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April 2013

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

Grayson_Lynn_COLORBy 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 (

Water Scarcity: Climate Change Related Or Not?

Grayson_Lynn_COLORBy 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 Several parties have withdrawn their support from the 2008 pact alleging it may actually reduce further water into the basin and establishes preferences for farmers' rights over ranchers'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.

Climate Change May Cause Greater Aviation Turbulence

Grayson_Lynn_COLORBy E. Lynn Grayson


A recent study published in the British journal, Nature Climate Change, suggests that turbulence on flights may be stronger and occur more often if carbon dioxide emissions double by 2050 further heating up the atmosphere. Turbulence is created by atmospheric pressure, jet streams, air around mountains, cold or warm weather fronts, or thunderstorms, among other conditions.

Severe turbulence is responsible for 58 passenger injuries a year, according to the Federal Aviation Administration. From 1980 to 2008, 298 passengers on U.S. airlines were injured and three died because of turbulence accidents, the agency said.

The study by scientists at the universities of Reading and East Anglia said the chances of running into turbulence over the Atlantic will increase 40 to 170 percent by the middle of the century, with turbulence strength increasing 10 to 40 percent. Turbulence already may be worse because of climate change. The study's findings show for the first time how climate change could affect aviation.

Despite these findings, there is good news for those that fly frequently. Recent data released by the IPCC confirms that global warming trends are not as bad as originally predicted in the IPCC's 2007 report and modeling incorporated there.  Therefore, the anticipated impacts of climate change may be greatly reduced or delayed if current global temperature trends continue. The lesser or delayed climate change consequences should mitigate against the aviation turbulence discussed in the above study.

Nature Climate Change is a monthly journal dedicated to publishing the most significant and cutting-edge research on the science of climate change, its impacts and wider implications for the economy, society and policy. Learn more about climate change and the study addressing aviation-related impacts discussed above at

Environmental Advocacy Groups Issue Water Preparedness Guidance

Siros_Steven_COLORBy 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

Grayson_Lynn_COLORBy 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

Climate Change: IPCC 2014 Draft Report Insights

Grayson_Lynn_COLORBy E. Lynn Grayson


The Intergovernmental Panel on Climate Change (IPCC) is working on its Fifth Assessment Report on climate change to be released in 2014. Interim drafts of certain portions of the report released by one of the three working groups suggest that things are not as bad as predicted in the IPCC's 2007 report. Emerging insights are good news for the environment but pose greater uncertainty for the scientific community challenged to understand overall climate change impacts.

The new IPCC draft report suggests two key findings:

1.  actual global warming measurements do not match IPCC model predictions in the IPCC
     2007 report; and 
2.  global temperatures overall have leveled off since the 1998-1999 timeframe.     

Whether or not rising temperatures resulting in global warming have stopped altogether is unclear. What we do know is that the slowed progress of global warming, as indicated by the last ten years of global temperature data, means less immediate and perhaps more mitigated climate change-related impacts.

The 2014 IPCC report will address three key climate change areas: physical basis of climate change; impacts, adaptation and vulnerability; and, mitigation of climate change impacts.

At the heart of the controversy over the draft report findings is the effectiveness of the model used in the 2007 IPCC report. Actual global temperature data analyzed over the last ten years are at the bottom of the 2007 model-related projections. Greenhouse gas is not fully understood today nor is the variances such as the influence of clouds on warming trends. Most agree that better data will result in better models. Erick Roeckner of the Max Planck Institute of Meteorology recently commented that " model will ever be as complex as nature." This sentiment is very true as it relates to the data emerging from the 2014 IPCC draft report.

The IPCC was established by the World Meteorological Organization and the United Nations Environmental Program to assess scientific, technical and socio-economic information relevant for the understanding of climate change, its potential impacts and options for adaptation and mitigation. More information about IPCC's 2014 draft report insights and climate change data is available at

Earth Day 2013

Grayson_Lynn_COLORBy 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

BPA Added To California's Proposition 65 List

Siros_Steven_COLORBy Steven M. Siros


On April 11, 2013, California's Office of Environmental Health Hazard Assessment ("OEHHA") added bisphenol A ("BPA") to the list of chemicals known in the State of California to cause reproductive harm. OEHHA's listing of BPA is based on a 2008 report from the National Toxicology Program ("NTP") that BPA causes reproductive toxicity at high doses. Both the NTP report and OEHHA's proposal to list BPA were the subject of significant controversy, with industry groups challenging the science relied upon by NTP and environmental advocacy groups arguing that the proposed listing was long overdue. In an effort to respond to some of industry's concerns, OEHHA's proposed Maximum Allowable Dose Level ("MADL") for BPA was set at a level that has been characterized as being fairly high (290 micrograms per day) although that is likely to be challenged by environmental advocacy groups.

In any event, there is certainly likely to be a flurry of Proposition 65 notice letters sent out by the usual group of Proposition 65 plaintiffs and companies that distribute BPA-containing products in California would be well-served to ensure that their products contain the requisite Proposition 65 warnings.

Please click here for further information on OEHHA's decision to add BPA to the Proposition 65 list.

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

Grayson_Lynn_COLORBy 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 (


LexisNexis “Real Law” Article Addresses Water Risks

Grayson_Lynn_COLORBy E. Lynn Grayson


LexisNexis has posted an article "Navigating the Growing Body of Legal Issues Related to Water" in its "This Is Real Law" series. The article addresses water scarcity issues in the U.S. and discusses emerging legal implications. This special news story was published in recognition of World Water Day and the fact that the UN has declared 2013 the Year of International Water Cooperation. The "Real Law" series focuses on key topics of interest to all lawyers in their law practices.

The article may be viewed at

Indiana Federal Court Rules That Citizen Suit Seeking To Compel Remediation On The Basis Of Historical RCRA Violations Was Precluded

Siros_Steven_COLORBy Steven M. Siros


A recent decision out of the Northern District of Indiana found that a citizen suit brought under RCRA Section 7002(a)(1)(A) was unavailable for contamination that was caused by alleged historical violations of RCRA. In Browning v. FlexSteel Industries, Inc. (N.D. Ind. 2013), plaintiffs brought a RCRA citizen suit under RCRA Section 7002(a)(1)(A) which allows private parties to sue any person who is alleged to be in violation of RCRA to force compliance (or in this case, remediation of the contamination). Plaintiffs also sued under RCRA Section 7002(a)(1)(B) which allows private parties to sue any person who is, or has contributed to contamination that presents an imminent and substantial endangerment to human health or the environment.

Although Plaintiffs acknowledged that they could not bring a RCRA Section 7002(a)(1)(A) claim for "violations that are 'wholly past'", plaintiffs argued that the majority of district courts to have considered this issue had found that citizen suits should be allowed under RCRA Section 7002(a)(1)(A) to address the continuing effects of existing contamination that were caused by past violations of RCRA. The court acknowledged this "majority rule" but noted that neither the Seventh Circuit nor any other appellate court had yet adopted this "majority rule."  

The court therefore turned for guidance to a United States Supreme Court case that had interpreted similar language in the Clean Water Act ("CWA"). In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.(S. Ct. 1987), the United States Supreme Court held that CWA citizen suit complaints were not available to address wholly past violations of the CWA. The court also considered a recent decision out of the Northern District of Illinois which rejected similar arguments that the continuing environmental effects of wholly past conduct could satisfy the RCRA Section 7002(a)(1)(A) requirement that there be a "continuing or intermittent violation." See Forest Park Nat'l Bank & Trust v. Ditchfield, (N.D. Ill. 2012).

Adopting the reasoning employed by both the Gwaltney and Ditchfield courts, the Indiana federal court held that RCRA Section 7002(a)(1)(A) was limited to current, ongoing RCRA violations and could not be relied upon to address contamination allegedly caused by historical RCRA violations. The court did note that plaintiffs were not without a remedy in that they could still pursue their RCRA "imminent and substantial" endangerment claims under Section 7002(a)(1)(B).

EPA And Environmental Groups Seek Supreme Court Review In Cross-State Air Pollution Case

Torrence_Allison_COLORBy Allison A. Torrence 


On March 29, 2013, EPA and several environmental groups filed two separate Petitions for A Writ of Certiorari with the United States Supreme Court, asking the high court to review the D.C. Circuit decision to vacate EPA's Cross-State Air Pollution Rule (the "Transport Rule") in the case of EME Homer City Generation, LP v. Environmental Protection Agency, et al., Case No. 11-1302. EPA and the environmental groups – including Natural Resources Defense Council and Sierra Club – are seeking Supreme Court review almost one month before the deadline to do so, indicating their view that the case is significant and time sensitive.

As previously discussed in this blog, EPA promulgated the Transport Rule to address air pollution (specifically sulfur dioxide ("SO2") and nitrogen oxide ("NOx")) that crosses state lines. On August 21, 2012, the D.C. Circuit vacated the Transport Rule, holding that EPA exceeded its authority when it promulgated the Transport Rule. The D.C. Circuit denied EPA's petition to rehear en banc the 2-1 panel decision to vacate the Transport Rule, leaving the United States Supreme Court as the last chance for the Transport Rule.

EPA and the environmental groups are arguing to the Supreme Court that the D.C. Circuit overstepped its authority when it vacated the Transport Rule. The environmental groups claim that "[t]he court of appeals' decision is riddled with error." In addition, they argue that the Transport Rule presents issues of vital national importance that warrant the high court's review. EPA argues that the D.C. Circuit opinion "creates a substantial impediment to the EPA's authority to implement the [Clean Air Act]" and "hobbles the agency with respect to the aspect of the Act's administration (regulation of interstate pollution that upwind States have little incentive to police on their own) where the need for a strong federal role is the most critical."

Respondents in this case have until April 29, 2013 to file a response to the petitions.

A copy of the EPA's Petition for A Writ of Certiorari is available here, and the environmental groups' Petition for A Writ of Certiorari is available here.