New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?
Answering this question is likely to engender significant debate, depending on which side of the global warming conundrum one finds oneself. However, a recent lawsuit by two California counties and one California city is likely to prompt such a debate which will play out in California state court. On July 17, 2017, Marin County, San Mateo County, and the City of Imperial Beach filed separate but similar environmental lawsuits in California state court claiming that 37 oil, gas, and coal companies caused (or will cause) billions of dollars in climate-change related damages as a result of their extraction and sale of fossil fuels in California. The multi-count complaints allege a variety of state common law claims, including public nuisance, negligent failure to warn, and trespass. The complaints contend that as result of the activities of these defendants, sea levels will rise which will cause billions of dollars in losses to each of the plaintiffs.
These cases represent the latest in what has been to date a series of unsuccessful efforts to hold energy companies responsible for future speculative damages associated with alleged future environmental impacts associated with climate change. These cases will likely be subject to early dispositive motions seeking to have these cases thrown out of court at an early stage. We will continue to follow these cases and provide additional updates.
New research confirms that the quality of environmental, social and corporate governance (ESG) disclosures is greatly improved when companies use the Global Reporting Initiative (GRI) Sustainability Reporting Framework. The Governance & Accountability Institute, Inc. (G&A), the data partner for GRI, also confirms that more companies than ever before are developing and disclosing sustainability reports.
In the first year of its study in 2010, G&A found that 80% of leading U.S. large-cap companies did not publish sustainability reports. The trend has changed over time with 53% of the S&P 500 companies reporting in 2012; 72% reporting in 2013; 75% reporting in 2014; 81% reporting in 2015; and 82% reporting in 2016.
To explore the quality of sustainability reports, G&A worked with The CSR-Sustainability Monitor (CSR-S Monitor) research team at the Weissman Center for International Business, Baruch College/CUNY. The CSR-S Monitor evaluated sustainability reports using a scoring methodology that categorizes the content of each report into 11 components referred to as “contextual elements” including: Chair/Executive Message; Environment; Philanthropy & Community Involvement; External Stakeholder Engagement; Supply Chain; Labor Relations; Governance; Anti-Corruption; Human Rights; Codes of Conduct; and Integrity Assurance. Companies using the GRI framework consistently achieved average contextual element scores higher than the companies not using the GRI for their reporting meaning, in part, that the data provided was of a higher quality and overall more helpful to stakeholders.
Sustainability reporting and ESG disclosures are on the rise. The trend clearly is to encourage and promote more standardized sustainability reporting helping companies provide more reliable, consistent and material information to the public.
The Governments of Canada and the United States recently released the State of the Great Lakes 2017 Highlights Report. Overall, the Report characterizes the condition of the Great Lakes as Fair and Unchanging. While progress to restore and protect the Great Lakes has been made, including the reduction of toxic chemicals, challenges remain with issues such as invasive species and nutrients.
The “Fair and Unchanging” assessment is based upon an evaluation of nine Great Lakes Indicators of Ecosystem Health including:
- Drinking Water
- Fish Consumption
- Toxic Chemicals
- Habitats and Species
- Nutrients and Algae
- Invasive Species
- Groundwater Quality
- Watershed Impacts and Climate Trends
Of particular note, the Report found that the status of protecting the Great Lakes against invasive species was Poor and the trend was that conditions would further deteriorate. To date, over 180 aquatic non-native species have become established in the Great Lakes Basin including the Sea Lamprey, Zebra Mussels, and Purple Loosestrife. Economic impacts from invasive species exceed more than $100 million annually in the U.S. alone.
The Report marks the 45th anniversary of the signing of the Great Lakes Quality Agreement committing Canada and the United States to work together to restore and protect the water quality and aquatic ecosystem health of the Great Lakes. The nine indicators of ecosystem health are supported by 44 sub-indicators, measuring such things as concentrations of contaminants in water and fish tissue, changes in quality and abundance of wetland habitat, and the introduction and spread of invasive species. More than 180 government and non-government Great Lakes scientists and other experts worked to assemble the available data supporting the Report and its findings. The Report identifies status for each indicator as good, fair, poor, or undetermined.
D.C. Circuit Provides Additional Clarity on Federal and State Roles in Natural Gas Pipeline Permitting
On Friday, June 23, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in a long-running dispute between the developer of an interstate natural gas pipeline project and New York State environmental regulators concerning a federal water quality permit that must be obtained before project construction may begin. Millennium Pipeline Company v. Basil Seggos, et al., D.C. Cir. No. 16-1415 (June 23, 2017). The decision provides additional clarity regarding the interplay of Federal and State permitting authorities with respect to interstate natural gas pipeline infrastructure, and the role of the courts in adjudicating disputes with State permitting agencies.
The pipeline project at issue is a proposed 7.8 mile extension of Millennium Pipeline’s existing interstate natural gas pipeline in southern New York. The extension will serve a new natural gas-fired power plant. To construct the project, Millennium must obtain a “certificate of public convenience and necessity” from the Federal Energy Regulatory Commission (“FERC”) pursuant to Section 7 of the Natural Gas Act (“NGA”), 15 U.S.C. § 717f(c). The NGA requires that FERC ensure that all proposed interstate natural gas pipeline projects comply with all applicable federal, state, and local regulations, including environmental regulations. 15 U.S.C. § 717b(d). FERC granted Millennium a certificate of public convenience and necessity, conditioned on Millennium obtaining a Clean Water Act (“CWA”) water-quality certificate pursuant to section 401 of the CWA, 33 U.S.C. § 1341(a)(1), since its project would cross several streams.
On June 27, 2017, EPA Administrator Scott Pruitt announced that EPA and the Army Corps of Engineers will be publishing a proposed rule (the Recodification Rule) that would rescind the Obama Administration’s definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). EPA states that the Recodification Rule is necessary to “ensure certainty as to the scope of CWA jurisdiction on an interim basis” while EPA and the Army Corps of Engineers conduct “a substantive review of the appropriate scope of ‘waters of the United States’”.
As we previously reported on this blog, the WOTUS Rule (a/k/a the Clean Water Rule) was promulgated by the Obama Administration in 2015, and was the latest attempt to define the jurisdictional limits of the CWA. The CWA limits its jurisdiction to “navigable waters”, which are obliquely defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). The precise definition of “waters of the United States” has been a controversial and well-litigated issue for years.
Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
On June 14, 2017, U.S. District Judge James Boasberg, of the U.S. District Court for the District of Columbia, issued an opinion in the case of Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534, finding that the U.S. Army Corps of Engineers (the Corps) did not fully comply with the National Environmental Policy Act (NEPA) when it granted easements to the Dakota Access Pipeline (DAPL) to cross Lake Oahe, a federally regulated water. Plaintiffs in the case, The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, both have Reservations that border Lake Oahe. Indeed, when Lake Oahe was created by the Corps in 1958 via a dam constructed on the Missouri River, the lake covered approximately 56,000 acres of the Standing Rock Reservation and 104,420 acres of the Cheyenne River Tribe’s trust lands.
The proposed DAPL will be nearly 1,200 miles long and will move more than half a million gallons of crude oil from North Dakota to Illinois every day (at a rate of 13,100 to 16,600 gallons per minute). DAPL will cross Lake Oahe 0.55 miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation. Both Tribes use Lake Oahe for drinking water, agriculture and industrial activities, and consider the waters to be “sacred”.
EPA recently extended the effective date of the final reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale. EPA has delayed the effective date of the January 12, 2017 final rule from May 12, 2017 to August 14, 2017.
Industry sought to repeal the rule, or at a minimum, obtain an extension of the effective until EPA adopts guidance explaining how to comply with the new two-fold requirements including: 1) companies that make, import or process a distinct or “discrete” form of a nanoscale chemical at some time in the future are to provide information to EPA (135 days before they make, import or process the chemical or within 30 days of deciding to manufacture or process the chemical); and 2) companies must comply with a one-time obligation to report information known or reasonably attainable regarding any nanoscale chemicals made or processed at any time during the past three years. Based upon the information EPA receives, the Agency could decide to require new toxicity, exposure or other data or it could decide to impose restrictions on commercial activity.
Nanomaterials—a diverse category of materials defined mainly by their small size—often exhibit unique properties that can allow for novel applications but also have the potential to negatively impact human health and the environment. Some nanomaterials: more easily penetrate biological barriers than do their bulk counterparts; exhibit toxic effects on the nervous, cardiovascular, pulmonary and reproductive systems; or have antibacterial properties that may negatively impact ecosystems.
Regulation of nanomaterial has created conflict between industry and environmental groups. The Nanomanufacturing Association suggests the rule is a de facto permitting program, while environmental groups believe the rule is long overdue and its impacts are limited by the authorities and procedures already existing under the Toxic Substances and Control Act (TSCA), the federal statute authorizing the new rule. Nanomaterials are used in a variety of commercial and industrial applications including paints, coatings, resins and a host of consumer products ranging from washing machine parts to lithium ion batteries.
A number of scientific organizations have called for the need for the kinds of information on nanomaterials EPA will now be able to collect including the National Academy of Science and the National Nanotechnology Initiative. At this time, it is unclear if the EPA draft guidance will be finalized before the effective date of the new rule.
Exelon and Jenner & Block partnered today with the Alliance for the Great Lakes to cleanup 12th Street Beach, near the Adler Planetarium. Team members worked together to police the beach front picking up and disposing of waste and other discarded materials. The litter was identified, logged, recorded and weighed to aid in understanding the short term and long term impacts we are having on the Great Lakes and the many ecosystems that rely upon them.
The Alliance for the Great Lakes Adopt-a-Beach program promotes working together to protect the Great Lakes through beach cleanups and other community projects. For more than 25 years the Adopt-a-Beach program has worked to keep Great Lakes shorelines healthy, safe, and beautiful. The program is largest of its kind in the region. Adopt-a-Beach touches all five Great Lakes with volunteers from all eight Great Lakes states.
Thanks to our friends at Exelon for including us in this special environmental outreach!
Today we celebrate World Environment Day—a global celebration of nature and a day to reconnect with the places that matter most to you. Initiated in 1972, World Environment Day is the United Nations' most important day for promoting worldwide awareness and action for protection of the environment. Since it began in 1974, it has grown to become an international platform for public outreach that is widely celebrated in over 100 countries.
This year's host country is Canada where the official celebrations will take place and the 2017 theme is connecting people to nature encouraging all of us to get outdoors and into nature.
There is greater international awareness and attention focused on the protection and preservation of the environment than ever before. Everyone understands the critical environmental concerns ranging from the politics of the Paris Climate Agreement, the adverse impacts of plastic waste in our oceans, to the international focus on water quality and quantity. World Environment Day is a time to reflect upon and appreciate that the welfare of the planet, including the economic viability of its many nations, depends on the collective efforts we make to protect, preserve and conserve our natural resources and the environment.
Learn more about World Environment Day and efforts around the world to celebrate and improve the environment.
On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.
Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.
The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.
You can RSVP here.
Any questions can be directed to Pravesh Goyal: (312) 923-2643 or firstname.lastname@example.org
As has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day. This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy". This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.
The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement. Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.
In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting. The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here). Happy Earth Day 2017.
A 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
The 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).
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.
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.
Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water
As previously reported here, the Great Lakes and St. Lawrence Cities Initiative (the 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 Waukesha diversion is the first-ever diversion of Great Lakes water approved under the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). Under the approved diversion, the City of Waukesha can divert up to 8.2 million gallons per day (annual average demand) from Lake Michigan.
On March 20, 2017, after extensive briefing by the Cities Initiative and the City of Waukesha, the Compact Council held a hearing and allowed oral argument by the parties. The Cities Initiative is a binational coalition of 127 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 Cities Initiative argued that the Compact Council should reconsider its decision to grant the diversion and clarify the standards used to evaluate the Waukesha diversion application as well as the standards it will use to evaluate diversion requests in the future. The City of Waukesha argued that the Compact Council acted reasonably to approve the diversion.
The Compact Council took the matter under advisement at the close of arguments and indicated it likely will issue a written decision in early May.
Jenner & Block is representing the Cities Initiative in this matter, and Jenner Partner Jill Hutchison argued on behalf of the Cities Initiative at the hearing.
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:
- 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)
- 24% of greenhouse gas reductions depend on a stable supply of good quality water
- 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, 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.
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.
This week I published an article in the Chicago Daily Law Bulletin, Trump election puts environment into less than green state. In this article, I discuss my thoughts on environmental issues during the transition from the Obama Administration to the Trump Administration. I specifically address: 1) what authority President Trump has to implement environmental changes; 2) what environmental actions have been taken to date; 3) insights into future environmental changes we are likely to see; and 4) reaction from the environmental community.
If you would like to hear more about what’s happening on the environmental front in the Trump administration, please join us next Tuesday, March 7 at Noon for a program titled Environmental, Health & Safety Issues in 2017: What to Expect From the Trump Administration. My partners Gay Sigel, Steve Siros, and Allison Torrence will be providing the latest updates on what we know and what we can anticipate from the Trump administration in connection with environmental, health, and safety considerations.
If you would like to join us for this program or participate via webinar, please RSVP here.
Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.
When: Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.
Where: Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center
For more information about the program and to RSVP, please connect here.
Last week, President Trump repealed the stream protection rule designed to halt water pollution caused by mountain top removal mining. Using the Congressional Review Act authority, he stopped implementation of a rule that would have restricted the placement of mining waste in streams and drinking water sources, as well as the amount of waste generated overall by mining operations.
Arguably, a law exists that prohibits mining-related discharges to waterways. The 1977 Surface Mining Control and Reclamation Act says that mining companies should not cause "material damage to the environment to the extent that it is technologically and economically feasible." The new stream protection rule was needed since many believed the Act’s existing language was vague and did not provide sufficient protections. Moreover, critics charged that the agency responsible for enforcing this law, the Office of Surface Mining Reclamation and Enforcement (OSMRE), had not clarified the scope and interpretation of the law since publishing the “stream buffer zone rule” in 1983.
The repeal means that the OSMRE will return to reliance upon the 1983 version of the stream protection rule which prevents mining activities within 100’ of a stream. Environmental groups and others claim that the existing rule is not protective of streams from mining-related discharges.
What is particularly notable about President Trump’s repeal of this rule is the fact it is only the third time that the Congressional Review Act (CRA) has been used to claw back a former president’s regulation. The CRA basically says the House and Senate can kill any recently finalized regulation with simple majority votes in both chambers, so long as the president agrees. What is interpreted to mean recently finalized can be challenging , but Congress can basically vote to overturn any Obama-era regulation that was finished on or about June 2016. It appears that this timing impacts at least 50 new regulations.
Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.
As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.
In a February 11, 2017 letter to U.S. EPA, New York Governor Andrew Cuomo indicated that if U.S. EPA didn’t move promptly to establish a federal maximum contaminant level (MCL) for 1,4-dioxane, New York would be forced to set its own MCL for drinking water in the state. Governor Cuomo pointed to a perceived regulatory gap, noting that New York has expended tremendous resources to address unregulated emerging contaminants such as 1,4-dioxane, PFOA and PFOS. The Governor also noted that water systems serving fewer than 10,000 people are not required to test for unregulated contaminants such as 1,4-dioxane but that New York was moving forward with a plan to require all public water systems on Long Island to test for these unregulated contaminants regardless of size. 1,4-dioxane is alleged to have been found in 40 percent of the public water supplies in Suffolk County.
1,4-dioxane is one of several emerging contaminants that does not currently have an MCL. 1,4-dioxane is a stabilizer that is commonly associated with the chlorinated solvent trichloroethane (TCA). However, it is also commonly found in shampoos, cosmetics, and other personal care products. In the absence of federal regulation, 1,4-dioxane regulatory levels vary from state to state. For example, Michigan recently lowered its 1,4-dioxane regulatory limit from 85 parts per billion (ppb) to 7.2 ppb. Other states have lower limits still, with Massachusetts having set a regulatory limit for 1,4-dioxane of 0.3 ppb.
This patchwork of standards illustrates the challenges that the regulated community faces in the absence of federal action to set an acceptable MCL for 1,4-dioxane and other emerging contaminants. It remains to be seen if the Trump administration will follow through with its expressed intent of relying to the states to implement and enforce environmental rules and regulations or if the administration will recognize the benefits to the regulated community of consistency, at least with respect to drinking water standards.
As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.
2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.
Our five most popular blogs from 2016 were:
Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman
As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.
We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:
- March 7, 2017, 12:00 pm CT: Environmental, Health, and Safety Issues in 2017—What to Expect From the Trump Administration, by Gabrielle Sigel, Steven M. Siros and Allison A. Torrence
The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.
We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.
Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:
- Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
- Regulations that have been sent to the Federal Register but not published will be withdrawn.
- Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).
Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.