A Jenner & Block team including Partner Gabrielle Sigel and Associate Alexander Bandza of the Firm’s Environmental and Workplace Health & Safety group, supported by Partner Jessica Ring Amunson and Associate Amir Ali of the Firm’s Washington, D.C. office, won a significant victory in federal court environmental and pipeline litigation on behalf of clients Apex Oil Co., Inc. and Petroleum Fuel & Terminal Co. (PF&T). Apex and PF&T are defendants in a cost recovery and injunction action brought against them by Chevron U.S.A. Inc. in the U.S. District Court for Maryland. Chevron’s lawsuit concerns a pipeline that PF&T purchased from Chevron in 1994. Chevron has claimed more than $30mm in damages for costs of remediating pollution allegedly caused by discharges from the pipeline over the course of approximately 20 years.
On October 5, 2015, from 5 p.m. to 7 p.m., 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. There will be brief remarks from IIT Chicago-Kent Professor Dan Tarlock on U.S. Supreme Court environmental cases in the upcoming term.
A summary of the details is below. If you would like to join us at the reception, please RSVP here.
Environmental Attorney Reception
October 5, 2015
5:00 pm - 7:00 pm
Jenner & Block
45th Floor Conference Center
353 N Clark Street
Chicago, IL 60654
On September 3, 2015, Stephen Armstrong will moderate a mid-day panel titled “New Approaches to Marketing and Redeveloping Surplus Properties” at the 16th National Brownfields Training Conference, to be held at the Hilton Chicago, 720 S. Michigan Ave., from September 2-4. The panel description provides:
Alexander J. Bandza To Moderate Teleconference on This Year’s Environmental, Energy Supreme Court Cases
Next month, on July 9, 2015, Associate Alexander J. Bandza will moderate a lunchtime ABA teleconference titled “Supreme Court Year in Review: The Environmental Cases.” The event will feature a discussion of the following four Supreme Court cases from this past term that will affect environmental and energy lawyers: (1) Kansas v. Nebraska and Colorado; (2) Michigan v. EPA; (3) Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund; and (4) Oneok Inc. v. Learjet, Inc.
A distinguished panel of speakers will discuss these cases:
- Shannon S. Broome, Katten Muchin Rosenman LLP, Oakland, CA
- Anne M. Carpenter, Katten Muchin Rosenman LLP, Washington, DC
- Stephen R. McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, The University of Kansas School of Law and Solicitor General of Kansas, Lawrence, KS
- A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Chicago, IL
A question-and-answer session to follow. Registration and additional information is available here.
In a rule signed on June 10, 2015, EPA proposed to find that greenhouse gas (GHG) emissions from engines used in certain types of aircraft contribute to air pollution that endangers health and welfare under section 231(a) of the Clean Air Act. Further, anticipating that the International Civil Aviation Organization (ICAO) will adopt a final CO2 emissions standard for aircraft in February 2016, EPA also issued an Advance Notice of Proposed Rulemaking seeking input on the potential use of section 231 to adopt and implement the international aircraft engine CO2 emissions standard domestically.
In the rule, EPA states that it is relying primarily on the scientific and technical evidence in the record supporting the 2009 Endangerment and Cause or Contribute Findings for Greenhouse Gases under section 202(a) (the “2009 finding”), though it also includes subsequent work. It also follows the rationale it previously used with respect to the 2009 finding. For example, EPA proposes to define the air pollution referred to in section 231 to be the mix of the following six well-mixed GHGs: CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride – the same definition used for the 2009 finding for the purposes of section 202(a).
The rule has been submitted for publication in the Federal Register; the internet version of the rule is available here. Comments will be due within 60 days after publication in the Federal Register. A public hearing will be held in Washington, D.C., on August 11, 2015.
Partners E. Lynn Grayson and Steven M. Siros have published a new article titled “Nanotechnology: U.S. Regulatory Framework and Legal Risk Management” in the Westlaw Journal of Toxic Torts addressing some of the legal and technical challenges associated with nanotechnology. While nanotechnology offers the opportunity for tremendous scientific advances in industrial, commercial, and consumer products, and has been referred to by some as the second coming of the Industrial Revolution, there has been growing concern and associated regulatory scrutiny with respect to how nanotechnology interacts with human health and the environment. The article provides an overview of how nanotechnology is defined, key regulatory initiatives, public and private partnerships assessing potential concerns, and risk management considerations.
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.
How did NASA astronaut Scott Kelly give the world some "perspective" on Earth Day this year?
Scott Kelly, who is spending a year aboard the International Space Station, posted his first "geography quiz" photo on Earth Day. He plans to tweet a photo taken from the station of an undisclosed location on the planet every Wednesday and invite viewers to guess what it depicts. Follow him @StationCDRKelly.
How did NASA astronaut Scott Kelly give the world some "perspective" on Earth Day this year?
Please submit your answer to me at firstname.lastname@example.org and indicate whether you would mind us sharing your name in a later post, should you be the first correct responder.
1. Alphabetically, what are the second three states with OSHA-approved State Plans? Connecticut, Hawaii, and Illinois. See the full list here.
2. The following provision is known as what?
"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
The General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act of 1970).
Associate Alexander Bandza co-authored an article that examines Michigan state courts’ brief adoption of Article III standing requirements for citizen-suit plaintiffs as witnessed through several recent appellate decisions interpreting the Michigan Environmental Protection Act (MEPA). The authors provide a background on the Michigan Constitution and MEPA and review the shifting historical treatment of Article III standing requirements for citizen-suit plaintiffs in Michigan. The authors conclude that as a practical matter, plaintiffs proceeding on statutory standing-based claims, and defendants responding to such claims, must regularly apprise themselves about the current availability of statutory standing in Michigan state courts in light of this uncertainty.
Mr. Bandza wrote the article with Andrew Armstrong, an attorney at the Environmental Law & Policy Center. The article appears in the newsletter of the American Bar Association Section of Environment, Energy, and Resources Constitutional Law Committee.
The article is available here.
Steven M. Siros and Allison A. Torrence to Participate in CBA Seminar on Environmental Litigation Skills
Tomorrow, Wednesday, March 18, the Chicago Bar Association will be hosting a CLE Seminar on Environmental Litigation Skills. Jenner & Block’s Steven M. Siros and Allison A. Torrence will be participating in the panel on Alternative Dispute Resolution, as panelist and moderator, respectively. The CLE program will also include panels on discovery in environmental litigation and working with experts. You can register on the CBA’s website here. Event details are as follows:
Environmental Litigation Skills
Time: 3:00 PM - 6:00 PM
Location: The Chicago Bar Association, 321 South Plymouth Court, Chicago, IL 60604
Presented by: Environmental Law
Experience Level: Intermediate
MCLE Credit: 2.75 IL MCLE Credit
On Friday, Gabrielle Sigel and Allison Torrence of Jenner & Block, in partnership with the Chicago Bar Association’s Environmental Law Committee, will host a luncheon entitled, “Can a Lame Duck Fly? Climate Change Law at the Sunset of the Obama Administration.”
From the presenters: “The first six years of the Obama Administration’s efforts to address climate change have resulted in regulatory changes, executive branch initiatives, judicial challenges, and Congressional obstacles. The results of the recent 2014 mid-term elections will allow us to predict how successful the President will be in accomplishing the goals of his Climate Action Plan and his Administration’s effect on climate change law. Please join us as we discuss how the new make-up of Congress, the Administration’s proposed regulations and other executive actions, and recent federal court rulings shape the future of climate change law.”
Friday, November 14, 2014
12:00pm - 1:30pm CST
Lunch will be served at noon followed by the presentation at 12:15pm.
Jenner & Block LLP
353 N. Clark, 45th Floor
1 IL MCLE Credit
Click here to register.
A European Union publication Interfax recently published an article titled China and US Will Make or Break Climate Deal by Annemarie Botzki. The article discusses the stance of countries around the world on climate change and greenhouse gas (GHG) emissions and what is likely to happen at the upcoming 2015 Paris climate change talks. Jenner & Block Partner, E. Lynn Grayson, is quoted discussing the U.S. position on climate change and recent activities taken by the Obama Administration.
According to Ms. Botzki, the Conference of Parties 15 summit to be held in Paris next year may be the most important climate change negotiation ever held. It will decide how the remaining carbon space can be emitted globally while staying below a 2 C warming level will be divided among the countries of the world.
International accord on climate change is difficult particularly between developed and less developed nations. At the upcoming Paris summit, it is commonly believed that the U.S. and China will play major roles in deciding whether a binding agreement on GHG can be reached at the UN summit to follow in December.
In her comments, Lynn noted that "The U.S. position on GHG reductions and supporting an international agreement appears stronger than ever. Last month, the U.S. State Department submitted a possible global climate change agreement to the United Nations Framework Convention on Climate Change supporting a five-year time frame to make initial cuts to carbon emissions, beginning in 2020 and ending in 2025."
Another critical decision point for an international agreement is the form that binding document may take. The U.S. appears to be advocating for something other than a treaty which would require two-thirds of the U.S. Senate for ratification. Lynn was quoted as saying "given the workings of Congress these days, it is very unlikely that any treaty could be ratified. It would be virtually impossible to receive the votes needed for approval."
The article provides an overview of recent GHG actions in the EU, U.S. and China and discusses how these actions may impact climate change positions and negotiations at the Conference of Parties 15 summit.
Yesterday, the U.S. EPA Office of Inspector General (OIG) released a report entitled "Procedural Review of EPA's Greenhouse Gases Endangerment Finding Data Quality Processes," which was conducted at the request of Sen. James Inhofe (R-Okla.), Ranking Member of the Senate Committee on Environment and Public Works. According to the report, the purpose of the review was "to determine whether EPA followed key federal Agency regulations and policies in obtaining, developing, and reviewing the technical data used to make and support its greenhouse gas endangerment finding," referring to EPA's "Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act," issued December 15, 2009. EPA had relied on assessments conducted by outside organizations, such as the U.S. Global Change Research Program (USGCRP) (f/k/a U.S. Climate Change Science Program (CCSP)), the Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC), as the primary scientific basis for its endangerment finding, summarizing the results and conclusions of those assessments in its technical support document (TSD) accompanying the finding.
Yesterday, National Marine Fisheries Service (NMFS) announced that it had received a revised application from the U.S. DOI Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) (formerly Minerals Management Service (MMS)), for authorization to take marine mammals by harassment incidental to oil and gas industry seismic surveys conducted during geological and geophysical (G&G) exploration of the Outer Continental Shelf in the Gulf of Mexico. 76 FR 34656 (June 14, 2011). The notice states that, according to BOEMRE, underwater noise and pressure related to these activities may cause behavioral disturbance or damage to hearing sensitivity of marine mammals. Under the Marine Mammal Protection Act (MMPA), the agency will upon request grant an authorization for "the incidental, but not intentional, taking . . . of small numbers of marine mammals of a species or population stock" if it finds that the taking will have a "negligible impact" (see 50 CFR 216.103) on the species or stock and will not have an "unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses"; and prescribes regulations setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock and its habitat as well as requirements for
Yesterday, Maryland Governor Martin O'Malley signed an executive order which established the "Marcellus Shale Safe Drilling Initiative." According to the order, the purpose of the Initiative, which is to be administered jointly by the Maryland Department of the Environment and the Maryland Department of Natural Resources, is to "assist State policymakers and regulators in determining whether and how gas production from the Marcellus shale in Maryland can be accomplished without unacceptable risks of adverse impacts to public health, safety, the environment and natural resources."
Yesterday, a group of environmental organizations, led by the Chesapeake Bay Foundation, filed a joint petition requesting that certain federal agencies, with oversight from the Council on Environmental Quality (CEQ), prepare a National Environmental Policy Act (NEPA) Programmatic Environmental Impact Statement (PEIS) assessing the cumulative impacts of drilling in the Marcellus Shale formation in the Chesapeake Bay states and promulgate regulations based on the findings. The petition asserts: "Drilling for natural gas in the Marcellus Shale formation has significant impacts within the Chesapeake Bay states and to the 35 national park units that lie within or in the vicinity of the formation – and those impacts demand that action be taken by the federal government to determine the best way to protect human health and the environment."
Gabrielle Sigel and Genevieve Essig, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their November 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are summaries of the U.S. District Court of the Western District of New York's November 2 decision in NL Indus., Inc. v. Halliburton Co. and the U.S. District Court for the Western District of Washington's December 7 decision in United States v. Washington State Dep't of Transp.
Click here to read the November 2010 Environmental Cost Recovery & Lender Liability Update.
On November 15, 2010, Jenner & Block Partner Steven M. Siros and Associates Katherine M. Rahill and Genevieve J. Essig published a guest column in Law360 discussing information disclosure issues related to efforts to reform the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq., which governs the manufacture, distribution, and use of chemical substances in the U.S. The article provides a brief overview of existing TSCA chemical reporting requirements, examines the current efforts to reform the TSCA both via congressional action and EPA and state efforts, and provides practical tips to companies on how to best comply with TSCA reporting requirements while still shielding themselves from unforeseen liabilities associated with misinterpretation of information.
To access the full article, please click here.
Gabrielle Sigel and Genevieve Essig, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their May 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are summaries of the 9th Circuit's June 2 decision in U.S. v. Aerojet Gen. Corp. and the U.S. District Court of New Jersey's May 26 decision in Raritan Baykeeper, Inc. v. NL Indus.
Click here to read the May 2010 Environmental Cost Recovery & Lender Liability Update.
On June 2, 2010, the U.S. Court of Appeals for the Ninth Circuit held that a non-settling PRP's right to contribution under CERCLA was a legally sufficient interest to justify intervention to challenge a proposed consent decree between the federal government and the settling PRPs, joining ranks with the Eighth and Tenth Circuits, the only other U.S. appellate courts to address the issue. The case is U.S. v. Aerojet Gen. Corp., No. 08-55996 (9th Cir. Jun. 2, 2010).
A recent decision from the United States District Court for the Northern District of Illinois has provided a new perspective on who could be held liable for a release of hazardous substances as an “owner” under CERCLA. See United States v. Saporito, No. 07-C-3169 (N.D. Ill. Feb. 9, 2010). In a February 9, 2010 decision, the Honorable Rebecca R. Pallmeyer found an owner of equipment leased for use in an electroplating operation to be a “current owner” within the meaning of CERCLA, which resulted in his being liable for the $1.5 million U.S. EPA had expended to remove hazardous liquids and sludge from the former site of the electroplating business.
CERCLA Case Law Developments
- District Court Finds Owner of Leased Equipment Liable Under CERCLA
On February 9, 2010, the United States District Court for the Northern District of Illinois held that an owner of equipment leased for use in an electroplating operation is a PRP under CERCLA as a “facility owner at the time [of cleanup].” United States v. Saporito, No. 07-C-3169, slip op. at 15 (N.D. Ill. Feb. 9, 2010). In Saporito, the federal government sought to recover $1.5 million it spent to clean up hazardous substances affecting soil and groundwater at the former Crescent Plating Works site on the northwest side of Chicago from defendant individuals James Saporito and Paul Carr. During the electroplating process, items to be plated were dipped into a series of chemical baths through which an electrical current was run, and hazardous materials contained in the baths, such as sodium cyanide, hexavalent chromium, and TCE, at times splashed onto the concrete floor, ultimately reaching the soil below. Saporito, whose dealings with Crescent Plating included his purchasing and leasing back to Crescent Plating equipment used in the electroplating process, filed a number of counterclaims against the government and moved for summary judgment on his liability. The government moved for summary judgment on its claims that Saporito was both an owner and an operator liable under CERCLA, and moved to dismiss Saporito’s counterclaims, both of which the court granted.
CERCLA Case Law Developments
- District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon, U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John’s Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor’s coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon’s liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA’s objections, the court granted Vertellus’s and CBS’s motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon, No. 08-124, slip op. at 20.