FTC issues warning to manufacturers of “biodegradable” dog waste bags.

The FTC recently sent letters to 20 dog waste bags manufacturers warning that their environmental claims that their products are “biodegradable” may be deceptive. (http://www.ftc.gov/news-events/press-releases/2015/02/ftc-staff-warns-marketers-sellers-dog-waste-bags-their). This is part of the FTC’s enforcement of the revised “Green Guides” of 2012 with changes to what is considered acceptable environmental claims for consumer products. Under the revised Green Guides “[i]t is deceptive to make an unqualified biodegradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal.” The FTC is concerned and issued the letters requesting clarification of the claim because most waste bags end up in landfills where plastics biodegrade in much longer than one year.

The FTC also raised concerns about the manufacturers’ compostability claims. The revised Green Guides specify the degree that a product is compostable if the item cannot be composted safely in a home compost device and if the necessary municipal composting facility is unavailable to a “substantial majority of consumers or communities where the item is sold.” Dog waste is generally not safe to compost at home, and very few facilities accept this waste, according to the FTC.

These letters are merely warnings. The recipients – to continue to make their claims – will need to show professional, reproducible scientific evidence that their products will completely biodegrade within a reasonably short time period after customary disposal and, for compostable claims, show competent scientific evidence that the entire item will become usable compost in a safe, timely manner after being placed in an appropriate compost facility or home compost pile. Otherwise, they need to alter their claims.

This should be a warning to all marketers and product manufacturers to be careful about environmental claims and that the FTC is enforcing the Green Guides.

Federal court finds no violation of ESA or Eagle Protection Act for wind farm.

A federal court in Maine rejected a challenge to a permit issued by the U.S. Army Corps of Engineers for the Oakfield wind power project. The court determined that the Army Corps did not violate the Endangered Species Act (ESA) or the Bald and Golden Eagle Protection Act (Eagle Protection Act) in issuing the permit. A number of recent court decisions has allowed agencies to permit projects and not be limited by these rules.

A lawsuit was filed against the Army Corps over the issuance of a Clean Water Act Section 404 permit that allowed the Oakfield wind project developer to fill in certain wetlands during project construction. In short, the permit was challenged the permit on the grounds of ESA and EPA, arguing that the Army Corps improperly relied upon incomplete data to analyze the impact of the project’s construction on Atlantic salmon. The court denied the claims, stating that ESA requires use of best data available, which can include incomplete data. EPA was cited as the Army Corps issued the permit without first requiring the project developer to secure an incidental take permit given the project’s potential for taking a bald eagle. The court rejected this argument. The Eagle Protection Act imposes penalties on those who illegally take protected species. A take is defined as a purposeful action against a protected species; but the court ruled that issuing such a permit was not purposeful harm.

A number of recent court decisions state that federal agencies are not obligated to obtain permits under EPA or the Migratory Bird Treaty Act when issuing permits for private projects. This trend is a positive development for developers of both renewable and conventional energy projects, allowing them to proceed more smoothly and reducing the litigation risk faced by developers.

CCES can help your firm or entity determine the viability of future projects and products with technical analyses of potentially applicable rules and regulations. Any firm or entity should get competent legal counsel. However, CCES can assist in performing technical assessments of rules and how to most cost-effectively comply. Contact us today at karell@ccesworld.com or at 914-584-6720.