We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
California AG Appeals Proposition 65 Compelled Speech Decision in National Association of Wheat Growers, et al. v. Becerra
By: Fernando Diaz

California Attorney General Xavier Becerra filed a notice of appeal challenging a decision issued by the U.S. District Court for the Eastern District of California in National Association of Wheat Growers, et al. v. Becerra that barred Proposition 65 (Prop 65) warnings for glyphosate-based pesticides on the basis that the warnings violate the First Amendment. According to a press release issued by the Office of the Attorney General (OAG), “Attorney General Becerra intends to argue that the First Amendment does not bar the State from requiring companies to inform Californians before exposing them to a chemical which an authoritative body, such as [the International Agency for Research on Cancer (IARC)], has classified as both an animal carcinogen and a probable human carcinogen.” Press Release, Office of the Attorney General, Attorney General Becerra Defends Prop 65 Warnings for Cancer-Causing Pesticide (Sept. 9, 2020).

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The US Army Corps of Engineers Proposes Modifications to Nationwide Permits, Including Those Used By Utilities
By: Peter Madsen

On Sept. 15, 2020, the U.S. Army Corps of Engineers (Corps) issued a notice of Proposed Rulemaking (Proposed Rules) to reissue and modify Nationwide Permits (NWPs) that authorize certain activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The Corps stated that it is “proposing these modifications to simplify and clarify the NWPs, reduce burdens on the regulated public, and continue to comply with the statutory requirement that these NWPs authorize only activities with no more than minimal individual and cumulative adverse environmental impacts.” The proposals are, in part, in response to Executive Order 13783 of March 28, 2017, which directed federal agencies heads to review existing regulations that may unnecessarily burden production or use of domestic energy resources.

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Fifth Circuit Holds Insurer Had No Duty to Defend Criminal Claims Under Environmental Policy
By: Jeff Stemerick

In Waste Management, Inc. v. AIG Specialty Insurance Co, ___ F.3d ___, No. 19-20674, 2020 WL 5268504 (Sept. 4. 2020), the Fifth Circuit affirmed summary judgment for AIG Specialty Insurance Company, holding it had no duty to defend Waste Management, Inc. against criminal claims under a Pollution Legal Liability insurance policy.

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