Corporate Environmental Lawyer

EPA Promotes "Soil Gas Safe" Approach to Potential Vapor Intrusion Concerns

By E. Lynn Grayson

EPA recently announced at the Brownfields 2013 conference that the Agency was in favor of preemptive vapor intrusion control systems when constructing new buildings, particularly at brownfield sites. A "soil gas safe" community is one where all buildings use devices that minimize or prevent vapor intrusion, according to EPA's Henry Schuver.

Many brownfield projects face chemical vapor intrusion (VI) concerns. Controls for the prevention of soil gas intrusion into indoor air are a relatively low-cost and quick addition to most new developments and bring value to the buildings involved, according to Roux Associates. EPA supports a "soil gas safe" approach that highlights the benefits of preventing all soil gas/vapor intrusion, particularly for cases where there is some potential for chemical VI to be present. 

The Agency's advocacy of preemptive mitigation is a positive step in promoting redevelopment of impacted sites and other brownfield properties. If completed as part of the routine construction process, mitigative measures, such as aerated permeable floors, are protective of human health and may minimize any perceived stigma associated with brownfield redevelopment projects.

High Court Refuses to Take Up Kivalina Climate Suit

By Keri L. Holleb Hotaling

On May 20, 2013, the United States Supreme Court denied the Alaska town of Kivalina’s petition for writ of certiorari in its public nuisance lawsuit against Exxon Mobil Corp. and other energy companies. Kivalina contended that the energy companies were injuring the small Eskimo village by causing global warming and a commensurate sea level rise, and, as a result, inhabitants were forced to leave and relocate further inland. Because the Supreme Court has opted not to hear the case, the Ninth Circuit’s ruling in favor of the energy companies will stand. The Ninth Circuit largely followed the reasoning of the Supreme Court in American Electric Power Co., Inc. v. Connecticut, ---U.S.---, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), in affirming the dismissal of the action by the district court and finding that the Clean Air Act (“CAA”) displaced Kivalina’s claim for $400 million in damages to fund a relocation project. (See “Ninth Circuit Affirms Dismissal of Federal Common Law Nuisance Claim for Global Warming.”) Kivalina urged the Supreme Court in its February petition that the case be controlled by Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), which held that the Clean Water Act, a statute like the CAA, did not displace a federal common law damages claim. The case is Native Village of Kivalina, et al. v. Exxon Mobil Corp., et al., Case Number 12-1072, U.S. Supreme Court.

New Report Concludes Cities Face Water Scarcity

By E. Lynn Grayson

The Columbia University Water Center, Veolia Water and Growing Blue have issued a new report titled America's Water Risk: Water Stress and Climate Variability. The report examines water risk by evaluating both existing demand as well as variations in renewable water supply. The report offers a means to estimate water risk and map it for the U.S. at a county level. The report highlights on a U.S. map that severe water stress will occur over much of the agricultural belt of the Midwest as well as the arid regions of California and Arizona.

The measures of water risk are estimated using over sixty years of precipitation and the current water use pattern for each county. Two risk metrics are developed to capture the influence of within year dry periods (Normalized Deficit Index – NDI) and of drought across years (Normalized Deficit Cumulated – NDC). The NDI is computed as one number for each year using historical daily rainfall data for the area and current daily water needs. It measures the maximum cumulated water shortage each year during the dry period that needs to be provided for from groundwater or from surface water storage or transfers from other areas. The NDC is computed as one number over the historical climate record. It represents the largest cumulative deficit between renewable supply and water use over the entire period. Consequently, it reflects the stress associated with multi-year and within-year drought impacts at a location.

An infographic from Growing Blue summarizes the report findings and key data provided. It emphasizes the increased risk of water scarcity in cities and counties as climate change increases drought potential.

The report, America's Water Risk: Water Stress and Climate Variability, is available at http://growingblue.com/wp-content/uploads/2013/05/GB_CWC_whitepaper_climate-water-stress_final.pdf.

More Wind Power Into PJM Region Could Save $7B Annually

By E. Lynn Grayson

A new report completed by Synapse Energy Economics on behalf of Americans for a Clean Energy Grid (ACEG) concludes adding more wind power to the PJM region can lower gas and coal consumption and reduce regional wholesale energy market prices saving nearly $7B per year by the mid-2020s. The new report, issued May 9, 2013, is titled The Net Benefits of Increased Wind Power in PJM.

Key findings are

1. Increased installation of wind power resources in the PJM region at roughly double the levels specified by existing RPS statutes lead to annual production cost reductions that range from $14.5 to $14.9 billion per year. This result, arising from the use of the ProSym production cost modeling tool, is based on a set of reasonable assumptions concerning future carbon costs in the electric sector, load, coal retirement levels, natural gas resource additions, improved transmission system infrastructure, and natural gas prices.
2. Consumers see significantly improved emission profiles in the wind scenarios. Carbon, SO2 and NOx emissions are all reduced.
3. The incremental costs to achieve these production cost gains ranges from $7.6 to $8.0 billion per year by 2026. This indicates that in general a planned expansion of wind power in the region will lead to net benefits for consumers.
4. The energy market price impact of a high wind case is seen to be relative high in non-summer months, and market prices in the summer period are high in the wind cases. PJM consumers could be exposed to these market prices, but to the extent that PJM consumers pay for the incremental wind power assumed for the wind scenarios, consumers are hedged against those market prices. We assume that all production cost efficiency gains seen in this analysis flow to consumers, and all required investments are borne by consumers. We also note that the Eastern interconnection-wide nature of the energy modeling leads to a relative increase in exports from PJM in the wind cases, compared to the base case (with PJM net imports).

The report suggests the following next steps to achieve these proposed cost savings through increased reliance on wind power:

1. Assume large scale retirements of coal plant resources throughout the Eastern Interconnection, not just in the PJM region. A rebalancing of capacity requirements in each major area would be necessary to ensure resource adequacy.
2. Conduct iterative runs of the production cost modeling by incrementally stepping up transmission system transfer capacities, and simultaneously reducing the overall planning reserve margin, to optimize the tradeoffs between building more transmission and building sufficient balancing capacity with new gas-fired resources.
3. Continue to test production cost effects on different combinations of increased demand-side resources, including energy efficiency and demand response. Given the relatively high summer period prices and transmission congestion during those periods, it appears that non-wind related constraints can lead to increasing production costs, since summer wind output is relatively low in the model.
4. Test the effects of multiple combinations of increasing wind, solar and energy efficiency resources.
5. Test varying potential cost profiles for offshore wind and solar resources.
6. Examining PJM boundary interactions, and assess the extent to which different import/export flow patterns are influenced by resource decisions within and outside of PJM.

PJM Interconnections is a regional transmission organization that coordinates movement of wholesale electric in all or parts of DC, IL, IN, KY, MD, MI, NJ, NC, OH, PA, TN, VA and WV.

Synapse Energy Economics, Inc. is a research and consulting firm that specializes in energy, economic and environmental topics.

Americans for a Clean Energy Grid supports policies that will modernize the U.S. electric power network. The new report is available on ACEG's website at http://cleanenergytransmission.org.

Compliance With FIFRA Regulations Provides Defense From Product Liability Lawsuit

By Steven M. Siros

An Indiana appellate court recently affirmed summary judgment on behalf of The Dow Chemical Company and Dow AgroSciences, LLC (collectively "Dow"), in a personal injury lawsuit premised on alleged design defect and failure to warn claims. See Gresser et al. v. The Dow Chemical Company, Inc., et al. (Ind. Ct. App. April 30, 2013). Plaintiffs purchased a home that had been treated with the pesticide, Dursban TC. Shortly after moving into the home, plaintiffs allegedly experienced adverse health impacts that they attributed to the pesticide. Plaintiffs therefore filed product liability claims against Dow and negligence claims against the pesticide applicator.

Dow filed for summary judgment, arguing (1) that the Dursban was not a defective product and (2) that plaintiffs' claims were preempted under federal law. The trial court granted summary judgment, finding that Dursban was not a defective product and that plaintiffs' claims were preempted. On appeal, the Indiana appellate court noted that Indiana's Product Liability Act ("IPLA") provides a rebuttable presumption that a product is not defective where, before the sale, the manufacturer complies with all applicable codes, standards, regulations or specifications established by an agency of the United States or Indiana. Because Dow had registered the pesticide in compliance with the applicable FIFRA regulations, the court found that Dow was entitled to a statutory presumption that its product was not defective. Plaintiffs presented no admissible evidence to rebut this presumption, and therefore, the court found that Dow was entitled to summary judgment under the IPLA.

With respect to Dow's alternative preemption argument, however, the court found that the trial court's grant of summary judgment on this ground was improper. The court cited to Dow Chemical Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001), noting that "the use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden an applicator's compliance with FIFRA."

To see a copy of this opinion, please click here.

Law360 Q&A With Lynn Grayson

By E. Lynn Grayson

Law360's Q&A series asked:

1. What is the most challenging case you have worked on and what made it challenging?
2. What aspects of your practice area are in need of reform and why?
3. What is an important issue or case relevant to your practice area and why?
4. Outside your firm, name an attorney in your field who has impressed you and explain why?
5. What is a mistake you made early in your career and what did you learn from it?

View the latest Law360 Q&A for environmental law insights on Superfund reform, water scarcity and environmental law practice tips.

 

Jenner & Block Program: “Professional Responsibility And Ethics For Environmental Lawyers” – May 8th

By E. Lynn Grayson

You are invited to join us on Wednesday, May 8, at 12:00 noon on the 45th Floor of the Chicago office for a program entitled "Professional Responsibility and Ethics for Environmental Lawyers." This professional responsibility and ethics program will focus not only on a general update of these issues but discuss legal scenarios and situations unique to environmental law practices.

Our two speakers will be: 1) Miranda K. Mandel, Loss Prevention Counsel, Attorneys' Liability Assurance Society, Inc. (ALAS); and, 2) Michael L. Shakman, Partner, Miller Shakman & Beem LLP.

Enjoy lunch, network with fellow environmental lawyers and learn what experts suggest we do to manage difficult situations that arise in our law practices.

Please forward any RSVPs to Jan Wall (jwall@jenner.com).

Water Scarcity: Climate Change Related Or Not?

By E. Lynn Grayson

There is growing uncertainty over the impacts of greenhouse gases discharged into the Earth's atmosphere resulting in more and more recognition that there may be a less catastrophic climate change forecast than originally predicted by climate change "experts." While much remains unsettled as to the whys and hows of climate change, one often associated concern, water scarcity, appears to be on the rise in the U.S. and around the world.

Another water rights legal battle was headlined in this weekend's Wall Street Journal (WSJ Saturday/Sunday, April 20-21, 2013) with an article addressing water scarcity and drought impacts in and around Klamath Falls, OR. Critical water conflicts have existed here in recent times since 2001 when the U.S. Bureau of Reclamation shut off irrigation to thousands of acres of farmland in Oregon and California to protect endangered fish during a drought. A 2008 landmark water pact, awaiting approval from Congress, appeared to resolve water disputes for most interested parties.

With new drought conditions now existing in this region, conflicts again are surfacing between ranchers and farmers as well as environmentalists. The 2008 pact purported to divvy up available water resources among all parties and also required PacifiCorp to remove four dams on the Klamath River by 2020. Several parties have withdrawn their support from the 2008 pact alleging it may actually reduce further water into the basin and establishes preferences for farmers' rights over ranchers' rights.

A court recently ruled that the Klamath Tribes of the Klamath, Modoc and Yahooskin people have "time immemorial" water rights in much of Klamath County. The ruling secures priority water rights for tribal members.

While Oregon, California and DOI are still pushing for approval of the 2008 water pact, the only interested party that appears satisfied with the pact is the Klamath Tribes. This is another in a growing list of water disputes ongoing throughout the U.S. where courts, and in some cases, Congress, are being asked to weigh in on how water rights will be managed for all concerned. Given that many of these conflicts arise between states, the U.S. Supreme Court has original jurisdication to hear some of these cases and several already are before the court as discussed in this blog earlier.

While it may not be clear that changing weather patterns and related water scarcity issues are a direct result of climate change, what we do know is that water conflicts appear to be on the rise with parties struggling to protect limited water resources.

Climate Change May Cause Greater Aviation Turbulence

By E. Lynn Grayson

A recent study published in the British journal, Nature Climate Change, suggests that turbulence on flights may be stronger and occur more often if carbon dioxide emissions double by 2050 further heating up the atmosphere. Turbulence is created by atmospheric pressure, jet streams, air around mountains, cold or warm weather fronts, or thunderstorms, among other conditions.

Severe turbulence is responsible for 58 passenger injuries a year, according to the Federal Aviation Administration. From 1980 to 2008, 298 passengers on U.S. airlines were injured and three died because of turbulence accidents, the agency said.

The study by scientists at the universities of Reading and East Anglia said the chances of running into turbulence over the Atlantic will increase 40 to 170 percent by the middle of the century, with turbulence strength increasing 10 to 40 percent. Turbulence already may be worse because of climate change. The study's findings show for the first time how climate change could affect aviation.

Despite these findings, there is good news for those that fly frequently. Recent data released by the IPCC confirms that global warming trends are not as bad as originally predicted in the IPCC's 2007 report and modeling incorporated there.  Therefore, the anticipated impacts of climate change may be greatly reduced or delayed if current global temperature trends continue. The lesser or delayed climate change consequences should mitigate against the aviation turbulence discussed in the above study.

Nature Climate Change is a monthly journal dedicated to publishing the most significant and cutting-edge research on the science of climate change, its impacts and wider implications for the economy, society and policy. Learn more about climate change and the study addressing aviation-related impacts discussed above at http://www.nature.com/.

Environmental Advocacy Groups Issue Water Preparedness Guidance

By Steven M. Siros

The Natural Resources Defense Council and American Rivers recently issued a guide titled "Getting Climate Smart: A Water Preparedness Guide for State Action" that is intended to provide states with resources to better plan for climate change water-related impacts. According to the NRDC, these climate change water-related impacts are anticipated to include increased water scarcity in some regions and flooding in other regions. The guide is intended to provide organizational strategies to help states "cope with a new normal or extreme weather and climate change already wreaking havoc in communities", according to the press release that accompanies this guide. Included in the guide is a tool-box that provides various strategies for addressing water related issues in seven sectors—agriculture; energy, transportation and urban infrastructure; fisheries and aquatic ecosystems; oceans and coastal resources; public health and safety; tourism and recreation; and water management. Please click here to see a copy of the guide.