On November 29, 2016, EPA announced the first 10 chemicals it will evaluate for potential risks to human health and the environment under the new Toxic Substances Control Act (TSCA) Reform Act, which was signed into law back in June. The TSCA Reform Act required EPA to publish this list of priority chemicals and begin the risk evaluation process on these chemicals by December 19, 2016. By the end of 2019, EPA will be required to have at least 20 chemical risk evaluations in process at any given time.
The first 10 chemicals to be evaluated by EPA are:
Cyclic Aliphatic Bromide Cluster
Pigment Violet 29
Tetrachloroethylene, also known as perchloroethylene
This list will be published in the Federal Register in the coming weeks, at which point it will trigger several statutory deadlines for these 10 chemicals:
- EPA must release a scoping document for each chemical within 6 months.
- EPA must complete risk evaluations for each chemical within three years.
- If the risk evaluation determines that a chemical presents an unreasonable risk to humans and the environment, EPA must mitigate that risk within two years.
More information on the TSCA Reform Act and EPA’s recent actions can be found on EPA’s website.
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/.
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.
The importance of and how best to report on environmental, social and governance (ESG) issues remains uncertain, and what really matters appears to depend upon whether you are a corporate or an investor. The continuing difference of opinion on ESG matters is highlighted in a new survey from PricewaterhouseCoopers LLP titled Investors, Corporates and ESG: Bridging the Gap.
The survey finds that corporates view disclosing ESG data differently—corporates are focused on growth but investors are focused on risk. It is clear that sustainability reporting has become mainstream with 81% of S&P 500 companies publishing sustainability reports in 2015 compared to 20% in 2011.
Some key findings from the survey include:
- 65% of corporates say ESG issues are very important to the core business strategy
- 80% of corporates follow Global Reporting Initiative (GRI) standards for ESG disclosure reporting
- 31% of investors confirm that ESG data is very important to equity investment decisions
- 43% of investors would like to see ESG information reported using the Sustainability Accounting Standards Board (SASB) standards
A critical issue identified in the survey relates to trust and transparency of ESG disclosures. Corporates express 100% confidence in the quality of ESG information shared but only 29% of investors are confident in the quality of the ESG information received from companies.
The results of this new survey from PWC confirms that investors are increasingly interested in both financial and nonfinancial disclosures including information related to ESG matters. 36% of investors noted that having such information incorporated into SEC filings would ensure higher quality data. The SEC currently is considering corporate disclosures of ESG issues.
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
On September 13th, from 5 pm to 7 pm, the CBA Environmental Law Committee, CBA Young Lawyers Section Environmental Law Committee, ISBA Environmental Law Section, and ABA Section of Environment, Energy, and Resources will be hosting a networking reception for environmental attorneys at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. Jenner & Block partner Allison Torrence is the Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.
Details for this event are below. If you would like to join us at this reception, please RSVP here.
Environmental Attorney Reception
September 13, 2016 | 5:00 pm to 7:00 pm
Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654
The International Bar Association’s Water Law News was published this week and includes an article written by Lynn Grayson regarding the Flint, MI water crisis. Her article titled Flint, Michigan Water Crisis: Lessons Learned provides a detailed factual account of the circumstances, decisions and governmental actions that led to the discovery of elevated levels of lead in Flint’s drinking water.
The article addresses possible lessons learned from the Flint situation, including regulatory oversight failures, aging infrastructure and environmental justice considerations. In her opinion, a quote from Michigan Governor Snyder when he testified before the House Committee on Oversight and Government Reform best summarizes what happened in Flint: “. . . Let me blunt: this was a failure of government at all levels—local, state and federal officials—we all failed the families of Flint.”
Founded in 1947, the International Bar Association (IBA) is the world’s largest leading organizations of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world.
Great Lakes and St. Lawrence Cities Initiative Requests Hearing on City of Waukesha Lake Michigan Water Diversion
On August 19, 2016, the Great Lakes and St. Lawrence Cities Initiative (the GLSL Cities Initiative) requested a hearing before the Great Lakes-St. Lawrence River Basin Water Resources Council (the Compact Council) regarding the Compact Council’s June 21, 2016 decision to approve the City of Waukesha’s application for a diversion of Great Lakes Basin Water.
The Compact Council was established in 2008 pursuant to the Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). The Compact details how the States will work together to manage and protect the Great Lakes-St. Lawrence River Basin. The Compact Council is comprised of the Governors of each of the eight Great Lakes States (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin).
The Compact prohibits diversions of Great Lakes water outside of the Great Lakes Basin, with limited exceptions. One exception allows a community that is not located within the Great Lakes Basin, but is located within a county that is partly within the Great Lakes Basin, such as the City of Waukesha, to apply for a diversion of Great Lakes water if that community can meet strict conditions. The City of Waukesha submitted an application for a diversion of Great Lakes water in 2011, and a revised application in 2013. The Wisconsin Department of Natural Resources approved Waukesha’s diversion application and sent the application to the Compact Council in January 2015. The Compact Council approved Waukesha’s Great Lakes diversion application, with conditions, on June 21, 2016.
The GLSL Cities Initiative is a binational coalition of over 120 U.S. and Canadian mayors and local officials, representing over 17 million people, working to advance the protection and restoration of the Great Lakes and St. Lawrence River. The GLSL Cities Initiative maintains that the Compact Council’s decision to approve Waukesha’s diversion of Lake Michigan water fails to protect the integrity of the Compact. The request for hearing states that:
Allowing a Diversion that is contrary to the strict requirements of the Compact threatens the resource that provides drinking water for 40 million people and is the foundation upon which a strong regional economy is based, to the detriment of the members of the GLSL Cities Initiative.
To date, the Compact Council has not responded to the request for hearing.
DOL, FAR Council Finalize “Fair Pay and Safe Workplaces” Regulations, Forcing Government Contractors to Disclose Non-Final Labor Law Alleged Violations in the Contracting Process
On August 25, 2016, the Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR Council) issued the Final Rule and Final Guidance implementing President Obama’s Fair Pay and Safe Workplaces Executive Order (E.O. 13673), signed on July 31, 2014. Under this new regime, those who seek to contract with the government (contracts over $500,000) must disclose alleged and final wage and labor law “violations,” including non-final agency allegations of labor law violations and agency determinations still subject to appeal, rendered against the contractor within the last three years. The government, through newly established agency labor compliance advisors (ALCAs), will then review each of those alleged and final “violations” and determine whether to award or extend the government contract. The Rule and Guidance will take effect in phases starting on October 25, 2016.
On September 1, 2016, Jenner & Block is hosting a CLE program titled Overview of Critical Litigation Issues for Environmental Practitioners in our Chicago offices at Noon. The program will feature two of our environmental litigation partners as speakers, Steven Siros and Allison Torrence. Together, they will provide environmental litigation updates addressing new developments related to the Clean Power Plan, “waters of the United States,” emerging contaminants, and CERCLA cost recovery/contribution claims.
The U.S. Court of Appeals for the District of Columbia has rejected arguments by the federal government that allowing an aerospace contractor to pass through certain CERCLA remediation costs back to the government under its existing government contracts constituted an impermissible double recovery under CERCLA. Lockheed Martin Corp. v. U.S. (D.C. Cir. Aug. 19, 2016). Lockheed had incurred in excess of $287 million to remediate several contaminated sites where it had manufactured solid-propellant rockets pursuant to government contracts. Lockheed sued the government under CERCLA to recover a portion of its costs incurred to remediate these sites, alleging that the government was directly responsible under CERCLA for a portion of these costs due to the government’s acquiescence in certain of Lockheed’s disposal activities. At the same time, however, the government and Lockheed had entered into an agreement pursuant to which the government agreed that Lockheed was entitled to recover a portion of its remedial costs as indirect costs charged through its current government contracts (the “Billing Agreement”).
The district court engaged in a thorough analysis of the typical CERCLA equitable contribution factors and allocated a specific percentage of liability to Lockheed and a specific percentage of liability to the government (the percentages varied across the sites). On appeal, the government pointed to the fact that Lockheed was already recovering a significant portion of its remedial costs from the government through the Billing Agreement and argued that any further obligation on the part of the government to reimburse Lockheed for additional remedial costs was inconsistent with CERCLA’s broad equitable principles and constituted an impermissible double recovery under CERCLA Section 114.
Relying in large part on the Billing Agreement, the D.C. Circuit noted that “the government agreed to [Lockheed’s recovery of its response costs] by entering into a settlement that allowed Lockheed in its new contracts to charge the government for the company’s own CERCLA liability at the discontinued sites.” Notwithstanding that the D.C. Circuit appeared sympathetic to the government’s claim that CERCLA was not designed to provide for a government-funded cleanup program but instead intended to shift remediation costs to the polluting party, here the government voluntarily agreed to the complained of funding mechanism when it entered into the Billing Agreement. In response to the government’s argument that allowing Lockheed to continue to pass these remedial costs through the Billing Agreement constituted an impermissible “double recovery,” the D.C. Circuit noted that the district court found that crediting mechanism agreed to by the parties would preclude any perceived “double recovery” and the D.C. Circuit found no reason to disturb that finding. Interestingly, the D.C. Circuit specifically stated that nothing in the Federal Acquisition Regulations or the Defense Contract Audit Agency Manual mandated the crediting mechanism agreed to by the parties but the D.C. Circuit declined to opine on the interplay of federal contracting law and CERCLA Section 114, leaving that to be resolved at a later time.
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.
The State Water Resources Control Board has proposed a new maximum contaminant level (MCL) for 1,2,3-trichloropropane (TCP) of five parts per trillion (ppt).TCP is a manmade chemical found at industrial and hazardous waste sites. It has been used as a cleaning and degreasing solvent and also is associated with pesticide products.
California recognizes TCP as a carcinogen, and it has been found in numerous drinking water sources in the state. In August 2009, a public health goal (PHG) for TCP was developed by the Office of Environmental Health Hazard Assessment (OEHHA) for use by the State Water Board to establish an MCL. The PHG represents the level of TCP in drinking water that OEHHA believes does not pose a significant risk to health over a lifetime of exposure (70 years). The PHG for TCP is 0.0007 µg/L, or 0.7 ppt.
A drinking water standard, or MCL, establishes a limit on the allowable concentration of a contaminant in drinking water that is provided by a public water system. The State Water Resources Control Board is proposing 5 ppt as the MCL for TCP. Formal rulemaking is expected later this year, and if approved, the MCL would become effective July 1, 2017.
EPA published a technical fact sheet about TCP in 2014. More background information and guidance on the proposed MCL action for TCP also is available from the California State Water Resources Control Board.
TCP is yet another emerging chemical that has been the subject of ongoing federal and state regulatory review and discussion for several years. It also is a chemical being analyzed and assessed at the lower threshold level of ppt versus more traditional parts per billion (ppb). As is often the case, it appears that the State of California is initiating regulatory action addressing TCP concerns, and it is likely that other states will follow.
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:
Rolled out in December 2015, U.S. EPA’s eDisclosure system has received mixed reviews. Although self-disclosures for “New Owners” or for criminal violations continue to be required to be submitted under the old system, most other self-disclosures must be submitted through U.S. EPA’s new eDisclosure portal. Self-disclosures made through this system are placed into one of two categories. Broadly, Category 1 disclosures are EPCRA violations that meet all of the Audit Policy or Small Business Compliance Policy conditions, while Category 2 disclosures are all other violations. For Category 1 violations, the eDisclosure system will automatically generate an “eNotice of Determination” which confirms that no penalty will be assessed conditioned on the accuracy and completeness of the eDisclosure (and assuming that the violation is corrected within the requisite 60- or 90-day time period). For Category 2 disclosures, the eDisclosure system will automatically generate an “Acknowledgement Letter” acknowledging receipt of the disclosure and notifying the entity that U.S. EPA will make a determination as to eligibility for penalty mitigation if and when it considers taking enforcement action. The self-disclosed violation must still be corrected within the requisite time frame. The new eDisclosure system did not modify any of the underlying eligibility requirements of U.S. EPA’s Audit Policy or Small Business Compliance Policy.
Although the regulated community has acknowledged that the eDisclosure system has streamlined self-disclosures, there has been some concern regarding U.S. EPA’s recent pronouncement that disclosures submitted under the new system would generally be released in response to FOIA requests, notwithstanding the potentially unresolved nature of the alleged violations. These released disclosures would then be made available on a publicly searchable FOIA website. Companies considering whether to self-report under the eDisclosure system must evaluate whether the benefits of civil penalty immunity or mitigation are outweighed by the risks of adverse publicity and/or potential citizen suit claims. System glitches such as website time-outs have also been reported and some have complained that there is inadequate space for narrative responses on the website portal. Time will tell whether the eDisclosure system accomplishes its objective of minimizing U.S. EPA resources while encouraging self-disclosure and the subsequent correction of reported violations.
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:
The latest Security and Exchange Commission (SEC) disclosure effectiveness project outreach seeks input on sustainability metrics important to investor decisions. In the SEC’s 340-page Business and Financial Disclosure Required by Regulation S-K: Concept Release (Concept Release), the Commission seeks input from the public about which sustainability metrics are important to investor decisions and why companies often choose to provide sustainability information outside of their public filing. See 81 Fed. Reg. 23,916 (April 22, 2016).
Since the launch of the disclosure effectiveness project in 2013, the SEC has received numerous communications from socially responsible investor groups urging it to use the review of corporate risk disclosures to look at material environmental, social and governance (ESG) disclosures. One of the leading independent organizations that issues sustainability accounting standards, the Sustainability Accounting Standards Board (SASB), already issued extensive comments on July 1, 2016 regarding the SEC’s Concept Release.
The key comments provided to the SEC by SASB are as follows:
- Today’s reasonable investors use sustainability disclosures;
- While Regulation S-K already requires disclosure of material sustainability information, the resulting disclosures are insufficient;
- Line-item disclosure requirements are not appropriate for sustainability issues;
- To evaluate sustainability performance, an industry lens is needed;
- Effective sustainability disclosure requires a market standard; and
- The Commission should acknowledge SASB standards as an acceptable disclosure framework for use by companies preparing their SEC filings.
The Concept Release is one of several outreach efforts as part of the SEC’s disclosure effectiveness project. At the heart of the initiative is how to make increasingly lengthy, complicated financial reports more effective, understandable and user-friendly. The Concept Release reviews the Regulation S-K disclosure requirements seeking input on what should be kept, modified, eliminated, or added as well as if the current requirements provide the most efficient and effective means of disclosing this information.
As to ESG issues including sustainability considerations, the SASB comments provide a good historical overview and update on environmental disclosures and the growing trend to provide more detailed ESG and sustainability disclosures to investors and the public at large. In its comments, SASB advocates for the SEC to acknowledge its standards as an acceptable framework for companies to use in their mandatory filings to comply with Regulation S-K in a cost-effective and decision-useful manner. SASB's comments include a quote from former SEC Chair and SASB Board member Elisse Walter, noting “…Disclosure is the foundation of securities laws in the United States and many other nations, and transparency is the engine that propels our capital markets forward. But as the world continues to evolve—and its economies along with it—our disclosure requirements and reporting standards have not always kept pace.”
While the SASB framework would provide more transparency, along with much needed structure and guidance on these disclosures, it seems highly unlikely the SEC will embrace the SASB’s recommendation at this time.
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