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June 2012

Rio+20 Summit Insights – You Can't Always Get What You Want

Grayson_Lynn_COLORBy E. Lynn Grayson


Leaders around the world are questioning whether or not any real progress was made at the Rio+20 Summit last week. Critics charge that the Rio+20 Outcome Document entitled The Future We Want lacks specific commitments, credible action plans or funding to advance sustainability efforts. Others question the need for an international summit taking into account time, costs, security, etc. if all you end up with is a piece of paper that will bring little change. The Rio+20 Summit did matter as it is an important step in the continuing negotiations on how best to pursue a more sustainable environment worldwide. Progress was made last week as evidenced by these key achievements:

  1. More than $513 billion in funding was committed to address energy, food security, access to drinking water and management of oceans, among others;
  2. In excess of 700 concrete commitments were registered during the Summit from governments, business, industry, financial institutions and other groups; and,
  3. The outcome document was agreed on and adopted by Member States including a process for establishing new sustainable development goals by 2015 addressing topics such as change, water and sanitation, oceans and seas, energy and sustainable cities.

The outcome document calls for a wide range of actions. These include not only beginning the process to establish sustainable development goals but also: detailing how the green economy can be used as a tool to achieve sustainable development; strengthening the UN Environment Programme (UNEP); promoting corporate sustainability reporting measures; taking steps to go beyond gross domestic product to assess the well-being of a country; developing a strategy for sustainable development financing; and, adopting a framework for tackling sustainable consumption and production.

More than 40,000 people – including parliamentarians, mayors, UN officials, chief executive officers and civil society leaders – attended Rio+20 from 20-22 June. Over 50 million people from all over the world also participated in the Summit through social media platforms, voicing their comments, opinions and ideas, making the platforms a key component in establishing a conversation on sustainability issues both in the lead up and during the Summit.

The Rio+20 Summit may not have equaled its 1992 predecessor event in overall accomplishments and progress but given social, political and economic issues existing in the world today, the Summit's work will have positive impacts and was successful in advancing sustainable growth efforts. The importance of the Summit reminds us of the ever popular Rolling Stones' lyrics  "… you can't always get what you want but if you try sometimes... you might find you get what you need." The Summit gave the UNEP and world leaders what they need which is a clear process for moving forward and taking the next step on the path to a more sustainable environment.

Federal Appellate Court Gives U.S. EPA Greenhouse Gas Regulatory Victory

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On June 26, 2012, the U.S. Court of Appeals for the District of Columbia Circuit handed the Obama Administration's Environmental Protection Agency a significant victory in its attempts to regulate greenhouse gases ("GHGs") under the Clean Air Act ("CAA"). Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir. (6/26/12). Several States, led by Virginia and Texas, and industry groups had petitioned the Circuit Court in response to EPA's series of regulations, beginning in 2009, that implemented CAA provisions with respect to GHGs. Those regulations included control of GHG emissions from vehicles, as well as from stationary sources. EPA's regulatory approach is highly controversial, particularly because it used non-statutory reasons to justify its approach to regulating GHGs from stationary sources. The Circuit Court upheld all of EPA's regulations in a unanimous per curiam decision.

Continue reading "Federal Appellate Court Gives U.S. EPA Greenhouse Gas Regulatory Victory" »

Rio+20 Day One Developments And Early Reactions

Grayson_Lynn_COLORBy E. Lynn Grayson


At the opening press conference for the Rio+20 summit, UN Secretary General Ban Ki-moon announced two key developments:

  1. Member States have agreed upon an outcome document addressing moving forward with sustainable development initiatives worldwide. More details about these plans will be provided this Friday.  
  2. Global support has been received for a new sustainable energy initiative with over 200 private and public commitments expected to result from further discussions this week. This initiative seeks three objectives by 2030: universal access to modern energy services; scaling up of energy efficiencies; and, doubling the renewable energy mix in the power grids worldwide.

In his opening statement, he observed that bold words and good intentions are no longer enough as to sustainability goals. Rio+20 must be about people and creating better lives for the poor, women, young people and future generations. He noted that we must overcome the myth that there is a tradeoff between prosperity and what's good for the environment.

Numerous observers have charged that the outcome document is a watered-down approach with few advances on protecting the environment. Others charge that Rio+20 is spending too much time trying to punish polluters and too little time on encouraging innovators to come up with new technologies to solve problems. Two contentious issues impeding negotiators are:  1) technology transfers from rich to poor nations; and, 2) new financing for developing countries. Environmental groups are even more critical with Greenpeace already concluding that Rio+20 "... has turned into an epic failure."

"Epic failure" likely is an overstatement but it is clear that initial insights strongly suggest that progress on Rio+20 objectives will be slow in coming.

UN webcasts of key Rio+20 proceedings and press conferences are available at

New Client Alert: Why Rio+20 Summit Is Important To U.S. Business

Grayson_Lynn_COLORBy E. Lynn Grayson


On June 19th, Jenner & Block's Environmental and Workplace Health and Safety Law Practice Group published a client alert about the importance of the Rio+20 UN Conference on Sustainable Development for U.S. business. In that alert, Partner E. Lynn Grayson addresses the summit's history, key issues to be addressed this week, anticipated outcomes and what these developments mean for U.S. businesses.

Rio+20 UN Conference On Sustainable Development – Make A Voluntary Commitment

Grayson_Lynn_COLORBy E. Lynn Grayson


Rio+20 is a three day summit taking place this week (June 20-22) in Rio de Janeiro organized by the UN to address critical environmental concerns. More than 130 world leaders will attend the UN Conference on Sustainable Development addressing global environmental, social and economic challenges.

The UN is encouraging voluntary commitments not only from governments around the world but also from any stakeholders and individual organizations interested in helping to advance sustainable development goals. Voluntary commitments should cover one of the following 23 sustainable development areas:

  • Water
  • Mountains
  • Gender Equality
  • Sustainable Cities
  • Poverty Eradication
  • Sustainable Transport
  • Sustainability Management
  • Green Jobs and Social Inclusion
  • Natural Disasters and Preparedness
  • Sustainable Consumption and Production
  • Biodiversity, Forests and other Ecosystems
  • Education
  • Climate Change
  • Oceans and Seas
  • Sustainable Energy
  • Chemicals and Waste
  • SD Strategies and Policies
  • Technology and Innovation
  • SD economics, finance and trade
  • Land Degradation and Desertification
  • Food Security and Sustainable Agriculture
  • Measuring SD progress (through indicators)
  • Public awareness and communications on SD

According to the UN guidance all voluntary commitments should be specific, measurable, funded and new (or extension of an existing commitment). These voluntary commitments provide the opportunity for many other parties and organizations to participate in the Rio+20 efforts.

To learn more about Rio+20 voluntary commitments, visit

Environmental Groups Oppose Spent Lead Bullets And Shot

Grayson_Lynn_COLORBy E. Lynn Grayson


Environmental groups recently filed suit against EPA for failure to act on a March petition aimed at the elimination of lead from bullets and shot advocates charge are harming wildlife. (Trumpeter Swan Society v. EPA, D.D.C., docket number not available, 6/07/12). The seven groups filing suit on June 7th included: The Trumpeter Swan Society, Cascades Raptor Center, Center for Biological Diversity, Loon Lake Loon Association, Preserve Our Wildlife Organization, Tennessee Ornithological Society, and Western Nebraska Resources Council. Plaintiffs allege two causes of action against EPA:

  1. Violation of APA because EPA's decision that the petition was not cognizable under TSCA was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
  2. Violation of TSCA (15 U.S.C. §2620(4)(B)(ii) because EPA had a reasonable basis to conclude that the issuance of a rule or order is necessary to protect health or the environment against an unreasonable risk of injury from lead exposure.

Environmental groups originally petitioned EPA in August 2010 seeking to ban lead shots, bullets and fishing sinkers. In March of this year, a larger group of environmental organizations petitioned EPA to initiate rulemaking under TSCA to address the unreasonable risks posed by lead bullets and shot. In April 2012, EPA advised it would not initiate the requested rulemaking and confirmed its prior actions in connection with the August 2010 petition.

TSCA grants the EPA the broad authority to regulate chemical substances that "present an unreasonable risk of injury to health or the environment." 15 U.S.C. §2601. The EPA may regulate the manufacture, processing, distribution, use or disposal of such chemical substances. The EPA has already declared that lead is a toxic substance, and although it has implemented some regulations to reduce lead exposure, lead still remains widely distributed in the environment in the form of spent lead bullets and shot and regularly encountered by wildlife leading to harmful lead exposure.

EPA has removed nearly all products containing lead from the market. Most other uses of lead, such as lead-based paints, plumbing pipe and fixtures, and leaded gasoline, are already subject to strict regulation. Plaintiffs allege that EPA's failure to address lead in bullets and shot adversely impacts wildlife as well as poses unacceptable exposure risks to humans.

D.C. Circuit Vacates U.S. EPA Interim Final NOx Rule

Siros_Steven_COLORBy Steven M. Siros


On June 12, 2012, the U.S. Court of Appeals for the D.C. Circuit struck down a U.S. EPA interim final rule that provided for the payment of nonconformance penalties ("NCPs") in lieu of meeting NOx limits for heavy-duty diesel engines. In 2001, U.S. EPA enacted a rule requiring a 95 percent reduction in NOx emissions from heavy-duty diesel engines by 2010. Most engine manufacturers developed a compliant technology called "selective catalytic reduction." One manufacturer took a different compliance approach, however, and focused on an "exhaust gas recirculation" technology. Unfortunately, this technology proved incapable of meeting the NOx emission limits set forth in the 2001 U.S. EPA rule.

Without formal notice or comment, on January 31, 2012, U.S. EPA promulgated an interim final rule which allowed the sale of non-conforming engines in 2012 and 2013 so long as engine manufacturer paid a non-conformance penalty of $1,919 per engine and met an alternate emission limit of .50 grams of NOx per horsepower-hour. Several engine manufacturers that had implemented the successful selective catalytic reduction technology challenged the interim final rule, arguing that U.S. EPA couldn't meet the "good cause" exception to the notice and comment requirements of the APA.

The D.C. Circuit Court agreed that U.S. EPA couldn't demonstrate that good cause existed to obviate the need to submit the interim final rule for notice and comment; the court therefore struck the interim final rule.  The court then went on to note that although it was aware that U.S. EPA was in the process of promulgating a final rule—with the benefit of notice and comment—that would implement the NCP that was the subject of the interim final rule, "NCPs are not designed to bail out manufacturers that voluntarily choose, for whatever reason, not to adopt an existing compliance technology." Clearly, the court intended to give U.S. EPA fair warning that it would view any further efforts to provide NCPs for non-compliant engine manufacturers with skepticism. For a copy of the decision, please click here.

New Textbook Update Addresses Bee Colony Collapse Disorder

Graham_Robert_COLORBy Robert L. Graham


Bob Graham co-authored a leading environmental law textbook in use at many U.S. law schools titled Environmental Law and Policy: Nature, Law and Society. The Fourth Edition of this textbook was launched in 2010 and includes two Teacher's Manuals as well as annual professors' updates. More information about the textbook and supplementary materials are available at

The 2012-2013 updates will soon be published and include new insights, case law summaries and guidance on key developing areas. One topic addressed is bee colony collapse disorder (CCD) and EPA's management of this concern under FIFRA.

Below is a summary of CCD as updated in the textbook:

Colony Collapse Disorder and FIFRA. During the winter of 2006-2007, a number of beekeepers throughout the United States, and elsewhere, began to report unusually high losses of 30-90 percent of their hives. As many as 50 percent of all affected colonies demonstrated symptoms inconsistent with known causes of honeybee death. These symptoms involved the sudden loss of a colony's worker bee population, with very few dead bees found near the colony. The queen and the brood (young) often remained, and the colonies had relatively abundant honey and pollen reserves. But the hives could not sustain themselves without worker bees and would eventually die. This combination of events, resulting in the loss of a bee colony, has been labeled Colony Collapse Disorder (CCD).

CCD in honeybees, and pollinator declines in general, have become serious environmental concerns. Because of the importance of bees in the pollination process, CCD could ultimately threaten the functioning of our natural ecosystems and affect the production of many important crops in the United States. Pesticide use has been identified as a potential contributing factor to these declines, along with other potential factors such as new and reemerging pathogens, habitat loss, pests, bee management practices, and nutritional stress.

Researchers leading the effort to determine the cause of CCD are now focused on the following factors:

Continue reading "New Textbook Update Addresses Bee Colony Collapse Disorder" »

CLE: Recent Developments in Commercial General Liability Coverage for Environmental Exposures

By Keri L. Holleb Hotaling

On Thursday, June 7, 2012, Partners Keri Holleb Hotaling and David Kroeger will be speaking on Recent Developments in Commercial General Liability Coverage for Environmental Exposures. The session, which is part of a larger ISBA Insurance Law Section half-day CLE on Recent Developments in General Liability Insurance Law, will examine the recent legal developments concerning potential environmental exposures, including the 2011 United States Supreme Court decision in American Electric Power Co., Inc. v. Connecticut, ---U.S.---, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), as well as the potential for coverage for those types of environmental exposures under CGL coverage forms. Recent developments in global warming tort litigation will also be addressed.

The program will take place at the ISBA Regional Office, 20 S. Clark Street, Suite 900, from 8:00 a.m.–12:45 p.m. and will also be webcast. The environmental exposure session runs from 11:15 a.m.–12:00 p.m.

U.S. EPA Ordered To Issue Proposed Particulate Rules By June 7th

Siros_Steven_COLORBy Steven M. Siros


On May 31, 2012, a federal district court ordered U.S. EPA to issue its proposed rule for review of the national ambient air quality standards for particulate matter by June 7, 2012. The court concluded that U.S. EPA had not provided a reasonable explanation as to why the rulemaking had been delayed. Although U.S. EPA reported that it submitted its draft proposed rule to the White House Office of Management and Budget on May 29, 2012 interagency review, these reviews typically take months to complete. 

In pleadings submitted to the court, U.S. EPA had indicated that it would need until August 2013 to finalize the rule.  Plaintiffs (including the American Lung Association and several states) are seeking a final rule by December 2012.  The court took no position with respect to when a final rule would need to be issued, indicating that it would wait to hear from U.S. EPA at a June 11th hearing.