting new appliance energy standards. Most national energy efficiency policies continue to rely on voluntary measures.

Biodiversity conservation


What regulations are in place to protect biodiversity and natural areas?

The federal Endangered Species Act provides for protection and recovery of imperilled species and the ecosystems on which they depend. A species must be formally listed by the US Fish and Wildlife Service or the National Marine Fisheries Service as ‘endangered’ or ‘threatened’ (ie, likely to become endangered). Unless they can reach a ‘no effect’ determination for their actions, federal agencies must informally or formally consult with the services to ensure that their actions potentially affecting any listed species are “not likely to jeopardize the continued existence” of the species, or result in “destruction or adverse modification” of the species’ designated critical habitat. Private persons and agencies cannot ‘take’ listed species incidental to their otherwise authorised actions without prior authorisation from the services, including required avoidance, minimisation or mitigation steps – otherwise injunctions, civil penalties or criminal penalties may result. Several states have enacted similar laws protecting other at-risk plants and animals (in addition to the federal Endangered Species Act list) within those states. The Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, and their respective regulations, also protect against certain actions ‘taking’ migratory birds and eagles.

Several categories of federally owned and managed lands are set aside for conservation and recreational purposes and under various agencies’ jurisdiction. Such designations are usually by Congress pursuant to an organic statute and a site-specific statute, with the exception of the presidential designations of national monuments under the Antiquities Act. Other categories of protected areas include national parks, national wildlife refuges, national forests, wild and scenic rivers and wilderness areas. Each type of designation entails balancing predominant or multiple uses. Individual states and localities also have systems of protected areas.

Source: Lexology
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All About Water Jump to new posts
The 2015 WOTUS Rule Is Repealed outdoorwire 09/26/19 04:08 PM
The EPA and the Corps of Engineers have taken the first of two steps to repeal and replace the definition of ‘waters of the United States’ promulgated by the Obama Administration in 2015 (the 2015 Rule). The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act to regulate navigable waterways, tributaries, and their adjacent wetlands. The 2015 Rule had been widely criticized as being overly expansive because more waterways, tributaries, and wetlands were considered to be subject to jurisdiction.

When it was published, the 2015 Rule spawned lawsuits in multiple district courts and appellate courts, ultimately resulting in a patchwork of regulation. In 22 states, the 2015 Rule applied, but in the rest of the states, the pre-2015 rule applied. When the Trump Administration took office, it vowed to repeal the 2015 Rule (Step One) and replace it (Step Two) with a new definition that would clearly define where federal jurisdiction begins and ends in accordance with the CWA and Supreme Court precedent. The Step Two proposal for a new definition was published in December, 2018.

The recent action completes Step One – the repeal of the 2015 Rule and the reinstatement of the rule in place prior to the 2015 revision. The agencies stated that they took the final action to eliminate the ongoing patchwork of regulation and provide regulatory certainty. The agencies stated that restoring the prior regulation is preferable to maintaining the 2015 Rule because returning to the pre-2015 regulations will reinstate a longstanding regulatory nationwide framework that is more familiar to and better understood by the agencies, regulated entities, and the public.

The agencies provided several justifications for the repeal of the 2015 Rule. Chief among them is the conclusion that the 2015 Rule exceeded the agencies’ authority under the CWA by adopting an overly expansive interpretation of the ‘significant nexus’ standard articulated by Justice Kennedy in the Supreme Court’s 2006 Rapanos decision. In Rapanos, Justice Kennedy concluded that the CWA covers only “waters that are or were navigable in fact or that could reasonably be so made” as well as waters, such as tributaries and adjacent wetlands, with a “significant nexus” to navigable waters in the traditional sense. The agencies now view the significant nexus standard as a “limiting test necessarily constraining overly broad applications of the statute.” The 2015 Rule, however, broadened the meaning and application of the terms ‘tributary,’ ‘adjacent’ and ‘significant nexus’ to support the assertion of federal regulation over nearly all waters within large watersheds. The broad interpretations in the 2015 Rule impermissibly expanded the scope of federal jurisdiction, resulting in the regulation of waters beyond what Congress intended.

Additionally, the agencies concluded that the 2015 Rule failed to adequately consider and accord due weight to CWA provisions that afford the states the right to plan the development and use of land and water resources. The 2015 Rule expanded jurisdiction over the pre-existing regulatory regime in a manner that encroached on traditional state land-use regulation and the authority of states to regulate state waters.

The Step One repeal rule is effective 60 days from publication in the Federal Register. Now, the EPA and the Corps will turn to Step Two – finalizing a rule that, in their words, will clarify federal authority under the CWA in a clear and understandable way. It is very likely, if not a certainty, that the Step Two rule will spawn its own set of district court challenges that may create another patchwork of regulation until the Supreme Court ultimately speaks again about the scope of federal jurisdiction over ‘waters of the US.’

Source: Lexology
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All About Water Jump to new posts
Long-Awaited Repeal Rule Ends Patchwork of WOTUS Implementation outdoorwire 09/26/19 04:01 PM
Which Waters of the US (WOTUS) rule applies to my project? For four years, that has been a recurring question with a complicated, ever-changing answer. The 2015 WOTUS Rule promulgated by the Obama administration was challenged almost immediately, and, because of various district court injunctions, only 22 states are operating under the 2015 WOTUS Rule, while 27 states are subject to the pre-2015 Rule regime; the status of the rule in New Mexico is unclear. Yesterday, EPA and the US Army Corps of Engineers (together, the Agencies) signed a pre-publication version of the highly anticipated repeal of the 2015 WOTUS Rule, which will place the entire country under the pre-2015 Rule regime while the Trump administration works to complete its replacement WOTUS definition.

In the final repeal rule, the Agencies conclude that the 2015 Rule exceeded the scope of the Agencies’ statutory authority under the Clean Water Act (CWA), failed to properly account for the primary responsibility and rights of states with respect to land and water resources, and included provisions (i.e., distance limits for adjacent waters) that were arbitrary and capricious. These conclusions are supported by two recent district court decisions finding the 2015 WOTUS Rule unlawful. The US District Courts for the Southern District of Texas and Southern District of Georgia both found there were procedural errors with the 2015 WOTUS Rule. The Georgia court found that the 2015 Rule exceeds the Agencies’ CWA authority and thus is not a permissible construction of the term “WOTUS” within the meaning of the statute. Both courts issued orders remanding the 2015 Rule back to the Agencies.

The repeal rule is expected to be published in the Federal Register in the next week or so and will become effective 60 days after its publication. Upon the effective date, the Agencies will administer the regulations defining WOTUS from 1986 and 1988, as informed by applicable agency guidance documents (e.g., the 2008 Rapanos Guidance) and consistent with Supreme Court decisions and longstanding practice. The Agencies state in the repeal rule that, although pre-existing regulations “pose certain implementation challenges,” the Agencies find restoring the prior regulations is preferable to maintaining the 2015 Rule. EPA Administrator Wheeler stated yesterday that the Agencies are targeting late 2019 for a final rule with a new, replacement WOTUS definition.

The repeal brings to an end the patchwork of WOTUS regulation in place across the country and provides greater certainty and clarity for regulated entities, regulators and the public as to the applicable definition of WOTUS. Challenges to the repeal rule are likely. For now, projects will be permitted under the familiar, if imperfect, pre-2015 WOTUS regime.

Source: Lexology
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