News

Environmental Law Writing Competition Underway

The TBA Environmental Law Section has announced the 10th annual Jon E. Hastings Memorial Award writing competition for law students enrolled in a Tennessee law school in 2016 or 2017. The competition is held in memory of one of the section's outstanding founding members and has a cash prize pool of $1,200. It is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law. Entries are due by April 1. The competition rules and announcement are available here in downloadable format.

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Did Government Err in Oregon Occupation Case?

Seven defendants were caught on camera taking over and occupying an Oregon wildlife refuge, many with guns, yet last week a jury acquitted all of them on weapons charges and conspiracy to intimidate federal workers. Many in the legal profession are wondering how that happened, Today's General Counsel reports. One juror offered his thoughts to the Oregonian: “All 12 jurors felt that this verdict was a statement regarding the failure of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions or aspirations.” An opinion piece in the Los Angeles Times suggests the verdict should remind the U.S. Justice Department that a case, and a conspiracy, that might seem obvious to a prosecutor, is not necessarily obvious to a jury.

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Bundy’s Lawyer Tasered, Arrested after Acquittals

The lawyer representing Ammon Bundy was shocked with a Taser, tackled and arrested after he objected to his client’s continued detention after a jury last week acquitted Bundy and six others of occupying a wildlife refuge in Oregon. The judge in the case refused to release Bundy after the acquittal, saying there is a U.S. Marshal’s hold on him due to a pending federal indictment in Nevada. Bundy’s lawyer, Marcus Mumford, yelled at the judge and struggled with marshals while continuing to argue his client should be released. The ABA Journal has the story and links to other media coverage.

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Judge Approves $15B Volkswagen Settlement

A federal judge has approved one of the largest consumer settlements in U.S. history, a nearly $15 billion deal that sets in motion a massive vehicle buyback program and environmental remediation effort. According to the Tennessean, U.S. District Court Judge Charles Breyer approved the sweeping agreement between consumers, the government, California regulators and the German automaker Volkswagen. The settlement comes about a year after the company admitted rigging 11 million vehicles worldwide with software designed to evade emissions standards. The company is still facing investigations by the U.S. Justice Department and German prosecutors, which could lead to additional financial penalties and criminal indictments. Those impacted can visit VWCourtSettlement.com for more information.

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Registration Now Open: Environmental Law Forum 2017

Make your plans now to attend the Environmental Law Forum 2017 scheduled for Jan. 26 at the Tennessee Bar Center in Nashville. The program, sponsored by the TBA Environmental Law Section, will touch on transactional liability, redevelopment issues, environmental considerations in real estate and updates in solar power and energy. 

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Thank You To Our Sponsor

Burr & Forman’s environmental team provides advice and services, including litigation, associated with all aspects of environmental law. Our attorneys seek to assure compliance with statutory and regulatory requirements, and we help clients avoid and defend against enforcement actions and litigation before regulatory agencies and in court. We are intimately familiar with the applicable state and federal statutes, regulations, and applicable case law. In addition, we are very familiar with state and federal enforcing agencies and their personnel.

 

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Creative Settlement Solution Partnership in Bristol Results in Improved Livability

From the largest college football venue, to a country music museum, to the world’s fastest half mile, Bristol is a city in Northeast Tennessee that values its roots while expanding on future possibilities. Although there are many positives, Bristol, like any city, also faces some negatives, including local regulated industries violating state permits and being subject to enforcement.

Steven Stout, an attorney with the Tennessee Department of Environment and Conservation’s (TDEC) Office of General Counsel (OGC), used a bit of creativity to develop a positive solution in the negative context of an environmental enforcement action that matched financial settlement resources to those who needed and deserved it most in Bristol. Then, he was able to rely upon the expertise, resources, dedication, and enthusiasm of the TDEC Office of Energy Programs and the Office of Sustainable Practices through the Bristol city government to deliver needed support to affected residents in Bristol.

TDEC and EPA entered into a settlement of air pollution regulatory violations against King Pharmaceuticals LLC (King), which operates a pharmaceutical manufacturing plant in Bristol, in August 2013, through a Consent Decree in federal court (United States of America and the State of Tennessee v. King Pharmaceuticals, LLC , E.D. Tenn. Civil Action 2:13-cv-00178). King was a wholly-owned subsidiary of Pfizer Inc. Just a few months before the Consent Decree was finalized, the plant was sold to another company, UPM Pharmaceuticals Inc., which continues to operate the plant in Bristol.

The state project, which is similar to an environmental mitigation project and a supplemental environmental project, was envisioned by Stout who represented TDEC in negotiation of the Consent Decree in conjunction with the Tennessee Attorney General’s office.

The 2011 Clean Air Act settlement with the Tennessee Valley Authority (TVA) had provided the genesis for the state’s Clean Tennessee Energy Grant (CTEG) program. Through experience in working with the Office of Sustainable Practices in the development and administration of CTEG, Stout was aware of demonstrated cost-effective benefits of grants to promote energy efficiency and conservation measures to reduce emissions from generation of electricity. With this in mind, Stout researched and discovered an existing program in the City of Bristol that provided housing repair assistance to economically disadvantaged homeowners.

In designing the settlement, Stout envisioned deserving applicants in the existing Bristol program being served through funding from the settlement. Home energy audits would determine opportunities for energy saving investments, and the geographic scope was limited to Bristol with a particular focus on the one mile radius around the King plant. The residents in the immediate area of the plant were the most impacted from excess emissions above permitted levels resulting from the violations included in the Consent Decree.

As hoped, TDEC was able to partner with Bristol and its existing program. The advantage of using the existing city program was that it provided the applicants who needed help and was a ready-made group of people to be targeted for support under the King Consent Decree funding.

On June 3, 2014, a kickoff ceremony was held for the Bristol Energy Efficiency Assistance Program in the community at Anderson Park adjacent to the former King Pharmaceuticals, LLC building. TDEC Commissioner Bob Martineau presented the check to city leaders as TDEC committed settlement funds to complete homeowner energy efficiency improvement measures under the Consent Decree. The scope of work consisted of replacement of windows, doors, insulation, heating and air systems, refrigerators, and electrical upgrades. The program was designed with strong evaluation, measurement, and verification elements to allow it to provide data regarding residential energy usage in the area over time.  As part of this program, Energy Star certified light bulbs were also offered to program participants.

TDEC’s Office of Energy Programs’ Angela McGee and Office of Sustainable Practices’ Jan Compton worked in partnership to oversee the program’s implementation process and to serve as technical advisors to Bristol throughout the project. There were several challenges such as changes in personnel. But, ultimately the project was too important to not continue.  Bristol Community Development Specialist, Donna Malone, came on board for Bristol and was instrumental in organizing the residential projects through contractor bids and oversight, customer focused service, and coordination with TDEC.

Malone was popular with the residents and determined to complete her daily tasks due to the influx of calls concerning when the project would be started. The city had secured qualifying residents to participate in the energy efficiency upgrades through public meetings and forums.  Applications had been distributed months earlier to determine if the customer met the requirements of income level, home ownership, and location within one-mile of the King Pharmaceutical LLC building.

Bristol Tennessee Essential Services provides electrical services to the area and participated as a crucial partner on the project by providing energy audits to each of the qualifying applicants to establish need and eligibility for energy efficiency and conservation improvements to be provided. While personnel challenges caused a delay in the contract work beginning, ultimately homeowners were rewarded with quality work from participating contractors allowing for each home to be more energy efficient.

Residents were interviewed during site visits while the contract work was in progress at each home as well as after completion of the work.  The two primary contractors, Associated Builders and Redpoint LLC, received high accolades for their work, customer service, professionalism, and dependability from all homeowners participating in the program.

Not only were environmental benefits gained from the energy efficiency projects, other environmental and health benefits will be recognized over time. For example, some homes did not have HVAC units and residents were struggling in extreme heat and cold conditions to adequately control the temperature in their home before the needed upgrades. In addition, residents were able to discontinue the use of wood and coal stoves and kerosene heaters, which have direct negative air quality and human health effects.  

At the close of the grant contract on June 30, 2016, 47 homes benefited from this program and the entire budget of $630,000 was spent. The deserving and grateful recipients included people with intellectual disabilities, blind individuals, single parents, cancer patients and others. This collaboration between Bristol, local contractors, and TDEC’s Office of General Counsel, Division of Air Pollution Control, Office of Energy Programs and Office of Sustainable Practices is an example of how TDEC works daily to serve the people of Tennessee and to carry out its environmental mission.


— Jan Compton serves in the Office of Sustainable Practices for the Tennessee Department of Environment and Conservation

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Message From The Chair

I am excited to serve as Chair of the Environmental Law Section for the 2016-2017 year and look forward to another great year with the Section. I want to extend a special thank you to Darlene Marsh for her leadership and contributions to the section this last year as chair and to the others in our section who contribute their time and energy to the activities and events organized each year. Participation in this section has exposed me to a wealth of resources and expertise that has broadened my knowledge of environmental matters and inspired my practice of law.

We are already busy planning the annual January CLE, to be held in Nashville on Jan. 26. Please save the date and we look forward to providing more information on our speakers and topics in the coming weeks. We welcome attendance and involvement from our members and those who practice in other areas of the law, interested in learning more about environmental legal issues.

This coming year has numerous opportunities for Section members to get involved. If you are interested in presenting or serving on a CLE panel, there are opportunities both through the January CLE and the annual TDEC Solid Waste Conference, which will be held this spring in Chattanooga. Our newsletter is an important way that we connect with our members and share emerging and relevant environmental issues. We are always looking for articles from our members and sponsors of the newsletter. If you have written on an environmental topic recently for a client, presentation, or other publication, we encourage you to submit your article for publication in our newsletter. Sponsorship of the newsletter provides an opportunity to reach our broad membership and supports the Section's annual John Hastings Memorial Writing Competition and other outreach activities throughout the year.

I look forward to working with the Environmental Law Section members. If there are other initiatives you would like to see our Section undertake this year, please let me know.

— Willa B. Kalaidjian of Chambliss Bahner in Chattanooga is chair of the TBA Environmental Law Section

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UT Law Hosts Environmental and Social Justice Conference

The University of Tennessee College of Law will host the Appalachian Environmental and Social Justice Conference this weekend in Knoxville. The international, three-day conference will focus on environmental and social justice throughout the Appalachian region. Law school alumna and federal judge Pamela L. Reeves will deliver the Saturday keynote address on “Mediating the Kingston Coal Ash Spill.” Registration is $35 per day or $60 for the entire weekend. The conference is free to all undergraduate and graduate students. Register online here.

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Some VW Owners Slam Emissions Deal

Several angry Volkswagen owners told a federal judge yesterday that a proposed $10 billion settlement does not adequately compensate them for the automaker’s emissions cheating scandal. One owner, for example, demanded the full purchase price of his car as well as part of his registration fee, the Associated Press reports. The settlement calls for the car maker to spend up to $10 billion to buy back or repair about 475,000 Volkswagens and Audi vehicles with 2-liter diesel engines and pay owners an additional $5,100 to $10,000 each. The deal also requires the company to pay $4.7 billion for environmental mitigation and to promote zero-emissions vehicles. The Memphis Daily News has the story.

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Special Master Seeks Hearing in Mississippi Water Case

Eugene E. Siler Jr., the special master appointed by the U.S. Supreme Court to oversee Mississippi’s $615 million water-rights lawsuit against Memphis and the state of Tennessee, says the case could be decided by a limited hearing on the issue of whether an aquifer connected to the Memphis Sand is an interstate resource. Siler has filed a memorandum of decision calling for such a hearing, the Commercial Appeal reports. David Bearman, an attorney representing Memphis, said he was heartened by the arguments made in the memorandum, saying Siler “appears to agree with the basis of our position.” Attorneys for Mississippi also appeared pleased, saying a hearing would give them the chance to prove that the aquifer is not an interstate resource.

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VW Likely to Face Criminal Penalties

Volkswagen is expected to face criminal and civil penalties for circumventing Clean Air Act standards, but prosecutors have not yet decided the specific criminal charges they might bring against the automaker, according to the Wall Street Journal. The paper reported today that the Justice Department is negotiating a settlement with the car maker but those familiar with the matter said there will be “significant” financial penalties. The Chattanooga Times Free Press has a summary of the article.

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VW Settlement Gets Preliminary Court Approval

A federal judge gave preliminary approval today to a sweeping settlement between Volkswagen, U.S. regulators and owners of VW diesels who will receive thousands of dollars in compensation, the Tennessean reports. Judge Charles Breyer with the U.S. District Court for the Northern District of California, set the settlement in motion, allowing the automaker to begin collecting information from 475,000 consumers who bought cars that were rigged to cheat emissions standards. Final approval of the settlement could come at a hearing set for Oct. 18. .

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Tennessee Eligible for $55M from VW Settlement

Volkswagen will pay $570 million to compensate American consumers and buy back or fix falsely-marketed diesel vehicles, the Tennessee Attorney General announced today. Under the deal, car owners in Tennessee will be eligible to receive $12.6 million. Volkswagen also will spend $2.7 billion on programs to reduce nitrogen oxide, $2 billion to develop zero-emission cars and $20 million to compensate states for their legal costs and pay for future investigations into emissions violations. The settlement ends a multistate action brought by 43 state attorneys general on grounds that Volkswagen sold more than 570,000 diesel vehicles in the United States with devices intended to circumvent emissions standards. Learn more about submitting a claim.

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Memphis Law School, City Hire Neighborhood Preservation Fellow

The University of Memphis School of Law and the city of Memphis have hired Brittany Williams as the city’s first Neighborhood Preservation fellow. In her new role, Williams will represent the city in litigation against owners of blighted property and will work with students enrolled in the school’s Neighborhood Preservation Clinic, the Memphis Daily News reports.

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Federal Judge Extends Volkswagen's Settlement Deadline

A federal judge in San Francisco is extending the deadline for attorneys for Volkswagen to reach a final settlement proposal, citing the “highly technical nature” of the proposed settlements. Bloomberg News reports that the new deadline, June 28, will deny Volkswagen the opportunity to present a conclusion to investors at its annual shareholders meeting on June 22. Without the settlement, the German carmaker’s efforts to navigate out of the crisis remain incomplete nine months after admitting to rigging the exhaust systems in some 11 million vehicles worldwide.

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Howard to Serve as General Counsel for TDEC

The Tennessee Department of Environment and Conservation today announced that Jenny Howard will serve as general counsel for the department. Howard, who joined TDEC in 2012, previously served as deputy general counsel and legislative liaison.

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Proposed Slate of Officers for TBA Environmental Law Section, 2016-2017

The below slate of officers will be voted on and confirmed at the June 16 meeting of the TBA Environmental Law Section.

PROPOSED - TBA Environmental Law Section 2016-2017 Slate of Officers

Chair - Willa Kalaidjian, Chambliss, Bahner & Stophel PC (Chattanooga)

Vice-Chair – Lauran SturmTennessee Department of Environment & Conservation (Nashville)

Immediate Past Chair - Darlene Marsh, Dickinson Wright PLLC (Nashville)

Secretary/Treasurer - Bob Tuke, Trauger & Tuke (Nashville)

Newsletter Editor – VACANT SLOT

West TN Delegates:

Randy Womack, Glankler Brown PLLC (Memphis)

Robert McLean, Farris Bobango Branan PLC (Memphis)

Jim Lenschau, Martin, Tate, Morrow & Marston PC (Memphis)

Middle TN Delegates:

Anne Davis, Southern Environmental Law Center (Nashville)

Scott Thomas, Bass, Berry & Sims PLC (Nashville)

Gregory T. Young, Burr Forman LLP (Nashville)

East TN Delegates:

Ashley Lowe, Baker Donelson Bearman Caldwell & Berkowitz PC (Knoxville)

Rick Hitchcock, Chambliss, Bahner & Stophel, P.C. (Chattanooga)

VACANT SLOT

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Environmental Law Section to Meet at TBA Convention

Please make plans to join the TBA Environmental Law Section for a business meeting and election of officers that will be held in conjunction with 2016 TBA Convention. The TBA Environmental Law Section meeting is scheduled as follows:

Date/Time:

Thursday, June 16, 2016
2:00 – 3:00 p.m. CST / 3:00 – 4:00 p.m. EST

Location:

Sheraton Music City Hotel
777 McGavock Pike
Nashville, TN 37214
(615) 885-2200

Room Location - Cheekwood Room

A conference call will be available for those unable to attend in person. The following are the instructions for joining the call:

You will dial in on the following number: 1-855-795-9620

You will then be prompted to enter the following conference ID number, followed by the pound (#) sign: 5722409#

There is still time if you would like to register for TBA Convention. You may register by calling the TBA at (615) 383-7421 or register online at:

2016 TBA Convention

You do not have to be registered for Convention to attend this Section meeting.  We hope to see you there!

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Ruling Will Permit More Clean Water Act Challenges

Politico reports that a ruling issued today by the U.S. Supreme Court will permit more businesses to challenge the Clean Water Act. The court unanimously ruled in U.S. Army Corps of Engineers v. Hawkes Co. Inc. that Army Corps of Engineers wetland determinations are reviewable by courts.

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Court Reverses Appeals Court Decision on Landfill Cleanup

The state Supreme Court today reversed a Court of Appeals decision concerning the cleanup of a landfill that has been discharging pollutants into a Maury County lake. ACC, LLC sought approval in Davidson County Chancery Court for a four-year plan to remove waste causing pollution from its landfill site. Starlink Logistics Inc. contested the plan to remove the waste, arguing the discharge of pollutants from the landfill site onto its property would continue during the removal of the waste. Following a failure to reach an agreement in Chancery Court, the Tennessee Solid Waste Disposal Control Board approved the plan. The Court of Appeals reversed the Board’s decision, saying the board failed to fully consider the other options discussed at the hearing. In a unanimous opinion authored by Chief Justice Sharon G. Lee, the Supreme Court held that the Court of Appeals misapplied the appropriate standard for reviewing decisions of administrative agencies.

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Volkswagen Announces Compensation Ahead of Potential Trial

Volkswagen is expected to compensate $5,000 to each U.S. car owner that was a sold vehicle that pollutes more than is legally allowed, USA Today reports. The deal could help the automaker avoid a trial before U.S. District Court Judge Charles R. Breyer in San Francisco. Breyer had set a deadline for today for Volkswagen to submit a plan after the automaker admitted last year that it installed “defeat devices” in certain diesel automobiles in order to pass emissions tests.

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UT Law Student Wins Environmental Writing Competition

The TBA Environmental Law Section announced Grant Ruhl, a student at the University of Tennessee College of Law, is the winner of the 2016 Jon E. Hastings Memorial Award Writing Competition. The annual section-sponsored contest is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law and is open to law students enrolled in a Tennessee law school. Ruhl's paper, "An Unpopular Victory: Exploring EPA's 2015 Ozone NAAQS Revisions," addresses the EPA's updated Clean Air Act standard for ozone.

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Thanks to Our Section Leaders

Thanks to our Section Leaders

Thanks to the members of the 2015 - 2016 TBA Environmental Law Section Executive Council for their service to the Section this year. In addition to the production of CLE programming for the members, the executive council met regularly throughout the year to produce news to the members and the recent Jon E. Hastings Memorial Award Writing Competition. Thanks to all for their dedication and hard work on behalf of the TBA Environmental Law Section.

Darlene Marsh, Chair
Dickinson Wright, PLLC (Nashville)
dmarsh@dickinsonwright.com

Willa Kalaidjian, Vice Chair
Chambliss, Bahner & Stophel, P.C. (Chattanooga)
wkalaidjian@cbslawfirm.com

Bob Tuke, Secretary/Treasurer
Trauger & Tuke (Nashville)
rtuke@tntlaw.net

Lauran Sturm, Newsletter Editor
Tennessee Department of Environment & Conservation (Nashville)
Lauran.Sturm@tn.gov

Middle TN Delegates:

Anne Davis
Southern Environmental Law Center (Nashville)
adavis@selctn.org

Scott Thomas
Bass, Berry & Sims PLC (Nashville)
sthomas@bassberry.com

Gregory T. Young
Stites & Harbison PLLC (Nashville)
greg.young@stites.com

West TN Delegates:

Randy Womack
Glankler Brown PLLC (Memphis)
rwomack@glankler.com

Robert McLean
Farris Bobango Branan PLC (Memphis)
ramclean@farris-law.com

Jim Lenschau
Martin, Tate, Morrow & Marston, P.C. (Memphis)
jlenschau@martintate.com

East TN Delegates:

Ashley Lowe
Baker Donelson Bearman Caldwell & Berkowitz, PC (Knoxville)
alowe@bakerdonelson.com

Rick Hitchcock
Chambliss, Bahner & Stophel P.C. (Chattanooga)
rhitchcock@cbslawfirm.com

Stephanie Durman
Tennessee Department of Environment & Conservation (Nashville)
stephanie.durman@tn.gov

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Reception Honoring Environmental Commissioner April 21

A reception honoring Bob Martineau Jr., Tennessee Department of Environment and Conservation Commissioner, will be held April 21, 4:30 p.m., at The Greystone, 219 Greystone Heights Rd., in Gatlinburg. The event is sponsored by BDY Natural Sciences Consultants, Land & Natural Resource Consultant LLC and the TBA Environmental Law Section. View the invitation.

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