Corporate Environmental Lawyer

Pesticide Use Data Now Available From USGS

By E. Lynn Grayson

The USGS recently made available detailed maps identifying annual usage of 459 pesticides throughout the U.S. The Pesticide National Synthesis Project manages pesticide data from 1992-2009 and provides specific statistics associated with pesticide use per crop and within each county.

The maps were developed for use in national and regional water-quality assessments. The USGS data was collected from surveys of farm operations and USDA statistics on annual harvest-crop acreage. This information was used to calculate use rates for each crop per year.

These maps show interesting information about the nature of pesticide use around the country. Data includes insight into the quantity of pesticide use per U.S. county as well as the specific crop growing in the same area.

The usage maps for all 459 pesticides can be accessed at http://water.usgs.gov/nawqa/pnsp/usage/maps/compound_listing.php.

High Court Refuses to Take Up Kivalina Climate Suit

By Keri L. Holleb Hotaling

On May 20, 2013, the United States Supreme Court denied the Alaska town of Kivalina’s petition for writ of certiorari in its public nuisance lawsuit against Exxon Mobil Corp. and other energy companies. Kivalina contended that the energy companies were injuring the small Eskimo village by causing global warming and a commensurate sea level rise, and, as a result, inhabitants were forced to leave and relocate further inland. Because the Supreme Court has opted not to hear the case, the Ninth Circuit’s ruling in favor of the energy companies will stand. The Ninth Circuit largely followed the reasoning of the Supreme Court in American Electric Power Co., Inc. v. Connecticut, ---U.S.---, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), in affirming the dismissal of the action by the district court and finding that the Clean Air Act (“CAA”) displaced Kivalina’s claim for $400 million in damages to fund a relocation project. (See “Ninth Circuit Affirms Dismissal of Federal Common Law Nuisance Claim for Global Warming.”) Kivalina urged the Supreme Court in its February petition that the case be controlled by Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), which held that the Clean Water Act, a statute like the CAA, did not displace a federal common law damages claim. The case is Native Village of Kivalina, et al. v. Exxon Mobil Corp., et al., Case Number 12-1072, U.S. Supreme Court.

New Report Concludes Cities Face Water Scarcity

By E. Lynn Grayson

The Columbia University Water Center, Veolia Water and Growing Blue have issued a new report titled America's Water Risk: Water Stress and Climate Variability. The report examines water risk by evaluating both existing demand as well as variations in renewable water supply. The report offers a means to estimate water risk and map it for the U.S. at a county level. The report highlights on a U.S. map that severe water stress will occur over much of the agricultural belt of the Midwest as well as the arid regions of California and Arizona.

The measures of water risk are estimated using over sixty years of precipitation and the current water use pattern for each county. Two risk metrics are developed to capture the influence of within year dry periods (Normalized Deficit Index – NDI) and of drought across years (Normalized Deficit Cumulated – NDC). The NDI is computed as one number for each year using historical daily rainfall data for the area and current daily water needs. It measures the maximum cumulated water shortage each year during the dry period that needs to be provided for from groundwater or from surface water storage or transfers from other areas. The NDC is computed as one number over the historical climate record. It represents the largest cumulative deficit between renewable supply and water use over the entire period. Consequently, it reflects the stress associated with multi-year and within-year drought impacts at a location.

An infographic from Growing Blue summarizes the report findings and key data provided. It emphasizes the increased risk of water scarcity in cities and counties as climate change increases drought potential.

The report, America's Water Risk: Water Stress and Climate Variability, is available at http://growingblue.com/wp-content/uploads/2013/05/GB_CWC_whitepaper_climate-water-stress_final.pdf.

Law360 Q&A With Lynn Grayson

By E. Lynn Grayson

Law360's Q&A series asked:

1. What is the most challenging case you have worked on and what made it challenging?
2. What aspects of your practice area are in need of reform and why?
3. What is an important issue or case relevant to your practice area and why?
4. Outside your firm, name an attorney in your field who has impressed you and explain why?
5. What is a mistake you made early in your career and what did you learn from it?

View the latest Law360 Q&A for environmental law insights on Superfund reform, water scarcity and environmental law practice tips.

 

Jenner & Block Program: “Professional Responsibility And Ethics For Environmental Lawyers” – May 8th

By E. Lynn Grayson

You are invited to join us on Wednesday, May 8, at 12:00 noon on the 45th Floor of the Chicago office for a program entitled "Professional Responsibility and Ethics for Environmental Lawyers." This professional responsibility and ethics program will focus not only on a general update of these issues but discuss legal scenarios and situations unique to environmental law practices.

Our two speakers will be: 1) Miranda K. Mandel, Loss Prevention Counsel, Attorneys' Liability Assurance Society, Inc. (ALAS); and, 2) Michael L. Shakman, Partner, Miller Shakman & Beem LLP.

Enjoy lunch, network with fellow environmental lawyers and learn what experts suggest we do to manage difficult situations that arise in our law practices.

Please forward any RSVPs to Jan Wall (jwall@jenner.com).

Water Scarcity: Climate Change Related Or Not?

By E. Lynn Grayson

There is growing uncertainty over the impacts of greenhouse gases discharged into the Earth's atmosphere resulting in more and more recognition that there may be a less catastrophic climate change forecast than originally predicted by climate change "experts." While much remains unsettled as to the whys and hows of climate change, one often associated concern, water scarcity, appears to be on the rise in the U.S. and around the world.

Another water rights legal battle was headlined in this weekend's Wall Street Journal (WSJ Saturday/Sunday, April 20-21, 2013) with an article addressing water scarcity and drought impacts in and around Klamath Falls, OR. Critical water conflicts have existed here in recent times since 2001 when the U.S. Bureau of Reclamation shut off irrigation to thousands of acres of farmland in Oregon and California to protect endangered fish during a drought. A 2008 landmark water pact, awaiting approval from Congress, appeared to resolve water disputes for most interested parties.

With new drought conditions now existing in this region, conflicts again are surfacing between ranchers and farmers as well as environmentalists. The 2008 pact purported to divvy up available water resources among all parties and also required PacifiCorp to remove four dams on the Klamath River by 2020. Several parties have withdrawn their support from the 2008 pact alleging it may actually reduce further water into the basin and establishes preferences for farmers' rights over ranchers' rights.

A court recently ruled that the Klamath Tribes of the Klamath, Modoc and Yahooskin people have "time immemorial" water rights in much of Klamath County. The ruling secures priority water rights for tribal members.

While Oregon, California and DOI are still pushing for approval of the 2008 water pact, the only interested party that appears satisfied with the pact is the Klamath Tribes. This is another in a growing list of water disputes ongoing throughout the U.S. where courts, and in some cases, Congress, are being asked to weigh in on how water rights will be managed for all concerned. Given that many of these conflicts arise between states, the U.S. Supreme Court has original jurisdication to hear some of these cases and several already are before the court as discussed in this blog earlier.

While it may not be clear that changing weather patterns and related water scarcity issues are a direct result of climate change, what we do know is that water conflicts appear to be on the rise with parties struggling to protect limited water resources.

Environmental Advocacy Groups Issue Water Preparedness Guidance

By Steven M. Siros

The Natural Resources Defense Council and American Rivers recently issued a guide titled "Getting Climate Smart: A Water Preparedness Guide for State Action" that is intended to provide states with resources to better plan for climate change water-related impacts. According to the NRDC, these climate change water-related impacts are anticipated to include increased water scarcity in some regions and flooding in other regions. The guide is intended to provide organizational strategies to help states "cope with a new normal or extreme weather and climate change already wreaking havoc in communities", according to the press release that accompanies this guide. Included in the guide is a tool-box that provides various strategies for addressing water related issues in seven sectors—agriculture; energy, transportation and urban infrastructure; fisheries and aquatic ecosystems; oceans and coastal resources; public health and safety; tourism and recreation; and water management. Please click here to see a copy of the guide.

PolicyMic on Climate Change

By E. Lynn Grayson

PolicyMic, a democratic online news platform to engage millennials in debates about real issues, identified five things to expect this year related to climate change including:

1) It will keep getting warmer;
2) Droughts will persist;
3) Arctic ice coverage will again be very low;
4) Summer will last a little longer; and
5) Storms and sea levels rise.

PolicyMic acknowledges the uncertainties associated with predicting climate change trends and impacts. Based upon current scientific data and other climate change research, one of PolicyMic's commentators believes the above five impacts are likely to continue in this year. While PolicyMic and its science/environmental commentators cannot be viewed as climate change experts, it is useful and helpful to understand what smart, educated young adults believe based upon information currently available. The suggested findings for this year make likely climate change consequences more understandable and straightforward.

PolicyMic is the fastest growing news and discussion platform with over 5 million monthly unique visitors. The global news brand prides itself on high-quality analysis and an incredibly engaged community which includes contributors in over 45 countries with an average age of 26 years old. Learn more about PolicyMic at http://policymic.com/

Earth Day 2013

By E. Lynn Grayson

Next Monday, April 22, 2013, over one billion people around the world will celebrate the 43rd annual Earth Day. The theme of Earth Day 2013 is the "Face of Climate Change" according to the Earth Day Network.

The first Earth Day was held on April 22, 1970. Created by then Wisconsin Senator Gaylord Nelson, this special celebration was intended to raise awareness about environmental threats and encourage citizens to strive for healthy, sustainable communities. Earth Day 1970 capitalized on emerging consciousness, channeling the energy of the anti-war protest movement and putting environmental concerns front and center. The original Earth Day and the resulting environmental momentum led to the creation of the U.S. EPA and the passage of the Clean Air, Clean Water and Endangered Species Acts, among other environmental progress.

In celebration of Earth Day 2013, we will sponsor a weeklong series of blogs focused on the general topic of climate change and related considerations.

For more information about Earth Day 2013, visit the Earth Day Network website at http://www.earthday.org/2013/

ELI and Jenner & Block Program: “Obama’s Second Term: Implications For Environmental Practice” – April 24th

By E. Lynn Grayson

You are invited to join us on Wednesday, April 24, at 12:00 noon on the 45th Floor of the Chicago Office, for an important luncheon program we are co-sponsoring with the Environmental Law Institute ("ELI") entitled "Obama's Second Term: Implications for Environmental Practice." This program will bring together three speakers, each of whom played a key role in environmental matters during President Obama's first term, and each of whom is very knowledgeable concerning EPA enforcement trends, emerging environmental issues, and environmental policy challenges.

The three speakers will be (1) John Cruden, currently the President of ELI, who previously served for many years as the Deputy Assistant Attorney General in charge of environmental enforcement at the Department of Justice; (2) Thomas Perrelli, Chair of the Government Controversies and Public Policy Litigation Practice at Jenner & Block, who recently returned to Jenner & Block and who previously was directly involved in environmental matters as one of the key former heads of the Justice Department; and (3) Robert Kaplan, who presently serves as Regional Counsel for Region 5 of the EPA. These speakers will share lessons learned, including what we can expect will affect business and environmental regulation during President Obama's second term.

We are privileged to partner in this program with ELI, one of the preeminent, non-partisan environmental law organizations in the country. Headquartered in Washington, DC, ELI has played a pivotal role since the early 1970s in helping to shape environmental law, policy, and management, both domestically and abroad. This program will present an insider's viewpoint on what we anticipate in environmental enforcement and regulation from the DOJ, EPA, and White House over the next four years.

Please forward any RSVPs to Elizabeth Wong (elizabethwong@jenner.com).