News

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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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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