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.
Last week, the Board of the Green Climate Fund (the "Fund") met in Bali, Indonesia. The Fund was designated as an operating entity of the financial mechanism of the United Nations Framework Convention on Climate Change ("UNFCCC"). The Fund's purpose is to promote, within the context of sustainable development, the "paradigm shift towards low-emission and climate-resilient development pathways by providing support to developing countries to help limit or reduce their greenhouse gas emissions and to adapt to the unavoidable impacts of climate change." The United States and other industrialized countries at the 2009 climate summit in Copenhagen pledged $100 billion a year to the Fund—from public and private sources—as climate aid beginning in 2020.
During the three-day meetings in Bali, the Fund's Board members agreed, among other things, that the Fund will aim for a 50:50 balance between mitigation and adaptation efforts and designate 50% of adaptation funding for "particularly vulnerable countries," including least developed countries, small island developing states and African states. The Board of the Fund also determined that it will maximize engagement with the private sector and be a leader on "gender mainstreaming" and will define its gender action plan in October 2014. Click here for a link to the press release.
On May 20, 2013, the United States Supreme Court denied the Alaska town of Kivalina’s petition for writ of certiorari in its public nuisance lawsuit against Exxon Mobil Corp. and other energy companies. Kivalina contended that the energy companies were injuring the small Eskimo village by causing global warming and a commensurate sea level rise, and, as a result, inhabitants were forced to leave and relocate further inland. Because the Supreme Court has opted not to hear the case, the Ninth Circuit’s ruling in favor of the energy companies will stand. The Ninth Circuit largely followed the reasoning of the Supreme Court in American Electric Power Co., Inc. v. Connecticut, ---U.S.---, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), in affirming the dismissal of the action by the district court and finding that the Clean Air Act (“CAA”) displaced Kivalina’s claim for $400 million in damages to fund a relocation project. (See “Ninth Circuit Affirms Dismissal of Federal Common Law Nuisance Claim for Global Warming.”) Kivalina urged the Supreme Court in its February petition that the case be controlled by Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), which held that the Clean Water Act, a statute like the CAA, did not displace a federal common law damages claim. The case is Native Village of Kivalina, et al. v. Exxon Mobil Corp., et al., Case Number 12-1072, U.S. Supreme Court.
On October 4, 2012, the Alaskan Village of Kivalina filed a petition for rehearing en banc in the Ninth Circuit. Petitioners urge the Ninth Circuit to reconsider its September 21, 2012 decision to uphold dismissal of a federal common law public nuisance claim against twenty-two energy companies over their greenhouse gas emissions, which Kivalina claimed left the Village uninhabitable by eroding sea ice that protected the Village from fall and winter storms. Kivalina had sought damages of roughly $400 million. In its petition for rehearing, Kivalina argues that the recent Ninth Circuit decision directly conflicts with Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). Kivalina maintains that in Exxon Shipping, the Supreme Court held that the Clean Water Act, like the Clean Air Act at issue in this case, displaces federal common law claims for injunctive relief, but not for damages. The petition states "[t]he direct conflict here between the majority opinion and Exxon Shipping practically jumps off the page." Kivalina contends the Ninth Circuit's panel's decision was in error because Exxon Shipping "suggests a different result" from the one reached by the majority.
Keri Holleb Hotaling, a Partner at Jenner & Block and member of the Firm's Environmental & Workplace Health & Safety Law Practice, has been selected as a panelist for Northwestern Law School's upcoming Environmental Law Society Career Panel. This informal panel discussion is designed to expose students—especially first-year students—to the practice of environmental law and to various environmental law career options.
The panel speakers represent many facets of environmental law practice, and include:
Nancy Loeb: Director, Environmental Advocacy Center (Northwestern Law Clinic);
Bob Peachey: United States EPA; and
- Steve Thorn: solo practitioner.
The Environmental Law Society Career Panel discussion will be held on Friday, November 11, from 1:30 pm - 2:45 pm at Northwestern Law School, 375 E. Chicago Avenue.
When the Supreme Court returns from its summer recess on September 26 to select cases for review this fall, it is likely to consider taking up Morrison Enterprises, LLC v. Dravo Corp.
The question presented is: Whether a party that has incurred response costs either pursuant to an administrative order, or to a consent decree following suit under § 106 or § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), may ever seek to recover those "compelled" costs under §107(a), or whether the exclusive remedy for cost recovery is contribution under CERCLA § 113(f)?
The Obama administration told EPA today that the President does not support finalizing the July 11, 2011 draft final rule, "Reconsideration of the 2008 Ozone Primary and Secondary National Ambient Air Quality Standards" and that the rule was being returned to the EPA for reconsideration. Following the recommendation of its scientific advisers, the EPA recently proposed lowering the ozone standard from 75 parts per billion ("ppb") set by the Bush administration in 2008 to a new stricter standard between 60 ppb and 70 ppb. In a statement, President Obama stressed his commitment to the environment, but stated, "I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover." Relevant provisions of the Clean Air Act forbid EPA to consider costs in deciding the stringency of both primary and secondary national ambient air quality standards. The President went on to say, "[w]ith that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered." In a letter to EPA Administrator Jackson, Cass Sunstein, head of the White House Office of Information and Regulatory Affairs, said that he had been instructed by the President to carefully scrutinize all regulations "that impose significant costs on the private sector or on state, local, or tribal governments." Administrator Jackson said in a statement that "[t]his Administration has put in place some of the most important standards and safeguards for clean air in U.S. history: the most significant reduction of sulfur dioxide and nitrogen oxide air pollution across state borders; a long-overdue proposal to finally cut mercury pollution from power plants; and the first-ever carbon pollution standards for cars and trucks. We will revisit the ozone standard, in compliance with the Clean Air Act."
On August 8, 2011, glass and ceramics manufacturer Corning Inc. was dismissed without prejudice from a lawsuit seeking to recover cleanup costs associated with groundwater contamination on and around an industrial park in Downers Grove, Illinois. Maintenance tool manufacturer, Precision Brand Products, Inc. ("Precision"), brought the action against Corning and others, asserting claims for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), codified at 42 U.S.C. § 9601 et seq., among other theories.
Seventh Circuit Holds That Environmental Group Has Standing To Challenge Validity Of Permit To Destroy Wetlands
Yesterday, the Seventh Circuit found that an environmental group, the American Bottom Conservancy (the "Conservancy"), has standing to sue to invalidate a U.S. Army Corps of Engineers ("Corps") decision to allow Waste Management of Illinois, Inc. ("WMI") to destroy over eighteen acres of wetlands in southwestern Illinois.
Keri Holleb Hotaling, a Partner in the Environmental, Energy and Natural Resources Law Practice at Jenner & Block, will be speaking at the Environmental Law Committee Meeting of the Chicago Bar Association Young Lawyers Section on April 28, 2011 at 12:15 pm at the Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois. Ms. Holleb Hotaling and John Weaver, President and Managing Principal, Weaver Boos Consultants North Central, LLC, will provide information and tips for working with experts in environmental litigation. Allison Torrence, an Associate in the Environmental, Energy and Natural Resources Law Practice at Jenner & Block is co-chair of the CBA YLS Environmental Law Committee.
On March 17, 2011, the EPA issued a final rule that extends the deadline for reporting 2010 data under the Greenhouse Gas (“GHG”) Reporting Program to September 30, 2011. The original deadline was March 31, 2011. See EPA Postpones Deadline For Reporting 2010 Greenhouse Gas Emissions. In a news release, EPA stated, “[t]his extension will allow EPA to further test the system that facilities will use to submit data and give industry the opportunity to test the tool, provide feedback, and have sufficient time to become familiar with the tool prior to reporting.” EPA 3/17/2011 News Release.
Entities that must submit data under the GHG Reporting Program are required to register with the electronic GHG reporting tool (e-GGRT) no later than 60 days before the new reporting deadline or by August 1, 2011. EPA plans to continue to conduct outreach and training webinars on the reporting requirements and use of the electronic reporting tool, e-GGRT. Information will be posted on the GHG Reporting Program website and RSS feed.
On March 1, 2011, the EPA announced it is extending this year's annual reporting deadline – originally March 31 – for greenhouse gas emissions. In a news release, EPA stated that "it is in the process of finalizing a user friendly online electronic reporting platform" and that the "extension will allow EPA to further test the system that facilities will use to submit data and give industry the opportunity to test the tool, provide feedback, and have sufficient time to become familiar with the tool prior to reporting." EPA 3/1/2011 News Release. EPA plans to have the electronic reporting tool "available this summer, with the emissions data to be published later this year."
On October 30, 2009, EPA published a rule for the mandatory reporting of greenhouse gases ("GHG") (40 CFR part 98) from large GHG emissions sources in the United States. Implementation of 40 CFR Part 98 is referred to as the Greenhouse Gas Reporting Program ("GHGRP"). In general, the threshold for reporting is 25,000 metric tons or more of carbon dioxide–equivalent per year. About 10,000 facilities covered by the rule had to begin measuring GHG emissions on January 1, 2010.
EPA plans to provide more detail "in the coming weeks" and ensure that the extension is officially in effect before the original reporting deadline of March 31, 2011.
EPA Listening Sessions Begin On Potential Addition of a Vapor Intrusion Component To The Hazard Ranking System
On February 24, 2011, the EPA held the first of three scheduled listening sessions in Arlington, Virginia, to obtain public input regarding a potential addition of a vapor intrusion component to the Hazard Ranking System ("HRS"). The HRS is the principal mechanism utilized by the EPA to place sites on the CERCLA National Priorities List ("NPL"), commonly referred to as the Superfund Site List. EPA is considering adding a new screening mechanism to the HRS enabling sites with vapor intrusion contamination to be evaluated for placement on the NPL. "This potential addition would allow the HRS to directly consider the human exposure to contaminants that enter building structures through the subsurface environment." 76 Fed. Reg. 5370 (Jan. 31, 2011).