U.S. Supreme Court Invalidates EPA’s Regulation of Mercury from Power Plants

By Gabrielle Sigel

On June 29, 2015, the U.S. Supreme Court reversed the U.S. Court of Appeals for the D.C. Circuit and invalidated U.S. EPA's 2012 regulation of mercury and other hazardous air pollutant ("HAP") emissions from coal and oil-fired power plants.  Michigan v. Environmental Protection Agency, No. 14-46.

On February 16, 2012, EPA issued national emission standards for mercury and other HAPs from fossil fuel-fired powered electric utility steam generating units (a/k/a "power plants"). 77 Fed. Reg. 9304. The regulations are also known as the Mercury and Air Toxics Standards ("MATS"). The MATS were issued pursuant to the Clean Air Act Amendments of 1990, which required EPA to study "the hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [HAPs] after imposition of [other] requirements [of the CAA]." 42 U.S.C. § 7412(n)(1)(A). Congress then required EPA to regulate HAPs from power plants if the EPA "finds such regulation is appropriate and necessary after considering the results of the study…." Id.

EPA studied the hazards from power plant emissions in 2000 and again in 2011, and determined that further regulation of power plants was "appropriate and necessary," in large part due to mercury emissions.  When EPA issued the proposed emission standards for power plants, it expressly stated that it did not consider the costs of regulating HAPs when it determined that such regulation was "necessary and appropriate." 77 Fed. Reg. 9326-27. Michigan, other states, and members of industry contested the final MATS,

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Jenner & Block Hosts Environmental Liability Buyout Webinar—June 30th at Noon

Picture By E. Lynn Grayson

On June 30th, Jenner & Block will host a special webinar, “Successful Environmental Liability and Risk Deals,” at 12:00 noon. Speakers include Lori Prokes, President, DeNovo, and David Heidlauf, Principal, Ramboll Environ, discussing business, legal, and technical aspects of environmental liability buyout transactions. They also will discuss two case studies for successful projects in WI and NJ, offering practical insights and recent experiences gained from these matters. Partners Lynn Grayson and Steve Armstrong will moderate this webinar.

You are invited to join us for this webinar. More information about the webinar and how you may RSVP is detailed here.

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Alexander J. Bandza To Moderate Teleconference on This Year’s Environmental, Energy Supreme Court Cases

Essig_Genevieve_COLOR By Genevieve J. Essig

Next month, on July 9, 2015, Associate Alexander J. Bandza will moderate a lunchtime ABA teleconference titled “Supreme Court Year in Review: The Environmental Cases.”  The event will feature a discussion of the following four Supreme Court cases from this past term that will affect environmental and energy lawyers: (1) Kansas v. Nebraska and Colorado; (2) Michigan v. EPA; (3) Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund; and (4) Oneok Inc. v. Learjet, Inc. 

A distinguished panel of speakers will discuss these cases:

  • Shannon S. Broome, Katten Muchin Rosenman LLP, Oakland, CA
  • Anne M. Carpenter, Katten Muchin Rosenman LLP, Washington, DC
  • Stephen R. McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, The University of Kansas School of Law and Solicitor General of Kansas, Lawrence, KS
  • A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Chicago, IL

A question-and-answer session to follow.  Registration and additional information is available here.


Red Tuna Crabs Overrun CA Beaches

PictureBy E. Lynn Grayson

 

Masses of small red tuna crabs have been washing up along San Diego, California area beaches from Ocean Beach to La Jolla. The species, Pleuroncodes planipes, is unique in that it can live its entire life cycle, from larva to adulthood, in the water column from surface to seafloor. Accordingly, it can be particularly vulnerable to being carried along by winds, tides, and currents.

Local media sources report that the red tuna crabs have been washing up on the San Diego area beaches for the past couple of weeks. Scientists have opined that the red tuna crabs may have been carried from their usual habitats by warm water currents and may actually hold key information about changing weather patterns. 

According to San Diego’s Scripps Institution of Oceanography, such strandings take place periodically and are not necessarily a threat to the species. Scripps also noted that the invasion of the red tuna crabs is definitely a warm-water indicator but that it was unclear if it’s directly related to El Nino or other oceanographic conditions.

Scripps has cautioned people not to eat the crabs because the creatures may have ingested toxin-producing phytoplankton.


EPA Proposes Endangerment and Cause or Contribute Finding for Aircraft Emissions

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Essig_Genevieve_COLOR By Genevieve J. Essig

In a rule signed on June 10, 2015, EPA proposed to find that greenhouse gas (GHG) emissions from engines used in certain types of aircraft contribute to air pollution that endangers health and welfare under section 231(a) of the Clean Air Act.  Further, anticipating that the International Civil Aviation Organization (ICAO) will adopt a final CO2 emissions standard for aircraft in February 2016, EPA also issued an Advance Notice of Proposed Rulemaking seeking input on the potential use of section 231 to adopt and implement the international aircraft engine CO2 emissions standard domestically.

In the rule, EPA states that it is relying primarily on the scientific and technical evidence in the record supporting the 2009 Endangerment and Cause or Contribute Findings for Greenhouse Gases under section 202(a) (the “2009 finding”), though it also includes subsequent work. It also follows the rationale it previously used with respect to the 2009 finding.  For example, EPA proposes to define the air pollution referred to in section 231 to be the mix of the following six well-mixed GHGs: CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride – the same definition used for the 2009 finding for the purposes of section 202(a).

The rule has been submitted for publication in the Federal Register; the internet version of the rule is available here. Comments will be due within 60 days after publication in the Federal Register. A public hearing will be held in Washington, D.C., on August 11, 2015.


EPA Releases Environmental Justice Screening and Mapping Tool

PictureBy E. Lynn Grayson

 

This week EPA released EJSCREEN, an environmental justice screening and mapping tool that uses high resolution maps combined with demographic and environmental data to identify places with potentially elevated environmental burdens and vulnerable populations. According to EPA, EJSCREEN’s simple to understand color-coded maps, bar charts, and reports enable users to better understand areas in need of increased environmental protection, health care access, housing, infrastructure improvement, community revitalization, and climate resilience.

Environmental justice is defined as the fair treatment and meaningful involvement of all people, regardless of race or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA’s goal is to provide all people with equal access to the environmental decision-making process to maintain a healthy environment in which to live, learn, and work.

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EH&S Partners E. Lynn Grayson and Steven M. Siros Publish Article on Nanotechnology

Essig_Genevieve_COLOR By Genevieve J. Essig

Partners E. Lynn Grayson and Steven M. Siros have published a new article titled “Nanotechnology: U.S. Regulatory Framework and Legal Risk Management” in the Westlaw Journal of Toxic Torts addressing some of the legal and technical challenges associated with nanotechnology.  While nanotechnology offers the opportunity for tremendous scientific advances in industrial, commercial, and consumer products, and has been referred to by some as the second coming of the Industrial Revolution, there has been growing concern and associated regulatory scrutiny with respect to how nanotechnology interacts with human health and the environment. The article provides an overview of how nanotechnology is defined, key regulatory initiatives, public and private partnerships assessing potential concerns, and risk management considerations.


D.C. Circuit Rejects Enviro and Industry Challenges to EPA’s Nonhazardous Secondary Materials Rule; Implications for Combustion Standards Remain

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By Alexander J. Bandza

Last week, the D.C. Circuit issued an unpublished per curiam decision in Solvay USA Inc. v. U.S. EPA, No. 11-1189 (D.C. Cir.), rejecting all arguments from both environmentalists and industry against EPA’s non-hazardous secondary material (NHSM) regulations under the Resource Conservation and Recovery Act (RCRA).  By way of background, the characterization of non-hazardous secondary materials pursuant to the NHSM has implications under the Clean Air Act (CAA) for the standards by which those materials can be incinerated in combustion units. 

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World Environment Day—June 5

PictureBy E. Lynn Grayson

 

World Environment Day (WED) is the United Nations’ principal vehicle for encouraging worldwide awareness and action for the environment. The WED theme this year is “Seven Billion Dreams. One Planet. Consume With Care.” Learn more about WED, other UN environmental initiatives, and celebrations around the world today at http://www.unep.org/wed.

  


EPA Denies Request to Ban Trisclosan

PictureBy E. Lynn Grayson

 

EPA has denied the January 14, 2010 petition submitted by the Food & Water Watch and Beyond Pesticides to ban the antimicrobial pesticide triclosan. The petition requested that EPA take the following regulatory actions:

  • Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA): (1) reopen the Reregistration Eligibility Decision (RED); (2) issue a notice of cancellation of the registrations of all products containing triclosan; and (3) concurrently issue an emergency order to immediately suspend the existing triclosan registrations.

  • Clean Water Act (CWA): (1) impose technology-based effluent limitations; (2) establish healthbased toxic pollutant water quality pretreatment requirements; and (3) impose biosolids regulation for triclosan.

  • Safe Drinking Water Act (SDWA): conduct a comprehensive assessment of the appropriateness of regulating triclosan under SDWA.

  • Endangered Species Act (ESA): (1) conduct a biological assessment; and (2) engage in consultation with the Secretary of the Interior and the Secretary of Commerce.

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