Robinson Cole LLP
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Christopher Y. Eddy focuses his practice in the areas of environmental law, environmental litigation, facility siting, retail energy supply and utility regulatory law. He is an associate in our firm’s Environmental, Energy + Telecommunications group.

Environmental Law

Chris has extensive experience counseling clients on a wide variety of environmental issues. Chris has guided clients through matters involving the Comprehensive Environmental Response, Compensation, and Liability Act, the Clean Air Act, and the Resource Conservation and Recovery Act. He has also helped clients evaluate, manage, and plan for environmental risks associated with contaminated properties and their potential liability under state and federal law.

Chris has also counseled clients related to toxic torts involving issues such as fugitive dust and groundwater contamination. He has helped guide clients through all aspects of toxic tort litigation including initial dispostive motions, discovery, challenges to expert witnesses, motions in limine, and trial.

Land Use

Chris represents clients before the Connecticut Siting Council and other state and local land use boards related to renewable energy facilities, telecommunications facilities, and local zoning matters.

Retail Energy Supply

Chris also has experience counseling retail energy suppliers before the Connecticut Public Utilities Regulatory Authority (PURA) on issues such as regular reporting requirements, comments on PURA proposed decisions, the Renewable Portfolio Standard, and responding to PURA-issued interrogatories.

  • University of North Carolina School of Law (Juris Doctor, Moot Court)
    • Law Review
  • Bates College (Bachelors)
    • B.A., Psychology
    • History Minor

  • State of Connecticut

Publications


May 27, 2021

COVID-19 and its Impact on the OSHA Inspection Process

ISHN (Industrial Safety & Hygiene News)

Taking into consideration how COVID-19 has brought significant changes to OSHA’s inspection and enforcement focus, the article offers best practices for managing facility inspections, both generally and with specific references to COVID considerations. Read the article.

April 19, 2021

Combustible Dust and OSHA Inspections

EHS Today

The article focuses on OSHA’s Combustible Dust National Emphasis Program, which continues to be an area of focus and enforcement. While OSHA does not have its own combustible dust standard, the Administration has said it will rely on the General Duty Clause and National Fire Protection Association (NFPA) standards for enforcement. Guidelines to prepare for and handle OSHA inspections are in some cases universal, but when combustible dust may be a factor, there are some unique considerations for employers to be mindful of. Megan, Chris, Peter and Jon cover the actions employers can take before, during, and after an inspection to mitigate the potential for a citation. Read the full article.

March 2021

Avoiding Dust- Ups with OSHA over NFPA 652 Compliance

ISHN (Industrial Safety & Hygiene News)

The article offers an update on OSHA's Combustible Dust National Emphasis Program, which was launched in 2008 and continues to be an area of focus and enforcement. "While no OSHA standard directly addresses combustible dust, this has not hindered OSHA enforcement. Instead, OSHA has relied on the General Duty Clause and reference to the National Fire Protection Association (NFPA) standards when citing employers for combustible dust hazards." Under NFPA 652 facilities were required to complete an initial dust hazard analysis by September 7, 2020. Megan, Chris, Peter and Jon also briefly cover the applicable NFPA standards and OSHA’s compliance guidance. Read the full article.

May 27, 2021

COVID-19 and its Impact on the OSHA Inspection Process

ISHN (Industrial Safety & Hygiene News)

Taking into consideration how COVID-19 has brought significant changes to OSHA’s inspection and enforcement focus, the article offers best practices for managing facility inspections, both generally and with specific references to COVID considerations. Read the article.

April 19, 2021

Combustible Dust and OSHA Inspections

EHS Today

The article focuses on OSHA’s Combustible Dust National Emphasis Program, which continues to be an area of focus and enforcement. While OSHA does not have its own combustible dust standard, the Administration has said it will rely on the General Duty Clause and National Fire Protection Association (NFPA) standards for enforcement. Guidelines to prepare for and handle OSHA inspections are in some cases universal, but when combustible dust may be a factor, there are some unique considerations for employers to be mindful of. Megan, Chris, Peter and Jon cover the actions employers can take before, during, and after an inspection to mitigate the potential for a citation. Read the full article.

March 2021

Avoiding Dust- Ups with OSHA over NFPA 652 Compliance

ISHN (Industrial Safety & Hygiene News)

The article offers an update on OSHA's Combustible Dust National Emphasis Program, which was launched in 2008 and continues to be an area of focus and enforcement. "While no OSHA standard directly addresses combustible dust, this has not hindered OSHA enforcement. Instead, OSHA has relied on the General Duty Clause and reference to the National Fire Protection Association (NFPA) standards when citing employers for combustible dust hazards." Under NFPA 652 facilities were required to complete an initial dust hazard analysis by September 7, 2020. Megan, Chris, Peter and Jon also briefly cover the applicable NFPA standards and OSHA’s compliance guidance. Read the full article.

February 10, 2021

Breaking the chain of “substantial continuity” — Tenth Circuit clarifies test for repeat OSHA violations

ISHN (Industrial Safety & Hygiene News)

The Tenth Circuit Court of Appeals in Sec’y of Labor v. Wynnewood Refining Co. recently evaluated the applicability of the substantial continuity test in connection with an OSHA citation that included several repeat violations. The article offers background on the important role that repeat violations play in OSHA citations, how the substantial continuity test has been applied in determining whether a current company should be held liable for repeat citations based on citations from a prior company, and how the Tenth Circuit addressed that question in Wynnewood Refining. Read the full article.

January 7, 2021

COVID-19 and OSHA: Where we started and where we are now

ISHN (Industrial Safety & Hygiene News)

The article gives a brief summary of OSHA’s response to COVID-19 to date and where enforcement measures currently stand. The piece also examines COVID-19 enforcement trends and offers some insight on changes and challenges for employers in 2021. Read the full article.



February 10, 2021

Breaking the chain of “substantial continuity” — Tenth Circuit clarifies test for repeat OSHA violations

ISHN (Industrial Safety & Hygiene News)

The Tenth Circuit Court of Appeals in Sec’y of Labor v. Wynnewood Refining Co. recently evaluated the applicability of the substantial continuity test in connection with an OSHA citation that included several repeat violations. The article offers background on the important role that repeat violations play in OSHA citations, how the substantial continuity test has been applied in determining whether a current company should be held liable for repeat citations based on citations from a prior company, and how the Tenth Circuit addressed that question in Wynnewood Refining. Read the full article.

January 7, 2021

COVID-19 and OSHA: Where we started and where we are now

ISHN (Industrial Safety & Hygiene News)

The article gives a brief summary of OSHA’s response to COVID-19 to date and where enforcement measures currently stand. The piece also examines COVID-19 enforcement trends and offers some insight on changes and challenges for employers in 2021. Read the full article.

News


May 28, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on OSHA Inspections During COVID-19

Environmental, Energy + Telecommunications Group lawyers Megan E. Baroni, Christopher Y. Eddy, Peter R. Knight and Jonathan H. Schaefer authored the article “COVID-19 and its Impact on the OSHA Inspection Process” published in ISHN (Industrial Safety & Hygiene News) on May 27, 2021. Taking into consideration how COVID-19 has brought significant changes to OSHA’s inspection and enforcement focus, the article offers best practices for managing facility inspections, both generally and with specific references to COVID considerations. Read the article.

ISHN
April 23, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author EHS Today Article on Combustible Dust and OSHA Inspections

EHS Today
March 16, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on Combustible Dust

Industrial Safety & Hygiene News (ISHN)
May 28, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on OSHA Inspections During COVID-19

Environmental, Energy + Telecommunications Group lawyers Megan E. Baroni, Christopher Y. Eddy, Peter R. Knight and Jonathan H. Schaefer authored the article “COVID-19 and its Impact on the OSHA Inspection Process” published in ISHN (Industrial Safety & Hygiene News) on May 27, 2021. Taking into consideration how COVID-19 has brought significant changes to OSHA’s inspection and enforcement focus, the article offers best practices for managing facility inspections, both generally and with specific references to COVID considerations. Read the article.

ISHN
April 23, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author EHS Today Article on Combustible Dust and OSHA Inspections

EHS Today
March 16, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on Combustible Dust

Industrial Safety & Hygiene News (ISHN)
February 16, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on Substantial Continuity Test

Industrial Safety & Hygiene News (ISHN)
January 11, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on OSHA’s COVID-19 Response

Industrial Safety & Hygiene News (ISHN)

February 16, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on Substantial Continuity Test

Industrial Safety & Hygiene News (ISHN)
January 11, 2021

Megan Baroni, Chris Eddy, Peter Knight and Jon Schaefer Author ISHN Article on OSHA’s COVID-19 Response

Industrial Safety & Hygiene News (ISHN)

Environmental Law +


Below is an excerpt of Environmental Law + blog posts authored by Chris.

“Once In, Always In” for Hazardous Air Pollutants: Back to the Grave

After a few decades of uncertainty and “it’s-alive-it’s-dead-it’s-alive” swings, EPA’s “once in, always in” (OI/AI) policy is once again dead. And this time, it seems very dead. On June 20, 2025, President Trump signed a Congressional Review Act (CRA) resolution that rejects a September 2024 rule adopted by the Biden EPA that had revived a narrowed version of OI/AI.   Given its long and controversial life and its little-heralded demise, it seems fitting to give OI/AI a eulogy. OI/AI began life as an internal EPA policy memo in 1995. The policy provided a complex interpretation of “emits or has the potential to emit” as used in the definition of a “major source” of federally-designated hazardous air pollutants (HAPs): if a facility’s potential to emit HAPs ever exceeded “major source” thresholds after the first compliance date of any substantive requirements of a “major source” HAP standard applicable to that facility, the facility must comply “permanently” with such standard and other requirements for HAP “major sources,” even if the facility later were to reduce its potential emissions below the thresholds. In other words: once in, always in. For more background, see our prior articles here and here. Over the years, the policy met increasing criticism. While the policy had the well-intentioned goal of reducing HAP emissions, the basis for it in the Clean Air Act (CAA) was not apparent. In essence, the policy was an extremely expansive interpretation of “emits or has the potential to emit” in the CAA’s definition of “major source” of HAP in CAA § 112(a)(1), with little to no support from the statutory text. This interpretation was a far cry from a plain-English reading of simple present-tense verbs. It was also at odds with the EPA’s plain-English reading of similar language used to define a “major source” for other CAA programs.   Further imperiling its longevity, the OI/AI policy was based solely on an internal EPA memo, without Administrative Procedure Act notice-and-comment rulemaking. The result, undoubtedly not intended, was a classic “trap for the unwary” that added further complexity to the CAA and introduced unpleasant surprises in regulatory compliance inspections and transactional due diligence. The surge of regulated party discontent eventually led to a regulatory tug-of-war. The Bush II EPA made initial moves to undo the OI/AI policy, but these stalled. In 2018, however, the Trump I EPA withdrew the policy as not supported by the CAA, and then revised CAA regulations to expressly allow a facility to shed “major source of HAP” status by reducing its potential emissions. But OI/AI wasn’t dead yet. In September 2024, the Biden EPA adopted a final rule containing a more qualified version of “once in, always in” for facilities that emit certain higher-risk HAPs. That regulation has now been deep-six’ed by the June 2025 CRA resolution. Per the CRA, future efforts to revive a similar OI/AI regulation would require Congressional approval. A revival also would likely face hostile judicial terrain, particularly in a post-Chevron/Loper Bright world (as many are aware, the Loper Bright decision overruled Chevron’s holding that where a statute is ambiguous, courts should give significant deference to the implementing agency’s interpretation). Even under Chevron, it’s not clear that the OI/AI policy would have survived: it’s not at all certain that the CAA language “emits or has the potential to emit” is ambiguous, so EPA’s interpretation seems unlikely to have received judicial deference under Chevron. A revived version of OI/AI would also need to run a gauntlet of the Supreme Court’s now-dominant textualism and skepticism regarding expansive statutory interpretations by agencies that substantially broaden their power.  Never say never – but this time, OI/AI for major sources of HAP seems dead and buried.

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Connecticut’s Amended Environmental Justice Statute: Where Does It Stand?

Earlier this year, the Connecticut Department of Energy and Environmental Protection (DEEP) released a “Connecticut Environmental Justice Public Participation Guidance Document” (‘the Guidance”) concerning the 2023 amendments to Connecticut’s environmental justice (EJ) statute regarding permitting or other approvals for certain facilities. Although helpful in indicating DEEP’s interpretation of the amended statute (which is not a model of legislative clarity), the Guidance leaves open many questions and raises some new ones. Beyond the Guidance, however, DEEP recently announced a general schedule for developing regulations to implement the most significant part of the amendments: cumulative impact assessments. Background Since its adoption in 2009, Connecticut’s EJ statute (Conn. Gen. Stat. § 22a-20a) has applied to “affecting facilities” that are located in or proposed to be located in an “environmental justice community” (both terms defined by the statute) and that apply to DEEP for a new or expanded permit, or to the Connecticut Siting Council for a Certificate of Environmental Compatibility and Public Need. For such facilities, the statute has required applicants to develop and implement a “meaningful public participation plan” and potentially enter into a “community environmental benefit agreement” (CEBA) between the applicant and the host municipality to mitigate potential environmental impacts of the affecting facility. The 2023 amendments (Public Act 23-202) became effective on October 1, 2023. The amendments primarily do two things: (1) further enlarge applicant obligations concerning public participation, and most significantly, (2) make an assessment of the cumulative impact of “environmental and public health stressors” a new element in reviewing – and potentially denying – “affecting facility” applications. However, the amendments state that the cumulative impact assessment features shall not take effect until DEEP has adopted implementing regulations. The statute also requires DEEP to consult with stakeholders in this effort. Public Participation Guidance The recent Guidance addresses only the enhanced public participation features of the 2023 amendments and expressly does not address the cumulative impact assessments. It simply states that the development of the cumulative impact regulations will “take time.” The 2023 amendments also call for DEEP to adopt implementing regulations for the enhanced public participation features. However, the Guidance does not address such regulations or provide a timeline for their implementation. The Guidance does highlight new requirements regarding public participation and presents DEEP’s integrated understanding of such requirements.  Much of this understanding is straightforward. For example, “affecting facility” applicants must now not only prepare and receive DEEP approval for a “meaningful public participation plan” before filing the application in question but must also prepare and receive DEEP approval for a report regarding the results of such public outreach in order for the application to be deemed sufficient.  Beyond that, Goal 8 of DEEP’s recently announced “20BY26” plan includes several steps that DEEP plans to take regarding the enhanced public participation under the 2023 amendments, including: Making all EJ public participation plans and CEBAs publicly available, including those that DEEP has previously received. “Produc[ing] other tools ... [to] facilitate efficiency and engagement,” such as more guidance to clarify how DEEP permitting and other programs interact with EJ communities, and to highlight opportunities for public participation in DEEP programs.  While much of the Guidance is a relatively straightforward reflection of the 2023 amendments, at times the Guidance appears to provide DEEP’s interpretation of certain provisions in the amendments. Certain statements also may be susceptible to misinterpretation.  For example, in discussing applicability of the amended statute where an existing “affected facility” adds a new emissions unit or modifies an existing emissions unit, the Guidance references certain emissions rates (15 tons per year (TPY) for any individual air pollutant, and 10 TPY and 25 TPY for individual and aggregate hazardous air pollutants, respectively). DEEP has informally indicated that these figures are intended to mirror the applicability thresholds in the state’s air permitting regulations (RCSA 22a-174-3a(a)(1)).  This suggests that DEEP does not see the amended EJ statute as triggered by changes at an existing affected facility with relatively limited impact on air emissions.  However, while the Guidance appears to say that these emission rates refer to actual emissions or increased actual emissions, in the air permitting regulations these figures refer exclusively to “potential emissions.”  This is a very conservative metric incorporating various worst-case and often very unrealistic assumptions, with the result that it is much easier to exceed a 15 TPY “potential emissions” threshold.  It would seem unlikely that the Guidance does not likewise intend to refer to “potential emissions.” The Guidance may also be susceptible to misinterpretation regarding modifications to existing affected facilities.  The Guidance appropriately notes that the EJ statute exempts “minor modifications,” but elsewhere states without qualification that the statute applies to an alteration of a facility that “may result in the discharge of any new water, substance or material.” (Emphasis added).  These examples underline that (as it itself notes) the Guidance is not a substitute for the statute itself. Lastly, the Guidance does not address what DEEP envisions as a “reasonable fee” that the statute authorizes DEEP to charge “affecting facility” applicants to cover the cost of implementing the amended program. Ultimately, while the Guidance is useful to some degree, the full impact of Public Act 23-202 will not be known until DEEP develops implementing regulations for the enhanced public participation requirements and particularly for cumulative impact assessments.  Development of Cumulative Impact Regulations In early March, DEEP announced an overall scheme and schedule for adopting cumulative impact regulations as Goal 7 in DEEP’s “20BY26” plan: Hold “listening sessions” in EJ communities and with regulated parties (throughout 2024). Release a Request for Proposals to develop “the ‘cumulative impacts tool’ that ultimately will give businesses the information that they can rely on to design, from the start, successful permit applications” (early 2024). Propose “a strong but flexible set of rules” for public comment (late 2025).  Interested parties would be well-advised to watch for opportunities for stakeholder involvement in these efforts as DEEP continues to implement the 2023 amendments. Those who are particularly interested can also sign up to receive DEEP’s Equity and Environmental Justice Newsletter, which includes timely updates on upcoming opportunities and events from DEEP’s Office of Equity and Environmental Justice.

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EPA Audit Policy Update – Scrutiny of Voluntary Self-Disclosures Set to Increase

The EPA intends to increase its review of voluntary self-disclosures of violations submitted electronically under EPA’s Audit Policy. The EPA Office of Inspector General (OIG) recently issued a report detailing the results of an evaluation of EPA’s process for screening self-reported environmental violations made through its eDisclosure system. The OIG’s report concluded that EPA currently lacks the necessary internal controls to ensure that violations disclosed through the eDisclosure system are screened for significant concerns, such as criminal conduct and potential imminent hazards. The Audit Policy provides reduced penalties and mitigation incentives to a regulated company if the company conducts voluntary audits, promptly discloses violations discovered to the EPA, and takes timely corrective action. The company must comply with additional criteria to get the full benefit of the Audit Policy. The Audit Policy was updated in 2015 to require electronic reporting using the newly established eDisclosure portal. The eDisclosure portal receives and processes submissions under the Audit Policy into two categories: Category 1: EPCRA violations that meet all nine of the Audit Policy’s conditions. Category 2: Non-EPCRA violations and violations of EPCRA that do not meet the criteria for category 1. The findings of the OIG’s report were primarily focused on Category 2. EPA previously stated that it would screen Category 2 disclosures for significant concerns. The OIG’s report calls into question EPA’s current ability to conduct such screenings effectively. For starters, EPA lacks any national guidance directly personnel on how to screen submissions or any training specific to the eDisclosure system. As a result, the OIG found that screening efforts were inconsistent across EPA regions. According to the OIG’s report, some EPA regions believed that the Office of Enforcement and Compliance Assurance (OECA) was responsible for screening, some did not have access to the eDisclosure system, and others just did not have the resources for adequate screening. The OIG’s report recommended that OECA take several steps to more effectively screen Category 2 disclosures, including: Developing national guidance detailing a process for screening the eDisclosure submissions for significant concerns. Providing eDisclosure-specific training to EPA headquarters and EPA regions on eDisclosure. Developing performance measures for the eDisclosure system. Assessing eDisclosure’s functionality to identify and implement improvements. The OECA already released a statement that it agreed with all of the OIG’s recommendations and proposed September 30, 2022, for completion of recommendation 2 and September 30, 2023, for the other three recommendations. These changes will likely cause an increase in the amount and thoroughness of Category 2 disclosure screenings. As a result, going forward, companies seeking to utilize the Audit Policy and submit a Category 2 voluntary self-disclosure will be subject to closer scrutiny as to whether they qualify under the Audit Policy and more frequent follow-up inspections.

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MA SMART Program: New Guidelines for Agricultural Solar Tariff Generation Units

On May 15, 2022, the latest revision of the Massachusetts Department of Energy Resources (DOER)  Guideline Regarding the Definition of Agricultural Solar Tariff Generation Units (Guideline) for the Solar Massachusetts Renewable Target (SMART) Program took effect. The Guideline supplements the SMART Program regulations (225 CMR 20.000), provides guidance on how a Solar Tariff Generation Unit (STGU) may qualify as an Agricultural Solar Tariff Generation Unit (ASTGU) under the SMART Program, and establishes compliance requirements for ASTGUs. In general, ASTGUs are STGUs located either on land that is currently being used for agriculture or land that has been classified as Important Agricultural Farmland under 225 CMR 20.02 that allows the continued use of the land for agriculture. The SMART Program has a goal of reaching 80 megawatts (MW)AC capacity of ASTGU systems. ASTGUs receive adder value under the SMART Program. The revised Guideline significantly increases the maximum AC rated capacity of an ASTGU to 5 MW from 2 MW. Further, the Guideline sets a DC to AC capacity ratio of 2:1 and caps projects to a DC capacity of 7.5 MW.  The Guideline also establishes criteria for newly created farmland to be deemed eligible farmland on which an ASTGU could be located. Specifically, newly created farmland is eligible if it has established agricultural production before the date of the associated application to the SMART Program. However, newly created farmland that is the result of clearing or conversion of forest land is not eligible. The Guideline also establishes a requirement for ASTGUs to submit annual agricultural productivity reports. These reports are required to show that the ASTGU continues to engage in commercial agriculture to retain and use the land primarily and directly for agricultural purposes.  In the event of reduced crop yields, waivers may be granted for good cause. If an ASTGU fails to comply with the reporting requirement, then it may lose its eligibility for the ASTGU adder for one or more years.

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SCOTUS Temporarily Resurrects Trump-ERA Clean Water Act Rule

On April 6, 2022, by a 5-4 vote in the case of Louisiana, et. al. v. American Rivers, et. al., the Supreme Court temporarily resurrected a Trump-era rule that sought to stop the practice of many states and tribes from withholding or unduly conditioning their certifications that are required under the Clean Water Act before certain federally-permitted activities can proceed (the 2020 Rule). Delays and demands imposed on gas pipeline and other energy infrastructure projects through these tactics have drawn particular criticism. The 2020 Rule was challenged by environmental groups and several states and vacated by the District Court for the Northern District of California in October 2021 – notably without an accompanying review of the merits and a finding that the rule was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Supporters of the 2020 Rule sought an emergency stay with the Supreme Court pending their appeal to the Ninth Circuit. In agreeing to stay the District Court’s ruling and effectively reinstate the rule, the Supreme Court used its so-called “shadow docket,” a procedure typically reserved for emergency situations involving an immediate threat of harm if the Supreme Court does not act. The case centers around the EPA’s July 2020 Section 401 Certification Rule, which limits the ability of states and tribes to withhold approval, or “certification,” of applications for a federal license or permit under the Clean Water Act. The 2020 Rule prevents states from blocking projects for any reason other than threat of direct pollution into the state’s waterways and strictly imposes the one-year statutory deadline for a state to act on a request for certification. The 2020 Rule was among the Trump-era regulations that the Biden administration directed federal agencies to review in the early days of the new administration. In June 2021, the EPA announced a new rulemaking to propose revisions to the 2020 Rule. A final revised rule is expected in 2023. The Supreme Court’s decision does not prevent the EPA from continuing with its rulemaking but does ensure that until that process produces a final replacement regulation or further judicial review invalidates the 2020 Rule, it will remain in effect. Notably, the Supreme Court’s majority opinion imposing the stay is contained in a single short paragraph. In a lengthier discussion, Justices Kagan, Breyer, Sotomayor, and Chief Justice Roberts dissented, citing the lack of evidence that the applicants would suffer irreparable harm if the Supreme Court failed to act. Specifically, Justice Kagan pointed out that the states and energy interests appealing the decision did not cite any projects that would be threatened by the ruling in question or that had been blocked in the months since it was issued last October. Supreme Court watchers will need to consider whether the decision signals how the Court would rule on the merits of a challenge to the 2020 Rule, or whether a majority of the Court simply could not countenance a district court vacating a duly promulgated rule absent a full merits determination.

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Court Denies Class Certification in Illinois Oil Spill Case

On October 5, 2021, the United States District Court for the Southern District of Illinois denied the plaintiffs’ Motion for Class Certification in Morr v. Plains All American Pipeline, LLC 2021 WL 4478660 (S.D. Illinois, September 30, 2021). Plaintiffs’ claims arose out of a 2015 spill of approximately 100 barrels of crude oil at a pump station near Pocahontas, Illinois, caused by a failed tubing fitting. The oil traveled from the pump station property to a ditch and then to Silver Creek. The oil did not extend beyond the Silver Creek shoreline. Plaintiffs’ claims included a violation of the Oil Pollution Act, trespass, negligence, negligence per se, public nuisance, and continuing public nuisance. The proposed class included those who owned or leased properties in three communities from July 10, 2015 (the date of the spill) to the present. The three communities were more than 2.5 miles away from any area shown to have elevated levels of oil constituents. The Court denied plaintiffs’ motion on several grounds. First, the Court held that the plaintiffs failed to show that the class was ascertainable. The Court found the definition of the class to be overbroad, because it was based on living in the geographic area during a particular time and not on any “objectively ascertainable factors” such as a specific harm suffered. The Court noted that it could lead to people without standing to sue on their own to be included in the class. In fact, the majority of people who would be included in the proposed class could not have suffered an injury or harm, because they did not have property on the shoreline of the spill’s path. Second, the Court found that plaintiffs did not meet the numerosity requirement, because the evidence showed that there were unresolved claims for only 11 properties located along the spill pathway. The plaintiffs did not provide evidence that joinder of the unnamed plaintiffs would be impractical. With respect to the other Rule 23 factors, the Court found that the plaintiffs had met the commonality requirement because the root cause of the release, the defendants’ liability, and the nature and scope of the harm were all common issues to be addressed. The Court also found that the plaintiffs satisfied the typicality requirement because all potential class members’ claims were based on the same event; factual inconsistencies, such as the lack of shoreline frontage for most of the proposed class, were not enough to defeat typicality. The Court similarly found the adequacy requirement satisfied because the named plaintiffs had vigorously prosecuted the action and had sufficient interest in the case.

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Nantucket Group Challenges Vineyard Wind Project in Federal Court

On August 25, 2021, the Nantucket Residents Against Turbines (ACK RATs) filed a complaint challenging the recent Environmental Impact Statement (EIS) on the proposed Vineyard Wind project to build wind turbines off the southern coasts of Martha’s Vineyard and Nantucket. ACK RATs’ chief concern is the potential impact that the Vineyard Wind project will have on the critically-endangered North Atlantic Right Whale population, which has only approximately 400 individuals remaining. Vineyard Wind signed an agreement in 2019 with various conservation groups, not including ACK RATs, which contains measures to be taken during construction of the wind turbines to lessen the impact on the North Atlantic Right Whale including items such as limiting construction during the whales’ most active months, limiting vessel speeds in the area, and monitoring to ensure construction does not take place when whales are nearby. ACK RATs’ complaint alleges that various Federal agencies have violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The NEPA claims focus on the alleged failure by the federal Bureau of Ocean Energy Management to analyze alternatives to the Vineyard Winds project, its impacts on the environment, and possible mitigation measures. The ACK RATs also allege that the best available science was not used to prepare the EIS. The final claim alleges that the ESA was violated through failure to ensure that the project will not jeopardize the North Atlantic Right Whale and other endangered species. While ACK RATs’ complaint may face an uphill battle, a similar lawsuit against the Cape Wind project was able to disrupt that project in 2015. If the complaint is successful, the EIS would likely have to be redone before the Vineyard Wind project could proceed. However, the overall goal of the lawsuit may be to create a situation like the one that led to the Cape Wind project’s downfall or to at least further delay the Vineyard Wind project.

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Breaking the chain of “substantial continuity” — Tenth Circuit clarifies test for repeat OSHA violations

Below in an excerpt from an article authored by Robinson+Cole Environmental, Energy + Telecommunications Group lawyers Megan E. Baroni, Christopher Y. Eddy, Peter R. Knight, and Jonathan H. Schaefer that was published in ISHN (Industrial Safety & Hygiene News). The Occupational Safety and Health Act provides for increased penalties for employers who fail to rectify conditions following an Occupational Safety and Health Administration (OSHA) citation resulting in a similar incident. Such “repeat citations” are an essential element of the Occupational Safety and Health Act (OSH Act) enforcement scheme. As OSHA practitioners and environmental, health and safety professionals know, avoiding repeat citations is often a central issue when resolving an OSHA enforcement matter. OSHA policy instructs the agency to consider several factors when determining whether to characterize a citation as “repeat.” One of those factors involves a situation in which there has been a change in corporate structure or ownership between the initial and subsequent violations. In such instances, OSHA will evaluate whether there is “substantial continuity” between entities that warrants characterization of a citation as “repeat.” If, however, there is enough change in the corporate structure between the initial and subsequent violation, the citation will not be classified as “repeat.”  Read the full article.

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