Court Grants Preliminary Injunction Blocking Deepwater Oil Drilling Moratorium
By Allison Torrence
On June 22, 2010, Judge Martin Feldman, of the U.S. District Court for the Eastern District of Louisiana, issued a preliminary injunction blocking the Obama Administration’s moratorium on deepwater oil drilling. The lawsuit, Hornbeck Offshore Services, LLC, et al. v. Salazar, et al., Case No. 10-1663, was originally brought by a company that owns a fleet of vessels that support deepwater oil exploration in the Gulf of Mexico. Additional vessel owners and companies that otherwise support offshore exploration and drilling joined the case as plaintiffs soon after it was filed. After the plaintiffs’ filed a motion for preliminary injunction, several environmental organizations, including the Sierra Club, intervened as defendants supporting the government’s position.
The Illinois LUST Program Is Amended
By James A. Vroman
On June 8, 2010, Illinois Governor Pat Quinn signed into law Public Act 096-0908, which amended the Illinois Environmental Protection Act's "Leaking Underground Storage Tank" program. The amendments to the LUST program included an expanded incorporation of the Tiered Approach to Corrective Action Objectives ("TACO") into the LUST program, a reduction of the deductible to $5000 to qualify for reimbursement under the program, and new bidding requirements an owner of a LUST must follow to qualify for program. The amendments also implemented measures to stabilize the funding for the LUST program, to provide funding for legacy LUST sites and to create opportunities for owners/operators, who had received No Further Remediation letters, to access the LUST fund in the event additional remediation measures had to be performed.
Environmental Group Sues Department of Interior Over Offshore Drilling Approval
By Allison A. Torrence
On May 17, 2010, Defenders of Wildlife filed a lawsuit against the Minerals Management Service (“MMS”), the Department of the Interior (“DOI”) and Ken Salazar, Secretary of the Interior, in Federal District Court. The lawsuit alleges that MMS, DOI and Salazar violated the National Environmental Policy Act (“NEPA”) when MMS approved BP’s Exploration Plan for the Deepwater Horizon exploratory drilling operation (“Deepwater Horizon Plan”). Deepwater Horizon is the site of the April 20, 2010, explosion and continuing release of oil into the Gulf of Mexico.
Under NEPA, federal agencies must prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The NEPA regulations allow for a “categorical exclusion” for categories of actions which “do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4. Defenders of Wildlife is alleging that MMS violated NEPA by granting a categorical exclusion from NEPA review to BP’s Deepwater Horizon Plan, thereby bypassing the EIS requirement. Defenders of Wildlife also alleges that since the explosion at the BP Deepwater Horizon site on April 20, 2010, MMS has granted over twenty categorical exclusions from NEPA review for other exploratory wells and drilling operations in the Gulf of Mexico.
Click here to view the Defenders of Wildlife complaint.
Office of EPA Inspector General Says Updated Final Vapor Intrusion Guidance Needed
By E. Lynn Grayson
Henry Schuver, Ph.D., EPA RCRA Corrective Action Office, recently speaking about vapor intrusion affecting site remediation and redevelopment projects at the "Sustainable Property Transactions: Retooling The Business of Contaminated Sites Redevelopment" program held in Philadelphia, addressed the status of the Agency's guidance in this area. He advised that EPA hopes to finalize guidance on vapor intrusion by the end of 2012. More important, EPA anticipates release of an interim guidance document yet this year. These efforts appear to be prompted, in part, by the December 14, 2009 report from the EPA Office of Inspector General "Lack of Final Guidance on Vapor Intrusion Impedes Efforts to Address Indoor Air Risks."
The report highlighted the concerns with the 2002 draft vapor intrusion guidance noting it has limited purpose and scope. The report recommended that EPA issue final guidance on the evaluation and mitigation of vapor intrusion risks, including final toxicity values for TCE and PCE.
The EPA Office of Inspector General report is available at http://www.epa.gov/oig/reports/2010/20091214-10-P-0042.pdf
Inter-American Commission on Human Rights Allows Complaint By Mossville, LA Residents
By E. Lynn Grayson
The Inter-American Commission on Human Rights ruled in favor of admitting a human rights complaint on behalf of Mossville, LA residents. The decision marks the first time, according to Advocates for Environmental Human Rights, that the Commission has taken jurisdication over an environmental racism case in the U.S.
The Commission is an entity of the Organization of American States (OAS) of which the U.S. is a member. Mossville is an historic African-American community in southwest Louisiana that is surrounded by fourteen industrial facilities.
More information about this case and related environmental claims is available at http://www.ehumanrights.org/
India and China Declare Support for Copenhagen Accord
By Jennifer Cassel
On March 8 and 9, 2010, respectively, India and China submitted letters to the executive secretary of the United Nations Framework Convention on Climate Change (“UNFCCC”) indicating their support for the “Copenhagen Accord,” reached in December 2009 at the 15th Annual Conference of the Parties to the UNFCCC in Denmark. In its letter, India, represented by joint secretary of the Ministry of Environment and Forests, Rajani Ranjan Rashmi, states that India may be listed in the introductory text of the agreement - the “chapeau” - with the caveat that India understands the accord to be “a political document” which is not legally binding, but rather which “could have value if the areas of convergence reflected in the Accord are used to help the Parties reach agreed outcomes under the UN multilateral negotiations….” In Chinese Premier Wen Jiabao’s letters, one of which was originally sent to U.N. Secretary General Ban Ki-moon and the other to the Prime Minister of Denmark, China states that it “highly commends and supports the Copenhagen Accord” and reaffirms that China will “take active steps to meet the targets we have set out for our voluntary domestic actions….”
The letter from India is available at http://unfccc.int/files/meetings/application/pdf/indiacphaccord.pdf
The letter from China is available at http://unfccc.int/files/meetings/application/pdf/chinacphaccord.pdf
EPA Settles Suit Challenging Failure to Act on Ocean Acidification
By Jennifer Cassel
On March 10, 2010, EPA entered into a legal settlement with the Center for Biological Diversity (“CBD”) in which EPA agreed to sign, by March 15, 2010, a Federal Register notice seeking comments on ocean acidification as it pertains to § 303(d) of the Clean Water Act (“CWA”). The settlement resolves a suit in which CBD sued EPA for alleged violating its CWA duties to identify Washington’s ocean waters as impaired due to acidification (caused by absorption of CO2). Under the terms of the settlement, EPA will seek comment on (1) whether EPA should issue guidance concerning the listing of waters as impaired or threatened due to ocean acidification, and if so, what that guidance should state; (2) how states can determine if waters are threatened or impaired by acidification; (3) how states can monitor acidification and its effects; and (4) recommendations for development of Total Maximum Daily Loads (“TMDL”) for waters impaired or threatened by acidification. By November 15, 2010, EPA will issue a memorandum detailing EPA’s plan for its CWA § 303(d) program in light of the comments it receives in response to the Federal Register notice. EPA issued the Federal Register notice on March 22, 2010, and the comment period will close on May 21, 2010.
More information on the settlement agreement is available at http://www.biologicaldiversity.org/news/press_releases/2010/ocean-acidification-03-11-2010.html
The Federal Register notice is available at http://www.biologicaldiversity.org/campaigns/ocean_acidification/pdfs/EPA_Ocean_Acidification_Notice_2010.pdf.
NOAA: Pacific Smelt Threatened by Climate Change
By Jennifer Cassel
On March 18, 2010, the National Oceanic and Atmospheric Administration (“NOAA”) published its final determination to list a population of euchalon, also known as Pacific smelt, as threatened under the Endangered Species Act (“ESA”). 75 Fed. Reg. 13012. In the notice, NOAA states that it has identified “changes in ocean conditions due to climate change as the most significant threat” to the southern distinct population segment (“DPS”) of Pacific smelt, which live in the British Columbia, Fraser, Columbia and Klamath rivers. In addition, NOAA finds, “climate-induced change to freshwater habitats is a moderate threat” to the southern DPS of Pacific smelt. NOAA has not yet determined what measures must be taken to protect the smelt under the ESA, but will promulgate protective regulations and publish those rules in the Federal Register. The effective date of NOAA’s listing is May 17, 2010.
The Federal Register notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-5996.pdf.
Power Plant in Texas to Capture 85% of Carbon Dioxide
By Jennifer Cassel
On April 19, 2010, the Environmental Defense Fund (“EDF”) and Tenaska, Inc., announced that they had reached an agreement under which EDF agreed not to oppose a 600 megawatt coal-fired power plant Tenaska proposes to construct near Sweetwater, Texas, in exchange for Tenaska’s promise to capture and sequester 85% of the estimated 7.5 million tons of carbon dioxide (“CO2”) the plant will produce each year, as well as reduce water use. Tenaska will arrange for the transport and injection of the captured CO2 into the Permian Basin oil fields, to be used for enhanced oil recovery. EDF, in turn, will withdraw from a contested case hearing on the air quality permit for the proposed plant, called the Trailblazer Energy Center, and will not attempt to delay the granting of the air quality permit or any future air quality permits for the plant. The proposed plant has not yet received all required approvals, however, and other organizations may oppose it. If the plant receives all required approvals, construction will begin in 2011 and operation is expected to start in 2016.
A press release about the agreement is available at http://www.tenaskatrailblazer.com/media/press-100419b.html
February 2010 Update: Climate Change
By Gabrielle Sigel and Jennifer L. Cassel
Federal Legislative Developments
January 2010 Update: Environmental Lender Liability
Obama Requests Increased Funding for Climate Change
On February 1, 2010, President Obama sent to Congress a budget request for fiscal year 2011 in which he requested increased funding for climate change measures even as he decreased his overall budget request.
Some of the items listed in the President’s budget request include: $54.5 billion for Dept of Energy loan guarantees for clean energy technologies; $21 million for EPA to implement the mandatory greenhouse gas (“GHG”) reporting rule; $56 million for EPA and State climate change programs, including $25 million to be used to assist EPA and the States to incorporate GHG emission restrictions into Clean Air Act (“CAA”) permitting, $5 million to develop best available control technology (“BACT”) for GHG emission limits in CAA permits, and $7 million to develop new source performance standards for certain sources that produce GHG emissions; $7 million to fund carbon capture and sequestration (“CCS”) projects and $545 million to fund research of CCS technologies; $6 million for EPA to implement GHG emission standards for vehicles; and $2.6 billion to fund research related to climate change. Unlike his budget request for FY 2010, President Obama does not request funding to implement a cap-and-trade program in FY 2011.
By Gabrielle Sigel and Genevieve Essig
CERCLA Case Law Developments
Water Scarcity: A Critical Climate Change Challenge for Business
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon, U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John’s Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor’s coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon’s liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA’s objections, the court granted Vertellus’s and CBS’s motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon, No. 08-124, slip op. at 20.
By E. Lynn Grayson
While reduction of greenhouse gas emissions is the best known, most often debated climate change challenge, water scarcity is emerging as the more significant concern confronting the international environment. A report recently released by Ceres and the Pacific Institute, Water Scarcity & Climate Change: Growing Risks for Business & Investors, details the risks posed by the declining availability of water resources throughout the world. The Ceres/Pacific Institute report concludes that climate change will exacerbate these water risks, especially as the world population grows by an expected 50 million a year. This report supports other recent findings from the Intergovernmental Panel on Climate Change concluding that global warming will lead to changes in all components of the freshwater system and that water and its availability and quantity will be the main pressures on, and issues for, societies and the environment under climate change.