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February 2016

Frisbees, Flatulence and the Impact of Scalia’s Vacancy on Important Environmental Cases

Torrence_Allison_COLORBy Allison A. TorrenceSCOTUS

 

Supreme Court Justice Antonin Scalia undoubtedly had a significant impact on environmental law during his 30 years on the High Court. Known for his strong opinions and quotable prose, he often showcased both in opinions on environmental issues. One of my personal favorite quotes from Justice Scalia came in his strident dissent in the landmark GHG ruling of Massachusetts v. EPA. In his critique of the majority opinion, he argued that the majority’s reasoning would lead to the conclusion “that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Massachusetts v. EPA, 549 U.S. 497, 558 (2007).

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New 2017-2019 EPA National Enforcement Initiatives

Grayson_Lynn_COLOR By E. Lynn Grayson

 

EPA recently announced seven National Enforcement Initiatives (NEIs) for FY 2017-2019. Every three years, EPA identifies NEIs to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference. According to EPA, the NEIs are selected with input from the public and other stakeholders across EPA’s state, local and tribal partners.

Starting October 1, 2016 and continuing for three fiscal years, the following are the NEIs:

  • Reducing air pollution from the largest sources
  • Cutting hazardous air pollutants*
  • Ensuring energy extraction activities comply with environmental laws
  • Reducing risks of accidental releases at industrial and chemical facilities*
  • Keeping raw sewage and contaminated stormwater out of our nation’s waters
  • Preventing animal waste from contaminating surface and groundwater
  • Keeping industrial pollutants out of the nation’s waters*

*New for FY2017-2019 as of February 2016.

 It is interesting to note that the newly identified NEIs appear to correspond to challenges that EPA recently confronted, including the Gold King Mine wastewater spill, the spill prevention litigation and settlement in New York, and the Flint, MI lead contaminated water matter, where recent government reports concluded EPA failed in its regulatory obligations to this community.

For more information, see EPA’s news release announcing these NEIs.

Court Orders New EPA Spill Prevention Rules

Grayson_Lynn_COLOR

By E. Lynn Grayson

 

EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.

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Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know

Torrence_Allison_COLOR By Allison A. Torrence

 

On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know.  The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:

  • Issues relating to the Corps’ jurisdiction under the Clean Water Act;
  • Fallout under the Safe Drinking Water Act after Flint;
  • U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
  • Status of TSCA reform efforts;
  • Litigation relating to GMOs under FIFRA;
  • RCRA waste regulation amendments;
  • OSHA penalty updates;
  • U.S. EPA challenges;
  • Water scarcity and sustainability; and
  • Technological innovation and its impact on environmental practitioners.

To register for this free Webinar click here.

 

Supreme Court Grants Stay of Clean Power Plan

Torrence_Allison_COLOR By Allison A. Torrence

 

In an unusual step, on Tuesday, February 9, 2016, the U.S. Supreme Court granted a stay of EPA’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015) (a/k/a “the Clean Power Plan”). The stay is unusual because the challenges to the Clean Power Plan are still before the D.C. Circuit Court, which denied a request for a stay in January.

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Failure to Provide Notice to Excess Insurer Dooms Insurance Recovery for Environmental Settlement

Siros_Steven_COLORBy Steven M. SirosSmokestacks

 

A California appellate court recently affirmed a lower court decision that had concluded that an insured’s failure to obtain consent from its excess insurer barred it from recovering insurance proceeds from that insurer.  In 2001, a lawsuit was filed by residents of a Missouri town seeking damages against the insured relating to alleged contamination from a lead and cadmium smelting operation.  Zurich Insurance Company was the primary liability insurer and had agreed to provide a defense of the action.  Fidelity & Casualty of New York (“F&C”) was an excess carrier and had received notice of the underlying litigation.  The matter was resolved during a mediation and the insured agreed to settle the residents' claims for $55 million.  However, F&C was not notified of the settlement until a month later. 

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You Are Invited—CBA Environmental Law Committee

GraysonCBABy E. Lynn Grayson

 

The Chicago Bar Association (CBA) Environmental Law Committee invites you to its regularly scheduled committee meeting on Tuesday, February 2 beginning at 12:15 p.m. At this meeting, Exponent’s Linda Cook will present “Weaving Data Into Gold: Optimizing Your Environmental Data Assets.” Ms. Cook is a Managing Scientist in Exponent’s Environmental and Earth Sciences practice in Maryland, MA. She is an environmental chemist with more than 25 years of experience specializing in the chemical analysis of environmental samples and investigating the fate and transport of contaminants in the environment.

Jenner & Block Partner, Allison Torrence, chairs the CBA’s Environmental Law Committee. If you have any questions about the work of the committee, suggested topics for future programs or this upcoming program, please feel free to contact Allison.

The program will be held at the CBA Headquarters, 321 South Plymouth Court from 12:15 to 1:30. The meeting also is available via webcast.