As previously reported by my colleague Lynn Grayson, ExxonMobil has faced a recent onslaught of scrutiny over allegations that fossil fuel companies had committed fraud by downplaying the effect of climate change on their businesses. These matters include a subpoena issued by the U.S. Virgin Islands’ Attorney General’s office related to allegations of violating two state laws by obtaining money under false pretenses and conspiring to do so; and New York Attorney General Schneiderman’s investigation where documents have been subpoenaed to determine whether the company misled investors about the dangers climate change posed to its operations.
Two events last week suggest that this fight will not end anytime soon.
- ExxonMobil filed suit in the Northern District of Texas, seeking an injunction barring the enforcement of a civil investigative demand issued by the Massachusetts Attorney General to ExxonMobil, and a declaration that this demand violates ExxonMobil’s rights under state and federal law, including the First and Fourteenth Amendments to the Constitution, as well as the Dormant Commerce Clause.
- The Attorneys General of 13 states wrote a sharply-worded letter to their colleagues, noting that “this effort by our colleagues to police the global warming debate through the power of the subpoena is a grave mistake” and “not a question for the courts.” The letter outlines how this investigation is in fact “far from routine” because of its following three characteristics: “1) the investigation targets a particular type of market participant; 2) the Attorneys General identify themselves with the competitors of their investigative targets; and 3) the investigation implicates an ongoing public policy debate.”
We will continue to monitor developments on this heated situation.
Jenner & Block Partners E. Lynn Grayson and Gabrielle Sigel have been named “Energy & Environmental Trailblazers” by The National Law Journal. The list honors people who have “made their mark in various aspects of legal work in the areas of energy and environmental law.”
The profile of Ms. Grayson notes that she was appointed general counsel for the Illinois Emergency Services and Disaster Agency soon after the agency took over enforcement responsibility for the state’s Emergency Planning and Community Right-to-Know Act. When she moved into private practice in Chicago, she became involved in the first REIT case involving environmental issues; since moving to Jenner & Block, she has done a great deal of international due diligence. Ms. Grayson observes that the future of environmental law will involve international transactions as well as domestic work, particularly around energy and renewable energy.
The profile of Ms. Sigel notes that she focuses on the intersection of workplace health and the environment. The profile highlights one of her cases in which the water supply in retail and medical offices became contaminated, and a number of state agencies became involved. As for the future, Ms. Sigel observes that the lines between organizations will increasingly blur. “Whether it’s business, regulatory agencies, community groups or NGOs, you have to look at issues holistically, and not in a superficial way,” she says.
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.
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.
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 email@example.com or 312-923-2717.
EPA recently took action under the Toxic Substances and Control Act (TSCA) to ensure no TCE containing consumer products enter the marketplace before the Agency has the opportunity to evaluate the intended use and take appropriate action. The new rule issued April 6, 2016, known as a Significant New Use Rule (SNUR), requires any company intending to make certain TCE containing consumer products provide EPA 90-day notice before making the product.
The final rule applies to TCE manufactured (including import) or processed for use in any consumer product, except for use in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. A consumer product is defined at 40 CFR 721.3 as “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”
EPA’s June 2014 Work Plan Chemical Risk Assessment for TCE identified health risks associated with several TCE uses, including the arts and craft spray fixative use, aerosol and vapor degreasing, and as a spotting agent in dry cleaning facilities. In 2015, EPA worked with the only U.S. manufacturer of the TCE spray fixative product, PLZ Aeroscience Corporation of Addison, Illinois, resulting in an agreement to stop production of the TCE containing product and to reformulate the product with an alternate chemical.
It is important to note that this regulatory action may affect certain entities with pre-existing import certifications and export notifications required under TSCA.
The rule becomes effective 60 days from its publication in the Federal Register.
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.
As required by the Hazardous Waste Electronic Establishment Act (Act), EPA’s efforts are ongoing to develop an e-manifest system. EPA issued its final rule in February 2014 (79 Fed. Reg. 7518, February 7, 2014) seeking to implement the Act’s requirement to create a national electronic manifest system and impose user fees as a means to fund its development and operation. Most recently, EPA has developed an e-manifest listserv to manage communications with the regulated community.
According to EPA, the listserv will: 1) provide stakeholders with program announcements and updates; and 2) facilitate e-manifest conversations among users and other stakeholders. There will be significant progress on the e-manifest program throughout 2016-2017, so participation in the listserv will be a good way to stay informed.
Interested parties may subscribe to EPA’s listserv at https://www3.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
EPA conducted a webinar on developments with the e-manifest system in December 2015, and the presentation provides a good overview of the program and related schedule.
Along with the hazardous waste management changes for generators recently proposed by EPA, the e-manifest system will be another significant new development for thousands of companies regulated by RCRA and subject to hazardous waste manifest requirements.
EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.
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.
President Obama recently signed The Microbead-Free Waters Act of 2015, phasing out the use of microbeads in health and beauty products. This legislation moved swiftly through Congress and was passed by the House and Senate in December 2015 and signed by President Obama on December 28, 2015.
The new law requires the manufacturing of products containing microbeads to end by July 1, 2017 and the sale of them to cease by July 1, 2018. This legislation was supported by various health and beauty products trade and industry groups, many of whose members already had voluntarily committed to replacing microbeads with viable alternatives. The new law amends the Federal Food, Drug and Cosmetic Act in general banning cosmetics that contain synthetic plastic microbeads.
Microbeads have been the focus of growing environmental and health-related concerns since the very small particles are washed down the drain into waterways, lakes, streams, and rivers. Since the plastic beads do not break down, they are eaten by fish and animals, who often die because these materials cannot be digested.
As discussed a number of times in this blog, microbeads have been the subject of growing regulatory scrutiny. A number of states, as well as Canada, have passed laws working to ban the use, manufacture, and sale of microbeads over time.
The Microbead-Free Waters Act of 2015 is another example of consumer driven changes in products to safeguard and improve the environment.
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.
The 2015 United Nations Climate Change Conference, COP21, will be held in Paris, from November 30th to December 11th. It will be the 21st yearly session of the Conference of the Parties to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 11th session of the Meeting of the Parties to the 1997 Kyoto Protocol.
President Obama will be in attendance for the initial few days of the talks and Secretary of State John F. Kerry, Energy Secretary Ernest Moniz and others will continue negotiations after the President leaves.
The advanced agenda for the talks is available here.
In recognition of the Paris Climate talks, The Corporate Environmental Lawyer blog will feature a series of blogs over the next two weeks focused on climate change and developments from the negotiations. Please follow our blog to learn more about these issues and developments.
Here is some food for thought as we get ready to gobble down some turkey this Thanksgiving: A new $25 million plant under construction in North Carolina will convert turkey waste into energy. Prestage AgEnergy will use 55,000 tons of turkey litter a year to produce the equivalent of 95 million kilowatt hours of electricity and feed that renewable electricity back to the grid.
North Carolina has a lot of turkey waste on hand – it ranks second in the nation behind Minnesota in turkey production. In light of its prolific turkey farming, in 2007, the state passed an energy policy mandate that requires utilities to use a small amount of poultry waste-generated power. This will not be the first turkey-waste energy plant – Minnesota currently has a 55-megawat power plant designed to burn poultry waste as its primary fuel. However, the new North Carolina plant will reportedly be the first facility designed to run on 100-percent turkey waste.
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.
IARC’s Classification of Red Meat and Processed Meats as Carcinogenic Exposes Food Manufacturers, Distributers, and Retailers to Proposition 65 Liability
The Internet was buzzing yesterday with news that the International Agency for Research on Cancer (IARC) of the World Health Organization (WHO) has classified red meat as a Group 2A carcinogen (“probably carcinogenic to humans”) and processed meat as a Group 1 carcinogen (“carcinogenic to humans”). In general, IARC evaluates the environmental causes of cancer in humans, including chemicals (e.g., formaldehyde), complex mixtures (e.g., air pollution), physical agents (e.g., solar radiation), biological agents (e.g., hepatitis B virus), and personal habits (e.g., tobacco smoking). IARC has long played a role as a source of scientific information that carries weight in federal and state regulation of potentially harmful substances and toxic tort lawsuits involving such substances.
California is the ninth state to ban microbeads with passage of an aggressive new law prohibiting the tiny plastics beads by 2020. As the largest state to ban microbeads, this new California legislation appears to make it a virtual certainty that microbeads will be phased out across the country and possibly even through federal legislation.
Unlike bans enacted in Colorado, Connecticut, Illinois, Indiana, Maine, Maryland, New Jersey, and Wisconsin, A.B. 888 provides no exemptions for biodegradable plastic or a process to win approval for such an exemption. Both Michigan and Washington also are considering microbead bans.
Many personal care product manufacturers already have agreed to phase out the use of microbeads in their products over the next few years. Industry representatives agree there are alternatives and other options to replace the sector’s reliance upon microbeads. A new study concludes that 8 trillion bits of plastic enter oceans and lakes from the U.S. every day. The study also provides further support for the ban on microbeads to improve marine, environmental and public health.
The District of Columbia (D.C.) is the latest to propose a ban on microbeads starting January 1, 2018. The proposed ban, part of D.C.’s omnibus fisheries and wildlife bill aimed at ensuring marine areas and waterways remain pollutant-free, is one of the more aggressive approaches prohibiting the supply, manufacture, or import of personal care products containing microbeads. Fines up to $37,500 may be imposed for failure to comply with the ban.
Eight states, including Colorado, Connecticut, Illinois, Indiana, Maine, Maryland, New Jersey, and Wisconsin, as well as Erie County, New York, have laws banning the manufacture of personal care products containing microbeads starting as early as January 1, 2017.
The Canadian government recently took action to ban microbeads, very small particles found in a variety of consumer and personal care products that may pose adverse environmental impacts in rivers, lakes, and oceans after they are washed down the drain.
Specifically, the Canadian government proposes to designate microbeads as toxic substances and to develop regulations that would prohibit the manufacture, import, and sale of consumer and personal care products containing microbeads.
A thorough scientific review that included an analysis of over 140 scientific papers, as well as consultations with experts, revealed that the presence of microbeads in the environment may have long-term effects on biological diversity and ecosystems. A summary of key findings include:
EPA’s Safer Choice program (formerly Design for the Environment) recognizes products that meet stringent ingredient and product level criteria. Safer Choice products do not contain carcinogens or reproductive or developmental toxins. The program helps consumers and commercial buyers identify and select products with safer chemical ingredients without sacrificing quality or performance.
According to EPA, there are over 2,000 products that currently qualify for the Safer Choice label. This summer, EPA’s new Safer Choice labels began appearing on consumer products such as household soaps and cleaners. To qualify for the Safer Choice label, a product must meet stringent human and environmental health criteria.
In the first year of the Safer Choice Partner of the Year awards, the Chicago/Region V area has more winners than any other part of the country. Local award winners include: AkzoNobel/Chicago; ISSA, The Worldwide Cleaning Industry Association/Northbrook; Jelmar, LLC/Skokie; Loyola University Chicago, Institute of Environmental Sustainability/Chicago; and Stepan Company/Northfield. Nationwide, 21 entities won EPA Safer Choice Partner of the Year awards. EPA confirms there are nearly 500 formulator-manufacturer partners that make more than 2,000 products for retail and institutional customers.
More information about the Safer Choice program is available at http://www2.epa.gov/saferchoice.
A new EPA report, Climate Change in the United States: Benefits of Global Action, estimates the physical and monetary benefits to the U.S. of reducing global greenhouse gas emissions. The report summarizes results from the Climate Change Impacts and Risks Analysis (CIRA) project, a peer-reviewed study comparing impacts in a future with significant global action on climate change to a future in which current greenhouse gas emissions to continue to rise.
The report shows that global action on climate change will significantly benefit Americans by saving lives and avoiding costly damages across the U.S. economy. The report and its finding perhaps foreshadow the U.S. participation in the upcoming United Nations Climate Change Conference to be held in Paris, France later this year, from November 30 through December 11. This will be the 21st yearly session of the Conference of the Parties (COP 21) to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 11th session of the Meeting of the Parties (CMP 11) to the 1997 Kyoto Protocol. Once again, the conference objective is to achieve a legally binding and universal agreement on climate from all of the nations of the world.
Below is a video developed by EPA discussing the report and its findings.
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
- Mobile and tablet responsive technology
- A trending-categories cloud list
- Easy-to-use social sharing buttons
Streamlined navigation menus
- Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
EPA has denied the January 14, 2010 petition submitted by the Food & Water Watch and Beyond Pesticides to ban the antimicrobial pesticide triclosan. The petition requested that EPA take the following regulatory actions:
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA): (1) reopen the Reregistration Eligibility Decision (RED); (2) issue a notice of cancellation of the registrations of all products containing triclosan; and (3) concurrently issue an emergency order to immediately suspend the existing triclosan registrations.
Clean Water Act (CWA): (1) impose technology-based effluent limitations; (2) establish healthbased toxic pollutant water quality pretreatment requirements; and (3) impose biosolids regulation for triclosan.
Safe Drinking Water Act (SDWA): conduct a comprehensive assessment of the appropriateness of regulating triclosan under SDWA.
Endangered Species Act (ESA): (1) conduct a biological assessment; and (2) engage in consultation with the Secretary of the Interior and the Secretary of Commerce.
Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.
According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.