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March 2017

U.S. Water Risks: It's Not Only About Flint

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World Water Day 2017By E. Lynn Grayson 

By and large, Americans are blessed with clean, safe, plentiful and mostly free drinking water sources. The Flint, Michigan contaminated drinking water scandal was a wakeup call for many that drinking water sources we depend upon may not be as reliable, stable, or even as affordable as we think.

On December 19, 2016, Reuters released a startling report about the quality of America’s drinking water. Reuters' investigation found that at least 3,000 water supplies in the U.S. were contaminated with lead at levels at least double the rates detected in Flint’s drinking water. In addition, 1,100 of these communities had rates of elevated lead in blood tests at least four times higher. Reuters concluded that Flint’s water crisis doesn’t even rank among the most dangerous lead hotspots in the U.S. Like Flint, however, many of the other localities are plagued by legacy lead: crumbling paint, plumbing, or industrial wastes left behind. Unlike Flint, many have received little attention or funding to combat poisoning.

Another critical issue looming on the horizon for many will be the affordability of water. A new Michigan State University (MSU) report recently concluded that a variety of compounding factors in the U.S. could easily push large portions of the population out of the financial range to even afford water in the future. The MSU report concludes:

A variety of pressures ranging from climate change, to sanitation and water quality, to infrastructure upgrades, are placing increasing strain on water prices. Estimates of the costs to replace aging infrastructure in the U.S. alone project over $1 trillion dollars are needed in the next 25 years to replace systems built circa World War II, which could triple the cost of household water bills…. Over the next few decades, water prices are anticipated to increase four times current levels. Prices could go higher if cities look to private providers for water services, who have a tendency to charge higher rates than public providers.

The MSU report concludes that 36% of households will be unable to afford water within five years. The highest risk areas in the U.S. are in the South, with the most at-risk communities in Mississippi. The MSU report noted that Ohio is 9th on the list, followed by Michigan at 12th.

Water risks come in many forms and include not only sufficient quantities and acceptable quality, but also affordability. The latter issue has not been addressed in a meaningful manner in the U.S. and will become a growing concern as water risks of all kinds increase in number and scope.

World Water Day: The Global Risks Report 2017

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World Water Day 2017By E. Lynn Grayson 

Today is World Water Day as proclaimed by the United Nations (UN) General Assembly in 1993. World Water Day is about taking action to tackle the global water crisis. Today, 1.8 billion people rely upon a drinking water source that is contaminated putting them at risk for cholera, dysentery, typhoid and polio. The UN Sustainability Development Goals launched in 2015 include a target to ensure everyone has access to safe water by 2030. 

The World Economic Forum also has targeted water and water risks as one of the leading global risk factors as recently confirmed in its The Global Risks Report 2017. The Global Risks Report 2017 features perspectives from nearly 750 experts on the perceived impact and likelihood of 30 prevalent global risks as well as 13 underlying trends that could amplify them or alter the interconnections between them over a 10-year timeframe. The report notes that a cluster of environment-related risks—notably extreme weather events and failure of climate change mitigation and adaptation as well as water crisis—has emerged as a consistently central feature of the Global Risks Perception Survey risk landscape.

In 2017, water crises were identified as the third most significant risk based upon potential impacts. In doing so, the experts concluded that there had been “…a significant decline in the available quality and quantity of fresh water, resulting in harmful effects on human health and/or economic activity….”

World Water Day provides a good opportunity to reflect upon how we use water at home and work and in our businesses. It is becoming an increasingly precious natural resource that must be protected and conserved.

Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water

Torrence_jpgBy Allison A. Torrence

Compact CouncilAs previously reported here, the Great Lakes and St. Lawrence Cities Initiative (the Cities Initiative) requested a hearing before the Great Lakes-St. Lawrence River Basin Water Resources Council (the Compact Council) regarding the Compact Council’s June 21, 2016 decision to approve the City of Waukesha’s application for a diversion of Great Lakes Basin Water. The Waukesha diversion is the first-ever diversion of Great Lakes water approved under the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). Under the approved diversion, the City of Waukesha can divert up to 8.2 million gallons per day (annual average demand) from Lake Michigan.

On March 20, 2017, after extensive briefing by the Cities Initiative and the City of Waukesha, the Compact Council held a hearing and allowed oral argument by the parties. The Cities Initiative is a binational coalition of 127 U.S. and Canadian mayors and local officials, representing over 17 million people, working to advance the protection and restoration of the Great Lakes and St. Lawrence River. The Cities Initiative argued that the Compact Council should reconsider its decision to grant the diversion and clarify the standards used to evaluate the Waukesha diversion application as well as the standards it will use to evaluate diversion requests in the future. The City of Waukesha argued that the Compact Council acted reasonably to approve the diversion.

The Compact Council took the matter under advisement at the close of arguments and indicated it likely will issue a written decision in early May.

Jenner & Block is representing the Cities Initiative in this matter, and Jenner Partner Jill Hutchison argued on behalf of the Cities Initiative at the hearing.

News reports on the hearing are available here and here.

CDP A-List: Why It Matters

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By E. Lynn Grayson World Water Day 2017

The Carbon Disclosure Project’s (CDP’s) Global Water Report 2016 titled Thirsty Business: Why Water is Vital to Climate Action analyzes water disclosures made through the CDP’s 2016 information request. It was aimed at companies facing water risks and opportunities and investors seeking to better understand how water issues might impact portfolios. The report provides insight into the connection between water, energy and private sector efforts to reduce carbon emissions.

 Key findings from these corporate water disclosures include: 

  1. Water related risks cost business $14 billion dollars in 2016—a fivefold increase over prior year’s costs (These financial impacts come from drought, flooding, tightening environmental regulation and the cost of cleaning up water pollution and fines)
  2. 24% of greenhouse gas reductions depend on a stable supply of good quality water
  3. 53% of companies report better water management in the context of delivering greenhouse gas reductions

The CDP report evaluates corporate performance over five key metrics relating to water management, including tracking water use, reporting and target-setting. In 2016,  61% of companies reported that they track their water use , an increase of 3% over last year.

Ford and Colgate Palmolive are among the best companies in the world when it comes to water management, according to the CDP’s Water A List. The annual index  highlights companies implementing best practices in sustainable water management. In 2016, 24 companies made the CDP Water A List, up from eight last year. Ford and Colgate Palmolive are the only two U.S. companies identified on the A List in 2016. 

So what can companies do to better manage and reduce their water-related risk? The first step is assessing water use and setting measurable targets. But unlike corporate carbon emissions, there really is no standard methodology that business relies upon to measure and monitor water use. CDP has partnered with the UN CEO Water Mandate, The Nature Conservancy, World Resources Institute and WWF to develop a methodology that will help companies set context-based water targets — essentially a science-based targets approach to water management. In light of company disclosures confirming that 54% of the 4,416 water risks identified will  materialize over the next six years, there should be no shortage of corporate interest in test-driving the upcoming water methodology.

Allison Torrence to Moderate CBA Seminar on Local, State and Federal Environmental Law

 By Steven M. Siros CBA

On Wednesday, March 22, 2017, from 3-5:30 p.m., Jenner & Block partner Allison A. Torrence will moderate a seminar presented by the Chicago Bar Association (CBA) Environmental Law Committee, addressing the current landscape of local, state and federal environmental law. Ms. Torrence is the current chair of the CBA Environmental Law Committee. Details about the seminar, and a link to register, are below.

Navigating the Current Landscape of Local, State and Federal Environmental Law

Date:                     March 22, 2017
Time:                     3:00-5:30 p.m.
Location:              The Chicago Bar Association, 321 S. Plymouth Ct., Chicago, IL

2.5 IL MCLE Credit


Description:

Local, state and federal governments all have an important role to play in enacting and enforcing environmental laws. While governments may have differing and changing priorities, environmental regulation and enforcement remain important components of all levels of government. This program will educate participants on some key issues facing business, citizens and communities under local, state and federal environmental law.


Topics and speakers:

HOT TOPICS AND CURRENT ISSUES IN ENVIRONMENTAL LAW FROM THE LOCAL GOVERNMENT PERSPECTIVE
Mort Ames, City of Chicago Department of Law

CURRENT STATE OF ILLINOIS STATE ENVIRONMENTAL LAW
James Morgan, Division of Legal Counsel, Air Enforcement Illinois

EPA THE NUTS AND BOLTS OF U.S. EPA ENFORCEMENT: A VIEW FROM REGION 5
Leverett Nelson, Regional Counsel, U.S. Environmental Protection Agency, Region 5


Moderators:

Allison A. Torrence, Jenner & Block LLP; Chair, CBA Environmental Law Committee

Kristen Laughridge Gale, Nijman Franzetti, LLP; Vice-Chair, CBA Environmental Law Committee


REGISTER HERE

World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series

World Water Day 2017GraysonBy E. Lynn Grayson

World Water Day, held on March 22 every year, is about taking action to tackle the water crisis. Today, there are over 663 million people living without a safe water supply close to home, spending countless hours queuing or trekking to distant sources, and coping with the health impacts of using contaminated water.

In recognition of World Water Day 2017, the Corporate Environmental Lawyer blog plans to run a weeklong series focused on the critical issues concerning water quality and quantity in the U.S. and globally. This year’s theme for World Water Day is wastewater.

Why wastewater?

Globally, the vast majority of all the wastewater from our homes, cities, industry and agriculture flows back to nature without being treated or reused—polluting the environment and losing valuable nutrients and other recoverable materials.

Instead of wasting wastewater, we need to reduce and reuse it. In our homes, we can reuse greywater on our gardens and plots. In our cities, we can treat and reuse wastewater for green spaces. In industry and agriculture, we can treat and recycle discharge for things like cooling systems and irrigation.

By exploiting this valuable resource, we will make the water cycle work better for every living thing. And we will help achieve the United Nation's Sustainable Development Goal 6 target to halve the proportion of untreated wastewater and increase water recycling and safe reuse.

Learn more about the importance of how we manage wastewater by viewing this fact sheet.

 

Proposed Trump Budget Would Cut U.S. EPA Funding by Approximately 31%

 By Steven M. Siros

On March 15, 2017,  President Trump released his FY 2018 budget blueprint titled “America First—A Budget Blueprint to Make American Great Again.” In addition to increasing defense spending by $54 billion, the blueprint proposes a $2.7 billion budget reduction for U.S. EPA.  Highlights of U.S. EPA's proposed $5.7 billion budget include:

Continue reading "Proposed Trump Budget Would Cut U.S. EPA Funding by Approximately 31%" »

OSHA Violation Doesn’t Abrogate Workers’ Compensation Immunity

 By Steven M. Siros OSHA logo

Most state workers’ compensation regulations provide an intentional tort exception for employers' workers’ compensation immunity.  A Louisiana district court recently rejected a plaintiffs’ effort to trigger this intentional tort exception to workers’ compensation immunity by citing an OSHA “willful” violation as proof that their employer consciously desired that plaintiffs’ suffer their alleged injuries. In the case at issue, plaintiffs were overcome by fumes when they were ordered to clean a tank rail car that contained hazardous chemicals. Their employer was cited for OSHA violations and several of those violations fell into the “willful” category. The court found that these allegations insufficient to meet Louisiana’s “extremely high” standard necessary to avoid the workers’ compensation bar. Hernandez v. Dedicated TCS, LLC (E.D. La. 3/3/17). 

Last year, several courts in Washington and Kentucky had similarly ruled that state workers’ compensation laws provided the exclusive remedy for employees injured in the course of their employment notwithstanding OSHA willful violations. But a U.S. District Court in Idaho recently ruled that employees could pursue tort claims after they were ordered to retrieve radioactive plates without proper protection gear in violation of applicable OSHA regulations.


Trump Adminstration: 2017 Insights

GraysonBy E. Lynn Grayson

This week I published an article in the Chicago Daily Law Bulletin, Trump election puts environment into less than green state. In this article, I discuss my thoughts on environmental issues during the transition from the Obama Administration to the Trump Administration. I specifically address: 1) what authority President Trump has to implement environmental changes; 2) what environmental actions have been taken to date; 3) insights into future environmental changes we are likely to see; and 4) reaction from the environmental community.

If you would like to hear more about what’s happening on the environmental front in the Trump administration, please join us next Tuesday, March 7 at Noon for a program titled Environmental, Health & Safety Issues in 2017: What to Expect From the Trump Administration. My partners Gay Sigel, Steve Siros, and Allison Torrence will be providing the latest updates on what we know and what we can anticipate from the Trump administration in connection with environmental, health, and safety considerations.

If you would like to join us for this program or participate via webinar, please RSVP here.