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June 2011

May 2011 Update: Climate Change

By Gabrielle Sigel and William Kaplowitz

Gabrielle Sigel and William Kaplowitz, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Climate Change Update Resource Center their May 2011 Update of Climate Change developments. Of note in this month's update are bipartisan bills promoting electric vehicles, the Obama administration's first purchase of electric vehicles, and new fuel efficiency stickers for new vehicles beginning in model year 2013 that will be able compare the efficiency of electric vehicles to those that run on gas through use of a measure called miles per gallon equivalent (mpge).

Click here to read the May 2011 Climate Change Update.

Announcing Midwest Brownfields Forum

Armstrong_Stephen_COLORBy Stephen Armstrong


On June 23, Jenner & Block, in conjunction with Bisnow, will host the "Midwest Brownfields Forum." The breakfast seminar will be held on the 45th floor of Jenner & Block's Chicago office and will begin at 8:00 am CST.

Steve Armstrong of Jenner's Environmental, Workplace and Health and Safety Department will be joined for a panel discussion by the following leading local and national figures in the Brownfield market: Kenneth Anderson, of Aon Risk Solutions; Robert Colangelo, Founder of the National Brownfield Association; Randall Jostes, President & CEO of Environmental Liability Transfer, Inc.; and James Van Nortwick, Manager of Underutilized Properties at GE Capital Real Estate. The panelists will discuss the recent increase in transactions involving environmentally impaired-or "Brownfield"-properties and the ways to make these transactions work. Please see the link below for more information on the event:

Supreme Court Holds EPA’s Authority to Regulate Greenhouse Gases Displaces Federal Nuisance Suit

By Gabrielle Sigel and William Kaplowitz

On June 20, 2011, the Supreme Court issued its opinion in American Electric Power Co., Inc. v. Connecticut, No. 10-174, a case in which the U.S. Court of Appeals for the Second Circuit had held that eight states, New York City, and three land trusts could bring a claim under the federal common law of nuisance against owners of some of the largest U.S. electric power plants, for allegedly emitting greenhouse gases ("GHGs") that contribute to global warning. The eight Justices who participated in the decision unanimously agreed to reverse and remand the Second Circuit's decision, with six Justices joining the lead opinion, and Justices Thomas and Alito separately concurring. Justice Sotomayor, who sat on the Second Circuit at the time the case was decided, took no part in the Supreme Court's decision.

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Seventh Circuit Holds That Environmental Group Has Standing To Challenge Validity Of Permit To Destroy Wetlands

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling


Yesterday, the Seventh Circuit found that an environmental group, the American Bottom Conservancy (the "Conservancy"), has standing to sue to invalidate a U.S. Army Corps of Engineers ("Corps") decision to allow Waste Management of Illinois, Inc. ("WMI") to destroy over eighteen acres of wetlands in southwestern Illinois.

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EWG Report Lists Apples as Most Contaminated Produce Item

By Phoebe B. Scott

On June 13, 2011, the Environmental Working Group ("EWG") released the 2011 Shopper's Guide to Pesticides in Produce. The report was based on data from the U.S. Department of Agriculture ("USDA") and Food and Drug Administration ("FDA") that was compiled between 2000 and 2009. According to EWG, the purpose of the report is to help parents avoid feeding their children produce that is contaminated with pesticides. According to an online statement made by EWG, the report "is not built on a complex assessment of pesticide risks but instead reflects the overall pesticide loads of common fruits and vegetables."

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NOAA Considering Regulations Addressing Marine Mammals Taking by Oil and Gas Seismic Surveys


 By Genevieve J. Essig


Yesterday, National Marine Fisheries Service (NMFS) announced that it had received a revised application from the U.S. DOI Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) (formerly Minerals Management Service (MMS)), for authorization to take marine mammals by harassment incidental to oil and gas industry seismic surveys conducted during geological and geophysical (G&G) exploration of the Outer Continental Shelf in the Gulf of Mexico. 76 FR 34656 (June 14, 2011). The notice states that, according to BOEMRE, underwater noise and pressure related to these activities may cause behavioral disturbance or damage to hearing sensitivity of marine mammals.  Under the Marine Mammal Protection Act (MMPA), the agency will upon request grant an authorization for "the incidental, but not intentional, taking . . . of small numbers of marine mammals of a species or population stock" if it finds that the taking will have a "negligible impact" (see 50 CFR 216.103) on the species or stock and will not have an "unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses"; and prescribes regulations setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock and its habitat as well as requirements for

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National Toxicology Program’s Twelfth Report Identifies Formaldehyde As A Known Human Carcinogen

Siros_Steven_COLORBy Steven M. Siros


On June 10, 2011, the National Toxicology Program ("NTP") issued its twelfth report on chemicals that are deemed to be carcinogenic to humans and listed formaldehyde as a known human carcinogen.  This is not an unexpected result and comes on the heels of a controversial study of Chinese workers published in early 2010 that concluded that exposure to formaldehyde caused certain kinds of leukemia.  U.S. EPA relied on this study when compiling its June 2010 draft Integrated Risk Information Systems ("IRIS") assessment of formaldehyde.  The International Agency for Research on Cancer also determined that formaldehyde was a human carcinogen in late 2009.  In addition, as part of its recent national air toxics assessment released in March 2011, U.S. EPA concluded that formaldehyde was a significant driver of overall air toxics risks.

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DOI Seeks Comments On WaterSMART Conservation Program Plan

Grayson_Lynn_COLORBy E. Lynn Grayson


Until August 1, 2011, the Department of Interior is seeking public comments on its draft WaterSMART (Sustain and Manage America's Resources for Tomorrow) Strategic Implementation Plan. The draft plan identifies actions to secure and stretch water supplies for use by existing and future generations.

Aging infrastructure, rapid population growth, depletion of groundwater resources, impaired water quality associated with particular land uses and covers, reservoir sedimentation, water needed for human and environmental uses, increased domestic energy development, and climate variability and change all play a role in determining the amount of fresh water available at any given place and time. It is increasingly recognized that water is the primary means through which climate change impacts the earth and people's livelihoods and well being. Water shortage and water-use conflicts have become more commonplace in many areas of the United States.

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U.S. EPA Details Environmental Objections With State Department’s Environmental Impact Statement For The Keystone XL Pipeline

Torrence_Allison_COLORBy Allison A. Torrence


On June 6, 2011, the United States Environmental Protection Agency ("U.S. EPA") sent the State Department a letter expressing its concerns with the Department's Supplemental Draft Environmental Impact Statement ("Supplemental EIS") for the proposed TransCanada Keystone XL Pipeline. TransCanada is proposing to build an oil pipeline to transport oil sands crude from Alberta, Canada to delivery points in Oklahoma and Texas. The State Department, which must approve the pipeline because it crosses an international border, issued a Draft Environmental Impact Statement ("Draft EIS") in April 2010. U.S. EPA found the Draft EIS to be inadequate because potentially significant impacts were not evaluated and additional information and analyses were necessary. The State Department issued the Supplemental EIS in April 2011, to respond to U.S. EPA's concerns. However, U.S. EPA continues to have objections to the Supplemental EIS.

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Maryland Executive Order Creates Marcellus Shale Safe Drilling Initiative

Essig_Genevieve_COLORBy Genevieve J. Essig


Yesterday, Maryland Governor Martin O'Malley signed an executive order which established the "Marcellus Shale Safe Drilling Initiative." According to the order, the purpose of the Initiative, which is to be administered jointly by the Maryland Department of the Environment and the Maryland Department of Natural Resources, is to "assist State policymakers and regulators in determining whether and how gas production from the Marcellus shale in Maryland can be accomplished without unacceptable risks of adverse impacts to public health, safety, the environment and natural resources."

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Compliance With Illinois’ Universal Waste Regulations No Defense To U.S. EPA Enforcement Action

Siros_Steven_COLORBy Steven Siros


An Illinois company that collected and crushed fluorescent lamps in accordance with Illinois' universal waste regulations found out the hard way that compliance with the law is no defense to an U.S. EPA  enforcement proceeding. On April 23, 2010, U.S. EPA initiated an enforcement proceeding against Mercury Vapor Processing Technologies and several other defendants. U.S. EPA alleged that these companies were improperly treating fluorescent lamps in contravention of the federal hazardous waste regulations and sought a civil penalty of $743,293. In response, defendants made the reasonable argument that their operations were in compliance with Illinois' universal waste regulations and therefore were exempt from regulation under Subtitle C of RCRA. 

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EPI Concludes Environmental Benefits Outweigh Compliance Costs Of EPA Regulations

Grayson_Lynn_COLORBy E. Lynn Grayson


The Economic Policy Institute (EPI) announced on May 31st the results of an analysis of the relationship between Obama-era environmental regulations and economic factors, particularly employment. Two broad conclusions emerge from this analysis detailed in an EPI briefing paper titled Tallying Up the Impact of New EPA Rules. First, the dollar value of the benefits of the major rules finalized or proposed by the EPA so far during the Obama administration exceeds the rules' costs by an exceptionally wide margin. Health benefits in terms of lives saved and illnesses avoided will be enormous. Second, the costs of all the finalized and proposed rules total to a tiny sliver of the overall economy, suggesting that fears that these rules together will deter economic progress are unjustified.

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