News

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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UT Law Student Wins 2016 Hastings Writing Competition

The TBA Environmental Law Section has 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. This writing competition is sponsored by the Environmental Law Section in memory of Jon E. Hastings, one of the section's founding members. Ruhl's paper, "An Unpopular Victory: Exploring EPA's 2015 Ozone NAAQS Revisions," addresses the EPA's updated Clean Air Act standard for ozone.

The annual Jon E. Hastings Memorial Award Writing Competition 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. The full article can be found here.

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Supreme Court Delays Climate Control Regs

In an unprecedented action, the U.S. Supreme Court stayed implementation of the Obama administration’s Clean Power Plan regulations. The 5-4 decision received affirmative votes from Roberts, Alito, Kennedy, Scalia and Thomas.  Dissenting were Breyer, Ginsburg, Kagan and Sotomayor. The case is now under review by the U.S. Court of Appeals for the D.C. Circuit, with a hearing set for June 2. 

Background

The administration’s proposal to regulate coal-fired electricity generating power plants is commonly referred to as the Clean Power Plan (“CPP”). It seeks to achieve a 32% reduction by 2030 through a series of measures placing greater reliance on natural-gas fired generators and renewables, like wind and solar.

CPP takes a systems-based rather than a source-based approach. In determining the potential for carbon reductions, it takes into account not just the power plants themselves, but the entire electricity system, all the way down to consumers. It would allow states to reduce emissions through a number of measures that take place outside the power plants, including building out renewable energy and boosting end-use efficiency, as well as emissions credit trading. 

This “outside the fenceline” approach to regulating greenhouse gases is the major argument of the opposition, who claim EPA exceeded its authority under the Clean Air Act.  The challenge, led by a coalition of 29 states and state agencies, is a significant victory for the opposition. 

Effect in the US

Industry estimates that the plan, once in full effect, would lead to the closing of more than fifty coal-fired plants. EPA and the Justice Department’s lawyers dispute that estimate.

Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, told the New York Times that the ruling suggests a “high degree" of skepticism toward the CPP from five justices on the court.

Even if the rule is ultimately upheld, the Supreme Court's stay could significantly impact compliance timelines for states and utilities. As it stands, the EPA will be unable to enforce its September deadline for states to submit compliance plans or request an extension. Without enforcement from the EPA, states may have to decide on their own whether to comply.

Challenging parties argued that the rule was already prompting states to write compliance plans and forcing power companies to make decisions on whether to retire coal-fired power plants, or avoid making investments in new plants.  Most states are now expected to halt their compliance efforts. Senator Mitch McConnell of Kentucky, the majority leader, had already been urging governors to refuse to comply with the plan. “These regulations are, in my view, likely illegal,” Mr. McConnell said. “[The] Supreme Court order is just the latest sign of that. If nothing else, it shows we were right to let governors know their options.”

However, William Becker, executive director of the National Association of Clean Air Agencies, which represents state regulators charged with implementing the carbon rule, said that efforts to reduce greenhouse gas emissions will not stop because of the decision. "Almost every state in the country has been working tirelessly over the past two years in preparing Clean Power Plan strategies," he said. "We fully expect that many of these states will continue their efforts to reduce greenhouse gas emissions under their own legal authorities.”

The Democratic presidential candidates Hillary Clinton and Bernie Sanders have pledged to continue and strengthen President Obama’s climate change agenda, so a rule developed by their administrations would probably let the country meet its goals set by the Paris Accord.

But Republican contenders, including Donald J. Trump, Senator Ted Cruz of Texas and Senator Marco Rubio of Florida, have questioned or denied the science of human-caused climate change and sharply criticized the climate change regulations and the Paris Agreement.

International Reaction

The decision could also weaken or even imperil the international global warming accord reached with great ceremony in Paris less than two months ago.

The Paris Agreement, the first accord to commit every country to combat climate change, had as a cornerstone President Obama’s assurance that the United States would enact strong, legally sound policies to significantly cut carbon emissions. The United States is the largest historical greenhouse gas polluter, although its annual emissions have been overtaken by China’s.

In the capitals of India and China, the other two largest polluters, climate change policy experts said the court’s decision threw the United States’ commitment into question, and possibly New Delhi’s and Beijing’s.

The top priority for Prime Minister Narendra Modi of India remains to provide cheap electricity to the 300 million Indians without power. If the United States reneges on its commitments, “it really would strengthen the hand of those who say Paris was ineffective and a bad deal for India,” according to Navroz K. Dubash, a senior fellow at the Center for Policy Research in New Delhi.

“If the American clean energy plan is overturned, we’ll need to reassess whether the United States can meet its commitments,” said Zou Ji, the deputy director general of China’s National Center for Climate Change Strategy and International Cooperation, a government think tank in Beijing.  There is also domestic resistance to low-carbon policies in China, and opponents are likely to say: ‘Look, the United States doesn’t keep its word. Why make so many demands on us?’

“US pushback is not something that’s unique to the United States,” said John Sterman, a professor of management at the Massachusetts Institute of Technology who attended the negotiations in Paris. “It’s happening all over the developed world.”  Poland and some other coal-reliant countries have resisted the EU’s commitment under the agreement to more stringently reduce emissions across its member states.

The stay is expected to last through much of the year, until the DC Circuit makes a final ruling. A decision in that case is expected in late 2016 or early 2017. Regardless of the outcome, the decision is likely to be appealed by either foes or proponents, and sent to the Supreme Court for a full merit review.

White House officials insisted that the rule would eventually be upheld, and that given the timetable for litigation and for meeting the target, the United States could still achieve its Paris commitment.

Source Materials for this Article Include:

Davenport,Supreme Court’s Blow to Emissions Efforts May Imperil Paris Climate Accordhttp://www.nytimes.com/2016/02/11/us/politics/carbon-emissions-paris-climate-accord.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=rank&module=package&version=highlights&contentPlacement=8&pgtype=sectionfront&_r=0 (Feb. 10, 2016).

Roberts, Obama’s carbon rule hangs on this one legal question, http://grist.org/climate-energy/obamas-carbon-rule-hangs-on-this-one-legal-question/# <https://protect-eu.mimecast.com/s/eJGQBT87aEptM (Feb. 9, 2015).

Denniston, Carbon Pollution Controls Put on Hold, http://www.scotusblog.com/2016/02/carbon-pollution-controls-put-on-hold/#more-238111, (Feb. 9, 2016).

Pyper, Breaking: Clean Power Plan Stayed by Supreme Court, Obama Handed a Setback, http://www.greentechmedia.com/articles/read/Breaking-Clean-Power-Plan-Stayed-by-Supreme-Court-Obama-Handed-A-Bit-of-D (Feb. 9, 2016).

Savenije and Shallenberger, Supreme Court puts Clean Power Plan on hold, http://www.utilitydive.com/news/supreme-court-puts-clean-power-plan-on-hold/413613/ (Feb. 9, 2016).

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Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

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Old Hickory Neighbors File Suit to Block Rock Quarry

The Tennessean reports a group of Old Hickory residents filed a lawsuit yesterday in an effort to stop Metro government from issuing future permits for a limestone rock quarry project. The suit points to legislation the Metro Council passed in November that created new buffer zones to prevent mineral extraction activity immediately near residential homes in Nashville. The suit also names Industrial Land Developers as a defendant.

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New Environmental Case Added to Supreme Court CLE Challenge

Earn two CLE credits when you review and vote on the possible outcome of an environmental law case before the state Supreme Court in the TBA’s Supreme Court Fantasy Challenge. The case, Starlink Logistics Inc. v. ACC, LLC, Et. Al., is an appeal that stems from an environmental dispute involving the appellant, StarLink Logistics, the Tennessee Department of Environment and Conservation and the appellee ACC, LLC. StarLink appeals the trial court's affirmance of an order of the Tennessee Solid Waste Disposal Control Board, which had adopted a consent order entered into between TDEC and ACC.

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6th Circuit Asked to Review EPA Clean Water Act Decision

Industry groups today asked the full Sixth Circuit to review a decision last week that found appeals courts are the correct venue to hear challenges to the U.S. Environmental Protection Agency rule clarifying jurisdiction of the Clean Water Act. Law360 reports that a divided three-judge panel had ruled on the question, but with a “weak foundation,” noting that a majority judge admitted he ruled in favor of the appeals court having jurisdiction because “he was bound by ‘incorrect’ Sixth Circuit precedent.”

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Supreme Court Temporarily Blocks Clean Power Plan

The U.S. Supreme Court on Tuesday temporarily blocked President Barack Obama’s rules to limit greenhouse gas emissions from power plants, CNN reports. The regulations are on hold while the rules are challenged in court by a mostly Republican-led lawsuit from 29 states along with suits from organizations and industry groups. The states question the legality of the regulations. The four liberal justices on the court dissented from the order.

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Environmental Law Forum This Thursday

The TBA’s Section on Environmental Law will host its Environmental Law Forum on Thursday to share the latest updates to the Solid Waste Rule and updated regulations on recycling. The Waters of the United States rule and implications of the Clean Power Plan will also be discussed. The course offers 3.5 CLE credits and is scheduled from 12:30-4:15 p.m. at the Tennessee Bar Center in Nashville.

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State and Chevron Debate Discovery in Lawsuit

Tennessee Attorney General Herbert Slatery may ultimately seek up to $250 million in the state’s lawsuit against Chevron, The Tennessean reports. The lawsuit, filed in September, alleges Chevron and its subsidiaries fraudulently siphoned more than $18 million from a state environmental cleanup fund. Lawyers for Chevron on Tuesday said the company should be removed from the lawsuit and accused state attorneys of “unnecessarily delaying” the case in its broad requests for evidence.

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Judge Selects Attorney to Mediate Volkswagen Lawsuits

U.S. District Judge Charles Breyer in San Francisco selected former FBI chief and attorney Robert Mueller to mediate more than 500 consumer lawsuits against Volkwagen for its deceptive software used to pass emissions tests. Chattanooga firm Patrick, Beard, Schulman & Jacoway PC filed a class action lawsuit against the automaker in October 2015, joining more than 175 class actions filed in 32 states. Read more from Bloomberg BNA.

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Tennessee Will Not Challenge EPA's New Carbon Limits

Attorney General Herbert Slatery III announced last week that the state will not join in a legal challenge to the Environmental Protection Agency’s new carbon restrictions on power plants. State attorneys in 27 states are suing the Obama administration over the limits, claiming the EPA overstepped its authority. The Times Free Press reports Tennessee Valley Authority, the state’s primary power provider, has already taken most of the steps required to meet the new carbon controls and plans to shut down more than half of its 59 coal-fired generators. Some state Republican lawmakers are urging Slatery to reconsider joining the legal challenge and say that the limits will cause increases in power rates.

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State Sues Chevron, Accuses Company of 'Double Recovery'

Attorney General Herbert Slatery III filed a lawsuit against Chevron, accusing the petroleum company of a 30-year "prolonged and costly scheme" to fraudulently siphon more than $18 million from a cleanup fund. The fund receives four-tenths of a penny per gallon purchased by Tennesseans at the pump and reimburses tank owners for expenses during spill cleanups. The Tennessean reports that the lawsuit, filed in Davidson County Chancery Court, alleges Chevron and its subsidiaries engaged in "double recovery" by using the funds to pay for leaks and spills at more than 100 Tennessee gas stations while having private insurance also pay cleanup costs.

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Water-rights Lawsuit to Increase Rates for MLGW Customers

A $615 million water-rights lawsuit filed against Memphis Light, Gas and Water Division, the city of Memphis and Tennessee will result in a 22 percent rate increase for MLGW customers. The increase is associated with the lawsuit and will add an average of $3.21 a month to customers’ water bills, The Commercial Appeal reports. The lawsuit, filed by Mississippi, claims the defendants have "forcibly" taken its water through excessive pumping from an aquifer underlying both states. The U.S. Supreme Court in June granted Mississippi’s request to file suit. 

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9th Annual Environmental Writing Competition Underway

The TBA Environmental Law Section has announced the ninth annual Jon E. Hastings Memorial Award writing competition for law students enrolled in a Tennessee law school in 2015 or 2016. The competition is held in memory of one of the section's most 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 April 1, 2016. Download the competition rules and announcement.

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A Look Back on the 'Days of the Dam and the Darter'

Cleveland Daily Banner writer Larry Bowers recalls the legal ins and outs of the snail darter controversy that involved the delay of construction of the Tellico Dam on the Little Tennessee River in 1973. Learn more about the little fish and the big dam in this 2009 Tennessee Bar Journal article.

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Attorney Says VW Hearing Should Be in Chattanooga

Chattanooga is “the most logical place for consolidating the Volkswagen litigation because it is the only location in the country where VW vehicles are being produced,” according to attorney Gary Patrick. The Chattnoogan reports that Patrick’s firm - Patrick, Beard, Schulman and Jacoway – filed one of the first actions in federal court in Chattanooga following VW’s admission to cheating in order to pass emissions tests.

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Sign Up Today to be a Mentor

The TBA Mentoring Program is seeking volunteer mentors from across the state within specific practice areas: Nashville, Civil Rights; Brentwood, Environmental; Columbia, Litigation, General Practice, Real Estate and/or Probate and Trust; Memphis, Intellectual Property. Those participating in the program will commit to a formal mentoring relationship for one year, with a requirement to meet face-to-face at least once a month. For more information, visit the TBA Mentoring Program webpage or contact TBA staff member Christy Gibson, (615) 383-7421.

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Tennessee Joins Lawsuit Against EPA

Tennessee Attorney General Herbert Slatery joined the state of Tennessee to an Ohio lawsuit against the EPA challenging the highly controversial Waters of the United States (WOTUS) rule. Led by Tennessee State Rep. Sheila Butt, R-Columbia, the effort included calls from 63 Tennessee lawmakers, the Tennessee Farm Bureau, and many other agriculture and small business organizations. The Nashville Post has more.

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Environmental Court on Table for Bradley County

A closely divided Bradley County Commission has tentatively agreed to fund half the $35,000 price tag for a new environmental court position, the Chattanooga Times Free Press reports. The Cleveland City Council recently voted to approve funding half the position's cost, contingent upon a similar commitment from the county. Cases coming before environmental court are generally property-related health and safety issues.

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BP to Pay $18.7 Billion for Deepwater Horizon Oil Spill

Officials announced an $18.7 billion settlement with BP today that resolves years of litigation over the deadly 2010 Gulf of Mexico oil spill. The rig blast killed 11 workers and sent millions of barrels of oil gushing into the gulf for nearly three months on to the shorelines of several states including Florida, Alabama, Mississippi, Louisiana and Texas. WREG has more.

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Court: Mississippi Can Pursue Water Suit Against Tennessee

The U.S. Supreme Court yesterday granted Mississippi’s request to file a new lawsuit claiming Memphis is stealing its water, keeping alive a legal battle now in its 11th year. Four years ago, the court denied a similar request, the Commercial Appeal reports. The proposed complaint seeks at least $615 million in damages from Memphis, the city-owned Memphis Light, Gas and Water Division, and the state of Tennessee. The court’s order gives defendants 30 days to respond.

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