On March 24, 2014, several renewable fuel industry groups wrote a letter to U.S. Senate Finance Committee Chairman Ron Wyden and ranking member Orrin Hatch. These groups are asking the Senate Finance Committee to retroactively extend for multiple years a number of expired alternative fuel credits as the Committee plans to determine tax extender legislation.
Specifically, the groups request an extension of the Second Generation Biofuel Producer Tax Credit, the Special Depreciation Allowance for Second Generation Biofuel Plant Property, the Biodiesel and Renewable Diesel Fuels Credit, and the Alternative Fuel and Alternative Fuel Mixture Excise Tax Credit. These credits include a $1 per-gallon credit for biodiesel and renewable diesel, a $1.01 per-gallon credit for second-generation biofuels, and a 50-cent per-gallon credit for other kinds of alternative fuels.
These credits expired on December 31, 2013, which left biofuel developers in limbo as Congress debates whether to extend these provisions. As the letter states: "Advanced biofuel tax credits have allowed the biofuels industry to make great strides in reducing the cost of production and developing first-of-kind technologies to deploy the most innovative fuel in the world." The letter also stresses how non-American global competitors are offering tax incentives for advanced biofuels and are attracting new construction and job growth. Thus, there is an extra "homegrown technology" incentive in extending these tax credits for multiple years and in making the credits retroactive to January 1st of this year.
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 Mar. 25, 2014), click here.
Lower Court: 5th Cir.
Subject: Clean Water Act
Question(s) Presented: (1.) Whether the Court should resolve a conflict in the Circuits over whether an appellate court has jurisdiction under 18 U.S.C. § 3742(a) to review a district court's so-called "discretionary" decision not to depart downwards from the Guidelines. (2.) Whether the Court should resolve a conflict in the Circuits over whether, under the Guidelines governing environmental offenses, U.S.S.G §§2Q1.2 and 2Q1.3, environmental contamination is presumed, thus automatically resulting in a 6-level enhancement if an unlawful discharge occurred more than once. (3.) Whether the Court should clarify whether, under Federal Rules of Evidence, Rule 401, evidence is only relevant if it tends to prove an element of the criminal offense or supports an affirmative defense, or whether it is also relevant if it supports the criminal defendant's theory of the defense that the government's witnesses are not telling the truth and the evidence would tend to show that their testimony is improbable.
Lower Court: 9th Cir.
Subject: Commerce Clause
Question(s) Presented: (1.) California's Low Carbon Fuel Standard, expressly and on its face, treats chemically identical fuels differently based on where they are produced and how far they travel before they are used in California. Did the Ninth Circuit err in concluding that the Low Carbon Fuel Standard does not facially discriminate against interstate commerce? (2.) California's Low Carbon Fuel Standard regulates greenhouse gas emissions occurring in other States by rewarding and punishing industrial and agricultural activity taking place outside California. Did the Ninth Circuit err in concluding that the Low Carbon Fuel Standard is not an extraterritorial regulation?
Lower Court: D.C. Cir.
Subject: Clean Water Act
Question(s) Presented: [W]hether, under section 404(c) of the CWA, EPA has the uncabined authority to withdraw disposal site specifications years after the Corps has issued a permit, thereby effectively nullifying a permit properly issued by the Corps.
By: E. Lynn Grayson
World Water Day 2014 will be celebrated around the world today and is about what you will do this year and beyond to promote sustainable practices in the realm of water and energy. There are five key messages for this year's "Water and Energy" focus:
- Water requires energy and energy requires water.
- Supplies are limited and demand is increasing.
- Saving energy is saving water. Saving water is saving energy.
- The "bottom billion" urgently need access to both water, sanitation services and electricity.
- Improving water and energy efficiency is imperative as are coordinated, coherent and concerted policies.
Today is also the launch of the 5th edition of the UN World Water Development Report (WWDR) and is the first in a new series of theme-oriented reports to be released on an annual basis. These reports are primarily targeted at national level decision makers and water resources managers but all should gain insight from this research. The report is available at https://www.unwater.org/worldwaterday/world-water-development-report/en/.
To learn more about World Water Day, the importance of water resource management and special events taking place around the world, visit www.unwater.org/worldwaterday.
By: E. Lynn Grayson
Earlier this year, the World Economic Forum met and identified the ten global risks of highest concern in 2014. These in order of priority are as follows:
- Fiscal crises in key economies
- Structurally high unemployment/underemployment
- WATER CRISES
- Severe income disparity
- Failure of climate change mitigation and adaptation
- Greater incidence of extreme weather events
- Global governance failure
- Food Crises
- Failure of major financial mechanism/institution
- Profound political/social instability
It is important to note that world leaders identified not only economic concerns but environmental woes as some of the most critical global risks to be addressed. Water crises ranked #3 followed by a related concern over climate change ranked #5, extreme weather #6 and food crises #8. Environmental risks scored high on the list resulting from the survey of 700 representatives of the World Economic Forum's member and partner companies.
This week's international celebration of World Water Day will focus more attention on the importance of preserving and protecting freshwater supplies around the world. International "World Water Day" is formally recognized on March 22nd.
By: E. Lynn Grayson
World Water Day is held annually on March 22 as a means of focusing attention on the importance of freshwater and advocating for the sustainable management of freshwater resources.
An international day to celebrate freshwater was recommended at the 1992 United Nations Conference on Environment and Development (UNCED). The United Nations General Assembly responded by designating 22 March 1993 as the first World Water Day.
Each year, World Water Day highlights a specific aspect of freshwater. In 2014, World Water Day is on "Water and Energy." The following is a list of World Water Day themes since 1994.
- 2013 Water Cooperation
- 2012 Water and Food Security
- 2011 Water for Cities
- 2010 Water Quality
- 2009 Transboundary Waters
- 2008 International Year of Sanitation
- 2007 Water Scarcity
- 2006 Water and Culture
- 2005 Water for Life 2005-2015
- 2004 Water and Disaster
- 2003 Water for the Future
- 2002 Water for Development
- 2001 Water for Health – Taking Charge
- 2000 Water for the 21st Century
- 1999 Everyone lives Downstream
- 1998 Groundwater – The Invisible Resource
- 1997 The World's Water – Is There Enough?
- 1996 Water for Thirsty Cities
- 1995 Women and Water
- 1994 Caring for Our Water Resources is Everyone's Business
In 2014, the UN System – working closely with its Member States and other relevant stakeholders – is collectively bringing its attention to the water-energy nexus, particularly addressing inequities, especially for the 'bottom billion' who live in slums and impoverished rural areas and survive without access to safe drinking water, adequate sanitation, sufficient food and energy services. It also aims to facilitate the development of policies and crosscutting frameworks that bridge ministries and sectors, leading the way to energy security and sustainable water use in a green economy. Particular attention will be paid to identifying best practices that can make a water- and energy-efficient 'Green Industry' a reality.
Objectives of World Water Day in 2014:
- Raise awareness of the inter-linkages between water and energy
- Contribute to a policy dialogue that focuses on the broad range of issues related to the nexus of water and energy
- Demonstrate, through case studies, to decision makers in the energy sector and the water domain that integrated approaches and solutions to water-energy issues can achieve greater economic and social impacts
- Identify policy formulation and capacity development issues in which the UN system, in particular UN-Water and UN-Energy can offer significant contributions
- Identify key stakeholders in the water-energy nexus and actively engaging them in further developing the water-energy linkages
- Contribute as relevant to the post-2015 discussions in relation to the water-energy nexus.
For more information about this year's World Water Day, visit UN Water at https://www.unwater.org/worldwaterday/about-world-water-day/world-water-day-2014-water-and-energy/en/
PHMSA Publishes Final Rule Adopting Certain Hazardous Materials Special Permits and Approvals Into Regulations
By: Genevieve Essig
Today the Pipeline and Hazardous Materials Safety Administration (PHMSA) amended the Hazard Materials Regulations (HMR) to adopt provisions from certain “widely used or longstanding” special permits and competent authority approvals with “established safety records.” 79 Fed. Reg. 15033 (March 18, 2014). The agency states in the rule preamble that the revisions “are intended to provide wider access to the regulatory flexibility offered in special permits and approvals and eliminate the need for numerous renewal requests, reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety.”
Special permits allow a hazardous material to be packaged or shipped in a way differing from the requirements of the HMR provided that an equivalent level of safety is maintained. A competent authority approval is a written consent required under an international standard, or is authorized in a specific section of the HMR and is issued by the Associate Administrator for Hazardous Materials Safety. See 49 CFR Part 107. In issuing this rule, PHMSA recognizes that the identified special permits and competent authority approvals have a long history of safety and makes them a part of the HMR to reduce economic burdens on affected industry and the government. The rule follows three previous rulemakings codifying other special permits into the HMR. The topics covered by the special permits in the latest rule are the following, as categorized by PHMSA:
- Limited quantities of liquids and solids containing ethyl alcohol.
- Transportation of solid coal tar pitch compounds.
- Transportation of certain ammonia solutions in UN1H1 and UN6HA1 drums.
- Transportation of spent bleaching earth.
- Requalification of non-DOT specification cylinders in life-saving appliances.
- Use of regulated medical waste containers displaying alternative markings.
- Adoption of special permits to harmonize with FAA Modernization and Reform Act of 2012
The relevant approvals relate to the manufacture, marking, and sale of certain UN4G combination packagings (CA2005120010, CA2006060006, CA2006010012) and certain UN5M1 and UN5M2 multi-wall paper bags (CA20060660005).
PHMSA notes that “not every transportation situation can be anticipated and built into the regulations” and describes special permits as a vehicle for innovation, stating that they “provide a mechanism for testing new technologies, promoting increased transportation efficiency and productivity, and ensuring global competitiveness.” PHMSA suggests that implementation of new technologies and operational techniques “may enhance safety” and that special permits “reduce the volume and complexity of the HMR by addressing unique or infrequent transportation situations that would be difficult to accommodate in regulations intended for use by a wide range of shippers and carriers.”
The regulation will be effective April 17, 2014.
On Wednesday, March 19, 2014, Jenner & Block attorneys, Steve Siros and Allison Torrence, will be speaking at a Chicago Bar Association CLE Seminar. The Seminar is titled "Hot Topics in Environmental Law". Steve Siros will be presenting on TSCA: Green Chemistry and Other Reform Issues and Allison Torrence, who is the Legislative Liaison for the CBA Environmental Law Committee, will be presenting on Legislative Updates in Illinois.
The seminar is on March 19, 2014 from 3 – 6 pm at the Chicago Bar Association, 321 S. Plymouth Court.
Speakers and Topics:
CLEAN AIR ACT: DEVELOPMENTS IN THE STARTUP, SHUTDOWN AND MAINTENANCE (SSM) DEFENSE
Karl Karg, Latham & Watkins
ENDANGERED SPECIES ACT: LITIGATION HOOKS AND OPPORTUNITIES
Rebecca Riley, National Resources Defense Council
TSCA: GREEN CHEMISTRY AND OTHER REFORM ISSUES
Steven M. Siros, Jenner & Block LLP
CERCLA: 2013 UPDATES TO ASTM'S PHASE I ESA STANDARD
Erin Veder, ENVIRON
Robert Peachy, U.S. Environmental Protection Agency
Allison Torrence, Jenner & Block LLP
Margrethe K. Kearney, Latham & Watkins LLP; Chair, CBA Environmental Law Committee
For more information and to register for the seminar visit www.chicagobar.org/cle.
By: E. Lynn Grayson
The Ocean Exchange has announced the launch of its fourth annual global competition for the 2014 Gulfstream Navigator Award of $100,000 and the 2014 Wallenius Wilhelmsen Logistics Orcelle Award of $100,000. The theme for the 2014 competition is ACCELERATE SUSTAINABILITY, innovations generating economic growth and increased productivity while reducing the use of nature's resources and waste. The Ocean Exchange is seeking innovative and globally scalable solutions, i.e. Solutions Inspiring Action, that are positive for our economies, health, and the environment, while respecting cultures around the world.
To enter the 2014 competition, register your solution in the Ocean Exchange Gallery by 11:59 p.m. (GMT) on May 5, 2014. Register by completing a pre-screening application through https://www.oceanexchange.org. Beginning May 6, Ocean Exchange's international solutions review panel of multi-disciplinary experts will review all applications registered in the Gallery to select:
- Ten Solutions Inspiring Action to compete for monetary awards – these organizations, which are in need of financial support and global recognition, will be invited to present at the Ocean Exchange, October 5-7, 2014 in Savannah Georgia USA. At the Ocean Exchange invited delegates will select the winners of the $100,000 Gulfstream Navigator Award and the $100,000 Wallenius Wilhelmsen Logistics Orcelle Award.
- Three Solutions Inspiring Action representing Excellence in Corporate Innovation – these Excellence Award winners will also be invited to present their Solutions Inspiring Action at the Ocean Exchange event in October, 2014.
In 2013 the Ocean Exchange introduced the Solution Inspiring Action Gallery that will become the go - to resource for organizations to identify and connect with Solutions that can advance their business and corporate social responsibility goals. In its first three years, the Ocean Exchange's competition generated applications from North America, South America, Europe, Asia, Australia, Africa and the Middle East, with four of ten finalists in 2013 from outside the United States.
Founded in 2010, the Ocean Exchange™ is an international platform for accelerating the adoption across industries of Solutions that positively impact environments, economies and health, while respecting cultures around the world. The Board of Governors includes 16 thought - leaders from around the world who represent diverse backgrounds and expertise and share a commitment to innovation. Working together, we AGGREGATE solutions and EMPOWER organizations to achieve their goals.
On Monday, March 24, 2014 from 12:00 p.m. - 1:30 p.m. (Eastern Standard Time), several ABA Sections and Divisions will present a teleconference on "Law and Regulation in the Wake of Natural Disasters: Environmental, Land Use, Reconstruction, and Takings Issues in a Rapidly Changing Physical World." This teleconference will feature private sector and academic representatives discussing recent developments on the litany of legal and regulatory challenges facing courts, regulators, scientists, and practitioners after natural disasters. E. Lynn Grayson, Co-Chair of Jenner & Block LLP's Environmental and Workplace Health and Safety Law Practice and former Chief Legal Counsel for the Illinois Emergency Services and Disaster Agency and the State Emergency Response Commission, will moderate a conversation with these distinguished panelists:
- Erin Deady, Of Counsel, Corbett, White and Davis, P.A.;
- Prof. Mike Haber, Visiting Assistant Clinical Professor of Law at Hofstra University School of Law and Attorney-in-Change of its Disaster Recovery Clinic; and
- Prof. Scott Hagen, Professor of Civil and Environmental Engineering at the University of Central Florida and Director of its Coastal Hydroscience Analysis, Modeling & Predictive Simulations (CHAMPS) Lab.
Advance registration is required. Register now by completing this form. Please register no later than Friday, March 21, 2014. Phone lines are limited, so register early.
Alexander Bandza, Associate at Jenner & Block LLP, will moderate the following question-and-answer session and provide closing remarks.
By: Steven M. Siros
On March 5, 2014, several environmental groups filed a lawsuit against U.S. EPA seeking to compel the public disclosure of "inert" ingredients in pesticide products. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), pesticide manufacturers are obligated to list "active" ingredients. However, "inert" ingredients are not currently subject to the same disclosure requirements as "active" pesticide ingredients. According to the lawsuit, U.S. EPA has authority under FIFRA to also require the disclosure of "inert" ingredients which can comprise a significant percentage of a pesticide product's formulation.
As set forth in the complaint, in August 2006, a coalition of public health and environmental organizations submitted a petition requesting that U.S. EPA require the disclosure of certain "inert" chemicals used in pesticide products. In December 2009, U.S. EPA initiated an advanced notice of proposed rulemaking that would have required this disclosure. However, U.S. EPA has taken no further action with respect to this advance notice. The lawsuit seeks to compel U.S. EPA to either complete its proposed rulemaking or otherwise take action with respect to the pending petition.
Please click here to see a copy of the complaint.
By: E. Lynn Grayson
The Illinois Sustainable Technology Center (ISTC), a division of the Prairie Research Institute at the University of Illinois at Urbana-Champaign, is announcing a call for proposals. ISTC conducts research and technical assistance in the areas of pollution prevention; energy conservation and new energy technologies; biofuels; waste reduction; water quality improvements; and water use and reuse.
Projects can be focused on methods for reducing water use; treatment of wastewater or other process water for reuse; novel recycling methods; or other significant water-saving measures. Technologies or practices that are easily transferable to other industries or businesses are preferred. Projects that target significant water savings through energy savings will also be considered.
Projects should be able to achieve real measurable water savings/conservation within the time frame of the project or be able to show a very high potential for significant water savings/conservation in the near future. Funded projects will be used as case studies by ISTC to provide information to other entities about sustainable water-saving/conservation practices and technologies.
There will be approximately $225,000 available for new projects. ISTC anticipates funding 3 – 6 projects (maximum grant amount of $75,000). Project period should be one year or less, with earliest starting date of July 1, 2014, and latest completion date of June 30, 2015.
Application will be a two-step process; a 3-page pre-proposal followed by a full proposal. Pre-proposals are due to ISTC by March 11, 2014.
Successful pre-proposal applicants will be notified by March 24, 2014, and asked to submit a full proposal by April 25, 2014. Notification of funding will be made by June 3, 2014.