Last week, the Board of the Green Climate Fund (the "Fund") met in Bali, Indonesia. The Fund was designated as an operating entity of the financial mechanism of the United Nations Framework Convention on Climate Change ("UNFCCC"). The Fund's purpose is to promote, within the context of sustainable development, the "paradigm shift towards low-emission and climate-resilient development pathways by providing support to developing countries to help limit or reduce their greenhouse gas emissions and to adapt to the unavoidable impacts of climate change." The United States and other industrialized countries at the 2009 climate summit in Copenhagen pledged $100 billion a year to the Fund—from public and private sources—as climate aid beginning in 2020.
During the three-day meetings in Bali, the Fund's Board members agreed, among other things, that the Fund will aim for a 50:50 balance between mitigation and adaptation efforts and designate 50% of adaptation funding for "particularly vulnerable countries," including least developed countries, small island developing states and African states. The Board of the Fund also determined that it will maximize engagement with the private sector and be a leader on "gender mainstreaming" and will define its gender action plan in October 2014. Click here for a link to the press release.
By: E. Lynn Grayson
In Thomson v. Heineman, a Nebraska court has struck down 2012 legislation that paved the way for state regulatory approval of the Keystone XL pipeline proposed route in Nebraska. The Nebraska District Court granted plaintiffs' request for an injunction barring the state from enforcing LB 1161 – regulation which created an expedited means of approving the proposed pipeline routes and vesting authority in the Department of Environmental Quality and the governor the power to grant final approval.
The court ruled the power to evaluate and approve oil pipeline routes falls within the constitutionally enumerated powers of the state Public Service Commission. Accordingly, the legislation violates the separation of powers clause of the state constitution.
Nebraska's attorney general has said that the state will appeal the ruling.
This regulation had been the subject of much discussion and debate since its passage pitting local and national forces for and against the pipeline. The legislation allowing quicker approval of the proposed pipeline route aided the overall strategic plans for pushing ahead with this controversial project. While this new court ruling is another delay for the Keystone pipeline, it is possible legislators may attempt to pass a new version of the law. For the pipeline project in general, the court's ruling is simply another challenge that will need to be overcome or managed moving forward.
The court's ruling in Thomson v. Heineman, Neb. Dist. Ct., No. CI-12-2060, (2/19/14) can be viewed here.
Center for Biological Diversity Serves 60-Day Notice on Coast Guard and EPA for Violations of the Endangered Species Act
By: Genevieve Essig
This week the Center for Biological Diversity (“CBD”) served a sixty-day notice of intent to sue the U.S. Coast Guard (“USCG”) and U.S. EPA (EPA) for “ongoing and imminent violations of the Endangered Species Act (“ESA”) . . . resulting from the development and implementation of the New York and New Jersey Area Contingency Plan for multi-agency prevention of and response to oil and hazardous waste spills in the New York Harbor and lower Hudson Plan [the “Plan”].”
The notice asserts that the oil/hazardous waste spill prevention and response actions outlined in the Plan (including the use of dispersants, surfactants, biological additives and bioremediation) may have adverse effects on ESA-listed species present in the planning area (including the piping plover, green sea turtle, and humpback whale), and the agencies have not conducted the required ESA Section 7 consultation with U.S. Fish and Wildlife Service and National Marine Fisheries Service. (16 U.S.C. § 1536(a)(2)). The notice observes that this failure to comply with Section 7 could also expose spill responders to civil and criminal penalties under ESA Section 9 (see 16 U.S.C. §§ 1538(a) and 1540(a),(b)) for takings of listed species. The notice further petitions the agencies to undertake revision of the Plan “in light of increased rail and barge transport of novel oil products and in light of the latest science on oil spill response.”
The notice describes a current “unprecedented boom” in the transport of oil through the Port of New York and the lower Hudson River by rail and barge, in part due to increases in production from fracking of the North Dakota Bakken shale, and the consequent increased risk of spills and need for spill response. The notice also points out that new oil products are being transported in increasing quantities, and that type of oil transported/spilled, in addition to quantity, affects the impacts of spills: for example, it states, “Lighter fuels, including light crude oils, like that from the Bakken Region of North Dakota, are generally more explosive, more toxic, and can penetrate shorelines more quickly and deeply . . . . Heavy oils, including for example the heavy oils and diluted bitumen produced from strip-mined Alberta tar sands, persist longer and can smother shorelines and the biota that live there.” Noting the U.S.’s already long history with oils spills and response actions, some of which “might do more harm than good,” the notice advocates for “careful and advanced planning” to assure that “protection of species can be maximized and inadvertent harm to species minimized.”
By: E. Lynn Grayson
The U.S. was the first nation to submit its recommended outline of the global accord to be adopted at the Paris climate conference. The 2015 agreement will have to bring together the current patchwork of binding and non-binding arrangements under the UN climate convention and will be effective in 2020.
Key factors addressed in the U.S. submission include:
1. Continuing U.S. opposition to a bifurcated approach requiring only developed nations to address climate change;
2. Recommending that the agreement be "built to last" and flexible enough to address changing scientific, economic and technological circumstances; and
3. Requiring a new agreement that is ambitious and ". . . reflects the seriousness and magnitude of what science demands."
It is anticipated that countries will make similar submissions so draft negotiating text is ready for the Lima climate conference in December 2014. Submissions outlining suggested elements for the post-2020 global accord are posted at https://unfccc.int/bodies/awg/items/7398.php.
In a February 5, 2014 memorandum to Nancy Stoner, U.S. EPA’s Acting Assistant Administrator for Water, the EPA’s Office of the Inspector General (“OIG”) stated that it is starting preliminary research on the EPA’s and the States’ ability to manage potential threats to water resources from hydraulic fracturing (“fracking”). The memorandum’s primary purpose is to kick off this project and to confirm the objective and strategy of the evaluation. The objective is to evaluate how the EPA and the States have used their existing authorities to regulate fracking impacts to water sources. The corresponding strategy is to determine and evaluate what regulatory authority is available to the EPA and the States, identify potential threats to water resources from fracking, and evaluate the EPA’s and States’ responses to them.
The proposed plan is to gather information from States with substantial fracking activity, and to contemporaneously contact environmental groups, industry groups, and gas and oil producers. The anticipated benefits of this project include improved preventative and responsive measures and improved coordination with the EPA, States, and industrial sector to ensure that water resources are adequately protected from the impacts of fracking.
As part of the “Environmental & Energy Cert. Petition Watch” project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert petitions submitted from August 2013 through the present (as of February 16, 2014), click here.
Lower Court: 8th Cir.
Subject: Clean Air Act
Question(s) Presented: Whether the Eighth Circuit applied the incorrect standard of review and erred in upholding EPA's assertion of authority to overrule the reasonable policy and technical decisions made by the State of North Dakota in its Visibility Program state implementation plan, contrary to the authority delegated to the State under the Clean Air Act, 42 U.S.C. §§ 7401 et seq., and in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act.
As part of the "Environmental & Energy Cert. Petition Watch" project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert petitions submitted from August 2013 through the present (as of February 9, 2014), click here.
Lower Court: 6th Cir.
Subject: Clean Water Act
Question(s) Presented: (1.) Whether a federal agency's failures to acknowledge its direct, and derivative, jurisdictional responsibilities are subject to judicial review and resolution. (2.) Whether a federal agency's fundamental failure to acknowledge its jurisdiction, is distinct from "enforcement" decisions the agency subsequently can make after acknowledging that jurisdiction.
Lower Court: 10th Cir.
Subject: Clean Air Act
Question(s) Presented: The Regional Haze Program of the Clean Air Act allocates to the States the task of fashioning and then implementing plans to improve the aesthetic quality of air over certain federal lands. The question presented is whether, despite that allocation of powers to the States, the United States Environmental Protection Agency may nonetheless conduct a de novo review of the State of Oklahoma's plan, in conflict with both the limited authority granted to the agency under the Act and decisions of this and other courts that have recognized the primary role given to the States in implementing the Clean Air Act.
On Tuesday, February 25, 2014, from 3-6 pm, Jenner & Block will host a seminar presented by the Chicago Bar Association Young Lawyers Section Environmental Law Committee. The seminar is titled "The Future of Environmental Law" and will address substantive changes on the horizon and how they will impact the future of environmental law. Jenner & Block Partner Lynn Grayson will be one of the featured speakers. Jenner & Block Attorney Allison Torrence, who is also the co-chair of the Young Lawyers Section Environmental Law Committee, will be moderating the seminar. Jenner & Block is also hosting a reception immediately following the seminar.
David A. Dana, Kirkland & Ellis; Professor of Law, Northwestern University School of Law
James P. Gignac, Environmental and Energy Counsel, Illinois Attorney General's Office
E. Lynn Grayson, Partner, Jenner & Block LLP
A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, IIT Chicago-Kent College of Law
Bertram C. Frey, Deputy Regional Counsel, U.S. EPA Region 5
Ashley L. Thompson, Schiff Hardin LLP
Allison A. Torrence, Jenner & Block LLP
For more information and to register for the seminar visit www.chicagobar.org/cle.
By: Steven M. Siros
U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA.
U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters.
Please click here to go to U.S. EPA's 2013 enforcement results website.
As a follow-up to yesterday’s post regarding EPA’s revised UIC permitting guidance for fracking operations using diesel, the official Notice of Availability has now been published in the Federal Register: 79 Fed. Reg. 8451 (Feb. 12, 2014).
By: Genevieve Essig
U.S. EPA has released a new interpretive memorandum and technical guidance addressing implementation of the Underground Injection Control (UIC) Program Class II requirements under the Safe Drinking Water Act (SDWA) relating to hydraulic fracturing (fracking) activities using diesel fuels. As amended by the Energy Policy Act of 2005, these provisions exempt fracking operations from the requirement to obtain a UIC permit, except where diesel fuel is used in the fracturing fluids or propping agents. Through these materials, the agency seeks to provide the EPA Regions and State Directors responsible for implementing the UIC Program Class II requirements clarification on what is required under the statute/regulations as well as (non-binding) technical recommendations to consider when issuing permits involving these activities. In its Response to Summary Comments with respect to the guidance, the agency states the following objectives:
“1) to explain the existing legal requirement under the 2005 statutory amendments to the SDWA and the EPA’s implementing regulations regarding applicability of UIC program permitting requirements, that any owner or operator who injects diesel fuels in [hydraulic fracturing] for oil or gas extraction must obtain a UIC Class II permit before injection;
2) to explain the agency’s interpretation of the statutory term ‘diesel fuels in hydraulic fracturing for oil or gas extraction’ as used in the SDWA; and
3) to describe existing UIC Class II program requirements for permitting underground injection of diesel fuels in [hydraulic fracturing] and to provide recommendations for EPA permit writers to consider in implementing these requirements to ensure protection of underground sources of drinking water (USDWs).”
The agency also states in its notice announcing the availability of the documents, which is to appear in the Federal Register this week, that it anticipates that owners and operators will find the technical recommendations useful during the EPA permitting process. Further, the agency provides, the guidelines “are consistent with best practices for hydraulic fracturing in general, including those found in state regulations as well as model guidelines and voluntary standards developed by industry and stakeholders,” so “States and Tribes responsible for issuing permits and/or updating regulations may find the recommendations useful in improving the protection of underground sources of drinking water and public health wherever hydraulic fracturing is practiced.”
In creating these materials, EPA considered the input it received in response to its request for public comment published in the Federal Register on May 10, 2012 (77 FR 27451).
EPA’s pre-publication version of the notice of availability can be reviewed here.
By: E. Lynn Grayson
EPA signed a final rule authorizing the use of electronic manifests for hazardous waste transportation as an alternative to paper manifests traditionally relied upon. The final rule will authorize the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (e-manifest). The modification will provide waste handlers with the option to complete, sign, transmit, and store manifest information electronically in the electronic system. States that currently receive and collect paper manifest copies will receive copies of manifest data electronically from the system.
On October 5, 2012, President Obama signed into law, the Hazardous Waste Electronic Manifest Establishment Act which authorizes the EPA to implement a national electronic manifest system. Commonly referred to as "e-manifest", this national system is envisioned to be implemented by the EPA in partnership with industry and states.
Milestones for EPA Actions:
- The Act requires that the e-Manifest Information Technology (IT) system must be up and running within three years after the Act is passed
- The EPA must issue regulation authorizing use of electronic manifests within one year after the Act is passed
- The EPA must establish a System Advisory Board within three years after the Act is passed in order to advise the EPA on system performance and user fees
- e-Manifest extends to all federally- and state-regulated wastes requiring manifests
- Allows that the use of electronic manifests is optional for users, and authorizes centralized collection of data from electronic and paper manifests
Fee and spending provisions:
- Authorizes the EPA to collect reasonable user fees for all system related costs including development and maintenance
The rule is intended to streamline the uniform manifest system making it more cost-effective and user friendly. A pre-publication version of the final rule is available on the EPA website via https://www.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
As part of the “Environmental & Energy Cert. Petition Watch” project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert petitions submitted from August 2013 through the present (as of February 2, 2014), click here.
Lower Court: 9th Cir.
Subject: Clean Water Act
Question(s) Presented: (1.) Does Calderon v. Thompson, 523 U.S. 538 (1998) bar a circuit court from reconsidering an issue after the time in which to seek rehearing in the circuit court and certiorari in this Court has passed, and where this Court relied on the finality of the circuit court decision in exercising its jurisdiction? (2.) Can a multi-jurisdiction municipal storm-water permit issued under the Clean Water Act be construed to impose liability on a co-permittee without evidence that the co-permittee discharged pollutants in violation of the permit, where federal regulations provide that each co-permittee is only responsible for its own discharges and where the monitoring specified in the permit measures pollutants discharged by multiple upstream sources without any means to measure the contribution of any individual co-permittee?