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October 2012

September 2012

Ninth Circuit Affirms Dismissal of Federal Common Law Nuisance Claim for Global Warming

By Keri Holleb Hotaling

On September 21, 2012, the Ninth Circuit Court of Appeals in Native Village of Kivalina v. ExxonMobil Corp. et al., 9th Cir., No. 09-17490, ruled that the Alaska town of Kivalina could not sue energy companies under a federal common law claim of public nuisance for global warming caused by greenhouse gas emissions. Please click here to see opinion. 

Kivalina is a coastal Alaskan town approximately seventy miles north of the Arctic Circle, whose residents are indigenous Alaskans. The town contended that due to global warming and a commensurate sea level rise, inhabitants were forced to leave and relocate further inland. Kivalina sued twenty-two oil, energy, and utility companies, alleging federal common law nuisance; state law private and public nuisance; civil conspiracy; and concert of action. The residents of the Village were seeking roughly $400 million in damages. The Northern District of California dismissed the action on alternate grounds: (i) the action was prohibited by the political question doctrine, and (ii) the plaintiffs lacked standing to pursue their claims. The town appealed to the Ninth Circuit.

The Ninth Circuit held that the Clean Air Act and, and the Environmental Protection Agency action that the Act authorizes displaced Kivalina's common law claims. 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 finding, "[i]n sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief." The appeals court concluded by noting, "[o]ur conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law." Kivalina was one of the last remaining major climate tort suits pending in the federal courts.

Survey Confirms Water-Related Concerns

Grayson_Lynn_COLORBy E. Lynn Grayson


Drought, Water and Energy – A Natural Survey of Attitudes – an ORC report recently completed for the Civil Society Institute summarizes a telephone survey of 1,017 adults in AZ, CA, CO, FL, GA MO, NV, NM, SC and TX. The survey confirmed that Americans are worried about drought and want to see clean drinking water get a higher national priority. Key survey findings include:

  • Two-thirds of Americans now think climate change is "real" or "appears to be happening"
  • 4 out of 5 Americans or 81% are concerned about increased drought, wildfires and extreme weather events
  • Nearly two-third or 64% of Americans are very concerned about possible shortages of safe drinking water
  • 4 out of 5 Americans or 85% believe the availability of ample clean water should be a top national priority for the U.S.
  • 2 in 5 Americans or 39% have personally experienced the impact of drought in the last year
  • 9 out of 10 Americans want an energy/water "road map" for the U.S. that addresses full understanding of water resources regionally and locally

The Civil Society Institute, through its work, seeks to serve as catalysts for change in areas of critical need including global warming, global security and economic change, science policy and regenerative medicine.

The survey is available at the Institute website at

EPA Issues SNURs for 107 Chemicals

Siros_Steven_COLORBy Steven M. Siros


The United States Environmental Protection Agency ("U.S. EPA") is expected to issue a direct final rule imposing significant new use rules ("SNURs") on 107 chemicals pursuant to Section 5(e) of the Toxic Substances Control Act ("TSCA"). The direct final rule is scheduled to take effect November 20, 2012. Although U.S. EPA has already allowed these 107 chemicals to go into production, the chemicals are subject to protective measures either through a TSCA 5(e) consent orders or as part of the pre-manufacturing notices filed by the manufacturers. Any manufacture or use of one of these 107 chemicals that does not adopt these pre-existing protective measures would be considered a "new use" which would require that advance manufacture or use notification be provided to U.S. EPA. To see a copy of the Federal Register notice, please click here.

This most recent U.S. EPA action is consistent with U.S. EPA's ongoing efforts to more aggressively exercise its TSCA authority. Notwithstanding that TSCA reform seems to be stalled in Congress, in 2012, U.S. EPA has already issued SNURs for over 250 chemicals (including the 107 chemicals that are the subject of this direct final rule) and is aggressively moving forward with its TSCA Work Plan chemical assessments.


Sequestration To Cut $716 Million From U.S. EPA Budget

Siros_Steven_COLORBy Steven M. Siros


If budget sequestration takes effect on January 2, 2013, U.S. EPA will face a $716 million budget cut.  According to a September 14, 2012 report from the White House Office of Management and Budget ("OMB"), U.S. EPA's budget would be reduced from approximately $8.4 billion to $7.7 billion. The OMB report projects that the Superfund program would face cuts of approximately $122 million; state and tribal assistance grants would be cut by approximately $293 million; and U.S. EPA's program account would be cut by approximately $220 million. The OMB report goes on to acknowledge that these cuts would degrade U.S. EPA's "ability to protect the water we drink and the air we breathe" and encourages Congress to act to prevent these cuts from being triggered. According to an U.S. EPA official, U.S. EPA is developing its 2014 fiscal year budget without accounting for these significant budget cuts. To see a copy of the OMB report, please click here.  

Environmental Contractor Unable to Ditch CERCLA Claims

Siros_Steven_COLORBy Steven M. Siros


On September 4, 2012, a federal judge in New Jersey denied Arcadis U.S. Inc.'s ("Arcadis") request for summary judgment in a CERCLA lawsuit relating to the disposal of contaminated concrete from a demolished Ford Motor Company assembly plant in New Jersey.  As part of its efforts to demolish an assembly plant located in Edison, New Jersey, Ford entered into a contract with Edgewood Properties, Inc. ("Edgewood") pursuant to which Ford agreed to provide Edgewood with 50,000 cubic yards of crushed concrete in exchange for Edgewood hauling it off site. Edgewood hauled the concrete to seven properties it was developing where the concrete was used as fill material. Unfortunately, the concrete that Edgewood used as fill was found to contain elevated concentrations of PCBs.  As part of the litigation relating to the remediation of these seven contaminated sites, Edgewood filed counterclaims against several other parties, including Arcadis, under CERCLA and New Jersey's spill act.   

Arcadis was apparently retained by Ford to provide regulatory compliance assistance related to disposal and/or reuse of the crushed concrete under New Jersey's ISRA program. In its summary judgment motion, Arcadis characterized its activities at the site as limited to providing consulting services related to ISRA compliance, without having had any involvement in the off-site disposition of crushed concrete. However, Edgewood responded to Arcadis' argument by offering evidence that Arcadis played a critical role in the decommissioning, demolition and ultimate distribution (i.e., disposal) of the PCB-contaminated concrete. Although the court was careful to note that it was not making any findings as to ultimate liability, the court did find that Edgewood had raised an issue of material fact that precluded Arcadis from obtaining summary judgment on Edgewood's CERCLA arranger liability claims.

It will be interesting to see how this case plays out especially since the basis for Edgewood's arranger liability claim is that Arcadis took "intentional steps to dispose of hazardous substances … based on Arcadis' extensive communications with Ford about the need for NJDEP variance, development and approval of sampling and categorization plans, oversight of the concrete operation and direct involvement with Ford regarding off-site distribution of concrete" which really is not that different than what environmental consultants do on a daily basis at thousands of sites across the country.  Clearly, this is a case that will be carefully followed by environmental consultants across the country. Please click here to see a copy of the court's opinion.

September 11th CBA and ISBA Environmental Networking Reception

Torrence_Allison_COLORBy Allison A. Torrence


The Chicago Bar Association (CBA) Environmental Law Committee, the CBA Young Lawyers Section Environmental Law Committee, and the Illinois State Bar Association (ISBA) Environmental Law Section are hosting an Environmental Networking Reception on September 11, 2012, from 4 pm to 6 pm. The networking reception will be held at the Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois.

Jenner & Block attorney and co-chair of the CBA Young Lawyers Section Environmental Law Committee, Allison A. Torrence, will make brief remarks at the reception along with other representatives from the CBA and ISBA.

If you would like to attend, please RSVP by September 7, 2012, to Dave Scriven-Young at

September 12th ABA Water Scarcity Program

Grayson_Lynn_COLORBy E. Lynn Grayson


Partner E. Lynn Graysonwill moderate a teleconference program titled "Water-Related Risks and Opportunities – Disclosure and Analysis of an Emerging Business Concern," on September 12, 2012, from 11 a.m. to 12:30 p.m. CT. The program, which is sponsored by the ABA Section of Environment, Energy and Resources, will survey and discuss the current corporate water risk analysis and disclosure landscape. Panel members will include project leaders from the Carbon Disclosure Project and Ceres Water Program and a director from The Coca-Cola Company's Office of Sustainability. Jenner & Block is the program's host site location in Chicago; additional host locations are in Washington, DC and Newark, NJ, or participation may be by individual dial-in. Please click here for additional information about the program and to register.

Perchlorate In Drinking Water – September 20th Public Meeting

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA will hold a public meeting and webcast September 20, 2012 on the regulation of perchlorate in drinking water. EPA plans to address information on treatment technologies, analytical methods, and other subjects pertaining to the development of a perchlorate standard. The meeting and webcast are scheduled for 1-4 p.m. Eastern Time at EPA, Potomac Yards South, 2777 South Crystal Drive, Arlington, VA 22202. More information on the meeting is available from Russ Perkinson of EPA at (202) 564-4901 or To attend the meeting in person, parties must register by 5 p.m. September 17, 2012 by contacting Junie Percy of IntelliTech at or (937) 427-4148, extension 210. Those wishing to participate in the webcast must register in advance at

States Implement Controversial U.S. EPA Short Term TCE Exposure Limit

Siros_Steven_COLORBy Steven M. Siros


Several states have begun to implement U.S. EPA Region IX's proposed Interim Removal Action Level ("RAL") of 15 ug/m3 for trichloroethylene ("TCE") in indoor air. Notwithstanding that U.S. EPA headquarters is currently reviewing the science relied upon by Region IX in setting the RAL, California's Department of Toxic Substances Control has already begun to require mitigation in industrial and commercial buildings when that concentration is reached.  New Jersey has also indicated that it is considering adopting a similar acute exposure limit for TCE. 

In addition to these states, other U.S. EPA regions have adopted Region IX's RAL. For example, Region III recently ordered the evacuation of a military installation in Virginia when the TCE levels in indoor air exceeded 27 ug/m3.  We will continue to monitor U.S. EPA and state actions with respect to short-term TCE exposure limits.