Photo of Theodore L. Garrett

Theodore Garrett, a former Chair of the ABA Section of Environment, Energy and Resources, represents companies and trade associations in federal and state litigation and administrative proceedings, compliance matters and transactions involving federal and state environmental and natural resource matters. He has served as counsel in more than 50 reported cases concerning air quality, water quality, and hazardous waste matters, and he has also served a mediator and arbitrator.

According to Who’s Who Legal, “Ted Garrett garnered more votes than any other lawyer for 10 consecutive years…. He exemplifies the dedication and commitment of lawyers to not just their clients but also to shaping laws and regulations. Chambers USA's America's Leading Business Lawyers states that Theodore Garrett enjoys “a longstanding reputation for being ‘a very solid and very smart environmental lawyer’” and “comes particularly recommended for his strengths in disputes.”

The Supreme Court recently heard oral argument in Cedar Point Nursery v. Hassid (No. 20-107), a case that has generated considerable amicus participation and press coverage.  In that case, union organizers, relying on a California law, entered the property of a fruit nursery with bullhorns in hand in order to urge unionization directly to the employees.  Cedar Point argued that the California access regulation is a taking of property under the Fifth Amendment because it interferes with its fundamental right to exclude persons it does not wish to have on its property.  The Ninth Circuit rejected the takings claim, and the Supreme Court granted certiorari.  During oral argument on March 22, the Court appeared to be seeking a way to draw a line between per se takings and the government’s right to access property for traditional police and enforcement purposes.  How the Court’s opinion deals with this issue remains to be seen.
Continue Reading A Property Right To Exclude Others: Cedar Point Nursery’s Implications For Regulatory Enforcement

On July 17, 2020, the Council on Environmental Quality (CEQ) published a Final Rule updating regulations to the National Environmental Policy Act (NEPA). The Final Rule closely tracks the Proposed Rule released in January 2020. The final rule makes a number of notable changes to existing NEPA regulations.
Continue Reading CEQ Finalizes NEPA Rule Updating Regulations

Landowners seeking restoration damages in state courts, at sites where there is a cleanup remedy previously selected by EPA, may pursue such claims only if they first obtain EPA approval for the proposed restoration work.  Atlantic Richfield Co. v. Christian (No. 17–1498, April 20, 2020).
Continue Reading EPA Is The CERCLA Gatekeeper: Plaintiffs Need EPA Approval To Seek State Court Damages For Restoration

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.
Continue Reading SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

The Trump administration has issued an Executive Order and a series of memoranda relating to energy and the environment.

The goal of the Executive Order–Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects–is to expedite environmental reviews and approvals.  It provides that action by the Chair of the Counsel of Environmental Quality

In a move designed to provide greater certainty to those purchasing, selling, or evaluating industrial or commercial properties, the Environmental Protection Agency (EPA) recently proposed to remove any lingering effect of ASTM International’s E1527-05, a nine-year-old industry standard practice for evaluating potentially contaminated sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

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In accord with the President’s June 2013 Climate Action Plan, EPA plans to use existing Clean Air Act authority to develop greenhouse gas emissions (GHG) standards for new and existing sources.  The scope of EPA’s authority under existing law is important given the lack of Congressional action to specifically address GHGs.

The Environmental Council of