Real Estate and Environment Feed

Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants

GraysonBy E. Lynn Grayson

Attorney-client-privilegeA recent case reminds us that not all communications between lawyers and environmental consultants are privileged despite best efforts to make them so. In Valley Forge Ins. V. Hartford Iron & Metal, Inc., the Northern District of Indiana ruled that the attorney-client privilege doesn’t protect a lawyer’s emails to environmental contractors when the communications concern remediation as opposed to litigation. This case provides a good overview of the protections afforded by the attorney-client privilege and the work-product doctrine in the environmental law context.

At issue are Hartford Iron’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. which were the subject of a motion to compel filed by Valley Forge. Following an in camera review of 185 emails, the court concluded that the evidence reflects that “….Hartford Iron retained Keramida and CH2M as environmental contractors for the primary purpose of providing environmental consulting advice and service to Hartford Iron in designing and constructing a new stormwater management system, not because Hartford Iron’s counsel needed them to “translate” information into a useable form so that counsel could render legal advice.”

The Court did find that certain of the emails were subject to the work-product doctrine as the communications were prepared for the purposes of litigation and that IDEM and EPA already had filed suit against Hartford Iron.

Despite the best efforts of lawyers, not all communications are privileged. The legal privileges are narrowly construed and generally do not protect communications with environmental consultants.

Waters of the United States Case Going Forward in Supreme Court Despite Trump Executive Order To Rescind or Revise the Rule

Torrence_jpgBy Allison A. Torrence

720px-Seal_of_the_United_States_Supreme_Court.svgThe controversial Waters of the United States (WOTUS) Rule, promulgated under the Obama Administration, will have its day in the U.S. Supreme Court, despite the Trump Administration’s efforts to stall that litigation while the rule is being revised by the new administration.

As previously discussed in this blog, the WOTUS Rule, also called the Clean Water Rule, was published by U.S. EPA and Army Corps of Engineers on June 29, 2015. The WOTUS Rule defines the scope of waters protected under the Clean Water Act (CWA). The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). U.S. EPA and the Army Corps of Engineers have attempted numerous times to define “waters of the United States”, and thereby define the jurisdictional scope of the CWA. Every such effort has been met with legal court challenges, with the previous definition being struck down by the U.S. Supreme Court in a plurality decision. Rapanos v. United States, 547 U.S. 715 (2006).

Continue reading "Waters of the United States Case Going Forward in Supreme Court Despite Trump Executive Order To Rescind or Revise the Rule" »

U.S. Water Risks: It's Not Only About Flint

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World Water Day 2017By E. Lynn Grayson 

By and large, Americans are blessed with clean, safe, plentiful and mostly free drinking water sources. The Flint, Michigan contaminated drinking water scandal was a wakeup call for many that drinking water sources we depend upon may not be as reliable, stable, or even as affordable as we think.

On December 19, 2016, Reuters released a startling report about the quality of America’s drinking water. Reuters' investigation found that at least 3,000 water supplies in the U.S. were contaminated with lead at levels at least double the rates detected in Flint’s drinking water. In addition, 1,100 of these communities had rates of elevated lead in blood tests at least four times higher. Reuters concluded that Flint’s water crisis doesn’t even rank among the most dangerous lead hotspots in the U.S. Like Flint, however, many of the other localities are plagued by legacy lead: crumbling paint, plumbing, or industrial wastes left behind. Unlike Flint, many have received little attention or funding to combat poisoning.

Another critical issue looming on the horizon for many will be the affordability of water. A new Michigan State University (MSU) report recently concluded that a variety of compounding factors in the U.S. could easily push large portions of the population out of the financial range to even afford water in the future. The MSU report concludes:

A variety of pressures ranging from climate change, to sanitation and water quality, to infrastructure upgrades, are placing increasing strain on water prices. Estimates of the costs to replace aging infrastructure in the U.S. alone project over $1 trillion dollars are needed in the next 25 years to replace systems built circa World War II, which could triple the cost of household water bills…. Over the next few decades, water prices are anticipated to increase four times current levels. Prices could go higher if cities look to private providers for water services, who have a tendency to charge higher rates than public providers.

The MSU report concludes that 36% of households will be unable to afford water within five years. The highest risk areas in the U.S. are in the South, with the most at-risk communities in Mississippi. The MSU report noted that Ohio is 9th on the list, followed by Michigan at 12th.

Water risks come in many forms and include not only sufficient quantities and acceptable quality, but also affordability. The latter issue has not been addressed in a meaningful manner in the U.S. and will become a growing concern as water risks of all kinds increase in number and scope.

World Water Day: The Global Risks Report 2017

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World Water Day 2017By E. Lynn Grayson 

Today is World Water Day as proclaimed by the United Nations (UN) General Assembly in 1993. World Water Day is about taking action to tackle the global water crisis. Today, 1.8 billion people rely upon a drinking water source that is contaminated putting them at risk for cholera, dysentery, typhoid and polio. The UN Sustainability Development Goals launched in 2015 include a target to ensure everyone has access to safe water by 2030. 

The World Economic Forum also has targeted water and water risks as one of the leading global risk factors as recently confirmed in its The Global Risks Report 2017. The Global Risks Report 2017 features perspectives from nearly 750 experts on the perceived impact and likelihood of 30 prevalent global risks as well as 13 underlying trends that could amplify them or alter the interconnections between them over a 10-year timeframe. The report notes that a cluster of environment-related risks—notably extreme weather events and failure of climate change mitigation and adaptation as well as water crisis—has emerged as a consistently central feature of the Global Risks Perception Survey risk landscape.

In 2017, water crises were identified as the third most significant risk based upon potential impacts. In doing so, the experts concluded that there had been “…a significant decline in the available quality and quantity of fresh water, resulting in harmful effects on human health and/or economic activity….”

World Water Day provides a good opportunity to reflect upon how we use water at home and work and in our businesses. It is becoming an increasingly precious natural resource that must be protected and conserved.

CDP A-List: Why It Matters

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By E. Lynn Grayson World Water Day 2017

The Carbon Disclosure Project’s (CDP’s) Global Water Report 2016 titled Thirsty Business: Why Water is Vital to Climate Action analyzes water disclosures made through the CDP’s 2016 information request. It was aimed at companies facing water risks and opportunities and investors seeking to better understand how water issues might impact portfolios. The report provides insight into the connection between water, energy and private sector efforts to reduce carbon emissions.

 Key findings from these corporate water disclosures include: 

  1. Water related risks cost business $14 billion dollars in 2016—a fivefold increase over prior year’s costs (These financial impacts come from drought, flooding, tightening environmental regulation and the cost of cleaning up water pollution and fines)
  2. 24% of greenhouse gas reductions depend on a stable supply of good quality water
  3. 53% of companies report better water management in the context of delivering greenhouse gas reductions

The CDP report evaluates corporate performance over five key metrics relating to water management, including tracking water use, reporting and target-setting. In 2016,  61% of companies reported that they track their water use , an increase of 3% over last year.

Ford and Colgate Palmolive are among the best companies in the world when it comes to water management, according to the CDP’s Water A List. The annual index  highlights companies implementing best practices in sustainable water management. In 2016, 24 companies made the CDP Water A List, up from eight last year. Ford and Colgate Palmolive are the only two U.S. companies identified on the A List in 2016. 

So what can companies do to better manage and reduce their water-related risk? The first step is assessing water use and setting measurable targets. But unlike corporate carbon emissions, there really is no standard methodology that business relies upon to measure and monitor water use. CDP has partnered with the UN CEO Water Mandate, The Nature Conservancy, World Resources Institute and WWF to develop a methodology that will help companies set context-based water targets — essentially a science-based targets approach to water management. In light of company disclosures confirming that 54% of the 4,416 water risks identified will  materialize over the next six years, there should be no shortage of corporate interest in test-driving the upcoming water methodology.

World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series

World Water Day 2017GraysonBy E. Lynn Grayson

World Water Day, held on March 22 every year, is about taking action to tackle the water crisis. Today, there are over 663 million people living without a safe water supply close to home, spending countless hours queuing or trekking to distant sources, and coping with the health impacts of using contaminated water.

In recognition of World Water Day 2017, the Corporate Environmental Lawyer blog plans to run a weeklong series focused on the critical issues concerning water quality and quantity in the U.S. and globally. This year’s theme for World Water Day is wastewater.

Why wastewater?

Globally, the vast majority of all the wastewater from our homes, cities, industry and agriculture flows back to nature without being treated or reused—polluting the environment and losing valuable nutrients and other recoverable materials.

Instead of wasting wastewater, we need to reduce and reuse it. In our homes, we can reuse greywater on our gardens and plots. In our cities, we can treat and reuse wastewater for green spaces. In industry and agriculture, we can treat and recycle discharge for things like cooling systems and irrigation.

By exploiting this valuable resource, we will make the water cycle work better for every living thing. And we will help achieve the United Nation's Sustainable Development Goal 6 target to halve the proportion of untreated wastewater and increase water recycling and safe reuse.

Learn more about the importance of how we manage wastewater by viewing this fact sheet.

 

EPA Proposes Notice of Intent to Proceed with Rulemaking for CERCLA Financial Responsibility Requirements for the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries

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 By Alexander Bandza

 

Yesterday, on January 11, 2017, the EPA issued a notice of intent to proceed with rulemaking regarding whether and to what extent financial responsibility requirements under CERCLA section 108(b) should apply to the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries. Pexels-photo-164474

The rulemaking will have an interesting path forward in light of its history and the upcoming administration change.  On January 6, 2010, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that identified additional classes of facilities within three industry sectors that could warrant developing financial responsibility requirements under CERCLA section 108(b): (1) the Chemical Manufacturing industry (NAICS 325); (2) the Petroleum and Coal Products Manufacturing industry (NAICS 324); and (3) the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211).  In August 2014, environmental groups filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, for a writ of mandamus requiring issuance of CERCLA section 108(b) financial responsibility rules for the three additional industries identified by EPA in the ANPRM.  EPA and the petitioners submitted and the court approved an Order on Consent, which included a schedule for further administrative proceedings under CERCLA section 108(b).  Critically, in granting the motion to enter the Order, the D.C. Circuit recognized that “the content of [the rulemaking required under the Order] is not in any way dictated by the [Order].”  Therefore, the upcoming administration may be bound to entertain the process of rulemaking, it appears free to disregard producing any rule as a result of this process.

Continue reading "EPA Proposes Notice of Intent to Proceed with Rulemaking for CERCLA Financial Responsibility Requirements for the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries" »

DTSC Seeks Comments on New Safer Consumer Products Guidance

Grayson By E. Lynn Grayson Safer Consumer Products logo

The California Department of Toxic Substances Control (DTSC) has issued draft guidance titled Alternatives Analysis Guide and is seeking comments through January 20, 2017. California’s Safer Consumer Products (SCP) Program challenges product designers and manufacturers to reduce toxic chemicals in their products. According to DTSC, the SCP regulations establish innovative approaches for responsible entities to identify, evaluate, and adopt better alternatives. The SCP approach requires an Alternatives Analysis (AA) that considers important impacts throughout the product’s life cycle and follows up with specific actions to make the product safer. DTSC prepared the Draft Alternatives Analysis Guide to help responsible entities conduct an AA to meet the regulatory requirements. Public comments are specifically requested to provide DTSC with insight on the clarity and usefulness of the Draft Alternatives Analysis Guide.

DTSC’s SCP Program regulations took effect October 1, 2013 and are being implemented based on the various regulatory requirements. The goals of the program are to: 1) reduce toxic chemicals in consumer products; 2) create new business opportunities in the emerging safer consumer products industry; and 3) help consumer and businesses identify what is in the products they buy for their families and customers.

The SCP program implements a four-step process to reduce toxic chemicals in the products that consumers buy and use. It identifies specific products that contain potentially harmful chemicals and asks manufacturers to answer two questions: 1) Is this chemical necessary? 2) Is there a safer alternative? The first step involved publication of a list of candidate chemicals that exhibit a hazard trait and/or an environmental toxicological endpoint. Regulators must then identify potential “priority products” containing chemicals that pose a significant risk to public health or the environment. Once a priority product is declared through a separate rulemaking, regulated entities must conduct an alternative analysis to determine if safer options are available. The final step in the lengthy process is for the department to determine if a regulatory response, such as banning the chemical-product combination, is required.

To learn more about the status of the SCP program and to obtain a copy of the new guidance, visit the DTSC SCP website at http://www.dtsc.ca.gov/SCP/index.cfm.

World’s Largest Marine Protected Area Established

Antarctic

Grayson By E. Lynn Grayson

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/.

Chicago: New Industrial Growth Zones Program

Grayson By E. Lynn Grayson Chicago seal

Mayor Rahm Emanuel and Cook County Board President Toni Preckwinkle recently launched an unprecedented effort to generate new industrial investment in Chicagoland neighborhoods. The Industrial Growth Zones program will accelerate neighborhood development in seven designated areas over the next three years by removing longstanding hurdles to development and providing a broad set of services to support property owners and industrial businesses. The purpose of the program to spur economic growth and generate real, sustainable jobs by promoting investment and industrial development in Chicago neighborhoods.

Continue reading "Chicago: New Industrial Growth Zones Program" »

Ninth Circuit Denies Rehearing Petition in Novel Aerial Deposition CERCLA Case

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By Allison Torrence

The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.

The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.

Continue reading "Ninth Circuit Denies Rehearing Petition in Novel Aerial Deposition CERCLA Case" »

EPA Issues New Climate Change Fact Sheets

Grayson By E. Lynn Grayson EPA logo

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:

  1. Every state will become warmer.
  2. The impacts of climate change are likely to be very different from state to state.
  3. Increased rainfall intensity will cause more flooding in some states, while increasingly severe droughts may threaten water supplies in other states.
  4. 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

EPA Energy Star Portfolio Manager Updates For Commercial Buildings--New Webinars Announced

Energy Star logoGrayson By E. Lynn Grayson

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:

  1. Introducing Waste & Materials Tracking in Portfolio Manager—August 18 at 2:00 p.m. ET
  1. 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

2016 Democratic Party Platform: Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice

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By Allison Torrence

 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: 

Continue reading "2016 Democratic Party Platform: Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice" »

2016 Republican Platform – A Focus on American Natural Resources

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By Allison Torrence

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: 

Continue reading "2016 Republican Platform – A Focus on American Natural Resources" »

Commercial Property Assessed Clean Energy (PACE) Financing

By Donald I. Resnick, Kristen M. Boike and Lynn S. Fradkin

Commercial Property Assessed Clean Energy (PACE) financing is an innovative program designed to incentivize commercial businesses to undertake green efforts.  By utilizing PACE financing, governmental bodies encourage commercial entities to invest in improvements or technologies that will save energy, produce renewable energy, and/or, in some states, conserve water.  This concept is growing in popularity because it is a creative method to efficiently and effectively provide capital for sustainability projects.

How Does Commercial PACE Financing Work?

A potential borrower interested in securing commercial PACE financing must first determine whether the state in which the project is located has passed commercial PACE financing enabling legislation and, if so, whether the applicable municipality or county has established a program for which the project qualifies.  A state must pass authorizing legislation to enable a governmental entity or other inter-jurisdictional authority to form a special tax district or special assessment district to operate a commercial PACE program.  This is a key feature of the PACE financing model because the model requires the imposition of assessments or special taxes against the property that benefits from such improvements.

PACE enabling legislation has already been adopted in 32 states,1 including Illinois, California, and New York, as well as the District of Columbia.  Once the state legislation has been passed, a program sponsor (a state, consortium of governmental entities, or a single local governmental body) must design and implement a commercial PACE program to achieve its objectives, which may include economic and workforce development and greenhouse gas reduction targets.  Accordingly, there may be numerous programs within a particular state, each with its own customized parameters.  For example, in California there are 11 different commercial PACE programs2 and, as a result, PACE financing is available in most California municipalities.3

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Companies Publishing More Sustainability Reports

GraysonBy E. Lynn Grayson

G&A logoAccording to the Governance & Accountability Institute (G&A), 81% of S&P 500 Index companies published a sustainability or corporate responsibility report in 2015. The S&P Index is one of the most widely-followed barometers of the U.S. economy and conditions for large-cap public companies in the capital markets.

The G&A Institute has analyzed the index company components’ sustainability reporting activities for the past five years. There has been a rapid and significant uptake in corporate sustainability reporting among the 500 companies. Over the years, sustainability reporting rose from just 20% of the companies reporting in 2011 to 81% in 2015. According to the G&A Institute, this increased corporate reporting underscores the importance of setting strategies, measuring and managing environmental, social, and governance issues in response to growing stakeholder and shareholder expectations, and in some cases, demands for such reporting from major customers.

The growth in sustainability reporting tracked by the G&A Institute is as follows:

  • In 2011, just under 20% of S&P 500 companies had reported;
  • In 2012, 53% (for the first time a majority) of S&P 500 companies were reporting;
  • By 2013, 72% were reporting—that is 7-out-of-10 of all companies in the popular benchmark; and
  • In 2014, 75% of the S&P 500 were publishing reports.

The G&A Institute has joined forces with the Trust Across America/Trust Around the World (TAA/TAW) program to explore potential relationships of the trustworthiness of companies that do and do not report. The companies have charted and are analyzing the 99 index companies in 2015 that did not report on their sustainability opportunities, risks, strategies, actions, programs and achievements. More information about the work of the G&A Institute and this new initiative with TAA/TAW is available at http://www.ga-institute.com/.

While not yet mandatory in the U.S., sustainability and corporate social responsibility reporting is a growing trend and becoming somewhat of an expectation among the largest public and private companies. It appears that the new focus and scrutiny will not be on the companies reporting but those that have decided not to do so.

SirosBy Steven M. Siros

Trailblazer

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.

Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court

By: Matt Ampleman, J.D. Candidate, 2017, Yale Law School

Pond-hdrThe Supreme Court last Tuesday ruled in favor of landowners seeking the right to challenge the U.S. Army Corps of Engineers’ (the Corps) wetlands determinations in federal courts. In U.S. Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. ____ (2016), the owner of a peat mining company in North Dakota, Hawkes, sought to expand its operations to wetlands in northwest Minnesota and sell the peat for golf courses, sports turf, landscaping, and gardening. Unfortunately for Hawkes, the Corps issued a “jurisdictional determination” (JD), which stated that the wetlands on its property were “waters of the U.S.” under the Clean Water Act (CWA) and thus Hawkes would be subject to costly CWA Section 404 permitting requirements. The Corps argued that its determination could not be challenged in federal courts because it was not a final agency action. The Supreme Court disagreed, upholding the Eighth Circuit ruling that the JD, as issued by the Corps, constituted a final agency action and could be challenged in federal court.

Continue reading "Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court" »

Great Lakes Water Diversion Moves Forward

GraysonBy E. Lynn Grayson

PhotoLast week the Regional Body for the Great Lakes-St. Lawrence River Basin Water Resources Compact agreed that the City of Waukesha, WI met the compact exception criteria—moving one step closer to approval for a diversion of Great Lakes water outside of the boundaries of the river basin. Many are concerned that this move may establish a bad precedent for others seeking diversion of water from the Great Lakes to address growing water quality and quantity challenges.

The City of Waukesha, located in southeast Wisconsin 17 miles west of Lake Michigan, seeks an exception from the prohibition of diversions under the Great Lakes–St. Lawrence River Basin Water Resources Compact and Great Lakes–St. Lawrence River Basin Sustainable Water Resources Agreement. The Compact and Agreement prohibit diversions of Great Lakes water, with limited exceptions. One exception allows a “community within a straddling county,” such as Waukesha, to apply for a diversion of Great Lakes water.

On January 7, 2016, the Wisconsin Department of Natural Resources forwarded the City of Waukesha’s diversion application to the other Great Lakes states, and the Canadian provinces of Ontario and Quebec for regional review. On May 18, 2016 the Regional Body approved a Declaration of Finding concluding that, with conditions, the City of Waukesha’s diversion application meets the Compact exception criteria. Conditions included a reduced maximum diversion volume of 8.2 million gallons per day and a reduced area the diverted water can be served. The Compact Council will make the final decision with a vote on whether to approve, approve with conditions, or deny the City of Waukesha’s diversion application. The Compact Council is scheduled to meet June 21, 2016 in Chicago, IL.

The Compact was passed in 2008 to protect the Great Lakes from attempted water grabs. The Waukesha, WI proposal to pump water from Lake Michigan, 15 miles to the east, as a replacement water supply for its radium-contaminated wells is the first such application under the compact. The proposal has been the subject of critical review as environmental groups and others worry about setting an inappropriate precedent for access to water from the Great Lakes.

The underlying documentation is available from the Wisconsin Department of Natural Resources as well as more detail about the upcoming meeting of the Compact Council in Chicago.

Alexander Bandza Moderating Young Professionals in Energy Event on Hydraulic Fracturing in Illinois

Torrence_Allison_COLORBy Allison A. Torrence

 

Fracking
On Thursday, April 7, 2016, Young Professionals in Energy (Chicago) is hosting an event titled “Hydraulic Fracturing in Illinois: What Has The National Frenzy Meant For Our State?” at Jenner & Block’s Chicago office. The event will be moderated by Jenner & Block attorney and YPE Board Member, Alexander Bandza, and will feature presentations from Jenny Cassel, Staff Attorney at Environmental Law and Policy Center, and Nancy Loeb, Director of the Environmental Advocacy Center, Northwestern University School of Law.

For more information and to RSVP click here.

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Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know

Torrence_Allison_COLOR By Allison A. Torrence

 

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.

 

Steven Siros Presenting at a Webinar on Chemical Fingerprinting

Torrence_Allison_COLOR By Allison A. Torrence

 

On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”.  The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents.  The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar.  Here is a link to the webinar brochure.

COP21 and Green Bond Market Developments

Grayson

By E. Lynn GraysonImage result for cop21 logo

 

HSBC Holdings PLC, the fourth largest bank by assets in the world, has issued its first green bonds this month. HSBC France raised $500M, offering instruments at an annual coupon rate of 0.625% for a period of five years. Proceeds of the green bond issue will be used to finance renewable energy, energy efficiency, energy conservation, and climate adaptation projects, among others. Green bonds and the financing of climate-related improvement projects have been a key topic during the ongoing COP21 discussions.

HSBC announced its own internal guidelines for green bonds earlier this year. Eligible projects also may include renewables, sustainable waste and water management, sustainable land use and clean buildings and transportation. The issue will prioritize activities in the Middle East and Africa as well as Europe, particularly France. The bank also has announced plans to invest $1B in a green bond portfolio and already has allocated $350M purchasing climate bonds from development banks.

Earlier this year, the World Bank sold $91 million in green bonds tied to an index of “ethical” companies—its largest offering of green bonds linked to an equity index and the first offered to individual investors. See Corporate Environmental Lawyer blog post dated January 16, 2015, "World Bank Sells Record $91M of Green Bonds Tied to 'Ethical' Companies."

Continue reading "COP21 and Green Bond Market Developments" »

Help Yourself To Some Thanksgiving Turkey With A Side Of Renewable Energy

Torrence_Allison_COLOR

 By Allison A. Torrence

Turkeys

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.


Local reporting on the Prestage AgEnergy plant can be found here and here.