2016 Democratic Party Platform: Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice
Last week, we examined the key environmental issues raised in the 2016 Republican platform. Now that the political focus has shifted from Cleveland to Philadelphia, where Democrats are holding their convention, we will examine what the Democratic Party has to say about its environmental priorities in the 2016 Democratic Party Platform. One of the Democratic Party platform’s 13 main sections is entitled “Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice.” Environmental issues are also raised in the section titled “Confront Global Threats”, which discusses “Global Climate Leadership.”
In the platform’s preamble, the Democrats state that:
Democrats believe that climate change poses a real and urgent threat to our economy, our national security, and our children’s health and futures, and that Americans deserve the jobs and security that come from becoming the clean energy superpower of the 21st century.
Other key positions from the Democratic environmental platform include:
On Monday, Republicans gathered in Cleveland to kick off the Republican National Convention and adopt the official 2016 platform of the Republican Party. One of the platform’s six main sections is titled “American Natural Resources: Agriculture, Energy, and the Environment.” Republicans summarize their environmental platform by stating:
“We firmly believe environmental problems are best solved by giving incentives for human ingenuity and the development of new technologies, not through top-down, command-and-control regulations that stifle economic growth and cost thousands of jobs.”
Key positions from the Republican environmental platform include:
The National Toxicology Program (“NTP”) recently announced that it intends to join the crowded playing field (pun intended) of state, federal, and international agencies that are evaluating the potential human health risks associated with synthetic turf fields. Synthetic turf fields have been the subject of ongoing assessment by U.S. EPA, the Agency for Toxic Substances and Disease Registry, the Consumer Product Safety Commission, California’s Office of Environmental Health Hazard Assessment, and the European Union’s chemicals agency. However, the NTP intends to focus specifically on the tire crumb rubber used in those turf fields and to conduct short-term in vivo and in vitro toxicology studies on the crumb rubber.
As more schools and other public facilities install synthetic turf fields, the potential health effects of the infill is an issue that is attracting increased attention. The NTP believes that its proposed study will help to fill what it views to be an important data gap. Although existing health study have not identified an elevated health risk from playing on artificial turf fields, these studies have generally focused on the potential health effects of exposure to lead other materials released from the artificial grass blades and/or exposure to possible emissions associated with the turf field in its entirety. NTP and U.S. EPA have noted that there are limited studies on the effects of exposure to the tire crumb materials specifically which will be the focus of the NTP study.
Please click here to go the NTP press release concerning its study.
Jenner & Block CLE Webinar: "Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future"
Jenner & Block Partner Gabrielle Sigel will discuss the development of climate change law under the Obama Administration and how that law may affect future efforts to regulate greenhouse gas emissions. She will provide a framework for understanding some of the most complex and dynamic legal decisions regarding administrative and environmental law since the Clean Air Act was enacted. Titled “Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future,” this CLE webinar will be held from 12:00 noon to 1:30 pm on May 12, 2016, at the firm’s Chicago office, 353 N. Clark Street.
Ms. Sigel is co-chair of the firm’s Climate and Clean Technology Law Practice and a founding member of the firm’s Environmental and Workplace Health & Safety Law Practice. She publishes extensively and is a frequent speaker on environmental law, climate change, and workplace health and safety issues.
Please click here to RSVP for attend the program in person or via a webinar.
Approximately 700 participants, including leaders from government, business, finance, academia, philanthropy and civil society, will meet in Washington, DC on May 5-6, to attend the Climate Action 2016 Summit. Seven organizations have come together to jointly co-host the summit, providing this diverse group with the information, connections and tools they need to lead effective implementation in a new climate regime.
The co-hosts of the Summit are:
- E. Mr. Ban Ki-moon, Secretary-General of the United Nations
- Jim Yong Kim, President of the World Bank Group
- Michael R. Bloomberg, UN Secretary-General’s Special Envoy for Cities and Climate Change; Founding Partner, Compact of Mayors
- Naoko Ishii, Chief Executive Officer, Global Environment Facility
- Judith Rodin, President, Rockefeller Foundation
- Peter Bakker, Chief Executive Officer, World Business Council on Sustainable Development
- Nigel Topping, Chief Executive Officer, We Mean Business
- Wallace Loh, President, University of Maryland
The goal of the Summit is to strengthen the multi-stakeholder approach to climate implementation. The summit will address how to deliver on climate commitments and embed the transformation agenda across the globe in government, key sectors and among the general population. At the same time, the summit will focus on near-term implementation actions and long-term implementation needs. These will focus on City and Sub-national implementation; Transport; Land-use; Energy; Resilience/Adaptation; and Analysis and Tools to Support Decision Making.
More information about Climate Action 2016 is available here.
The United Nations has announced that up to 155 countries, including the United States, are planning to sign the Paris Climate Agreement at the Ceremony for Opening Signature, on Earth Day, April 22, 2016. The ceremony will take place at UN headquarters in New York. With over 150 world leaders set to sign the Paris Climate Agreement, the signing is expected to be the largest single signing of an international agreement in world history.
For more information about the signing ceremony and the Paris Climate Agreement, visit the United Nations Framework Convention on Climate Change website.
As part of our ongoing focus on Earth Day 2016, I found an interesting tool that allows one to measure one’s global footprint. The Earth Day Network has put together a Ecological Footprint Calculator that allows one to input specific parameters and determine how much of an impact each one of us has on the planet as a whole. At least for me, the results were somewhat sobering. Please click here to use the calculator to measure your impact.
One of the most significant environmental and energy policy issues today is climate change. One of the biggest events of the past year in environmental and energy policy was the Paris COP21 talks. More countries than ever have pledged to significant carbon cuts, yet in many people’s views, those pledges fall short of what a lot of scientists say is necessary. A recent interview of United Nations Secretary-General Ban Ki-moon with Kimberly Strassel, a member of The Wall Street Journal (WSJ) editorial board, highlights some of the challenges.
The WSJ found that attitudes toward climate change differ markedly by region of the world and by political affiliation:
The U.S. has a plan to reduce emissions by 28% but the proposal is the subject of ongoing litigation. In his interview, Secretary-General Ban Ki-moon expressed concern over the impact internationally if the U.S. cannot obtain approval to meet its commitments to reduce GHG. President Obama has said that climate change is a bigger threat than terrorism and when asked if he agreed, the Secretary-General noted that “….longer term, it is a much, much more serious issue....concluding that climate change does not respect any borders. It affects a whole humanity, it affects our planet Earth.”
In celebration of Earth Day 2016, the Corporate Environmental Lawyer blog will host a special campaign April 18-22 featuring unique news and stories about Earth Day events and activities taking place around the world, in addition to important developments in environmental law. As environmental lawyers, this is a good day for us to remember the contributions our clients and friends make to improving the environment in the communities where we live and work.
The theme for Earth Day 2016 is Trees for Earth. In anticipation of the 50th anniversary of Earth Day in 2020, planting trees is the first of five major goals that will highlighted in each of the next five years. The Earth Day Network challenges the world to plant 7.8 billion trees by 2020.
If you have any questions about our Corporate Environmental Lawyer blog or this special series, please feel free to contact me at firstname.lastname@example.org or 312-923-2717.
Can A Smartphone Be Used To Verify Compliance With My Air Permit—Surprisingly, the Answer Soon May Be Yes—and Other New Enforcement Initiatives
In an effort to capitalize on what U.S. EPA characterizes as the successful integration of its Next Generation Compliance strategy into its enforcement arsenal, U.S. EPA recently confirmed that it intends to incorporate Next Generation Compliance into future environmental settlements. For those unfamiliar with the strategy, U.S. EPA’s Next Generation Compliance strategy is intended to achieve a higher rate of compliance and reduce pollution through the use of advanced monitoring and information technologies. For example, through the use of Electronic Discharge Monitoring Reports to monitor compliance with Clean Water Act NPDES permits, U.S. EPA is able to more readily identify and prosecute permit violations. Moreover, since much of this information is then publicly available, environmental organizations and citizen groups are more readily able to identify violators, which could result in an increased frequency of citizen suits and/or increased pressure being brought to bear on the regulators to enforce against repeated violators.
On Wednesday, March 16, 2016, Jenner & Block partners E. Lynn Grayson and Allison Torrence will be speaking at a Chicago Bar Association CLE Seminar titled "Major Cases and Regulatory Changes in Environmental Law." Lynn Grayson will be presenting on proposed RCRA generator and pharmaceutical rules, and Allison Torrence, who is Chair of the CBA Environmental Law Committee, will be presenting on the U.S. v. Volkswagen Clean Air Act litigation.
The seminar is on Wednesday March 16, 2014 from 3–5 pm at the Chicago Bar Association, 321 S. Plymouth Court. A networking reception will be held at the CBA immediately following the seminar, from 5–6 pm.
For more information and to register for the seminar click here.
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).
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.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
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.
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.
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.
Partner Allison Torrence discusses mobile-source emissions and the Clean Air Act in a new video in Jenner & Block’s “Insights” series. Allison focuses her discussion on enforcement and the EPA’s increasingly stringent standards. She also examines EPA actions that recently have been in the news regarding “defeat devices” that turn on vehicle emission controls during testing in EPA labs and turn off the controls when the vehicles are on the road.
In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees. Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations. In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban. In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed. U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions. In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016.
These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA). Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
Delegates from almost 200 nations worked through the night on Friday and into Saturday, working to create the 48-page “Draft Paris Agreement,” made public on Saturday, December 5th. The draft agreement will be the subject of continued negotiations this week in Paris, with the goal of finalizing a long-term climate change agreement among all parties by the end of the week.
The draft agreement lays out three broad goals:
- "To hold the increase in the global average temperature [below 1.5 °C] [or] [well below 2 °C] above preindustrial levels by ensuring deep reductions in global greenhouse gas [net] emissions;
- "To Increase their ability to adapt to the adverse impacts of climate change [and to effectively respond to the impacts of the implementation of response measures and to loss and damage];
- "To pursue a transformation towards sustainable development that fosters climate resilient and low greenhouse gas emission societies and economies, and that does not threaten food production and distribution."
The draft agreement contains many options that will need to be agreed on by negotiators, including:
- The precise goal of the agreement;
- How countries are divided into developed verses developing nations; and
- Whether the agreement’s GHG emissions reductions should be legally binding.
The last point represents a current difference between China and U.S. negotiators. China is pushing for an agreement that is legally binding in its entirety. The U.S. has argued that GHG emissions cuts should not be legally binding; perhaps a pragmatic position due to the fact that legally binding emissions cuts could require the U.S. submit the agreement for approval by the U.S. Senate, which would likely reject any such proposal.
The Corporate Environmental Lawyer blog will continue to track developments from Paris and provide insight and analysis over the week ahead.
As the President and other top officials participate in climate change negotiations at the COP21 in Paris, lawmakers back home are pushing to maintain a role in determining U.S. climate policy. Specifically, House Republicans have proposed a resolution regarding the President’s authority in the COP21 negotiations. House Concurrent Resolution 97, introduced on Nov. 19th by Rep. Mike Kelly (R-Pa.), expresses the view that “the President should submit to the Senate for advice and consent the climate change agreement proposed for adoption at [COP21].” The resolution expresses concerns that the agreement coming out of COP21 will contain enforceable targets and timetables for GHG emissions reductions and that the U.S. will be expected to “commit billions of dollars in taxpayer money to fund the Green Climate Fund and other financial mechanisms to fund mitigation and adaptation projects in developing countries.” Thus, the resolution would establish that Congress believes that any commitments made by the U.S. at COP21 will have no effect until submitted to the Senate for advice and comment. The resolutions goes further to suggest that Congress would refuse to consider any funding for the Green Climate Fund until all agreements are submitted to the Senate for advice and consent. The resolution has been referred to the House Committee on Foreign Affairs.
In a related action, on Dec. 1st, the House passed two resolutions (S.J.Res. 23 and S.J.Res. 24) disapproving of the Administration’s GHG regulations applicable to existing and new power plants. The Senate voted last month to approve identical motions. The President is expected to veto these resolutions.
Meanwhile, the American Sustainable Business Council (ASBC), a group of 200,000 businesses and 325,000 business executives, owners, and investors, has drafted a letter to Congress expressing the group’s support for climate negotiations in Paris and calling on Congress to not interfere. They urge Congress to “allow the climate experts, business and civic leaders and negotiators to craft an effective agreement in Paris.” ASBC is encouraging members of the public to sign on in support of their letter.
CERES is urging world governments meeting now at the COP21 this week in Paris to produce a strong climate agreement. CERES believes that recent actions confirm that the business and financial communities support clean energy and a low-carbon transition. The actions cited by CERES include:
World leaders and delegates from over 150 nations have converged in Paris, France for the United Nations Climate Change Conference (also referred to as COP21). The conference, which is scheduled to run from November 30th through December 11th, has as its goal achieving a legally binding agreement intended to limit greenhouse gas emissions in order to ensure that global average temperatures do not increase in excess of two degrees Celsius over pre-industrial global temperatures.
Leaders of both the United States and China addressed the conference attendees. President Obama noted that recent economic growth in the United States has come despite a lack of growth in carbon emissions, proving that climate advancements need not come at the expense of the economy or individual livelihoods. Chinese President Xi Jinping struck a somewhat different tone, saying that the conference "is not a finish line, but a new starting point" and that "any agreement must take into account the differences among nations” and that “countries should be allowed to seek their own solutions, according to their national interest."
Prior to the conference, countries had voluntarily submitted climate action plans referred to as Intended Nationally Determined Contributions (“INDCs”) that are intended to form the basis for any agreement that might be reached over the next two weeks. According to the United Nations Secretary General, more than 180 countries have submitted their INDCs which covers almost 100% of global greenhouse gas emissions. However, in order to reach the above-referenced goal of less than a two degree temperature increase, the Secretary General noted that developed countries would need to be prepared to expend $100 billion dollars by 2020. What if anything the developing countries would need to contribute is much more nebulous but is a topic that is certain to be discussed at the conference.
We will continue to blog on COP21 over the next several weeks while the conference is in session.
This week, Law360 published Lynn Grayson’s article titled "MBTA Unintended Consequences Of An Old Law." This article discusses the Migratory Bird Treaty Act (MBTA) and addresses whether the 1918 law is really effective today in safeguarding migratory birds from modern day threats. Ms. Grayson comments that “…the MBTA has changed very little but the world we live in has changed a great deal and the most significant threats to migratory birds today are vastly different than in the past.”
The article examines how modern day business and real life circumstances often expose companies and individuals to non-compliance and even potential criminal prosecution for incidental takings in the context of the MBTA. While U.S. Fish & Wildlife Service (FWS) traditionally manages incidental take matters through reliance upon voluntary guidelines, restricted permitting options and agency enforcement discretion, she questions whether that approach continues to work today.
Ms. Grayson concludes that “…Without legislative or possibly regulatory change, MBTA compliance for industry remains complicated, uncertain and costly. All industry sectors are entitled to a fair and just statute that delineates in a straightforward manner what is required to comply with the MBTA, as well as a clear understanding of the enforcement consequences of noncompliance. The new FWS proposal (discussed in the article) may be a step in the right direction. An even better development would be an MBTA amendment consistent with the recent Fight Circuit Citgo ruling that imposes strict liability only in cases of intentional and direct takes of migratory birds.”
Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology
Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.
The full article is available here.