The District of Columbia (D.C.) is the latest to propose a ban on microbeads starting January 1, 2018. The proposed ban, part of D.C.’s omnibus fisheries and wildlife bill aimed at ensuring marine areas and waterways remain pollutant-free, is one of the more aggressive approaches prohibiting the supply, manufacture, or import of personal care products containing microbeads. Fines up to $37,500 may be imposed for failure to comply with the ban.
Eight states, including Colorado, Connecticut, Illinois, Indiana, Maine, Maryland, New Jersey, and Wisconsin, as well as Erie County, New York, have laws banning the manufacture of personal care products containing microbeads starting as early as January 1, 2017.
On October 5, 2015, from 5 p.m. to 7 p.m., the CBA Environmental Law Committee, CBA Young Lawyers Section Environmental Law Committee, ISBA Environmental Law Section and ABA Section of Environment, Energy, and Resources will be hosting a networking reception for environmental attorneys at Jenner & Block's offices in Chicago. There will be brief remarks from IIT Chicago-Kent Professor Dan Tarlock on U.S. Supreme Court environmental cases in the upcoming term.
A summary of the details is below. If you would like to join us at the reception, please RSVP here.
Environmental Attorney Reception
October 5, 2015
5:00 pm - 7:00 pm
Jenner & Block
45th Floor Conference Center
353 N Clark Street
Chicago, IL 60654
A recent decision by the Seventh Circuit Court of Appeals may significantly lower the causation bar for plaintiffs in toxic tort cases. In the case C.W. & E.W. v. Textron, Inc., the Seventh Circuit was called on to evaluate a district court decision that excluded plaintiffs' experts for failing to meet the admissibility requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. The Seventh Circuit's analysis of the district court's decision was relatively straightforward and the Seventh Circuit acknowledged that the district court had carefully considered the methodology employed by plaintiffs' experts. The Seventh Circuit concluded that the district court had properly exercised its gatekeeper role under Daubert in concluding that there simply was too great an analytical gap between the data and the expert opinion being offered such that the opinion amounted to nothing more than the ipse dixit of the expert.
On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19. This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering.
The American Wind Energy Association (AWEA) announced that seventeen of its members have agreed to voluntary operating restrictions to reduce wind turbine speeds in the fall to minimize the number of bats killed during their migration season. According to the AWEA, the new policy results from more than 10 years of research by the Bats and Wind Energy Cooperative and others. It is anticipated that the changes may reduce adverse impacts to bats from operating wind turbines by as much as 30 percent.
On August 30, 2015, a federal district court judge in Texas granted a developer’s motion for summary judgment against the United States and ordered the Government to reimburse the developer’s legal fees incurred in defending the Government’s lawsuit as a result of conduct that the court characterized as being “oppressive and dishonest.” According to the district court, in 2004, the developer began developing several tracts of land located in north Houston. In 2007, an investigator with the United States Environmental Protection Agency (U.S. EPA) advised the developer to stop developing its property because the property contained wetlands that U.S. EPA contended constituted jurisdictional waters of the United States. In May 2010, the United States sued the developer for violations of the Clean Water Act (CWA), and more specifically, for discharging fill into what the United States contended were waters of the United States without a CWA permit.
The court rejected the United States’ claims that the developer filled wetlands constituting jurisdictional waters of the United States finding instead that:
“Mill Creek and Dry Creek, as the latter’s name suggests, are little more than drainage ditches that conduct water only after a rain—a country boy could easily jump them. The same is true for the three tributaries. They are not permanent waters. The government’s characterization as seasonal is generous and accurate only insofar as they are wet in the Spring and Fall after is has rained. They are wetlands only in the same way that the entire area is coastal prairie.”
The court went on to state that “[t]he seasonal connection of some wetlands to seasonal tributaries that feed navigable waters is too tenuous a connection to give the government jurisdiction under the [CWA].”