Corporate Environmental Lawyer

Earth Day 2013

By E. Lynn Grayson

Next Monday, April 22, 2013, over one billion people around the world will celebrate the 43rd annual Earth Day. The theme of Earth Day 2013 is the "Face of Climate Change" according to the Earth Day Network.

The first Earth Day was held on April 22, 1970. Created by then Wisconsin Senator Gaylord Nelson, this special celebration was intended to raise awareness about environmental threats and encourage citizens to strive for healthy, sustainable communities. Earth Day 1970 capitalized on emerging consciousness, channeling the energy of the anti-war protest movement and putting environmental concerns front and center. The original Earth Day and the resulting environmental momentum led to the creation of the U.S. EPA and the passage of the Clean Air, Clean Water and Endangered Species Acts, among other environmental progress.

In celebration of Earth Day 2013, we will sponsor a weeklong series of blogs focused on the general topic of climate change and related considerations.

For more information about Earth Day 2013, visit the Earth Day Network website at http://www.earthday.org/2013/

ELI and Jenner & Block Program: “Obama’s Second Term: Implications For Environmental Practice” – April 24th

By E. Lynn Grayson

You are invited to join us on Wednesday, April 24, at 12:00 noon on the 45th Floor of the Chicago Office, for an important luncheon program we are co-sponsoring with the Environmental Law Institute ("ELI") entitled "Obama's Second Term: Implications for Environmental Practice." This program will bring together three speakers, each of whom played a key role in environmental matters during President Obama's first term, and each of whom is very knowledgeable concerning EPA enforcement trends, emerging environmental issues, and environmental policy challenges.

The three speakers will be (1) John Cruden, currently the President of ELI, who previously served for many years as the Deputy Assistant Attorney General in charge of environmental enforcement at the Department of Justice; (2) Thomas Perrelli, Chair of the Government Controversies and Public Policy Litigation Practice at Jenner & Block, who recently returned to Jenner & Block and who previously was directly involved in environmental matters as one of the key former heads of the Justice Department; and (3) Robert Kaplan, who presently serves as Regional Counsel for Region 5 of the EPA. These speakers will share lessons learned, including what we can expect will affect business and environmental regulation during President Obama's second term.

We are privileged to partner in this program with ELI, one of the preeminent, non-partisan environmental law organizations in the country. Headquartered in Washington, DC, ELI has played a pivotal role since the early 1970s in helping to shape environmental law, policy, and management, both domestically and abroad. This program will present an insider's viewpoint on what we anticipate in environmental enforcement and regulation from the DOJ, EPA, and White House over the next four years.

Please forward any RSVPs to Elizabeth Wong (elizabethwong@jenner.com).

 

LexisNexis “Real Law” Article Addresses Water Risks

By E. Lynn Grayson

LexisNexis has posted an article "Navigating the Growing Body of Legal Issues Related to Water" in its "This Is Real Law" series. The article addresses water scarcity issues in the U.S. and discusses emerging legal implications. This special news story was published in recognition of World Water Day and the fact that the UN has declared 2013 the Year of International Water Cooperation. The "Real Law" series focuses on key topics of interest to all lawyers in their law practices.

The article may be viewed at http://www.thisisreallaw.com/hot-topics/2013/03/21/world-water-day.html.

EPA And Environmental Groups Seek Supreme Court Review In Cross-State Air Pollution Case

By Allison A. Torrence 

On March 29, 2013, EPA and several environmental groups filed two separate Petitions for A Writ of Certiorari with the United States Supreme Court, asking the high court to review the D.C. Circuit decision to vacate EPA's Cross-State Air Pollution Rule (the "Transport Rule") in the case of EME Homer City Generation, LP v. Environmental Protection Agency, et al., Case No. 11-1302. EPA and the environmental groups – including Natural Resources Defense Council and Sierra Club – are seeking Supreme Court review almost one month before the deadline to do so, indicating their view that the case is significant and time sensitive.

As previously discussed in this blog, EPA promulgated the Transport Rule to address air pollution (specifically sulfur dioxide ("SO2") and nitrogen oxide ("NOx")) that crosses state lines. On August 21, 2012, the D.C. Circuit vacated the Transport Rule, holding that EPA exceeded its authority when it promulgated the Transport Rule. The D.C. Circuit denied EPA's petition to rehear en banc the 2-1 panel decision to vacate the Transport Rule, leaving the United States Supreme Court as the last chance for the Transport Rule.

EPA and the environmental groups are arguing to the Supreme Court that the D.C. Circuit overstepped its authority when it vacated the Transport Rule. The environmental groups claim that "[t]he court of appeals' decision is riddled with error." In addition, they argue that the Transport Rule presents issues of vital national importance that warrant the high court's review. EPA argues that the D.C. Circuit opinion "creates a substantial impediment to the EPA's authority to implement the [Clean Air Act]" and "hobbles the agency with respect to the aspect of the Act's administration (regulation of interstate pollution that upwind States have little incentive to police on their own) where the need for a strong federal role is the most critical."

Respondents in this case have until April 29, 2013 to file a response to the petitions.

A copy of the EPA's Petition for A Writ of Certiorari is available here, and the environmental groups' Petition for A Writ of Certiorari is available here.

New Desalination Technology Offers Hope For Cheap, Clean Water

By E. Lynn Grayson

Lockheed Martin announced this week that it has found a way to greatly reduce the amount of energy required to remove salt from seawater. This new discovery has the potential to make it vastly cheaper to produce clean water at a time when water scarcity is emerging as a global security issue.

The key here appears to be a pure carbon product known as graphene – created in sheets so thin (just an atom in thickness) that it takes much less energy to push seawater through a filter with sufficient force to separate salt from water. It is hoped this new process may eliminate the need for underdeveloped countries to construct costly pumping stations currently required in the reverse osmosis desalination process.

Lockheed reports a number of challenges in moving to production of filters made of graphene, a substance similar to the lead in pencils. Working with this material is difficult without tearing it as is refining the process for making the holes.

The new filtering material, known as Perforene, may be available as early as the end of this year. The objective is a drop in replacement for filters now used in reverse osmosis plants. Lockheed Martin has been awarded a patent for the Perforene material. Perforene material works by removing sodium, chlorine and other ions from seawater.

According to Lockheed Martin, graphene – the ultra strong, carbon-based material – could revolutionize the world's clean water supply. As we celebrate World Water Day today, this is great news.

Beyond H2O: Global Water Security

By E. Lynn Grayson

The National Intelligence Council has conducted an intelligence community-wide assessment of water risks of states strategically important to the U.S. Looking out to 2040, they identified three global drivers for water scarcity: 1) population growth; 2) economic development; and, 3) climate change. In the near term, economic development and population growth are bigger drivers than climate change. Beyond 2040, climate change may be the driver.

At a May 2012 program at the Wilson Center "Global Water Security: The Intelligence Community Assessment," it was noted that water scarcity may trigger social disruption. Moreover, it was suggested that water potentially could be used as a weapon by terrorists or by states seeking to marginalize sections of their populace.

The U.S. Department of State has identified five priorities for water security: 1) building cross-state institutional capacity; 2) increasing diplomatic efforts; 3) mobilizing financial support; 4) promoting science and technology; and, 5) building sustained partnerships.

While water scarcity issues tend to be addressed in the context of social, human rights and environmental issues, these concerns are emerging as an international intelligence risk. It was stated at the Wilson Center program that "… left unaddressed, water challenges worldwide are going to present a threat to U.S. security interests."

The 2012 Wilson Center program discussed here can be viewed online at http://www.wilsoncenter.org/event/global-water-security-the-intelligence-community-assessment.

World Resources Institute: Aqueduct Maps Water Risks

By E. Lynn Grayson

The World Resources Institute (WRI) believes that water scarcity is one of the defining issues of the 21st century. In its Global Risks 2013 report, the World Economic Forum identified water supply crises as one of the highest impact and most likely risks facing the planet. According to the report, "Two risks appear in the top five of both impact and likelihood – chronic fiscal imbalances and water supply crises." With the support of a diverse group of partners and in response to this growing need, WRI built Aqueduct to help companies, investors, governments, and communities better understand where and how water risks are emerging around the world. Aqueduct will measure, map and allow a better understanding of water risks around the globe. In January 2013, the World Resources Institute launched the centerpiece of Aqueduct after a three-year development effort: the Water Risk Atlas. The Atlas uses a robust, peer reviewed methodology and the best-available data to create high-resolution, customizable global maps of water risk.

The Aqueduct Atlas allows users to perform a variety of searches and to customize analyses including:

1. view maps of projected change in water stress in coming decades;
2. learn more about Aqueduct's river basin studies;
3. review up-to-date water risk news stories;
4. download data behind Aqueduct's water risk maps;
5. examined data sources and methodology behind water risk maps; and,
6. input or upload locations for study and export those results to Exel.

WRI offers "how to" tutorials, online instruction and seminars on how to use this valuable tool to review, assess and track water risk. WRI also supports a related blog and Twitter associated with Aqueduct.

There are many reasons a party may need to better understand water risk in a certain area, region or country. Aqueduct is an important tool available to the public allowing up-to-date access on water risk both now and in the future.

WRI is committed to transparency and open data. The data and methodology behind Aqueduct are documented and available for download. Thanks to WRI and its partners, all the products, methodologies and data sets that make up Aqueduct are available for free use.

To learn more about WRI and Aqueduct, visit http://aqueduct.wri.org/.

U.S. Water Stress Disputes

By E. Lynn Grayson

World Water Day 2013 draws attention and focus on issues around the world associated with water stress, water security and water scarcity. It is easy for many of us in areas where water is plentiful and readily available to believe that these concerns relate to others or are problems facing those living in other countries or on different continents. A closer look shows that there is growing evidence that water stress exists in the U.S. today and that these concerns may grow in significance into the future. A brief review of 2013 news stories confirms that water scarcity also is becoming a more common topic in ongoing litigation and regulatory proceedings. Below are brief summaries that highlight water rights disputes ongoing now arising from water scarcity situations: 

Arizona Water Dispute: The Arizona Department of Water Resources recently approved a 7,000 new home development plan in Sierra Vista, Arizona which would allow 3,000 acre-feet of water a year to be pumped from the last big, free flowing river in the Southwest – the San Pedro. The U.S. Bureau of Land Management, along with local landowners and environmental groups, have appealed the decision arguing that the new pumping would intercept water that otherwise would flow to replenish the San Pedro River and the surrounding 57,000 acre San Pedro Riparian National Conservation Area. At issue are the water rights of local landowners as well as "reserved water rights" that entitle the federal government to "sufficient" water to serve areas including military bases, Indian reservations and national parks. Two cases are pending addressing an appeal of the State's approval of the development plan and water allocation matters.

Great Lakes' Water Levels: U.S. Army Corps of Engineers reported in January, 2013 that the water level in the Great Lakes is the lowest it has been since modern record-keeping began in 1918. Many concerned with these record setting water levels want the U.S. and Canadian governments to take action. Such action is focused, in part, on dredging activities in the St. Clair River which is the main outflow for the lakes. Dredging is responsible for some of the lowering of water levels along with warm and dry weather and overall changing weather patterns. The International Joint Commission, a binational body that oversees U.S. – Canadian boundary water issues, is reviewing thousands of public comments received after the release of a study about water levels in the Great Lakes. Recommendations from the Commission are anticipated in Q1 2013.

Texas – Oklahoma Water Dispute: The Tarrant Regional Water District is a large water supply agency serving north-central Texas. Tarrant wants to purchase water from Oklahoma to help meet its supply needs and now is engaged in a long standing water war between Texas and Oklahoma over allocation of the Red River. Tarrant filed a petition for certiorari asking the U.S. Supreme Court to weigh in on this dispute involving interesting Commerce Clause and interstate water compact implications. In January 2013, the U.S. Supreme Court agreed to hear Tarrant's lawsuit against Oklahoma over control of the water that flows from several of its river basins into the Red River.

Mississippi River Levels Threaten Barge Traffic: 2012 drought conditions are blamed for low water levels in the Mississippi River watershed that threatens to close a portion of the river between St. Louis, MO and Cairo, IL. As the river drops, barge tows are threatened with running aground on bedrock formations in the shipping channel. One complicating factor in managing levels in the Mississippi River is management of flows from the Missouri River. Whether or not increased flows can be contributed by the Missouri River will depend upon the snowpack in the mountains and the Dakotas, where the headwaters of the Missouri originate. According to the National Climate Data Center, the lack of precipitation throughout much of the country has brought about drought conditions that are the worst since the 1950s. The U.S. Army Corps of Engineers is "cautiously optimistic" that the river will remain open to barge traffic.

Each of the news items above were identified in daily national or local newspapers and not through a review of legal publications or court dockets. Water-related news is more and more common often appearing in our local newspapers.

Great Lakes Advisory Board Named

By E. Lynn Grayson

EPA has named the membership of the first advisory board to support implementation of the Great Lakes Restoration Initiative – an aggressive action plan addressing five urgent issues through fiscal year 2014:

1. cleaning up toxics and areas of concern;
2. combating invasive species;
3. promoting near shore health;
4. restoring wetlands; and,
5. tracking progress working with strategic partners.

The Great Lakes Advisory Board will provide advice and recommendations to the EPA Administrator, who serves as chair of the federal Interagency Task Force consisting of 11 agencies. The Great Lakes contain 21% of the world's supply of freshwater and 84% of North America's supply. Drought conditions, changing weather patterns and extremely low precipitation have resulted in record low water levels exacerbating water scarcity concerns. While the newly formed Board will address many concerns and issues confronting the Great Lakes, water levels, water stress and water scarcity considerations certainly will impact and guide much of their work. 

The first two-year appointments to the advisory board are:

• J. David Allen, Professor – University of Michigan.
• Patricia Birkholz, Founder – Great Lakes Legislative Caucus.
• Kathryn Buckner, President – Council of Great Lakes Industries.
• Naomi Davis, President – Blacks in Green.
• Molly Flanagan, Program Officer – The Joyce Foundation.
• Steve Galarneau, Director – Office of the Great Lakes, Wisconsin Department of Natural Resources.
• Jennifer Hill, Field Manager – National Wildlife Federation and Healing Our Waters – Great Lakes Coalition.
• Roger Germann, Executive Vice President – John G. Shedd Aquarium.
• Bill Hafs, Director of Environmental Programs – Green Bay Metropolitan Sewerage District.
• Michael Isham, Tribal Councilman – Lac Courte Oreilles Tribal Government and Chair of the Great Lakes Indian Fish and Wildlife Commission.
• Simone Lightfoot, Manager of Conservation & Sustainability – NAACP Detroit Branch.
• Joy Mulinex, Director – Public Policy and Great Lakes Land Conservancy Coalition Director – Western Reserve Land Conservancy.
• Jim Ridgway, Vice President – Environmental Consulting and Technology, Inc.
• Joan Rose, Professor – Michigan State University.
• Richard Stewart, Co-Director – Great Lakes Maritime Research Institute.
• Matt Thompson, Environmental Resources Coordinator – Saint Regis Mohawk Tribe.
• David Ullrich, Executive Director – Great Lakes and St. Lawrence Cities Initiative.
• Jim Wagner, City Administrator – Trenton, Michigan.

The Interagency Task Force is in the process of scheduling next steps for the Great Lakes Advisory Board in the spring.

The Great Lakes provide more than 30 million Americans with drinking water and underpin a multi-billion dollar economy. In February 2009, President Obama proposed the Great Lakes Restoration Initiative, the largest investment in the Great Lakes in two decades. GLRI funds are being used to accelerate cleanup work in the 29 remaining AOCs identified by the U.S. and Canada under the Great Lakes Water Quality Agreement.

More information on the Great Lakes Restoration Initiative: http://www.glri.us.

Water Scarcity Creates Opportunities For Water Services Industry

By E. Lynn Grayson

According to a recent report from Bank of America Merrill Lynch Global Research titled "A Blue Revolution – global water," some companies in the water services industry are in the strongest position to benefit from the global dynamics of water supply and demand. The global water services industry is set to double to $1 trillion dollars in annual revenues by 2020 responding to water scarcity problems.

According to the report and as commonly outlined in other recent water stress studies, water is on course to be scarcer than oil by 2030, with demand outstripping water supply by 40 percent. Close to half of the world's population will be living in water-stressed areas. The report opines that unless more sustainable water management practices are adopted, 45 percent of projected 2050 global GDP at 2000 prices could be at risk or about $63 trillion dollars.

The report highlights three themes in addressing water scarcity: 1) water treatment; 2) water management; and 3) water infrastructure and supply, addressing each as follows:

Water treatment – emerging market growth driving demand

Rising water scarcity and growing demand from agriculture, housing and industry will increase demand for water treatment. The report details how agriculture accounts for 70 percent of water use and demand is rising as diets change. As industries across emerging markets expand, their demand for water rises. Municipal and residential water use is also growing on the back of urbanization. Wastewater reuse stands at only 2.41 percent of all water withdrawals globally.

The report outlines opportunities in areas such as producing drinking water, irrigation, or returning water to the natural environment. It focuses on sectors with heavy volumes and environmental constraints (such as utilities, oil and gas, and mining), those with strict water constraints (food and beverage, cosmetics) and variable effluents (petrochemicals, energy, and breweries). The report highlights how desalination could emerge as a $25 billion industry by 2025.

Water management – smarter irrigation is key

Against the backdrop of growing water scarcity, fragmented water management and conflicting interests of stakeholders are too expensive and unsustainable in the long term. There is growing recognition that the water crisis is as much a consequence of weak policies and poor management as natural scarcity. Effective water management enables users to cut their use of water. It also mitigates the risks associated with water shortage and reduces the need for capex-intensive solutions.

With up to 60 percent of water used in agriculture wasted, smarter irrigation is essential. Household water management has huge potential – if all U.S. households installed water-saving features, the dollar-volume savings would be more than $4 billion per year. Companies involved in areas such as drought-resistant seeds and crops and smart metering are poised to benefit from appetite for water management.

Water infrastructure and supply – growing role of private finance

The report highlights the global need for water infrastructure. Developed markets need to replace crumbling and incomplete infrastructure while emerging markets need to build infrastructure for the first time. Annual water investment needs are estimated to rise to more than $770 billion for the OECD and BRICs by 2015. With public funding increasingly under financial pressure, we believe the private sector will need to play an increasingly important role.

Water infrastructure is currently a $360 billion-plus market and is registering growth of up to 6 percent in some segments. Scope for growth is especially strong in Latin America and Asia. Companies involved in engineering, construction and consulting, pipes, pumps and valves and sewage treatment will benefit.

Citing the World Resources Institute – Aqueduct Project, the report details supply-side water pressures noting these concerns are further exacerbated by a lack of freshwater, its uneven distribution, widely varying quality and emerging climate change risks. "Every region of the world…" is impacted by water scarcity.

The report provides significant data including companies at risk because of water reliance, companies with opportunities as well as countries suffering the most significant water stress, water scarcity and absolute water scarcity.

While an economic market analysis report for investors, this report provides good insight into the business, regulatory, political, social and legal issues at play related to water scarcity now and into the future. To view the report, go to http://www.merrilledge.com/Publish/Content/application/pdf/GWMOL/ABlueRevolution-globalwater.pdf.