The regulated community should be considering how Earth-observing satellites may enhance regulators’ and non-governmental organizations’ (NGOs’) ability to detect, measure, and monitor pollution. According to the Land Remote Sensing Satellites Online Compendium, a resource developed by the U.S. Geological Survey, there are 295 Earth-observing satellites that are operational, and 59 are under development.
At a basic level, Earth-observing satellites acquire information about the Earth. The data derived can differ in resolution and application depending on a satellite’s sensor and orbit. For example, satellites with a geostationary orbit maintain their position directly over the same place on Earth’s surface, permitting almost continuous coverage of that one area. These satellites may be most useful for targeting facilities with repeated or ongoing environmental violations. Once data derived from Earth-observing satellites are processed, they can be used in a variety of applications.
Notable Earth-observing satellites are set to launch this year. For example, TEMPO (Tropospheric Emissions: Monitoring Pollution) is a geostationary satellite scheduled to launch in April 2023 that will monitor daily variations in ozone, nitrogen dioxide, and other key elements of air pollution during daylight hours across North America. According to the U.S. Environmental Protection Agency (U.S. EPA), one of the anticipated benefits of TEMPO data will be an improved understanding of pollution sources and how their emissions vary throughout the day. Also, in late 2023, a subsidiary of the Environmental Defense Fund is expected to be ready to launch MethaneSAT, a satellite that will find and measure methane emissions with “unparalleled precision.” According to its website, MethaneSAT will, among other things, identify and quantify emissions from large sources and quantify aggregate emissions from smaller sources, as well as large intermittent sources.
Data derived from Earth-observing satellites may also impact businesses at the front-end through the imposition of more stringent pollution-reduction requirements. For example, a 2018 research study illustrates that satellite data can supplement ground-based air quality monitors to improve National Ambient Air Quality Standard compliance designations. This could result in businesses in newly designated areas having to comply with more stringent emission limitations and control measures.
Earth-observing satellite-derived data can be used outside of the air pollution context, too. For example, a 2022 research study illustrates that satellite data can be used to identify Concentrated Animal Feeding Operations engaging in unlawful winter land application. The land application detection system developed by this research was used in partnership with the Environmental Law and Policy Center to investigate several possible instances of unlawful application.
The takeaway is that businesses should ensure that they have robust environmental compliance programs in place that consider advancing Earth-observing satellite capabilities. They should especially consider that regulators and NGOs may be able to quickly and accurately detect, measure, and publicize discharges, leaks, spills, and other activity from even remote facilities.
For example, under U.S. EPA’s proposed methane rules, regulatory authorities and “qualified third parties” will be able to use satellites to identify and notify owners and operators in the oil and natural gas sector of “super-emitter” emissions events, which would require owners and operators to investigate and take appropriate mitigation actions.
And, if regulators and NGOs are detecting environmental violations before businesses, in addition to ensuing public relations issues, businesses will not be eligible for penalty mitigation under U.S. EPA’s Audit Policy. This may also reduce businesses’ ability to take advantage of more favorable resolutions of criminal cases under the U.S. Department of Justice, Environmental Crimes Section’s Voluntary Self-Disclosure Policy.
The impact that advancing Earth-observing satellite capabilities may have on environmental enforcement and litigation should not be overlooked. If you have any questions on how advanced monitoring technologies may impact your business operations and liabilities and how you can get ahead of this, reach out to one of the attorneys in Jenner & Block’s Environmental and Workplace Health and Safety practice.