During the annual meeting of the United Nations General Assembly in New York City, on Wednesday, September 21, 2016, UN Secretary-General Ban Ki-moon announced that more than 55 countries have formally joined the Paris Agreement on climate change, officially crossing one of the two thresholds required to bring the Agreement into force. At the annual meeting, 31 additional countries deposited their instruments of ratification for the Agreement, bringing the total to 60 countries that together represent more than 47.5% of global greenhouse gas emissions. Earlier this month, China and the United States, the world’s two largest greenhouse gas emitters, joined the Agreement.
The Paris Climate Agreement was adopted by the 195 Parties to the UN Framework Convention on Climate Change (UNFCCC) at a conference known as COP21 in December 2015. The Paris Climate Agreement seeks to limit global temperature rise to well below 2 degrees Celsius, and to strive for 1.5 degrees Celsius. The Paris Climate Agreement was signed on April 22, 2016, by 175 countries at the largest, single-day signing ceremony in history. It will enter into force 30 days after at least 55 countries, accounting for 55% of global greenhouse gas emissions, deposit their instruments of ratification. Following today’s UN meeting, formal approval from countries representing 7.5% in global emissions is still needed.
Usually, international treaties of this size and complexity take years to come into effect, while the Paris Climate Agreement is close to achieving full legal force only 9 months after it was adopted. At least some of the urgency behind the ratification of the Agreement is the fact that Republican presidential candidate Donald Trump has vowed to pull the United States out of the Paris Climate Agreement if he is elected. If the Agreement comes into full legal force before the next president takes office, it would take four years for the United States to withdraw under the formal procedures of the Agreement, and the United States would be bound by the Agreement in the interim.
More information about the Paris Climate Agreement and a video of Secretary-General Ban Ki-moon’s remarks is available here.
On September 13th, from 5 pm to 7 pm, the CBA Environmental Law Committee, CBA Young Lawyers Section Environmental Law Committee, ISBA Environmental Law Section, and ABA Section of Environment, Energy, and Resources will be hosting a networking reception for environmental attorneys at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. Jenner & Block partner Allison Torrence is the Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.
Details for this event are below. If you would like to join us at this reception, please RSVP here.
Environmental Attorney Reception
September 13, 2016 | 5:00 pm to 7:00 pm
Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654
Great Lakes and St. Lawrence Cities Initiative Requests Hearing on City of Waukesha Lake Michigan Water Diversion
On August 19, 2016, the Great Lakes and St. Lawrence Cities Initiative (the GLSL 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 Compact Council was established in 2008 pursuant to the Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). The Compact details how the States will work together to manage and protect the Great Lakes-St. Lawrence River Basin. The Compact Council is comprised of the Governors of each of the eight Great Lakes States (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin).
The Compact prohibits diversions of Great Lakes water outside of the Great Lakes Basin, with limited exceptions. One exception allows a community that is not located within the Great Lakes Basin, but is located within a county that is partly within the Great Lakes Basin, such as the City of Waukesha, to apply for a diversion of Great Lakes water if that community can meet strict conditions. The City of Waukesha submitted an application for a diversion of Great Lakes water in 2011, and a revised application in 2013. The Wisconsin Department of Natural Resources approved Waukesha’s diversion application and sent the application to the Compact Council in January 2015. The Compact Council approved Waukesha’s Great Lakes diversion application, with conditions, on June 21, 2016.
The GLSL Cities Initiative is a binational coalition of over 120 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 GLSL Cities Initiative maintains that the Compact Council’s decision to approve Waukesha’s diversion of Lake Michigan water fails to protect the integrity of the Compact. The request for hearing states that:
Allowing a Diversion that is contrary to the strict requirements of the Compact threatens the resource that provides drinking water for 40 million people and is the foundation upon which a strong regional economy is based, to the detriment of the members of the GLSL Cities Initiative.
To date, the Compact Council has not responded to the request for hearing.
On September 1, 2016, Jenner & Block is hosting a CLE program titled Overview of Critical Litigation Issues for Environmental Practitioners in our Chicago offices at Noon. The program will feature two of our environmental litigation partners as speakers, Steven Siros and Allison Torrence. Together, they will provide environmental litigation updates addressing new developments related to the Clean Power Plan, “waters of the United States,” emerging contaminants, and CERCLA cost recovery/contribution claims.
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:
On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (a/k/a the TSCA Reform Act) into law. The TSCA Reform Act received bipartisan support in both the House and Senate, passing both bodies by wide margins. The TSCA Reform Act is a major overhaul of the 40-year-old chemical law, which had fallen short of its goal to protect people and the environment from dangerous chemicals.
In an article posted on EPA’s blog, Administrator Gina McCarthy praised the TSCA Reform Act, stating:
The updated law gives EPA the authorities we need to protect American families from the health effects of dangerous chemicals. I welcome this bipartisan bill as a major step forward to protect Americans’ health. And at EPA, we’re excited to get to work putting it into action.
Key provisions of the TSCA Reform Act include:
Late on June 7, 2016, the Senate voted in favor of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (HR 2576) (a/k/a the TSCA Reform Act). The TSCA Reform Act regulates the manufacture, transportation, sale and use of thousands of chemicals, and provides a much needed update to the 40 year old Toxic Substances Control Act (TSCA). The TSCA Reform Act had been passed by the House in May, with overwhelming support. It was held up recently in the Senate by an objection from Senator Rand Paul (R-Ky.), who argued that he needed more time to review the complex new law. But, Senator Paul dropped his objection on June 7th, and a vote was quickly held.
The TSCA Reform Act is widely seen as an improvement over the outdated TSCA. The American Chemical Counsel praised the TSCA Reform Act as “truly historic”. Others, however, were disappointed that the TSCA Reform Act preempted state laws on chemical safety, instead of setting a floor and letting state’s set more stringent standards.
President Obama is expected to sign the TSCA Reform Act into law very soon, as the White House had endorsed the Act after it passed the House of Representatives in May.
Attempts to reform the outdated Toxic Substances Control Act (“TSCA”) have been working their way through Congress for years with no success. But as of this week, legislators in Washington have announced that they are closer than ever before to finalizing and approving a TSCA reform bill.
Last year, the House and Senate each passed their own versions of a TSCA reform bill. The two versions contained significant differences, including on how they managed preemption of State chemical laws. Then, on May 17, 2016, House and Senate leaders issued the following statement on the current status of TSCA reform:
House and Senate negotiators are finalizing a TSCA reform bill that represents an improvement over both the House and Senate bills in key respects. Current federal law only provides very limited protection. We are hopeful that Congress will be taking action soon on reforming this important environmental law.
While some House Democrats, including Rep. Frank Pallone Jr. (D-NJ), Ranking Member of the House Committee on Energy and Commerce, believe the TSCA reform bill does not do enough, many high-profile Democrats and Republicans have signed on to the compromise bill, including U.S. Senate Environment and Public Works Committee Ranking Member Barbara Boxer (D-CA), Senator Cory Booker (D-NJ), House Energy and Commerce Committee Chairman Fred Upton (R-MI), and U.S. Senate Environment and Public Works Committee Chairman Jim Inhofe (R-OK).
The Congressional leaders are confident that the compromise bill will be up for a vote next week and could potentially be sent to the President for signing before Memorial Day. Be sure to follow the Corporate Environmental Lawyer Blog for analysis of any developments with the TSCA reform bill.
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.
On Thursday, April 7, 2016, Young Professionals in Energy (Chicago) is hosting an event titled “Hydraulic Fracturing in Illinois: What Has The National Frenzy Meant For Our State?” at Jenner & Block’s Chicago office. The event will be moderated by Jenner & Block attorney and YPE Board Member, Alexander Bandza, and will feature presentations from Jenny Cassel, Staff Attorney at Environmental Law and Policy Center, and Nancy Loeb, Director of the Environmental Advocacy Center, Northwestern University School of Law.
For more information and to RSVP click here.
On March 21, 2016, the Flint Water Advisory Task Force (FWATF) issued its Final Report regarding the Flint water crisis. The FWATF is a 5-member task force appointed by Governor Rick Snyder and charged with conducting an independent review of the contamination of the Flint water supply. The FWATF report contains some harsh criticism of government actions that caused and exacerbated the Flint water crisis, concluding that "the causes of the crisis lie primarily at the feet of the state by virtue of its agencies' failures and its appointed emergency managers' misjudgments." The FWATF lays much blame on the Michigan Department of Environmental Quality (MDEQ) as well as on the state-appointed emergency manager who had replaced local representative decision-making in Flint and made the decision to switch Flint's water supply to the Flint River.
The report contains 36 findings and 44 recommendations.
Key findings include:
March 22, 2016, is World Water Day. World Water Day is an international observance created by the United Nations in 1993, designed to provide an opportunity to learn more about water related issues, be inspired to tell others, and take action to make a difference. World Water Day has been held annually since 1993. This year's theme for World Water Day is: Better Water, Better Jobs.
In recognition of World Water Day, The Corporate Environmental Lawyer blog will feature a series of blogs next week focused on water-related issues and developments. Please follow our blog to learn more about these important issues.
To learn more about World Water Day, visit the UN World Water Day Website.
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).
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.
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.
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
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.
Partner E. Lynn Grayson, chair of Jenner & Block’s Environmental and Workplace Health & Safety Law Practice, is prominently featured on the cover of the 2016 Illinois Super Lawyers Magazine and in a lengthy profile in the publication.
Titled “Product of Her Environment: Environmental Lawyer E. Lynn Grayson Saves Companies Green,” the profile discusses Lynn’s career, starting with being hired by the Illinois Attorney General’s office out of law school in 1986 at a time when the office needed more environmental attorneys to handle the rash of newly defined regulatory violations. “I fell into environmental law,” she says.
President Obama addressed the nation last night in his final State of the Union speech. While the President covered a wide range of topics, he spent time to discuss the often politicized and controversial topics of climate change and alternative energy. When outlining the “four big questions” he believes the nation has to address, Obama asked “how do we make technology work for us, and not against us, especially when it comes to solving urgent challenges like climate change?”
Later, Obama dismissed anyone who disputes the science of climate change, and framed the challenge of climate change as an opportunity for American businesses to invest in alternative energy. He claimed that the solar energy industry employs more Americans than the coal industry and pushed for giving homeowners the freedom to generate and store their own energy. Obama stated that he wants to accelerate the transition from “old, dirtier energy sources” by pushing to “change the way we manage our oil and coal resources so that they better reflect the costs they impose on taxpayers and our planet.”
On Saturday, December 12th, the 195 parties to the COP21 in Paris agreed to a historic agreement aimed at reducing greenhouse gas emissions from both developed and developing nations. The Paris Agreement aims to keep global temperatures to "well below 2 °C above preindustrial levels."
The agreement is an ambitious accomplishment, more than nine years in the making. However, many climate change activists are claiming it does not go far enough to prevent significant harms from climate change. For example, due to pressure from the United States, the agreement does not say that developed nations "shall" commit to reducing GHG emissions. Instead, the agreement states that developed nations "should" commit to reducing GHG emissions. In addition, the agreement discusses the need for $100 billion a year from developed nations to help developing nations mitigate and adapt to climate change impacts. However, in the final agreement, the $100 billion figure is only mentioned in the non-binding preamble. Many of these changes were pushed by the United States in an attempt to craft an agreement that will not need to be approved by the republican-lead Congress.
President Obama commented after the Paris Agreement was finalized, stating that “[t]his agreement sends a powerful signal that the world is fully committed to a low-carbon future. We’ve shown that the world has both the will and the ability to take on this challenge.” On the other side of the political spectrum, Senate Majority Leader Mitch McConnell stated that President Obama was "making promises he can't keep" and that the agreement was "subject to being shredded in 13 months."
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.