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January 2011

EPA Schedules Listening Sessions On Proposed Greenhouse Gas Rules

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA has announced five listening sessions to gain public input and feedback into the rulemaking process for new greenhouse gas emissions standards for fossil fuel fired power plants and petroleum refineries. Each session is scheduled to last two hours and will feature a facilitated roundtable discussion among Clean Air Act stakeholders selected for their expertise in this arena.

The five sessions scheduled as well as the subject matter and location of each is noted below.


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Property Owner Faces RCRA Liability for Refusing to Allow Prior Owner to Remediate

Sigel_Gabrielle_COLORBy Phoebe B. Scott


On January 21, 2011, the U.S. District Court for the Central District of Illinois held that a current property owner’s refusal to grant a prior owner access for the purpose of remediation could result in the current owner being held liable as a “contributor” under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). Carlson v. Ameren Corp., No. 10-1230 (C.D. Ill. Jan. 21, 2011).  This section of RCRA allows a private right of action, known as a “citizens suit,” for injunctive relief against any person “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”

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Climate Change Year in Review 2010 Published

LexisNexis announced today that it published its annual year-in-review article on climate change developments, authored by Jenner & Block partner Gabrielle Sigel.  The article, titled "2010 Climate Change Year in Review: The Executive Branch Takes Charge" is posted on at 2011 Emerging Issues 5502. This comprehensive article describes the most significant regulatory, legislative and litigation climate change developments in the U.S. during 2010, with a special focus on the role of the Executive Branch in driving the climate change agenda.  Ms. Sigel is Co-Chair of Jenner & Block’s Climate and Clean Technology Law Practice, a founding Partner of the Firm’s Environmental, Energy and Natural Resources Law Practice, and a member of the Environmental Litigation Practice.  Ms. Sigel regularly represents clients in complex environmental statutory, common law, Superfund enforcement, and cost recovery actions.  Her work at the forefront of climate and clean technology law includes advising on greenhouse gas emission reporting and tracking, permitting issues, and clean energy siting challenges.

Ms. Sigel's article also posted at:

CEC’s Environmental Outlook For North America: Nine Trends To Watch For in 2011

Grayson_Lynn_COLORBy E. Lynn Grayson


A new report released by the Commission for Environmental Cooperation (CEC), North American Outlook to 2030, identifies the major forces and underlying trends likely to shape the environment of North America in 2030. CEC noted nine areas to watch:

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Shareholder Resolutions Filed Today Over Hydraulic Fracturing Risks

Grayson_Lynn_COLORBy E. Lynn Grayson


U.S. investors announced today they have filed shareholder resolutions with nine oil and gas companies, pressing them to disclose their plans for managing water pollution, litigation and regulatory risks that are increasingly associated with ever-expanding natural gas hydraulic fracturing operations, also known as "fracking." Resolutions were filed with a number of the natural gas industry's significant players including Exxon Mobil, Chevron, Ultra Petroleum, El Paso, Cabot Oil and Gas, Southwestern Energy, Energen, Anadarko and Carrizo Oil and Gas.

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OSHA Succumbs to Noisy Public Comment

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On January 19, 2011, in response to vociferous objection from the regulated community, OSHA withdrew its proposed official interpretation of the term "feasible administrative or engineering controls" as used in its General Industry and Construction Occupational Noise Exposure standards.   The standards state that employers must use administrative or engineering controls, rather than personal protective equipment (PPE), to reduce noise exposures that are above acceptable levels when such controls are  "feasible," i.e., "capable of being done," even if the cost of such controls are much more than the effective use of PPE, such as ear plugs.  Notably, OSHA withdrew this proposed interpretation before the close of public comments in March 2011.

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Water Is World’s Most Urgent Sustainability Challenge

Grayson_Lynn_COLORBy E. Lynn Grayson


In commenting on sustainability trends in 2010, SustainAbility, a company providing innovation and solutions to make business and markets sustainable, noted that water was the world's most urgent sustainability challenge in 2010. According to a recent SustainAbility and GlobeScan survey (87% of experts rated it urgent, compared with 82% for climate change), water was a more critical issue. Supporting that call for urgency are a host of new initiatives, tools and reports:  CDP's Water Disclosure Project, a water risk index (; WRI, GE and Goldman Sachs, an update to the CEO Water Mandate's Guide to Responsible Business Engagement with Water Policy; Ceres and Water Asset Management's report ( on risks in the Municipal Bond Market; and Nature's study ( showing 80% of the world's population living with insecure fresh water supply, to name a few. In short, we are set for inevitable collision between water scarcity and access to energy (more to come on that in 2011) – see SustainAbility's Jeff Erikson's recent blog (

Water scarcity issues are an ever growing concern globally. The impacts from climate change increasingly will put further stress on water supplies. In many areas, water conservation is the key to protecting valuable water resources.

Learn more about SustainAbility at

U.S. Supreme Court Denies Petition to Consider Comer GHG Nuisance Decision

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On January 11, 2011, the U.S. Supreme Court denied the petition for a writ of mandamus filed by the plaintiffs in Comer v. Murphy Oil U.S.A., a climate change common law case with an unusual procedural outcome in the Fifth Circuit Court of Appeals.  In re Comer, et al., No. 10-294 (docketed Aug. 30, 2010). The underlying complaint was brought by property owners who claimed that the greenhouse gas ("GHG") emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina on their properties and that they were entitled to damages and other relief under, inter alia, common law nuisance, trespass, and negligence theories.

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November 2010 Update: Environmental Lender Liability

By Gabrielle Sigel and Genevieve Essig

Gabrielle Sigel and Genevieve Essig, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their November 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are summaries of the U.S. District Court of the Western District of New York's November 2 decision in NL Indus., Inc. v. Halliburton Co. and the U.S. District Court for the Western District of Washington's December 7 decision in United States v. Washington State Dep't of Transp.

Click here to read the November 2010 Environmental Cost Recovery & Lender Liability Update.

Vermont Law Top 10 Environmental Watch List 2011

Grayson_Lynn_COLORBy E. Lynn Grayson


Vermont Law School's Environmental Law Center launched its first annual Top 10 Environmental Watch List today. Environmental faculty and students researched more than 75 judicial, regulatory and legislative actions before selecting what they consider the 10 most important environmental law and policy issues of 2010.

1.    Congressional failure to enact climate change legislation.

2.    The nation's worst oil spill.

3.    First U.S. greenhouse gas rules.

4.    Climate change in the courts.

5.    California's climate law dodges a bullet.

6.    EPA clamps down on mountaintop removal coal mining.

7.    Wind and solar projects make breakthroughs.

8.    Supreme Court reviews genetically modified crops.

9.    EPA's water transfer exemption remains in force.

10.  U.S. military going green.

The Top 10 Environmental Watch List report is available at

The list provides some interesting insight confirming that climate change as well as energy-related considerations increasingly are the focus of key environmental law concerns. This trend certainly will continue in 2011.

OSHA Holds Public Web Chat on Regulatory Agenda

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On January 5, 2011, at 2:30 p.m. EST, OSHA will host a live web chat to discuss its semi-annual regulatory agenda and annual plan, which were published in the Federal Register on December 20, 2010.  Members of the public are entitled to join the webcast.  These documents describe OSHA's regulatory priorities for the  next 6-12 months.

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EPA Agrees to Set GHG Emission Standards for Electric Power Plants and Petroleum Refineries

Sigel_Gabrielle_COLORBy Gabrielle Sigel


Settling lawsuits filed by certain States (located in the Northeast and West), environmental groups, New York City and the District of Columbia, on December 23, 2010, U.S. EPA announced that it will set New Source Performance Standards ("NSPS") for greenhouse gas ("GHG") emissions from fossil fuel-fired electric power plants and petroleum refineries.  NSPS are required under Section 111 of the Clean Air Act ("CAA").  EPA agrees that it will issue proposed standards by July 26, 2011, for power plants, and by December 10, 2011, for refineries.  EPA also agrees that it will issue the standards as final rules for power plants and refineries by December 10, 2011, and November 10, 2012, respectively.  EPA's settlement agreements are subject to a 30-day public comment period before they are final.

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