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March 2018

U.S. EPA Removes Portion of Former Refinery Site from NPL: Precursor to More Expedited CERCLA Cleanups?

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By Steven M. Siros Pacific Coast Pipeline

After almost 30 years having been listed on the NPL, U.S. EPA has removed the surface portion of the 55-acre Pacific Coast Pipeline site from that distinctive list.  Since being added to the NPL in 1989, more than 42,000 cubic yards of contaminated soils have been removed from the site and a multi-layer cap has been installed. The groundwater portion of the site will still remain on the NPL in order to address benzene and protect drinking water and agricultural wells.

One goal of EPA Administrator Pruitt’s Superfund Task Force was to improve and expedite site cleanups and accelerate full and partial deletions for sites that meet all applicable requirements. “The partial de-listing of the Pacific Coast Pipeline site is an example of EPA’s commitment to accelerate the remediation of contaminated sites and transform them into productive assets for the community,” said Pruitt.

Whether this partial NPL deletion is a precursor of U.S. EPA taking a more streamlined approach to CERCLA cleanups remains to be seen, but it would appear to be a step in the right direction.

Townships Look to Take the Air Out of Wind Farm

 By Matthew G. Lawson  Wind

NextEra Energy Resources LLC (“NextEra”), the largest generator of wind energy in North America, is currently locked in legal disputes with local townships over its new wind energy project, the “Tuscola Wind III Energy Center.”  NextEra’s subsidiary, Tuscola Wind III LLC (“Tuscola”), plans to construct the 55 turbine wind farm across the Fairgrove, Almer, and Ellington Townships of Tuscola Country, Michigan.  The project, if completed, will be the third wind farm constructed by NextEra in Tuscola County.  The proposed $200 million dollar wind farm is projected to supply wind energy for up to 50,000 homes.

After reaching agreements with nearly 100 landowners to secure land for the project, Tuscola submitted a Special Land Use Permit (“SLUP”) to the local townships for construction and operation of the wind farm.  However, two of the townships, Almer and Ellington, denied the permits and enacted one year moratoriums on the construction of wind farms.  According to Tuscola, its permits were blocked by newly elected members of the Townships’ Boards who were affiliated with a regional anti-wind citizens advocacy group.  The company alleged that the organization was engaged in a systematic effort to block the Tuscola project and that the group had used “tactics of intimidation, threats of lawsuits, referenda, and recalls . . . in an effort to prevent the development of wind projects.”

The company is now fighting back.  In lawsuits filed in the Eastern District of Michigan, NextEra is seeking to have the Board of Trustees’ denial of the SLUP overturned.  On November 3, 2017, the district court issued its first decision on the matter, affirming the denial of the SLUP by the Almer Township.  The court found that the Township’s Board had properly denied the application after it determined that the purposed wind farm would violate Almer’s noise zoning ordinance. The court noted that although Almer’s noise ordinance was admittedly ambiguous, the Board should be provided deference to interpret the meaning of its own ordinance.  Finding that the board’s interpretation of the ordinance was reasonable, the court elected not to overturn the decision.

On March 13, 2018, the district court reached a markedly different result in Tuscola’s parallel suit against the Ellington Township.  Here, the District Court overturned the Ellington Township’s denial of the SLUP.  Unlike the Almer Township Board, it appears Ellington’s Board refused to even consider the merits of Tuscola’s SLUP, and relied entirely on its newly enacted moratorium to block consideration of the application.  The Court concluded that the township’s moratorium was an inappropriate suspension of its zoning ordinance, and was thus void.  Therefore, the Board could no longer rely on the moratorium as a reason to refuse to consider the SLUP application.  Left open by the decision was whether Ellington could successfully deny the SLUP on other grounds or what timeframe the township had to approve/deny the permit.  Interestingly, the Ellington decision arrived exactly one day after the district court reaffirmed its earlier holding in the Almer case (Both decisions were authored by the same Judge). 

Finally, in the newest twist, landowners of property proposed for the Tuscola Wind III site have now filed suit in Tuscola County Circuit Court seeking a court order to ouster the newly elected board members alleged to be part of the anti-wind organization. The ultimate resolution of Tuscola’s dispute may end up relying in part on the success of this new suit.

Congressional Spending Bill Provides Boost to EPA, DOE in Rebuke to Trump Administration Budget

As we previously reported on here, the Trump Administration earlier this month proposed a $2.7 billion budget reduction for U.S. EPA. However, Congress has passed a spending bill that rejects reductions to both U.S. EPA and the Department of Energy.  Trump signed the bill today.

As reported here, as to the U.S. EPA, Congress proposed holding the agency’s funding at $8.1 billion, even with the 2017 level.

And, at the DOE

  • $6.2 billion for the Department of Energy’s Office of Science, an $868-million jump from the 2017 level. Trump had sought to cut its budget to just under $4.5 billion.
  • The omnibus includes an increase of nearly $1.5 billion in DOE clean energy funding, including a 14% increase to the renewable energy and efficiency office, and a 16% increase at the Advanced Research Projects Agency-Energy (ARPA-E). Trump had sought to cut the renewables office by 65% and eliminate ARPA-E.
  •  The Office of Fossil Energy would increase by 10%, the nuclear office by 19%, science office by 16%, and the energy office by 8%. The loan programs office would be preserved, as would funding for carbon capture and storage. 

These avoided spending cuts and/or spending increases are an encouraging sign for environmentalists and other clean tech advocates.

In the Absence of Any Federal Movement, States Continue to Attempt to Legislate Carbon Rules or Taxes

By Alexander J. Bandza CO2

As reported in Salon and Law360 (sub. req.), states, the “laboratories of democracy,” continue to attempt to experiment with legislation carbon rules or taxes. Washington and Oregon are the latest examples, although such efforts have so far failed. Washington’s proposal would have taxed carbon emissions, whereas Oregon’s proposal would have established a cap-and-trade program.

After the Washington tax bill failed, a coalition of environmental, community and labor groups filed a proposed citizens’ initiative that would put a price on carbon emissions. The proposal would charge $15 per metric ton of carbon content of fossil fuels and electricity sold or used in the state starting in 2020. It would increase by $2 a year in 2021 until the state meets its carbon emissions reduction goal for 2035.

As of February of this year, as reported in Law360 (sub. req.), 10 states have released bills to combat climate change and raise revenue by using the tax system, with some 30 different bills in play. According to this report, the range of carbon taxes are from $5-35/ton (bills in Vermont set the base rate at $5 per ton of carbon while bills in New York set it at $35 per ton).

These state-level efforts underscore the challenge of convincing the public and a broad base of stakeholders to act on a problem that Congress first tried to address over a decade ago, most famously through the McCain-Lieberman Climate Stewardship Act of 2003 and the Waxman-Markey American Clean Energy and Security Act of 2009. Interestingly, it may be this patchwork of state-level action that induces Congress to act sometime in the future.

Who Wants to Buy a Superfund Site?

 By Matthew G. LawsonSuperfund

On July 25, 2017, Environmental Protection Agency (“EPA”) administrator Scott Pruitt’s “Superfund Task Force” issued a final report revealing the Task Force’s recommendations for streamlining the remediation process of over 1,300 Superfund sites currently overseen by the EPA.  The Task Force’s recommendations included a strong emphasis on facilitating the redevelopment of Superfund sites by encouraging private sector investment into future use of contaminated sites.  The recommendations were subsequently adopted by Mr. Pruitt, who has repeatedly affirmed that a top priority of the administration is revamping the Superfund program.  In the recent months, it appears EPA and the Trump administration have taken new steps to further the objective of pushing private redevelopment for Superfund Sites. 

On January 17, 2018, EPA posted a “Superfund Redevelopment Focus List” consisting of thirty-one Superfund sites that the agency believes “pose the greatest expected redevelopment and commercial potential.”  EPA claims that the identified sites have significant redevelopment potential based on previous outside interest, access to transportation corridors, high land values, and other development drivers.  “EPA is more than a collaborative partner to remediate the nation’s most contaminated sites, we’re also working to successfully integrate Superfund sites back into communities across the country,” said EPA Administrator Scott Pruitt.  “[The] redevelopment list incorporates Superfund sites ready to become catalysts for economic growth and revitalization.”

Along the same lines, President Donald Trump’s sweeping infrastructure proposal, released February 12, 2018, proposed an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that would allow Superfund sites to access funding from the EPA’s Brownfield Program, which the administration believes could help stimulate redevelopment of the sites.  The proposal further requests Congress pass an amendment to CERCLA that would allow EPA to enter into settlement agreements with potentially responsible parties to clean up and reuse Superfund sites without filing a consent decree or receiving approval from the Attorney General.  The proposal claims that CERCLA’s limitations “hinder the cleanup and reuse of Superfund sites and contribute to delays in cleanups due to negotiations.”

Time will tell whether the administration’s strategy will be enough to entice new development into the Superfund sites.  To follow the progress of EPA’s Superfund redevelopment efforts, visit EPA’s Superfund Redevelopment Initiative website here

EPA “Year in Review”

Torrence_jpgBy Allison A. Torrence

Year in ReviewOn Monday, March 5, 2018, EPA issued a report titled EPA Year in Review 2017-2018. The report contains an introductory letter from Administrator Pruitt, who states that he has been “hard at work enacting President Donald Trump’s agenda during [his] first year as EPA Administrator.” The report highlights accomplishments at EPA over the past year, with a focus on the roll back of regulations from the Obama Administration, such as the Clean Power Plan and the Waters of the United States Rule. Administrator Pruitt stated that “[i]n year one, EPA finalized 22 deregulatory actions, saving Americans more than $1 billion in regulatory costs.”

According to the report, Administrator Scott Pruitt set forth a “back-to-basics agenda” with three objectives:

  1. Refocusing the Agency back to its core mission
  2. Restoring power to the states through cooperative federalism
  3. Adhering to the rule of law and improving Agency processes

The report also identifies EPA’s “core mission” as “clean air, land, and water,” and argues that in recent years, “central responsibilities of the Agency took a backseat to ideological crusades, allowing some environmental threats – like cleaning up toxic land – to go unaddressed.” In light of these alleged lapses, EPA states that:

Continue reading "EPA “Year in Review”" »

Lawsuit Challenging Trump’s 2-for-1 Executive Order Dismissed

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Trump

By Steven M. Siros

In a win for the White House, a D.C. federal judge dismissed a complaint filed by several public interest groups that challenged President Trump’s executive order requiring that two federal regulations be repealed for every new regulation that is promulgated. The lawsuit was dismissed on standing grounds, with the court rejecting the public interest groups' argument that they had both “associational” and “organizational” standing.  

The district court rejected the public interest groups' claim that they had standing because the executive order would unlawfully force federal agencies to delay or scrap rules that protect the groups' concrete interests. The court also rejected the public interest groups' claim that the executive order impinges on the groups' advocacy efforts by forcing them to choose between advocating for new regulations at the cost of losing other beneficial rules. Instead, the court found that the public interest groups had not sufficiently identified particular members who would be harmed. The court also found that the interest groups had not offered any evidence as to whether they had declined or were imminently likely to decline to advocate for a new rule because of the executive order.

The court is still evaluating whether to give the groups leave to amend their complaint or whether the lawsuits should be dismissed outright. Please click here to read the opinion.