Archives: Environmental

Subscribe to Environmental RSS Feed

Environmental Groups Seek to Kill “Zombie Permits”

Environmental groups recently sued the Oregon Department of Environmental Quality (“DEQ”) over its alleged failure to renew permits in a timely manner. Most permits issued by DEQ under the Clean Water Act have an initial term of five years. According to the complaint, at least 75 percent of all such permits in Oregon have exceeded … Continue Reading

BEWARE—The Pollution Exclusion Is Alive in Oregon

This article was originally posted on The Northwest Policyholder, Miller Nash Graham & Dunn’s insurance coverage blog. Contractors, builders, real estate managers, and others should be aware of a March 9, 2017, decision by an Oregon federal judge who found that carbon monoxide is included in the plain meaning of “pollutant” as defined in a … Continue Reading

Washington Supreme Court Strikes a Blow to Vested Rights

In a blog post dated February 17, 2016, we wrote about a decision of the Washington Court of Appeals in Snohomish County v. Pollution Control Hearings Board favorable to developers. At issue in the case was the Washington State Department of Ecology’s rule that required application of new stormwater regulations to all development proposals submitted … Continue Reading

Washington State Sets Carbon Dioxide Emission Reduction Requirements for Major Sources

Today the Washington State Department of Ecology adopted a new rule to limit carbon dioxide emissions from major sources. Beginning in 2017, entities that emit more than 100,000 metric tons of carbon dioxide per year must reduce their emissions by 1.7 percent each year. Entities with lower emissions will be phased in over two decades. … Continue Reading

Smelter Not Liable Under CERCLA as an Arranger for Disposal

A Ninth Circuit panel reversed a district court’s denial of a smelter owner’s motion to dismiss, holding that the owner/operator of a facility that emits airborne hazardous substances cannot be held liable as an arranger for disposal under CERCLA. The case involves a smelter owned and operated by Teck Cominco Metals, Ltd., and located about ten … Continue Reading

SCOTUS Provides Pathway to Courts’ Challenging Army Corps’ Wetlands Calls

Access to courts to resolve disputes early on in a permitting process is critical for land use projects in terms of time- and cost-savings. In Army Corps of Engineers v. Hawkes, issued on May 31, 2016, the U.S. Supreme Court effectively agreed by ruling that a permit applicant need not await the completion of the … Continue Reading

BiOp on the Oregon National Flood Insurance Program: A Case for Levee Accreditation

If there was ever a case to be made for levee accreditation in Oregon, it would be the biological opinion (“BiOp”) that the National Marine Fisheries Services (“NMFS”) issued in April 2016. The BiOp seeks to protect and conserve certain salmon and steelhead species, and their critical habitats, listed under the federal Endangered Species Act and … Continue Reading

Plan Now So That Excess Water Isn’t Trouble Later

Water is a frequent topic of conversation these days, with valid concern over the growing scarcity of this resource. In the past few years, however, concerns about too much water have also arisen. From Hurricane Katrina to Superstorm Sandy to our own frightful storm during Halloween last year, unprecedented flooding is emerging as another water-related … Continue Reading

Supreme Court Puts Clean Power Plan on Hold

Recently the Supreme Court, for the first time, halted the implementation of an EPA rule before review by the Court of Appeals. As reported on this blog, in August the EPA adopted rules under the Clean Air Act to ensure that by 2030, carbon dioxide emissions from existing power plants would be 32 percent below … Continue Reading

Heading Into Muddied Waters

August 28, 2015, was the effective date of a new regulation that many argue expands permitting requirements for project development and other activities near or in waterbodies. The U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“USACE”) rewrote the definition of “Waters of the United States” (“WOTUS”) under the federal Clean Water Act … Continue Reading

EPA Adopts Clean Power Plan

Earlier this week, the EPA adopted rules under the Clean Air Act intended to ensure that by 2030, carbon dioxide (CO2) emissions from existing power plants will be 32 percent below 2005 levels. The rule establishes emission performance rates for fossil-fuel-fired electric steam-generating units and natural-gas-fired combined-cycle generating units and sets state-specific CO2 goals based on the … Continue Reading

Citizens Continue to Focus on the Columbia Slough Watershed

The Columbia Slough Watershed is a place in which environmental citizen groups continue to find violations of the Clean Water Act (the “CWA”). The filing of two recent cases in the federal district court for the District of Oregon by the Columbia Riverkeeper exemplifies these efforts. See Columbia Riverkeeper v. American Recyclers LLC, No. 3:14 cv … Continue Reading

Court Allows Claims of Atmosphere as a Public Trust Resource: Demands for Greenhouse Gas Regulation

Does Oregon’s public trust doctrine extend to the atmosphere? In Chernaik v. Kitzhaber, the Oregon Court of Appeals directed a Lane County circuit court to decide that question. The circuit court had concluded that it did not have subject-matter jurisdiction to make that determination or to direct the state to reduce atmospheric carbon dioxide levels as … Continue Reading

Washington Court Clarifies an Insurer’s Duty to Defend under MTCA

For 20 years now, Washington law has required an insurance company to indemnify an insured for historic environmental contamination under general liability policies, even in the absence of an overt, threatened action by a regulatory agency. Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 896-97, 874 P.2d 142 (1994). Earlier in June of … Continue Reading

Proposed Option for All Appropriate Inquiries to Mitigate Environmental Liabilities in Flux

To avoid the potentially staggering environmental cleanup liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Oregon cleanup statute, a prospective landowner or tenant must have conducted all appropriate inquiries (“AAI”) into the previous ownership and uses of the property consistent with good commercial or customary practice. Because the Oregon … Continue Reading

In Oregon, Insurers Must Defend Against a CERCLA Information Request

On August 30, 2013, the Ninth Circuit Court of Appeals issued a groundbreaking decision, requiring an insurance company that has issued comprehensive general liability policies to defend a policyholder that has received an information request from the U.S. Environmental Protection Agency (“EPA”) under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). See … Continue Reading

Oregon Amends Prospective Purchaser Statute

SB 476A is one of few environmental bills that the 2013 legislature passed. The bill amends the prospective purchaser agreement statute (ORS 465.325) in the following ways: (1) Requiring the Oregon Department of Environmental Quality (“DEQ”) to specifically notify potentially responsible parties (“PRPs”), who have previously entered into an agreement with DEQ, of any proposed consent … Continue Reading

New Rights for Policyholders in Oregon

Governor Kitzhaber signed Senate Bill 814 into law last week. This bill substantially amends the Oregon Environmental Cleanup Assistance Act in a manner very favorable to policyholders prosecuting claims seeking insurance coverage for claims arising from environmental contamination. First, the law makes it clear that the anti-assignment language contained in most general liability policies only … Continue Reading
LexBlog