In a surprising move, on Wednesday May 10th, the U.S. Senate voted 51 to 49 to reject a resolution under the Congressional Review Act (CRA) to repeal a 2016 Bureau of Land Management (BLM) rule aimed at reducing methane releases from oil and gas wells on public land. The rule at issue was published by BLM in the Federal Register on November 18, 2016 (81 FR 83008), and amends 43 CFR Parts 3100, 3160 and 3170 (the Methane Rule).
BLM has stated that the goal of the Methane Rule is to bring the 30-year-old oil and gas production rules in line with technological advances in the industry. The Methane Rule provides numerous rules and restrictions on oil and gas production operations on public and Indian lands, including:
On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.
Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.
The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.
You can RSVP here.
Any questions can be directed to Pravesh Goyal: (312) 923-2643 or email@example.com
As has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day. This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy". This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.
The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement. Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.
In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting. The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here). Happy Earth Day 2017.
Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.
When: Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.
Where: Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center
For more information about the program and to RSVP, please connect here.
Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.
As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.
As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.
2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.
Our five most popular blogs from 2016 were:
Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman
As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.
We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:
- March 7, 2017, 12:00 pm CT: Environmental, Health, and Safety Issues in 2017—What to Expect From the Trump Administration, by Gabrielle Sigel, Steven M. Siros and Allison A. Torrence
The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.
We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.
Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:
- Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
- Regulations that have been sent to the Federal Register but not published will be withdrawn.
- Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).
Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.
The Task Force on Climate-Related Financial Disclosures has issued a report detailing is recommendations for helping businesses disclose climate-related financial risks and opportunities within the context of their existing disclosure requirements. The Task Force developed four widely adoptable recommendations on climate-related financial disclosures that are applicable to organizations across sectors and jurisdictions: 1) adoptable by all organizations; 2) included in financial filings; 3) designed to solicit decision-useful, forward-looking information on financial impacts; and 4) strong focus on risks and opportunities related to transition to lower-carbon economy.
The recommendations are incorporated into a comprehensive report that provides good insight into climate-related risks and financial impacts, sector focused guidance, scenario analysis for climate issues and identification of key issues requiring further consideration. Appendices include a summary of select disclosure frameworks and other guidance including fundamental principles for effective disclosure.
In a letter to the Financial Stability Board transmitting the recommendations, Chairman Michael Bloomberg notes “….Warming of the planet caused by greenhouse gas emissions poses serious risks to the global economy and will have an impact across many economic sectors……without effective disclosure of these risks, the financial impacts of climate change may not be correctly priced and as the costs eventually become clearer, the potential for rapid adjustments could have destabilizing effects on markets.” He concludes in his letter that the Task Force’s recommendations “…aim to begin fixing this problem.”
The recommendations are designed to help companies identify and disclose information needed by investors, lenders and insurance underwriters to appropriately assess and price climate related risks and opportunities. Even with the upcoming changes in D.C., it is clear there will be continuing focus on climate change-related disclosures in 2017.
On December 20, 2016, President Obama announced that he was using his authority under the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.) to prohibit drilling and oil exploration in certain areas of the Arctic and Atlantic Oceans. President Obama’s action was coordinated with Canada, where Prime Minister Trudeau announced a similar ban in Canada’s Arctic waters. The action will ban drilling in approximately 115 million acres of the Arctic Ocean, which represents 98% of federally owned Arctic waters, and 3.8 million acres of the Atlantic coast around a series of sensitive coral canyons.
The Outer Continental Shelf Lands Act (“OCS Act”) was passed in 1953 to protect the waters above the outer continental shelf – submerged lands beginning 3 miles from shore and extending to the 200-mile international-waters boundary. 43 U.S.C. § 1331(a). The OCS Act states that:
"The outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs." 43 U.S.C. § 1332(3).
Several news outlets are reporting that President-elect Donald Trump will nominate Oklahoma Attorney General Scott Pruitt to serve as the Administrator of the U.S. Environmental Protection Agency. Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. In his role as Oklahoma Attorney General, Mr. Pruitt has been active in litigation challenging current EPA regulations in court, most significant of which have been challenges to the Obama Administration’s Clean Power Plan.
Mr. Pruitt and Oklahoma are part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit, which recently heard nearly seven hours of oral arguments and is expected to issue a ruling soon.
Environmental groups have been quick to react to Mr. Pruitt’s apparent nomination. Sierra Club Executive Director, Michael Brune released a statement critical of the pick:
Having Scott Pruitt in charge of the U.S. Environmental Protection Agency is like putting an arsonist in charge of fighting fires…We strongly urge Senators, who are elected to represent and protect the American people, to stand up for families across the nation and oppose this nomination.
Mr. Pruitt’s appointment must be confirmed by the U.S. Senate. Several Democratic Senators have already raised concerns over his nomination, including Senator Brian Schatz (D-HI), who tweeted that he “will do everything I can to stop this.”
Section 211 of the Clean Air Act requires EPA to set annual Renewable Fuel Standard (RFS) volume requirements for four categories of biofuels: cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. On November 23, 2016, EPA finalized rules under the RFS program, increasing the amount of renewable fuels that must blended into gasoline and diesel fuel in 2017.
Under the new RFS rules, total renewable fuel volumes will grow by 1.2 billion gallons from 2016 to 2017, a 6 percent increase.
Source: EPA website.
In the final rule, EPA describes the significance of renewable fuels, currently and in the future:
Today, nearly all of the approximately 142 billion gallons of gasoline used for transportation purposes contains 10 percent ethanol (E10), and a substantial portion of diesel fuel contains biodiesel. Renewable fuels represent an opportunity for the U.S. to move away from fossil fuels towards a set of lower lifecycle GHG transportation fuels, and the RFS program provides incentives for these lower lifecycle GHG fuels to grow and compete in the market.
The final RFS rules have been submitted to the Federal Register and will be published in the coming weeks. More information about the RFS program and the final RFS rule can be found on the EPA website.
The United States, in conjunction with 25 other countries, recently approved the creation of the world’s largest Marine Protected Area (MPA) in Antarctica’s Ross Sea. The Ross Sea Region MPA will safeguard one of the last unspoiled ocean wilderness areas on the planet—home to unparalleled marine biodiversity and thriving communities of penguins, seals, whales, seabirds, and fish.
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)—which operates by the unanimous consent of its 25 members—reported its extraordinary progress in safeguarding a very unique environmental marine area. The designation will prohibit or strictly limit commercial fishing as well as mineral extraction, among other such activities. The Ross Sea MPA will become effective December 1, 2017.
The new MPA adds 1.55 million square kilometers (598,000 square miles) in new ocean protection in an area nearly twice the size of the state of Texas. This designation—on top of the nearly 4 million square kilometers of newly protected ocean announced around the world at the Our Ocean conference the State Department hosted in September—makes 2016 a landmark year for ocean stewardship
More information about this environmental marine achievement can be found at the CCAMLR website at https://www.ccamlr.org/.
On October 15, 2016, representatives from 170 countries concluded negotiations in Kigali, Rwanda that resulted in a legally binding accord to limit hydrofluorocarbons (HFCs) in an effort to combat climate change. HFCs are chemical coolants used in air conditioners and refrigerants. Chemical companies developed HFCs in the late 1980s after the Montreal Protocol banned ozone-depleting coolants called chlorofluorocarbons (CFCs). HFCs do not harm the ozone layer, but they have 1,000 times the heat trapping potential of carbon dioxide.
The Kigali accord is an amendment to the 1987 Montreal Protocol (which was ratified by the U.S. Senate during the Regan Administration). Thus, the Kigali accord has the legal force of a treaty without further ratification by the current U.S. Senate. Although HFCs make up a small percentage of greenhouse gasses in the atmosphere, because of their extremely high warming potential, the reductions called for in the Kigali accord will lead to the reduction of the equivalent of 70 billion tons of carbon dioxide, which is approximately two times the amount of carbon dioxide emitted globally each year.
As we previously reported, two weeks ago, UN Secretary-General Ban Ki-moon announced that more than 55 countries, including the United States and China, had formally joined the Paris Climate Agreement, officially crossing one of the two thresholds required to bring the Agreement into force. 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. 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.
On Wednesday, October 5th, the UN announced that the European Union and 10 additional countries have deposited their instruments of ratification. Now, countries that have ratified the Paris Climate Agreement account for more than 55% of global greenhouse gas emissions, surpassing the second requirement for the Agreement to enter force. Thus, the Paris Climate Agreement will enter into force on November 4, 2016.
UN Secretary-General Ban Ki-moon made a statement to mark this “momentous occasion”:
“Global momentum for the Paris Agreement to enter into force in 2016 has been remarkable. What once seemed unthinkable is now unstoppable.
Strong international support for the Paris Agreement entering into force is testament to the urgency for action, and reflects the consensus of governments that robust global cooperation is essential to meet the climate challenge.”
The Paris Climate Agreement calls on countries to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low-carbon future, as well as to adapt to the increasing impacts of climate change. Specifically, governments must take actions to limit global temperature rise to well below 2 degrees Celsius, and to strive for 1.5 degrees Celsius. The Paris Climate Agreement also requires developed countries fund $100 billion in investments to assist developing countries meet the Agreement’s goals.
More information about the Paris Climate Agreement is available at the UNFCCC website.
On Tuesday, September 27, 2016, an en banc panel of the U.S. Court of Appeals for the D.C. Circuit heard nearly seven hours of oral arguments in one of the most significant environmental cases of the year: West Virginia v. EPA, Case No. 15-1363. This case involves more than 100 parties, who have filed dozens of petitions challenging EPA’s Clean Power Plan and its regulation of greenhouse gas emissions from existing power plants. Challengers include 27 States – led by West Virginia and Texas – labor unions, rural electric cooperatives, industry and trade groups, and private companies. Four intervenor briefs and 18 amici curiae briefs have been offered in support of the Clean Power Plan, by parties including 18 States, Washington D.C., utilities and power companies, environmental organizations, and former EPA administrators. Among other things, challengers argue that EPA exceeded its authority under the Section 111(d) of the Clean Air Act by including electricity-shifting measures and “Outside the Fenceline” requirements in the Clean Power Plan.
As we previously reported, in February 2016, the U.S. Supreme Court granted a stay of EPA’s Clean Power Plan. The stay was highly unusual because the case is still before the D.C. Circuit Court, which denied a request for a stay in January 2016. Adding to the unusual nature of this case, the D.C. Circuit, on its own motion, decided to hear the case en banc in the first instance, which is why the full court sat for oral arguments on September 27th. Notably, Judge Merrick Garland did not sit for oral arguments and will likely not take part in any decision, as he has recused himself from all decisions of the D.C. Circuit while he awaits resolution of his appointment by President Obama to the U.S. Supreme Court. The remaining 10 judges in the D.C. Circuit, Judges Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan, Millett, Pillard, Wilkins, took part in the oral arguments.
EPA’s defense of the Clean Power Plan went well during the oral arguments, with apparent support from the D.C. Circuit’s six democrat-appointed judges. The D.C. Circuit will likely expedite its decision in this widely-followed case, with an opinion expected in late 2016 or early 2017. Regardless of the outcome in the D.C. Circuit, the case will almost certainly be appealed to the U.S. Supreme Court for final resolution.
Audio recording of the oral argument is available on the U.S. Court of Appeals for the D.C. Circuit website.
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.
EPA recently issued fact sheets detailing climate change impacts for each state and U.S. territory. In doing so, EPA confirmed some very basic, general findings about climate change impacts overall:
- Every state will become warmer.
- The impacts of climate change are likely to be very different from state to state.
- Increased rainfall intensity will cause more flooding in some states, while increasingly severe droughts may threaten water supplies in other states.
- Farms and forests will be less productive in some states, but warmer temperatures may extend growing seasons in others.
The fact sheets are short two page documents focused on differing issues for each state including, for example, climate change impacts related to ecosystems; air pollution and human health; the Great Lakes; agriculture; the Illinois, Ohio, and Mississippi Rivers; coastal flooding; heavy precipitation/flooding; sea level rise; and winter recreation. The fact sheet for Illinois provides good insight into the kind of information detailed.
While the new information supplements the existing climate change data available online from EPA, the information in many of the fact sheets appears dated, very general in nature, and perhaps geared to the general public. Existing climate change data associated with impacts by region and by sector is more detailed and may be more useful overall. See https://www3.epa.gov/climatechange/impacts/.
The new fact sheets are available via EPA’s climate change web page at https://www3.epa.gov/climatechange/impacts/state-impact-factsheets.html
A recently issued PHMSA advisory bulletin seeks to clarify the regulatory requirements that apply to mothballed or idled unused gas or hazardous liquid pipelines. As required by the Pipeline Safety Bill that was signed into law on June 22, 2016, PHMSA recently issued an advisory bulletin providing guidance to owners and operators of gas or hazardous liquid pipelines regarding the requirements for idle and/or unused pipelines.
Although the bulletin recognizes that owners and operators often refer to pipelines that are not in operation but that might be used again in the future as “idled,” “inactive,” or “decommissioned,” the PHMSA regulations do not recognize “idle” or “inactive” status for hazardous liquid or gas pipelines. Instead, the regulations consider such pipelines to either be active and fully subject to all relevant parts of the safety regulations or abandoned. Assuming that these pipelines have not been abandoned in accordance with the requirements set forth at 49 CFR §§ 192.727 and 195.402, these pipelines must comply with all relevant safety requirements, including periodic maintenance, integrity management assessments, damage prevention programs, and public awareness programs.
The bulletin goes on to suggest, however, that in situations where the pipeline has been purged of all hazardous materials but not yet abandoned because of an expectation that the pipeline may later be used, the owner/operator may be able to defer certain of these safety requirements. Although PHMSA indicated that it intends to engage in a future rulemaking to provide further guidance as to which requirements might be deferred, in the interim the bulletin suggests that owners or operators planning to defer certain activities coordinate the deferral in advance with the regulators.
The guidance also reiterates that notwithstanding that companies might not have access to records relating to where historical pipelines might be located and/or if these pipelines were properly purged of combustibles, the owners and operators still have a responsibility to assure facilities for which they are responsible or last owned do not present a hazard to people, property, or the environment.
Please click here to see PHMSA's advisory bulletin.
EPA has announced a new waste and materials tracking feature in its Energy Start Portfolio Manager—a free benchmarking and tracking tool for commercial building owners and managers. The new waste tracking functionality allows the management of energy, water and waste via one secure online resource. This is another effort to promote and encourage sustainable materials management to conserve resources, remain economically competitive and support a healthy, sustainable environment.
EPA’s Energy Star Portfolio Manager provides a platform to improve energy performance, prioritize efficiency measures, and verify energy reductions in buildings. It currently measures energy, water and greenhouse gas metrics in more than 450,000 U.S. buildings, representing 40 percent of U.S. commercial space. The new resource unifies energy, water and waste under one virtual “roof” to streamline sustainability management programs allowing entities to better understand their environmental footprint and resource costs.
EPA is hosting two webinars to introduce the basics of the new waste tracking component in the Energy Start Portfolio Manager:
- Introducing Waste & Materials Tracking in Portfolio Manager—August 18 at 2:00 p.m. ET
- Introducing Waste & Materials Tracking in Portfolio Manager---September 15 at 1:00 p.m. ET
To learn more about sustainability initiatives in commercial buildings or to register for the upcoming webinars: https://www.energystar.gov/buildings/owners_and_managers/existing_buildings/use_portfolio_manager/track_waste_materials
Earlier this year New York Attorney General Eric Schneiderman spearheaded a coalition of attorneys general investigating whether ExxonMobil misled investors and the public about its knowledge of climate change. As previously reported in this blog (see ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes and Climate Change Allegations Against Big Oil Continue), ExxonMobil has sued the Attorneys General for the U.S. Virgin Islands and Massachusetts pushing back on allegations and related subpoenas dating back at least 40 years into the corporate history and internal communications of the company related to climate change considerations. Two recent developments ensure the conflicts over these government led investigations against ExxonMobil are far from over:
- This week the Energy & Environment Legal Institute and the Free Market Environmental Clinic filed litigation in the Supreme Court of New York against New York Attorney General Eric Schneiderman over his refusal to produce climate change-related communications demanded by these groups in requests filed under the New York Freedom of Information Law (FOIL). The free-market litigation nonprofits requested all correspondence between AG Schneiderman and eight individuals that contained certain keywords including “energy,” “fossil,” “climate,” “RICO” and “fraud.” The individuals targeted were associated with environmental organizations as well as lawyers that had litigated against ExxonMobil in the past. The Attorney General’s Office denied the FOIL requests claiming the communications sought were exempt from disclosure because they were protected as attorney client, attorney work product or inter- or intra-agency memoranda. The nonprofits assert that the majority of the information sought is communications between AG Schneiderman and outside parties that would not fall under any legal protections for withholding information.
- Last month, led by Texas Representative Lamar Smith, the U.S. House Committee on Science, Space and Technology issued ten (10) subpoenas to the Attorneys General of New York and Massachusetts as well as a number of nongovernmental environmental advocacy groups seeking climate change-related communications among the attorneys general and the environmental groups that support them associated, at least in part, with the ongoing investigations against ExxonMobil. The attorneys general have refused to produce any documents saying the request encroaches onto their states’ sovereign power to pursue their fraud investigations. Both Attorneys General Schneiderman and Healey have pushed back on the issuance of these subpoenas noting they are “…are an unprecedented effort to target ongoing state law enforcement investigations or potential prosecutions…” and if allowed would “…eviscerate AG Healey’s ability to conduct an ordinary and lawful investigation.”
Many have expressed skepticism about the legal reasoning and logic of the fraud, securities and RICO investigations launched by the “Green 20” state attorneys general. Critics charge the state attorneys general are using governmental power to further political objectives and in the process violating ExxonMobil’s constitutional rights of free speech and freedom from unreasonable searches. It appears there is nothing “ordinary and lawful” in the context of this unusual investigation aimed at achieving climate change parity where more appropriate regulatory and legislative efforts have failed.
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:
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 CLE Webinar: "Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future"
Jenner & Block Partner Gabrielle Sigel will discuss the development of climate change law under the Obama Administration and how that law may affect future efforts to regulate greenhouse gas emissions. She will provide a framework for understanding some of the most complex and dynamic legal decisions regarding administrative and environmental law since the Clean Air Act was enacted. Titled “Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future,” this CLE webinar will be held from 12:00 noon to 1:30 pm on May 12, 2016, at the firm’s Chicago office, 353 N. Clark Street.
Ms. Sigel is co-chair of the firm’s Climate and Clean Technology Law Practice and a founding member of the firm’s Environmental and Workplace Health & Safety Law Practice. She publishes extensively and is a frequent speaker on environmental law, climate change, and workplace health and safety issues.
Please click here to RSVP for attend the program in person or via a webinar.
Approximately 700 participants, including leaders from government, business, finance, academia, philanthropy and civil society, will meet in Washington, DC on May 5-6, to attend the Climate Action 2016 Summit. Seven organizations have come together to jointly co-host the summit, providing this diverse group with the information, connections and tools they need to lead effective implementation in a new climate regime.
The co-hosts of the Summit are:
- E. Mr. Ban Ki-moon, Secretary-General of the United Nations
- Jim Yong Kim, President of the World Bank Group
- Michael R. Bloomberg, UN Secretary-General’s Special Envoy for Cities and Climate Change; Founding Partner, Compact of Mayors
- Naoko Ishii, Chief Executive Officer, Global Environment Facility
- Judith Rodin, President, Rockefeller Foundation
- Peter Bakker, Chief Executive Officer, World Business Council on Sustainable Development
- Nigel Topping, Chief Executive Officer, We Mean Business
- Wallace Loh, President, University of Maryland
The goal of the Summit is to strengthen the multi-stakeholder approach to climate implementation. The summit will address how to deliver on climate commitments and embed the transformation agenda across the globe in government, key sectors and among the general population. At the same time, the summit will focus on near-term implementation actions and long-term implementation needs. These will focus on City and Sub-national implementation; Transport; Land-use; Energy; Resilience/Adaptation; and Analysis and Tools to Support Decision Making.
More information about Climate Action 2016 is available here.