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September 6, 2019 Recent DOJ Directive Marks Continuing Effort to Curb Availability of Supplemental Environmental Projects in Civil Environmental Settlements

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  By Matthew G. Lawson

On August 21, 2019, the Department of Justice issue a new memorandum reducing state and local governments’ ability to enter into settlement agreements that require the completion of supplemental environmental projects (SEPs) as compensation for alleged environmental violations. While impactful in its own right, the DOJ memo can be viewed as a continuation of an over two-year long effort by the DOJ to reduce the general availability of SEPs in the settlement of civil environmental cases. 

As defined by the EPA, “SEPs are projects or activities that go beyond what could legally be required in order for the defendant to return to compliance, and secure environmental and/or public health benefits in addition to those achieved by compliance with applicable laws.” Private parties or municipalities may offer to complete SEPs as part of a settlement with EPA or other environmental regulators. By doing so, the alleged violator effectively replaces a part or all of the penalty owed for an environmental violation with the commitment to develop an environmentally beneficial project.

Despite the widespread and longstanding use of SEPs in settlement agreements, recent actions by the DOJ demonstrate a clear effort by the Department to reduce the use of SEPs in the settlement of alleged environmental violations.

The trend started with a June 8, 2017 policy directive issued by then Attorney General Jeff Sessions which broadly prohibited settlement agreements from “directing or providing” payment to any third-parties that are neither victims nor parties to the lawsuits. The directive had the immediate effect of prohibiting SEPs that require violators to fund environmental project performed by third parties.

The 2017 directive was then followed by a second memorandum on November 11, 2018, which barred the use of consent decrees to achieve “general policy goals or to extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Finally, in its most recent move, the August 21st DOJ memorandum issued from the Department’s Environmental and Natural Resource Division details the DOJ’s determination that environmental SEPs are prohibited under the November 2018 directive. Specifically, the memo provides that “[t]he use of SEPs in consent decrees with state and local governments contravenes the prohibition on using consent decrees to ‘extract greater or different relief from [a state or local government] than could be obtained through agency enforcement authority or by litigating the matter to judgment.’” While the memorandum notes several conditions where SEPs may still be permitted, it cautions that exemptions to the general prohibition “are meant to be rare.”  

With the DOJ’s most recent actions, it appears that environmental regulators will no longer be permitted to agree to SEPs in most, if not all, settlement agreements. However, open questions remains whether regulators will be able to fashion future SEPs that comply with the recent DOJ directives.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Sustainability, Water

PEOPLE: Matthew G. Lawson

September 5, 2019 Available Company Defenses to Climate Change Shareholder Activism: Trends in Climate Change Litigation, Part 5

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By Matthew G. Lawson

As noted in Jenner & Block’s prior blog post, Shareholder Activism: Trends in Climate Change Litigation, Part 4, an emerging issue for public companies in high greenhouse gas (“GHG”) emitting industries is increased pressure from environmentally focused “activist shareholders.” These shareholders often seek to leverage their ownership shares to influence companies into taking action to decrease GHG emissions and/or increase public disclosure of such emissions. These efforts may be undertaken through negotiations with company management or through the introduction of specific shareholder proposals and proxy materials to be presented and voted on at annual shareholder meetings.

Several recent actions taken by the SEC may now help shield public companies from certain attempts by shareholders to introduce climate change related proposals for consideration at shareholder meetings. Under SEC rule 14a-8(i)(7), public companies may exclude from shareholders’ voting ballots any proposals which seek to “micromanage” the company’s ordinary business operations. In recent months, the SEC has asserted that rule 14a-8(i)(7) may be utilized by companies to block certain types of climate change related proposals. The agency has articulated this position by issuing “no-action” letters to public companies seeking to block climate-change proposals from their shareholders. In effect, these letters act as an assurance that the SEC will not recommend enforcement action against the companies for blocking the respective proposals because the agency agrees that the proposal falls under the purview of rule 14a-8(i)(7). However, the SEC has, in a few instances, refused to issue “no-action” letters to companies seeking to block shareholder climate change proposals.

Whether a shareholder’s climate change proposal is excludable under rule 14a-8(i)(7) therefore appears to be a case-by-case determination which depends on the specific demands of a proposal. As a general rule, the SEC has found that proposals which only seek greater disclosure of a company’s GHG emissions cannot be excluded under rule 14a-8(i)(7), but proposals which impose GHG emission reduction targets on the company or require specific methods for reporting or calculating GHGs may be excluded under rule 14a-8(i)(7). A few instructive examples of these general conclusions are provided below:

  • On February 14, 2019, the SEC issued a no-action letter to J.B. Hunt Transport Services, Inc. approving the company’s request to block a shareholder proposal that, if implemented, would require the company to adopt quantitative targets for reducing GHG emissions and issue a report demonstrating its progress towards achieving these targets. The SEC found that the proposal sought to micromanage the business by probing into complex matters that were better left to the informed judgment of management.
  • On March 4, 2019, the SEC refused to issue a no-action letter to Anadarko Petroleum Corporation after the company sought to block a proposal requesting that the company describe if, and how, it planned to reduce its total contribution to climate change to fall in line with the global temperature objectives of Paris Agreement.
  • On April 2, 2019, the SEC issued a no-action letter to ExxonMobil which affirmed that the company could exclude a shareholder proposal which would require the company to adopt and disclose certain GHG emission reduction targets. The SEC noted that the proposal sought to replace the ongoing judgments of the company’s management with “specific methods” for implementing complex policies.

Of course, the threat of potential governmental enforcement actions is only one reason why a company may hesitate to block shareholder proposals. Beyond the business considerations of such a decision, public companies may also need to consider whether adopting certain types of shareholder proposals—particularly those calling for increased disclosure and transparency of GHG emissions—may be beneficial to protect the company from the risk of future lawsuits by the company’s shareholders.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Matthew G. Lawson

August 29, 2019 EPA Proposes Rule to Rescind Methane Regulations for the Oil and Gas Industry

Torrence_jpgBy Allison A. Torrence

Fernwärmeleitung_Dü_StPö_mit_Kraftwerk_DürnrohrOn August 28, 2019, EPA issued a proposed rule titled Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review (the “Proposed Rule”). The Proposed Rule, if adopted, would rescind certain parts of the New Source Performance Standards (“NSPS”) related to methane and volatile organic compounds (“VOCs”) in the oil and gas industry.

First, EPA is proposing to redefine the operations included in the NSPS source category for the oil and gas industry. The original source category listing for the oil and gas industry, issued in 1979, included the production and processing segments of the industry. In 2012 and 2016, EPA expanded the oil and gas industry source category to include the transmission and storage segment of that industry. The Proposed Rule would remove sources in the transmission and storage segment from the oil and natural gas source category and would rescind the methane and VOC emission limits, adopted in 2012 and 2016, which currently apply to those sources.

Second, EPA is proposing to rescind emissions limits for methane (but keep limits for VOCs) in the production and processing segments of the oil and gas industry.  

Third, EPA is seeking comment on its legal authority to regulate methane under section 111 of the Clean Air Act (“CAA”). In 2016, EPA determined that it could regulate methane and other greenhouse gases (“GHGs”) under section 111 of the CAA without making a pollutant-specific determination that GHG emissions from the oil and gas industry cause or contribute to air pollution that endangers public health. In the alternative, in case such a determination was required, EPA found that methane and other GHG emissions from the oil and gas industry do cause or contribute to air pollution that endangers public health.

Specifically, EPA is requesting comment on the following three questions:

  • Whether section 111 of the CAA requires EPA to make a pollutant-specific significant contribution finding for GHG emissions (primarily methane) from the oil and natural gas industry.
  • If the law does require a pollutant-specific finding, whether the finding in the alternative in the 2016 rule properly satisfied that requirement.
  • The appropriate criteria to use when determining, under section 111, whether a pollutant emitted from a particular source category significantly contributes to air pollution that may reasonably be anticipated to endanger public health and the environment.

According to EPA’s analysis, the Proposed Rules would result in an increase in emissions of methane, VOCs, and hazardous air pollutants (“HAPs”). The estimated increases would be 370,000 short tons of methane (8.4 million metric tons of carbon dioxide equivalent), 10,000 short tons of VOCs, and 300 short tons of HAPs. The Proposed Rule would save the oil and gas industry a total of $97-$123 million from 2019 through 2025, which is $17-$19 million a year.

More information about the Proposed Rule is available at EPA’s website. EPA will be accepting comments on the Proposed Rule for 60 days after it is published in the Federal Register.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

August 26, 2019 How Low Will The Regulators Go: California Sets New PFOA/PFOS Drinking Water Notification Guidelines

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By Steven M. Siros

On August 23, 2019, California’s State Water Resources Control Board (Water Board) announced updated guidelines for local water agencies with respect to perfluorooactanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) in drinking water. The updated guidelines lower the notification levels from 14 parts per trillion (ppt) to 5.1 ppt for PFOA and from 13 ppt to 6.5 ppt for PFOS. Public water supply systems are required to report exceedances of these guidelines to their governing boards and the Water Board.

According to the Water Board, these new guidelines were predicated on updated health recommendations issued by California’s Office of Environmental Health Hazard Assessment (OEHHA), which published its own recommended notification levels for PFOA and PFOS, albeit at much lower levels. In a recently issued report, OEHHA recommended that the notification levels be set at 0.1 ppt for PFOA and 0.4 ppt for PFOS. However, OEHHA recognized that these levels are lower than what can reasonably be detected in the laboratory and therefore recommended that the Water Board set the notification levels at the lowest reliable detection levels. 

In addition to the updated notification levels, the Water Board requested that OEHHA proceed to develop public health goals for both PFOA and PFOS, which is the next step in the process of establishing maximum contaminant levels for these contaminants in drinking water.  We will continue to monitor and provide updates with respect to these regulatory efforts. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Water

PEOPLE: Steven M. Siros

July 29, 2019 Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

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Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

  1. I understand that you worked for U.S. EPA when it was first started as a federal agency in the early 1970s. What was your role at the “new” U.S. EPA?

I led the health sciences assessment work for the first 14 years after U.S. EPA was formed in December 1970. At the time, U.S. EPA was a very small agency. I was the only health scientist in an eight-person Office of Technical Analysis, reporting directly to U.S. EPA’s first Administrator, Bill Ruckelshaus. He is an extraordinary person—a terrific and committed leader, who also knew how to make hard work fun. The Administrator asked me to lead an intra-agency committee to write a cancer policy to address the zero risk tolerance expectation for substances with some evidence, often conflicting, of carcinogenicity, as indicated by tumors in animals or humans. Another challenge was that substances could be ubiquitous or important to our society. We knew a “zero tolerance” policy for all possible carcinogens would be unworkable, so my committee reported out a process rather than a cancer policy. That process was the first use of risk assessment to organize what is known and unknown about the likelihood that exposure to a particular agent might cause illness. On the assumption the agent might cause illness, the next step is to define what levels of risk and exposure would be acceptable and protective of public health. The concept of risk acceptance was novel at the time and was introduced in a social and political climate aimed at seeking the ideal, i.e., zero risk.

My office at U.S. EPA conducted and I co-authored more than 150 risk assessments between 1976 and 1983 as a basis for defining major regulatory policy. The National Academy of Sciences published its endorsement of this risk assessment process in 1983. The Academy’s report, referred to as “The Red Book,” inspired national and international adoption of the U.S. EPA’s approach to risk assessment started by my intra-agency committee. I led the effort to expand the health assessment program, which resulted in establishing the central risk assessment office for the Agency—the Office of Health and Environmental Assessment. This office reported directly to the Administrator, who granted us wide latitude to expeditiously conduct our assessments.

  1. What was your professional and academic background leading to your involvement in health risk assessment?

My academic background is in synthetic organic chemistry, the chemistry of making organic molecules, amongst other applications, to be biologically active. I was pre-med at the College of William and Mary, but I was strongly discouraged from pursuing medical school “because I would be taking the place of a man” (a quote from the Chairman of the Chemistry Department). Instead, I was granted a fellowship at the University of Virginia to pursue a master’s degree in synthetic organic chemistry. Next, I applied for a unique fellowship being granted by the U.S. Department of Defense and completed my Ph.D. work in synthetic organic chemistry. During those early years of U.S. EPA, my degree and training best fit the Agency’s needs. There were no degrees in toxicology, relevant applications in epidemiology were just emerging, and mechanism of action had received little attention. I was fortunate to be in the right place at the right time.

  1. What was it like to be part of the start of a new federal agency?

Most of all, it was challenging. Following the civil rights movement, the anti-Vietnam war movement, and 20 million people marching on the first Earth Day, the spirit of the time was that significant change can happen; every move at EPA was front-page news. We all felt a sense of urgency to make a difference and establish scientific credibility for all decisions that the Agency had to make. U.S. EPA inherited a rapidly cascading series of enabling legislation starting with the Clean Air Act in December of 1970, followed by amendments to the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; Radiation Authorities; the Drinking Water Act; “Superfund” (CERCLA); and the Resource Conservation and Recovery Act (RCRA). All compelled the Agency to be protective of public health. Implementing this Congressional directive was left to the Agency and, for our part, this meant meeting strict deadlines and establishing scientific foundations that defined protection and that could survive challenges from Congress and the scientific, private, public, and legal communities.

At a very young age, many of us at U.S. EPA inherited a great deal of responsibility. New areas of complexity seemed to develop on a daily basis. Looking back, a culture of committed, young professionals worked hard and achieved a great deal. We were inspired by the excitement and challenge of those times. Many of us have remained friends and colleagues until the present day. Some of us are still involved, as board members of the U.S. EPA Alumni Association.

  1. What were some of the accomplishments of which you were most proud that came out of your work for U.S. EPA?

I am proud of many things, but I am most proud of my role in co-authoring the first guidelines to establish risk assessment and risk management as the basis for setting public policy to protect public health and having the opportunity to found and direct U.S. EPA’s first health assessment offices, the Carcinogen Assessment Group, and the expanded Office of Health Environmental Assessment. In addition, I had the opportunity to found and direct the Agency’s expansion of health topics to include reproductive risk assessment, mutagen risk assessment, and exposure assessment groups; these offices conducted all risk assessments for the Agency’s program offices for many years.

I was fortunate to be a part of establishing the scholarship in this rapidly developing and complex field of health risk assessment. A small number of us founded the Society for Risk Analysis, a focal point for sharing scientific developments from all sectors, including engineering and the social sciences. I served as one of the early Presidents and, for 10 years, was Editor-in-Chief of the Society’s flagship journal, Risk Analysis: An International Journal. In addition, as U.S. EPA’s representative, I had the privilege of participating in the worldwide application of risk assessment first in Europe through the World Health Organization and subsequently through the Pan American Health Organization and other organizations.

  1. After you left U.S. EPA, you have had several professional engagements. Can you summarize those for us?

After spending 14 years being a part of U.S. EPA’s founding, I entered the private sector, initially as President and CEO of the first private health and environmental assessment consulting firm, Clement Associates. In addition to work for private clients, U.S. EPA contracted with me to oversee and direct the first risk assessments for all of its Superfund sites, as did the Agency for Toxic Substances and Disease Registry to direct and write the first Toxicity Profiles. Later, I founded my own company, Sciences International, and directed it for 13 years, during which we addressed a wide variety of interesting and challenging issues. Subsequently, Exponent asked me to serve as Vice President for Health Sciences, a post I served in for 10 years, then as Chief Science Officer. More recently, I am honored to accept the Exponent designation of Senior Fellow, a rare recognition by the Company. Presently, I continue my work in the field of health risk assessment. I know that the framework and process we created in the early years made it possible to identify gaps in knowledge and point to ways for improving the foundations for health risk assessment.

  1. What are the emerging policy issues in the area of human health risk assessment?

Without a doubt, the need to sensibly apply the science we know to separate the important from the unimportant issues. Often, I feel that we lose sight of the fact that health risk assessment has achieved endorsement worldwide as the premier way to address the complexity of issues involved in defining public health protection. Also, the outcomes of risk assessment now have challenging new applications, e.g., in toxic tort litigation or world trade decisions.

In the policy area, one important emerging issue is the use of health risk assessment to “prove safety.” Adopting ever-diminishing levels of possible protection to achieve this goal effectively creates a “zero tolerance” policy, the very policy that would have defeated U.S. EPA at its inception. I believe that little is gained by these controversial policies that create debate for years; under these approaches we can lose sight of what is important. For example, important EPA risk assessment documents may now take years to become final because of endless debates in areas of scientific uncertainty where societal impacts can be enormous but risk reduction uncertain and marginal. We accept risk in every other part of our society, so it is unrealistic to apply a zero-risk policy to our environmental decisions.

Secondly, I feel that it is most unfortunate that the sciences so essential to public health understanding are often caught in agendas that constrain even the most objective review and use of our public health documents. There is no question that science has become politicized. I contend that U.S. EPA would have been lost without access to all scientists of importance to our decisions, regardless of who had funded their work.

Finally, I see an increasing lack of understanding of the difference between science as applied to public health protection—to preempt and prevent disease—and the science of establishing causality. It is critical to use honest science, regardless of the setting, to avoid mistakes. Distortion of scientific foundations and fact to achieve economic or political gain is deplorable and should be rejected.

  1. What do you enjoy most about your work in the field of human health risk assessment?

The endless challenges. Risk assessment demands that we honestly express what is known and unknown. Exploring the unknowns and narrowing our knowledge gaps are endlessly rewarding endeavors.

  1. What do you find to be the most challenging aspect of your work?

It is very difficult to find a single answer to this question. Exploring new science will always be at the top of the list. The greatest non-scientific challenge is the fact that not all are in engaged in finding the truth. Trying to explain the known scientific facts in situations involving exploitation of scientific unknowns or distortion, whether in the courtroom or as a part of political debate, is challenging. The climate created by the spirit of the ’60s was to seek the truth. We were all essentially on the same page; we shared common goals even as we debated the best methods of scientific approach. Today, goals often do not converge; science in the age of polarization is challenging.

  1. What or who helped you succeed as a leader in the area of human health risk assessment?

I have been surrounded by thought leaders and gifted people throughout my career. The environmental movement attracted so many to the new U.S. EPA. One who contributed so much to my understanding was Dr. Roy Albert, the Deputy Director of the School of Environmental Medicine at NYU. He was blessed with an extraordinary intellect and excellent sense of balance. He was the outside Chair of our Carcinogen Assessment Group in the early years, a role that would not be possible in the bureaucracy today. And I must continue to give credit to U.S. EPA Administrator Ruckelshaus.

  1. What advice would you give a young person today who is considering starting out in your field?

Follow your dreams. Work is never work if you feel passionate about what you are doing. Achieve the best education you can get and keep your options open. You may need to help create your own opportunity. Have confidence in your capabilities to achieve your goals and set high ones.

Dr. Anderson was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Air, Cercla, Consumer Law and Environment, RCRA, Toxic Tort, Water

PEOPLE: Gabrielle Sigel

July 17, 2019 California Clarifies Proposition 65 Safe Harbor Warning for Rental Cars

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Prop 65

By Steven M. Siros

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) recently adopted amendments to California’s Proposition 65 regulations regarding appropriate warnings for rental vehicles. More specifically, OEHHA’s amendments add new Sections 25607.36 and 25607.37 to Article 6 that provide more specificity regarding the content of safe harbor warnings for rental vehicle exposures, and the corresponding methods for providing those warnings that are specific and appropriate for rental-car businesses.

Proposition 65 regulations currently provide guidance concerning safe harbor warning methods and content warnings for vehicle exposures. Under the vehicle exposure regulation set forth at Section 25607.16, warnings must be provided as follows:

  1. The warning is printed in the owner’s manual for the passenger vehicle or off-highway motor vehicle, in no smaller than 12-point type enclosed in a box printed or affixed to the inside or outside of the front or back cover of the manual or on the first page of the text; and
  2. The warning is provided on a label attached to the front window on the driver’s side of the passenger vehicle or off-highway motor vehicle. If the vehicle does not have a driver’s side window, the warning may be provided on a hang tag which is hung from the rear view mirror. If the vehicle does not have a driver’s side window or rear view mirror, the warning may be placed in another prominent location. The label need not be permanently affixed.

Although OEHHA continues to state that the safe harbor warning methods in Sections 25607.16 are appropriate for exposures to listed chemicals from vehicles purchased by consumers, concerns were raised that compliance with Section 25607.16 for rental vehicles could pose public safety concerns. According to OEHHA, when placed and maintained on the driver’s side window, the vehicle exposure tailored warning has the potential to flag the vehicle as a rental vehicle, which increases the risk that the vehicle may be targeted by thieves believing that the vehicles contains valuables.

The new amendments provide several options for providing rental car warnings. Consistent with the intent of the Proposition 65 regulations, the warning must be provided to the renter prior to the renter’s use of a vehicle. The warning must be prominently displayed using a font size no smaller than the largest type size used for other important consumer information but in no circumstances can the warning be printed in smaller than six point type.

The new amendments also provide car rental companies with a number of options for communicating this warning to consumer. More specifically, the warning must be provided using one or more of the following methods:

  1. A warning printed in the rental agreement or on the rental ticket jacket;A warning provided on a hang tag which is hung from the rear view mirror in the rental vehicle;
  2. A warning provided on a sign, in no smaller than 22-point type, that is posted at the counter or similar area of the rental facility where rental transactions occur, where it will be likely to be seen, read, and understood by the renter during the process of renting the vehicle;
  3. A warning provided in an electronic rental contract;
  4. A warming provided in a confirmation email that is sent to the renter’s email address; or
  5. A warning provided through a clearly marked hyperlink using the word “WARNING” on the online reservation page, or by otherwise prominently displaying the warning to the renter prior to completing the online reservation.

These amendments will become effective on October 1, 2019.

CATEGORIES: Consumer Law and Environment, Sustainability

PEOPLE: Steven M. Siros

July 2, 2019 Exploring the E-Suite with Dr. Shalini Vajjhala, Founder and CEO, re:focus partners (San Diego, CA), and former Deputy Assistant Administrator in the Office of International & Tribal Affairs at the US EPA.

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Shalini Vajjhala

 

Exploring the E-Suite with Dr. Shalini Vajjhala, Founder and CEO, re:focus partners (San Diego, CA), and former Deputy Assistant Administrator in the Office of International & Tribal Affairs at the US EPA.

    1. Tell us about re:focus partners, including what the organization does and your role.

    re:focus is a design firm that specializes in developing resilient infrastructure solutions for cities and communities around the world and integrating project finance into the design process. Our team brings together expertise in policy, engineering, and risk management to craft integrated projects and develop new public-private partnerships. The goal of every re:focus project is to better align public funds and leverage greater private investment to protect and improve the lives of vulnerable communities.

     

    As Founder and CEO, my role involves setting the strategic direction of the organization and putting together our major initiatives and partnerships. Like most small organizations, everyone on our team does a little bit of everything, and on the day-to-day level, I usually have my sleeves rolled up on various project management, design, and analysis tasks and pieces of writing.

    1. What is your professional background that led you to become involved in the energy and environmental fields?

    I am an architect first and foremost, and I have always loved the field of green design. I went on to do graduate work in engineering and public policy (also at Carnegie Mellon University), which widened my view of the many ways to engage in the energy and environmental fields. My research focused on how community mapping could inform environmental decision-making. When I finished my PhD in 2005, I went on to join Resources for the Future, an economics think-tank in Washington, DC, as one of a handful of non-economists in the organization. Being more of a “methods” rather than domain-specific researcher gave me tremendous freedom to work on issues from infrastructure siting to environmental justice and climate change adaptation, which all have important spatial dimensions and community engagement at their core.

    In early 2009, I joined the Obama Administration and spent a few months at the White House Council on Environmental Quality before moving to the US EPA’s Office of International and Tribal Affairs. In my time in the Administration, I worked on a huge range of issues, but one of the common threads was pulling together interesting public-private partnerships to make progress where public-sector resources alone were insufficient.

    I stepped down from my position at the EPA in 2012, just before Hurricane Sandy hit the eastern seaboard, and was urged by our various partners to continue the green infrastructure and resilience work I had started at EPA. That’s how re:focus came to be. In hindsight, I feel tremendously fortunate to have had the chance to focus on interesting problems and follow those problems into new career opportunities that allowed me to tackle the same challenges from very different vantage points, from research to policy-making to entrepreneurship.

    1. What do you think are the emerging issues in the energy and environmental fields, especially your work in sustainable infrastructure?

    We all recognize when infrastructure fails, but we rarely invest in new systems to prevent disaster and protect communities. I think the biggest emerging issue in the energy and environmental field is how we create robust and resilient infrastructure systems of all kinds and recognize the value of the “avoided losses” or the successes where something doesn’t happen—a storm hits, but a community isn’t devastated. Just as with preventative healthcare, valuing and capturing the value of these kinds of investments is going to be essential if we are going to successfully transition to more resilient communities and economies over the coming decade.

    1. What aspects of working in the energy and environmental fields have you enjoyed most?

    My favorite part of working in a field that is so broad is learning from the experiences and perspectives of colleagues from very different backgrounds and disciplines, and finding new lenses through which to see old and stubborn problems.

    1. What do you find are some of the most challenging aspects of your work in the energy and environmental fields?

    Change is hard. Change in the public sector is even harder. One of the best strategies I have found to making real and persistent change is to gradually create space for something new by starting where an existing system is failing. It is much easier to talk someone from a sinking ship onto a lifeboat than it is to get someone to shift course if they don’t know their boat is taking on water. Too often we cling to a system that we know isn’t working for us today to avoid the unfamiliar tomorrow. Finding gentle ways to bring up existing problems and look for better solutions is the most reliable approach I have found to make something new seem like the preferred alternative to the status quo.

    One important thing I try to avoid is making a future problem or benefit more important than what is happening now. Lots of experts from behavioral economics to psychology know that people everywhere struggle to make decisions that have benefits in the distant future. Instead, we look for where stakeholders in a system are losing money or value today—for example, talking about the costs of current local flooding instead of only talking about future climate changes—since these same systems are likely to be the first to fail or worst off in future.

    1. How did you make the transition from several high-profile energy and environmental policy positions in Washington, DC to becoming a sustainable-infrastructure startup founder?

    I launched re:focus in 2012 after spending several years in multiple positions  at CEQ and EPA. My roles at EPA gave me the opportunity to work with many incredibly dedicated civil servants across the federal government. One of the initiatives that I created and that our team at the Office of International and Tribal Affairs was instrumental in developing was the US-Brazil Joint Initiative on Urban Sustainability (JIUS). The program was an experiment to see how government agencies could build new public-private partnerships to leverage funding for green infrastructure. Based on its early success in bringing together non-traditional partners, it quickly grew into a binational presidential initiative, announced by President Obama and Brazilian President Dilma Rousseff, to catalyze investment in sustainability in cities around the world. This collaboration brought together federal, state and local government officials with a whole bunch of unconventional private sector companies to find new ways to develop and finance green infrastructure in the cities of Rio de Janeiro, Brazil and Philadelphia, PA. Despite their many differences, these two cities still face many similar challenges when it comes to designing and financing new water, energy, and transportation systems. We turned the role of government on its head and found new ways for government agencies to tackle age-old problems. For example, in Rio, we explored how the local civil defense authorities could help fund water infrastructure in slums to reduce landslide risks and save money in their own disaster response budget.

    Thanks to the leadership of both of these cities, the lessons from the JIUS (pronounced: juice) were successfully highlighted at the UN Conference on Sustainable Development or Rio+20 in June 2012. Through the JIUS, it became clear that we were playing a unique role in designing and brokering new types of public-private partnerships for sustainable infrastructure, and re:focus was born to continue this unusual work. 

    Because I got nudged (by our many philanthropic, NGO, and corporate partners) into starting a social business to continue work that I was already doing, the transition to entrepreneurship was a bit more natural than it might have been otherwise.

    1. As a former policymaker turned startup founder that operates in the sustainable infrastructure space, what can today’s policymakers learn from your challenges and successes?

    I love this question. It’s something we think (and write!) a lot about, and most of our team has worked inside government at some point. We work hard to remember the constraints we faced and the things that were barriers for us when we were in their shoes. We also make an effort to share where and when we get stuck so our government collaborators can see things from “the other side.” As one example, over the past two years we’ve dedicated a significant amount of time to tackling procurement barriers to help both local governments and innovative companies struggling to find new solutions for their highest-priority challenges.

    The most important lessons we’ve learned are that designing major infrastructure projects takes time and investing in predevelopment (all the things you need to do before construction) is essential, so you don’t just build another version of what you had, but you genuinely get to a solution that will serve your community well into the future.

    1. What and/or who have helped you succeed as a startup founder?

    I have to credit my colleagues for every success we’ve had at re:focus. We are a tiny but mighty team, and working with good people who can laugh and persevere together through the daily ups and downs of any start-up is what makes the work worth doing. A couple of years ago, we realized that one of our major initiatives was worth spinning out into a sister company. My colleagues Elle Hempen and Ellory Monks launched The Atlas Marketplace and did an amazing job turning a spreadsheet into a social business to help cities find, source, and procure innovative solutions for everything from stormwater management to urban mobility systems. Having other female founders to celebrate the wins with and empathize when things are bumpy is one of my greatest sources of support.

    1. What advice would you give a young person today who is considering starting out in the energy and environmental fields?

    Follow interesting problems. Careers are no longer linear progressions within a single firm. Many of the biggest opportunities in energy, environment and sustainability are at the “seams” of existing sectors and fields. At re:focus we work hard to serve as ambassadors between traditional silos. Often our work involves finding other connectors and helping everyone see a problem in the same way. For example, in talking with both transportation and water experts about greening urban stormwater systems, we try to find simple illustrations—like turning the city from a funnel into a sponge—so we avoid jargon and create the space for collaborative problem solving. Often our most successful work will involve someone saying, “Well, we've never done this before, but it looks like a little bit of x and y with a dash of z thrown in.” No one can be an expert in everything but even someone just starting out can learn how to break through jargon, learn from lots of different kinds of people, and see problems from different angles. I think the energy and environment fields offer some of the most exciting opportunities to make real and meaningful change over the coming years, and I’m incredibly optimistic about our next generation of innovators!

    Dr. Vajjhala was interviewed by Alexander J. Bandza, Associate, Energy and Environmental and Workplace Health and Safety Law Practices, Jenner & Block LLP

CATEGORIES: Air, Climate Change, Sustainability, Water

PEOPLE: Alexander J. Bandza

June 6, 2019 Exploring the E-Suite with Jonah Greenberger, Co-founder and President, Bright, Inc. (San Francisco, CA, and Mexico City, Mexico)

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Jonah Greenberger large

 

Exploring the E-Suite with Jonah Greenberger, Co-founder and President, Bright, Inc. (San Francisco, CA, and Mexico City, Mexico) 

  1. Tell us about Bright, including what the organization does and your role.

Bright is the leading rooftop solar company in Mexico. We provide the financing and software that enable thousands of ambassadors to offer cheaper electricity to millions of homes, at no upfront cost, and we work with our network of hundreds of local installers and distributors to satisfy the resulting demand. Our first market is Mexico, which has more sun, higher electricity rates, and lower labor costs than the US. Bright's investors include First Round Capital, Y Combinator, and other top Silicon Valley firms.

  1. What is your professional background that led you to become involved in the clean energy and international fields?

I studied thermodynamics at Stanford and found energy fascinating - it felt like magic that a fuel could be converted into the motion of a car. I wanted to learn more and see how I could advance such a fascinating (and important) field.

  1. What do you think are the emerging issues in the energy field, especially clean energy and/or in the international context?

The largest topic is around how projects are allowed to use the existing grid, or the utility wires that move electricity from one place to another. It makes sense to only have one set of grids (vs telecom where you have many), but this means innovation is stifled unless there’s an easy way to access and use this grid.

  1. What aspects of working in the energy field have you enjoyed most?

I love how international energy is - everyone needs energy and it’s a national priority in almost every country to become more sustainable. Energy is an amazing way to see how the world works across borders.

  1. What do you find are some of the most challenging aspects of your work in the energy field?

Similar to what I mentioned earlier about connecting to the grid, innovation is largely at the whim of what the utilities will or have to allow in terms of connecting to the grid. Figuring out how to navigate these nuances is tricky but incredibly important.

  1. How did you make the transition from working for one of the world’s largest energy firms (Chevron) to becoming a clean energy startup founder?

Chevron taught me how the world consumes and produces energy and how to run a large international business. However, given how slow decisions were and career advancement as well, starting a company allowed me to release all of this pent up energy that I had to move fast and build.

  1. As a startup founder that operates in the clean energy and international spaces, what can policymakers learn from your challenges and successes?

One of the largest learnings we’ve had is that the platform has to be opened to create real innovation and impact. The internet, for instance, is a place anyone can build a webpage, create a company etc. But the grid in many countries is still the equivalent of if the internet required a DMV in person visit if you wanted to connect. Policy to free up the ability to connect to this platform could enable incredible value.

  1. What and/or who have helped you succeed as a clean energy startup founder?

YCombinator’s network has been incredibly helpful as has First Rounds to connect me to any expert I could need on any topic.

  1. What advice would you give a young person today who is considering starting out in the energy field?

I would advise to think about scalability from the start. Many energy projects are highly customized and so take forever and a vast amount of capital to have an impact. Solutions that will transform the way we use energy will be those that are far more standardized and can be repeated over and over again.

Mr. Greenberger was interviewed by Alexander J. Bandza, Associate, Energy and Environmental and Workplace Health and Safety Law Practices, Jenner & Block LLP

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Alexander J. Bandza

June 6, 2019 Exploring the E-Suite with Jonah Greenberger, Co-founder and President, Bright, Inc. (San Francisco, CA, and Mexico City, Mexico)

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Jonah Greenberger large

 

Exploring the E-Suite with Jonah Greenberger, Co-founder and President, Bright, Inc. (San Francisco, CA, and Mexico City, Mexico) 

  1. Tell us about Bright, including what the organization does and your role.

Bright is the leading rooftop solar company in Mexico. We provide the financing and software that enable thousands of ambassadors to offer cheaper electricity to millions of homes, at no upfront cost, and we work with our network of hundreds of local installers and distributors to satisfy the resulting demand. Our first market is Mexico, which has more sun, higher electricity rates, and lower labor costs than the US. Bright's investors include First Round Capital, Y Combinator, and other top Silicon Valley firms.

  1. What is your professional background that led you to become involved in the clean energy and international fields?

I studied thermodynamics at Stanford and found energy fascinating - it felt like magic that a fuel could be converted into the motion of a car. I wanted to learn more and see how I could advance such a fascinating (and important) field.

  1. What do you think are the emerging issues in the energy field, especially clean energy and/or in the international context?

The largest topic is around how projects are allowed to use the existing grid, or the utility wires that move electricity from one place to another. It makes sense to only have one set of grids (vs telecom where you have many), but this means innovation is stifled unless there’s an easy way to access and use this grid.

  1. What aspects of working in the energy field have you enjoyed most?

I love how international energy is - everyone needs energy and it’s a national priority in almost every country to become more sustainable. Energy is an amazing way to see how the world works across borders.

  1. What do you find are some of the most challenging aspects of your work in the energy field?

Similar to what I mentioned earlier about connecting to the grid, innovation is largely at the whim of what the utilities will or have to allow in terms of connecting to the grid. Figuring out how to navigate these nuances is tricky but incredibly important.

  1. How did you make the transition from working for one of the world’s largest energy firms (Chevron) to becoming a clean energy startup founder?

Chevron taught me how the world consumes and produces energy and how to run a large international business. However, given how slow decisions were and career advancement as well, starting a company allowed me to release all of this pent up energy that I had to move fast and build.

  1. As a startup founder that operates in the clean energy and international spaces, what can policymakers learn from your challenges and successes?

One of the largest learnings we’ve had is that the platform has to be opened to create real innovation and impact. The internet, for instance, is a place anyone can build a webpage, create a company etc. But the grid in many countries is still the equivalent of if the internet required a DMV in person visit if you wanted to connect. Policy to free up the ability to connect to this platform could enable incredible value.

  1. What and/or who have helped you succeed as a clean energy startup founder?

YCombinator’s network has been incredibly helpful as has First Rounds to connect me to any expert I could need on any topic.

  1. What advice would you give a young person today who is considering starting out in the energy field?

I would advise to think about scalability from the start. Many energy projects are highly customized and so take forever and a vast amount of capital to have an impact. Solutions that will transform the way we use energy will be those that are far more standardized and can be repeated over and over again.

Mr. Greenberger was interviewed by Alexander J. Bandza, Associate, Energy and Environmental and Workplace Health and Safety Law Practices, Jenner & Block LLP

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Alexander J. Bandza

May 15, 2019 EPA Adds Seven Sites to the Superfund National Priorities List

Torrence_jpgBy Allison A. Torrence

Map

On May 13, 2019, U.S. EPA announced that it is adding seven sites to the Superfund National Priorities List (NPL), which includes the most serious contaminated sites in the country. EPA uses the NPL as a basis for prioritizing contaminated site cleanup funding and enforcement activities.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA a/k/a Superfund) requires EPA to create a list of national priorities among sites with known releases or threatened releases of hazardous substances throughout the United States, and update that list every year. EPA has established a Hazard Ranking System (HRS) screening tool, which EPA uses, along with public comments, to determine which contaminated sites should be on the NPL.

Under the Trump Administration, EPA has expressed a renewed focus on contaminated site cleanup, declaring the Superfund program to be a “cornerstone” of EPA’s core mission to protect human health and the environment. EPA Administrator Andrew Wheeler reiterated this focus when announcing the seven new NPL sites:

By adding these sites to the National Priorities List, we are taking action to clean up some of the nation’s most contaminated sites, protect the health of the local communities, and return the sites to safe and productive reuse. Our commitment to these communities is that sites on the National Priorities List will be a true national priority. We’ve elevated the Superfund program to a top priority, and in Fiscal Year 2018, EPA deleted all or part of 22 sites from the NPL, the largest number of deletions in one year since Fiscal Year 2005.

Currently, there are 1,344 NPL sites across the United States. The following sites are being added to the NPL per EPA’s announcement:

  • Magna Metals in Cortlandt Manor, New York
  • PROTECO in Peñuelas, Puerto Rico
  • Shaffer Equipment/Arbuckle Creek Area in Minden, West Virginia
  • Cliff Drive Groundwater Contamination in Logansport, Indiana
  • McLouth Steel Corp in Trenton, Michigan
  • Sporlan Valve Plant #1 in Washington, Missouri
  • Copper Bluff Mine in Hoopa, California

Information about the NPL sites, including a map of all sites, is available on EPA’s website.

CATEGORIES: Cercla, Hazmat, Real Estate and Environment, Sustainability

PEOPLE: Allison A. Torrence

May 15, 2019 EPA Adds Seven Sites to the Superfund National Priorities List

Torrence_jpgBy Allison A. Torrence

Map

On May 13, 2019, U.S. EPA announced that it is adding seven sites to the Superfund National Priorities List (NPL), which includes the most serious contaminated sites in the country. EPA uses the NPL as a basis for prioritizing contaminated site cleanup funding and enforcement activities.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA a/k/a Superfund) requires EPA to create a list of national priorities among sites with known releases or threatened releases of hazardous substances throughout the United States, and update that list every year. EPA has established a Hazard Ranking System (HRS) screening tool, which EPA uses, along with public comments, to determine which contaminated sites should be on the NPL.

Under the Trump Administration, EPA has expressed a renewed focus on contaminated site cleanup, declaring the Superfund program to be a “cornerstone” of EPA’s core mission to protect human health and the environment. EPA Administrator Andrew Wheeler reiterated this focus when announcing the seven new NPL sites:

By adding these sites to the National Priorities List, we are taking action to clean up some of the nation’s most contaminated sites, protect the health of the local communities, and return the sites to safe and productive reuse. Our commitment to these communities is that sites on the National Priorities List will be a true national priority. We’ve elevated the Superfund program to a top priority, and in Fiscal Year 2018, EPA deleted all or part of 22 sites from the NPL, the largest number of deletions in one year since Fiscal Year 2005.

Currently, there are 1,344 NPL sites across the United States. The following sites are being added to the NPL per EPA’s announcement:

  • Magna Metals in Cortlandt Manor, New York
  • PROTECO in Peñuelas, Puerto Rico
  • Shaffer Equipment/Arbuckle Creek Area in Minden, West Virginia
  • Cliff Drive Groundwater Contamination in Logansport, Indiana
  • McLouth Steel Corp in Trenton, Michigan
  • Sporlan Valve Plant #1 in Washington, Missouri
  • Copper Bluff Mine in Hoopa, California

Information about the NPL sites, including a map of all sites, is available on EPA’s website.

CATEGORIES: Cercla, Hazmat, Real Estate and Environment, Sustainability

PEOPLE: Allison A. Torrence

May 3, 2019 Shareholder Activism: Trends in Climate Change Litigation, Part 4

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By Matthew G. Lawson

 

In the fourth installment of the Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are highlighting the growing trend of Climate Change Shareholder Activism.  While not active litigation, pressure from activist shareholders who wish to influence the environmental policy of public companies is another powerful force in the climate change litigation arena.  

One notable example of this activism is the investor group Climate Action 100+.  Climate Action 100+ is an investor organization consisting of over 300 institution investors who collectively manage more than $33 trillion in assets of some of the largest carbon emitting companies in the world.  The organization’s stated objective is to “engag[e] companies on improving governance, curbing emissions and strengthening climate-related financial disclosures.” 

While the organization was recently formed in 2017, Climate Action 100+ has already secured several victories in its attempt to influence public companies in carbon intensive industries.  

  • In late 2018, following negotiations with Climate Action 100+, Royal Dutch Shell announced new short-term carbon emission reduction goals in order to ensure the company stays in step with the global emissions goals set out in the Paris Accords.  Shell has agreed to reduce its net emissions around 20% by 2035 and around 50% by 2015.
  • In February 2019, Australia’s largest coal miner, Glencore, succumbed to shareholder pressure mounted by Climate Action 100+ and agreed to freeze its coal production at current levels.  The company further announced it would take steps to increase disclosure of its emissions and environmental impacts.

 

CATEGORIES: Climate Change

PEOPLE: Matthew G. Lawson

May 3, 2019 Shareholder Activism: Trends in Climate Change Litigation, Part 4

Matthew G. Lawson

 

By Matthew G. Lawson

 

In the fourth installment of the Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are highlighting the growing trend of Climate Change Shareholder Activism.  While not active litigation, pressure from activist shareholders who wish to influence the environmental policy of public companies is another powerful force in the climate change litigation arena.  

One notable example of this activism is the investor group Climate Action 100+.  Climate Action 100+ is an investor organization consisting of over 300 institution investors who collectively manage more than $33 trillion in assets of some of the largest carbon emitting companies in the world.  The organization’s stated objective is to “engag[e] companies on improving governance, curbing emissions and strengthening climate-related financial disclosures.” 

While the organization was recently formed in 2017, Climate Action 100+ has already secured several victories in its attempt to influence public companies in carbon intensive industries.  

  • In late 2018, following negotiations with Climate Action 100+, Royal Dutch Shell announced new short-term carbon emission reduction goals in order to ensure the company stays in step with the global emissions goals set out in the Paris Accords.  Shell has agreed to reduce its net emissions around 20% by 2035 and around 50% by 2015.
  • In February 2019, Australia’s largest coal miner, Glencore, succumbed to shareholder pressure mounted by Climate Action 100+ and agreed to freeze its coal production at current levels.  The company further announced it would take steps to increase disclosure of its emissions and environmental impacts.

 

CATEGORIES: Climate Change

PEOPLE: Matthew G. Lawson

April 24, 2019 Climate Change Lawsuits Brought by Coastal Municipalities and States Against the Fossil Fuel Industry: Trends in Climate Change Litigation, Part 3

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By Matthew G. Lawson Air pollution

 

In the third installment of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are discussing a quickly proliferating form of litigation—lawsuits filed by U.S. states and municipalities against companies that operate in industry sectors which have historically had high levels of greenhouse gas emissions.

At present, the most common target for this litigation in the United States has been the oil and gas industry. In these cases, plaintiff cities or states will often bring suit against a large number of oil and gas companies as members of the collective industry. These claims are usually brought in state court, where the plaintiffs can take advantage of potentially favorable state common law. Using this strategy, plaintiffs have asserted claims against the fossil-fuel industry under state law theories such as nuisance, failure to warn of the known impacts of climate change, and unjust enrichment. Of course, as a counter to this strategy and in hopes of demonstrating preemption under the Clean Air Act, defendants will often look to remove climate change cases to federal court.

In order to satisfy Article III Standing requirements, Plaintiffs in these cases have generally been coastal communities which allege that they have suffered harm or are uniquely at risk of suffering harm from rising sea levels as a result of climate change.

Several examples of this ongoing litigation includes:

  • County of San Mateo v. Chevron Corp. et al. (2018): claims brought by six California municipalities and counties against 37 fossil-fuel companies in California state court. The plaintiffs, alleging they will be damaged by the effects of climate change, brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. Following defendants’ removal of the case to federal court, plaintiffs successfully remanded back to state court on the grounds that their claims did not implicate a federal question or raise preemption issues. Defendants have filed an interlocutory appeal in the Ninth Circuit which is currently being briefed by the parties.
  • City of Oakland v. BP p.l.c. et al. (2018): claims brought by the City of Oakland and San Francisco against fossil-fuel companies under California common and statutory law. Plaintiffs asserted that the industry’s GHG emissions amounted to a “public nuisance” under California law. However, unlike San Mateo, the defendants in City of Oakland were able to successfully remove and ultimately retain the matter in federal court. The Northern District of California court denied plaintiff’s motion to remand the case back to state court based on its finding that federal common law necessarily governed the nuisance claims. The district court subsequently dismissed the suits on the grounds that the plaintiffs’ claims raised a “Political Question” best addressed by the legislature as opposed to judicial branch. This dismissal has also been appealed to the Ninth Circuit.
  • Rhode Island v. Chevron Corp. et al. (2018): The first such case to be brought by a U.S. State, Rhode Island asserted claims for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Environmental Rights Act against 21 fossil-fuel companies. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding, extreme precipitation events, and ocean warming and acidification. Defendants have removed the case to federal court, and the parties are currently briefing Rhode Island’s attempt to remand the case back to state court.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Matthew G. Lawson

April 24, 2019 Climate Change Lawsuits Brought by Coastal Municipalities and States Against the Fossil Fuel Industry: Trends in Climate Change Litigation, Part 3

Matthew G. Lawson

 

By Matthew G. Lawson Air pollution

 

In the third installment of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are discussing a quickly proliferating form of litigation—lawsuits filed by U.S. states and municipalities against companies that operate in industry sectors which have historically had high levels of greenhouse gas emissions.

At present, the most common target for this litigation in the United States has been the oil and gas industry. In these cases, plaintiff cities or states will often bring suit against a large number of oil and gas companies as members of the collective industry. These claims are usually brought in state court, where the plaintiffs can take advantage of potentially favorable state common law. Using this strategy, plaintiffs have asserted claims against the fossil-fuel industry under state law theories such as nuisance, failure to warn of the known impacts of climate change, and unjust enrichment. Of course, as a counter to this strategy and in hopes of demonstrating preemption under the Clean Air Act, defendants will often look to remove climate change cases to federal court.

In order to satisfy Article III Standing requirements, Plaintiffs in these cases have generally been coastal communities which allege that they have suffered harm or are uniquely at risk of suffering harm from rising sea levels as a result of climate change.

Several examples of this ongoing litigation includes:

  • County of San Mateo v. Chevron Corp. et al. (2018): claims brought by six California municipalities and counties against 37 fossil-fuel companies in California state court. The plaintiffs, alleging they will be damaged by the effects of climate change, brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. Following defendants’ removal of the case to federal court, plaintiffs successfully remanded back to state court on the grounds that their claims did not implicate a federal question or raise preemption issues. Defendants have filed an interlocutory appeal in the Ninth Circuit which is currently being briefed by the parties.
  • City of Oakland v. BP p.l.c. et al. (2018): claims brought by the City of Oakland and San Francisco against fossil-fuel companies under California common and statutory law. Plaintiffs asserted that the industry’s GHG emissions amounted to a “public nuisance” under California law. However, unlike San Mateo, the defendants in City of Oakland were able to successfully remove and ultimately retain the matter in federal court. The Northern District of California court denied plaintiff’s motion to remand the case back to state court based on its finding that federal common law necessarily governed the nuisance claims. The district court subsequently dismissed the suits on the grounds that the plaintiffs’ claims raised a “Political Question” best addressed by the legislature as opposed to judicial branch. This dismissal has also been appealed to the Ninth Circuit.
  • Rhode Island v. Chevron Corp. et al. (2018): The first such case to be brought by a U.S. State, Rhode Island asserted claims for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Environmental Rights Act against 21 fossil-fuel companies. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding, extreme precipitation events, and ocean warming and acidification. Defendants have removed the case to federal court, and the parties are currently briefing Rhode Island’s attempt to remand the case back to state court.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Matthew G. Lawson