EPA Issues Final Step 3 Tailoring Rule

On July 12, EPA issued its Final Step 3 Tailoring Rule, announcing that EPA has decided not to lower the greenhouse gas (GHG) permitting levels and therefore will not be including additional, smaller sources in the PSD/Title V permitting programs at this time.  77 Fed. Reg. 41,300 (2012).

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

D. C. Circuit Upholds EPA GHG Emissions Rules

On June 26, the D.C. Circuit Court of Appeals rejected industry petitions challenging the Environmental Protection Agency’s (EPA) rules limiting greenhouse gas emissions, finding that none of the challengers had standing to bring suit. Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012).

The petitions targeted EPA’s “tailoring” rule, which requires major polluters to obtain permits for their greenhouse gas emissions; the “tailpipe” rule, which sets standards for greenhouse gas emissions from cars and light-duty trucks beginning in the 2012 model year; and the “timing” rule, which limits greenhouse gas emissions from stationary sources. The three judge panel dismissed the petitions, upholding each of these rules.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Supreme Court Reverses Criminal Fine

On June 21, the U.S. Supreme Court issued its opinion in Southern Union Co. v. United States, 132 S. Ct. 2344 (2012). The 6-3 decision overturned an $18 million criminal penalty for the illegal storage of mercury on the grounds that facts used to increase the amount of the monetary penalty were not proven to a jury beyond a reasonable doubt.

Southern Union argued that imposing any penalty greater than the one-day RCRA maximum criminal fine of $50,000 would be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000). Apprendi holds that the jury-trial guarantee of the Sixth Amendment requires that the government prove beyond a reasonable doubt any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for a particular crime.

After trial, Southern Union argued that the jury verdict only supported imposing a monetary fine for one day of violation. The District Court held that Apprendi applies to criminal fines as well as other punishments, but concluded that the jury found a 762-day violation. The District Court imposed a fine of $6 million and a “community service obligation” of $12 million.

On appeal, the First Circuit disagreed with the District Court that the jury necessarily found a violation of 762 days, but affirmed the sentence because it held that Apprendi does not apply to criminal fines.

The Supreme Court reversed and remanded, holding that the rule of Apprendi applies to the imposition of criminal fines.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Welcome to Burr & Forman’s Environmental Law Matters Blog!

The complex system of environmental laws and regulations impact our clients’ businesses in a variety of contexts. Our attorneys regularly counsel clients on environmental legal issues arising in business strategy, regulatory compliance, permitting, transactions and resolution of disputes. Land conservation, historic preservation, brownfield redevelopment, environmental remediation, recycling, greenhouse gas, climate change, and regulation of air, water and wastes, all have the potential to pose challenges to corporate or real estate transactions. Our attorneys have a long history of handling such matters, and handling environmental cases in state and federal courts.  We have launched this blog to help our clients keep up with news, statutory changes, legal opinions and practical tips involving all areas of environmental law.

Because many of the laws relating to the regulation of environmental issues are state-specific, we will focus on developments in Burr & Forman’s Southeastern footprint of Alabama, Florida, Georgia, Mississippi, and Tennessee. However, we will also cover any particularly impactful or interesting events in other parts of the country and at the Federal level.

We hope that our clients, as well as other interested parties, will find this blog informative and entertaining and will make it a regular part of their reading. If you ever have a question about something on the blog or have an environmental legal issue, feel free to contact any of Burr & Forman’s Environmental team members, and we will be happy to assist you. If you need help in a state outside of Alabama, Florida, Georgia, Mississippi, or Tennessee, let us know. We have aligned our firm with trusted practices across the country and around the world, and we will get your questions answered at the right law firm.

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