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July 20, 2017 New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?

 Steven M. SirosBy Steven M. Siros   Power plant

Answering this question is likely to engender significant debate, depending on which side of the global warming conundrum one finds oneself.  However, a recent lawsuit by two California counties and one California city is likely to prompt such a debate which will play out in California state court. On July 17, 2017, Marin County, San Mateo County, and the City of Imperial Beach filed separate but similar environmental lawsuits in California state court claiming that 37 oil, gas, and coal companies caused (or will cause) billions of dollars in climate-change related damages as a result of their extraction and sale of fossil fuels in California. The multi-count complaints allege a variety of state common law claims, including public nuisance, negligent failure to warn, and trespass. The complaints contend that as result of the activities of these defendants, sea levels will rise which will cause billions of dollars in losses to each of the plaintiffs. 

These cases represent the latest in what has been to date a series of unsuccessful efforts to hold energy companies responsible for future speculative damages associated with alleged future environmental impacts associated with climate change. These cases will likely be subject to early dispositive motions seeking to have these cases thrown out of court at an early stage. We will continue to follow these cases and provide additional updates. 

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

PEOPLE: Steven R. Englund, Steven M. Siros

July 18, 2017 Using GRI Framework Improves ESG Disclosures

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By E. Lynn Grayson 

G+A Logo

 

New research confirms that the quality of environmental, social and corporate governance (ESG) disclosures is greatly improved when companies use  the Global Reporting Initiative (GRI) Sustainability Reporting Framework. The Governance & Accountability Institute, Inc. (G&A), the data partner for GRI, also confirms that more companies than ever before are developing and disclosing sustainability reports.

In the first year of its study in 2010, G&A found that 80% of leading U.S. large-cap companies did not publish sustainability reports. The trend has changed over time with 53% of the S&P 500 companies reporting in 2012; 72% reporting in 2013; 75% reporting in 2014; 81% reporting in 2015; and 82% reporting in 2016.

To explore the quality of sustainability reports, G&A worked with The CSR-Sustainability Monitor (CSR-S Monitor) research team at the Weissman Center for International Business, Baruch College/CUNY. The CSR-S Monitor evaluated sustainability reports using a scoring methodology that categorizes the content of each report into 11 components referred to as “contextual elements” including: Chair/Executive Message; Environment; Philanthropy & Community Involvement; External Stakeholder Engagement; Supply Chain; Labor Relations; Governance; Anti-Corruption; Human Rights; Codes of Conduct; and Integrity Assurance. Companies using the GRI framework consistently achieved average contextual element scores higher than the companies not using the GRI for their reporting meaning, in part, that the data provided was of a higher quality and overall more helpful to stakeholders.

Sustainability reporting and ESG disclosures are on the rise. The trend clearly is to encourage and promote more standardized sustainability reporting helping companies provide more reliable, consistent and material information to the public.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, Greenhouse Gas, Hazmat, Real Estate and Environment, Sustainability, Water

July 5, 2017 State of the Great Lakes 2017 Highlights Report

Grayson

 

By E. Lynn Grayson  US EPA-Canada EPA

The Governments of Canada and the United States recently released the State of the Great Lakes 2017 Highlights Report. Overall, the Report characterizes the condition of the Great Lakes as Fair and Unchanging. While progress to restore and protect the Great Lakes has been made, including the reduction of toxic chemicals, challenges remain with issues such as invasive species and nutrients. 

The “Fair and Unchanging” assessment is based upon an evaluation of nine Great Lakes Indicators of Ecosystem Health including:

  • Drinking Water
  • Beaches
  • Fish Consumption
  • Toxic Chemicals
  • Habitats and Species
  • Nutrients and Algae
  • Invasive Species
  • Groundwater Quality
  • Watershed Impacts and Climate Trends

Of particular note, the Report found that the status of protecting the Great Lakes against invasive species was Poor and the trend was that conditions would further deteriorate. To date, over 180 aquatic non-native species have become established in the Great Lakes Basin including the Sea Lamprey, Zebra Mussels, and Purple Loosestrife. Economic impacts from invasive species exceed more than $100 million annually in the U.S. alone.

The Report marks the 45th anniversary of the signing of the Great Lakes Quality Agreement committing Canada and the United States to work together to restore and protect the water quality and aquatic ecosystem health of the Great Lakes. The nine indicators of ecosystem health are supported by 44 sub-indicators, measuring such things as concentrations of contaminants in water and fish tissue, changes in quality and abundance of wetland habitat, and the introduction and spread of invasive species. More than 180 government and non-government Great Lakes scientists and other experts worked to assemble the available data supporting the Report and its findings. The Report identifies status for each indicator as good, fair, poor, or undetermined.

CATEGORIES: Climate Change, Sustainability, Water

June 29, 2017 D.C. Circuit Provides Additional Clarity on Federal and State Roles in Natural Gas Pipeline Permitting

Dennis_Jeffrey_COLORBy Jeffrey S. Dennis

On Friday, June 23, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in a long-running dispute between the developer of an interstate natural gas pipeline project and New York State environmental regulators concerning a federal water quality permit that must be obtained before project construction may begin. Millennium Pipeline Company v. Basil Seggos, et al., D.C. Cir. No. 16-1415 (June 23, 2017).  The decision provides additional clarity regarding the interplay of Federal and State permitting authorities with respect to interstate natural gas pipeline infrastructure, and the role of the courts in adjudicating disputes with State permitting agencies. 

The pipeline project at issue is a proposed 7.8 mile extension of Millennium Pipeline’s existing interstate natural gas pipeline in southern New York. The extension will serve a new natural gas-fired power plant.  To construct the project, Millennium must obtain a “certificate of public convenience and necessity” from the Federal Energy Regulatory Commission (“FERC”) pursuant to Section 7 of the Natural Gas Act (“NGA”), 15 U.S.C. § 717f(c).  The NGA requires that FERC ensure that all proposed interstate natural gas pipeline projects comply with all applicable federal, state, and local regulations, including environmental regulations.  15 U.S.C. § 717b(d).  FERC granted Millennium a certificate of public convenience and necessity, conditioned on Millennium obtaining a Clean Water Act (“CWA”) water-quality certificate pursuant to section 401 of the CWA, 33 U.S.C. § 1341(a)(1), since its project would cross several streams.

The CWA requires that state regulators act “within a reasonable period of time (which shall not exceed one year)” on applications for water-quality certificates; if no action is taken within one year, the water-quality certificate requirement is deemed waived. Id. Millennium first applied for a water-quality certificate from the New York Department of Environmental Conservation (“NYDEC”) (the state agency that administers New York’s CWA program) in November 2015.  Over the next year, NYDEC sought additional information from Millennium on several occasions.  In November 2016, NYDEC informed Millennium that it had “fully responded” to all requests.  NYDEC nonetheless stated that it would “continue to review” the application and had until August 30, 2017 “at a minimum” to approve or deny Millennium’s request.

Seeking to force the NYDEC to act on its application, Millennium filed a petition for review in the D.C. Circuit pursuant section 19(d)(2) of the NGA, a unique provision added by the Energy Policy Act of 2005 that gives the circuit courts of appeal original and exclusive jurisdiction to review an alleged failure to act by a . . . State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit required under Federal Law.” 15 U.S.C. § 717r(d)(2).  Millennium asked the court to exercise its authority under this provision to remand the proceeding back to the NYDEC and “set a reasonable schedule and deadline for the agency to act on remand.”  15 U.S.C. § 717r(d)(3).  NYDEC, in response, asserted that it is only required to act within one year of receiving a complete or valid application, which Millennium had failed to provide.

The court did not reach the merits of these arguments, however, because it concluded that Millennium lacked standing to seek relief under section 19(d)(2) of the NGA. Specifically, the court held that Millennium failed to demonstrate that it has suffered an “injury in fact” as a result of NYDEC’s alleged failure to act on its water-quality certificate application within the one-year deadline established in the CWA, since that statute also deems the water-quality certificate requirement waived if no action is taken within that year. Millennium, slip op. at 6.  As a result, the court found that NYDEC’s failure to act does not stand in the way of Millennium’s project, since “Millennium ultimately needs one permit to begin construction on its pipeline: the certificate of public convenience from FERC.” Id.

The court did not, however, rule on whether NYDEC has in fact waived the water-quality certificate requirement by failing to act within one year. Instead, it placed that question before FERC, stating that Millennium “can go directly to FERC and present evidence of the Department’s waiver.” Id. at 8.  Were FERC to agree that the requirement has been waived, the condition on Millennium’s certificate of public convenience and necessity would be satisfied, removing it as an impediment to moving forward with construction.

The court’s ruling provides additional clarity regarding the interplay of Federal and State permitting authorities with respect to the water-quality certification requirements of the CWA, making it clear that FERC is the primary decision-maker as to whether those requirements have been waived by State inaction. This clarity will give FERC greater certainty as it takes steps to enforce permitting schedules and move proposed natural gas pipeline infrastructure projects forward more quickly. While parties in the proceeding argued that finding a lack of standing here would eviscerate the authority of the court under section 19(d) of the NGA to force State permitting agencies to act, the court noted that not all federal statutes have waiver provisions similar to the CWA, and that its decision has “no effect on situation in which a State’s “sheer inactivity” could actually frustrate the federal permitting process.” Slip op. at 10, citing Dominion Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. Cir. 2013) (granting a petition to review a State permitting agency’s refusal to act on a Clean Air Act permit and remanding with instructions to complete the permitting process within a reasonable timeframe).

CATEGORIES: Climate Change, Sustainability, Water

June 28, 2017 EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule

Torrence_jpgBy Allison A. Torrence

Pond2On June 27, 2017, EPA Administrator Scott Pruitt announced that EPA and the Army Corps of Engineers will be publishing a proposed rule (the Recodification Rule) that would rescind the Obama Administration’s definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). EPA states that the Recodification Rule is necessary to “ensure certainty as to the scope of CWA jurisdiction on an interim basis” while EPA and the Army Corps of Engineers conduct “a substantive review of the appropriate scope of ‘waters of the United States’”.

As we previously reported on this blog, the WOTUS Rule (a/k/a the Clean Water Rule) was promulgated by the Obama Administration in 2015, and was the latest attempt to define the jurisdictional limits of the CWA. The CWA limits its jurisdiction to “navigable waters”, which are obliquely defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). The precise definition of “waters of the United States” has been a controversial and well-litigated issue for years.

As we also previously reported, the WOTUS Rule was challenged in court by numerous parties, and the Sixth Circuit Court of Appeals issued a stay of the new rule on October 9, 2015. One aspect of that litigation – whether the Sixth Circuit has exclusive original jurisdiction under the CWA to hear the challenges – is currently on appeal before the U.S. Supreme Court.

The Recodification Rule was drafted in response to the February 28, 2017, Executive Order titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”. The stated policy behind the Executive Order is that:

It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

The Executive Order directs EPA and the Army Corps of Engineers to review the WOTUS Rule, and either rescind or revise the rule to define “Navigable Waters” in a manner consistent with the above-stated policy and the plurality opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, Justice Scalia determined that:

The phrase waters of the United States includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes…[and] only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right…

Id. at 739-42.

The 2015 WOTUS Rule was EPA’s first attempt to define “waters of the United States” since the Supreme Court rejected the previous definition in Rapanos. The Recodification Rule would rescind the 2015 WOTUS Rule and replace it with a recodification of the regulatory text in place prior to 2015, informed by applicable guidance documents and consistent with the Rapanos decision. At some future date, EPA and the Army Corps of Engineers state that they will pursue notice-and-comment rulemaking to promulgate a new definition of “waters of the United States.”

The public will be able to submit comments on the proposed Recodification Rule for 30 days from the date of publication in the Federal Register.

CATEGORIES: Real Estate and Environment, Water

PEOPLE: Allison A. Torrence

June 15, 2017 Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided

Torrence_jpgBy Allison A. Torrence

PipelineOn June 14, 2017, U.S. District Judge James Boasberg, of the U.S. District Court for the District of Columbia, issued an opinion in the case of Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534, finding that the U.S. Army Corps of Engineers (the Corps) did not fully comply with the National Environmental Policy Act (NEPA) when it granted easements to the Dakota Access Pipeline (DAPL) to cross Lake Oahe, a federally regulated water. Plaintiffs in the case, The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, both have Reservations that border Lake Oahe. Indeed, when Lake Oahe was created by the Corps in 1958 via a dam constructed on the Missouri River, the lake covered approximately 56,000 acres of the Standing Rock Reservation and 104,420 acres of the Cheyenne River Tribe’s trust lands.

The proposed DAPL will be nearly 1,200 miles long and will move more than half a million gallons of crude oil from North Dakota to Illinois every day (at a rate of 13,100 to 16,600 gallons per minute). DAPL will cross Lake Oahe 0.55 miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation. Both Tribes use Lake Oahe for drinking water, agriculture and industrial activities, and consider the waters to be “sacred”.

The Tribes have been challenging DAPL in court and through public protests since 2016, when the Corps issued its final Environmental Assessment and Mitigated Finding of No Significant Impact (FONSI). Under NEPA, a FONSI means that the Corps does not have to prepare a full-blown Environmental Impact Statement. The Tribes argue that the Corps analysis was flawed and its FONSI is not appropriate. The court agreed with some of the Tribes’ arguments, ruling that the Corps “failed to adequately consider the impacts of an oil spill on [the Tribes’] fishing and hunting rights and on environmental justice, and…it did not sufficiently weigh the degree to which the project’s effects are likely to be highly controversial…” The court held that “the Corps will have to reconsider those sections of its environmental analysis...”

Under the Administrative Procedure Act (APA), the court has the power to vacate DAPL’s permits and easements and force it to cease operations until the Corps fully complies with its NEPA requirements. However, the court noted that such a remedy would carry serious consequences. Thus, the court ordered the Tribes and the Corps to submit briefing on whether it should vacate DAPL’s permits and easements when it remands the case for further NEPA analysis. The schedule for such briefing will be set at a status hearing next week.

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Allison A. Torrence

June 12, 2017 Nanomaterial Reporting Rule Update

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By E. Lynn Grayson 

EPA recently extended the effective date of the final reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale. EPA has delayed the effective date of the January 12, 2017 final rule from May 12, 2017 to August 14, 2017.

Nanomaterials

Industry sought to repeal the rule, or at a minimum, obtain an extension of the effective until EPA adopts guidance explaining how to comply with the new two-fold requirements including: 1) companies that make, import or process a distinct or “discrete” form of a nanoscale chemical at some time in the future are to provide information to EPA (135 days before they make, import or process the chemical or within 30 days of deciding to manufacture or process the chemical); and 2) companies must comply with a one-time obligation to report information known or reasonably attainable regarding any nanoscale chemicals made or processed at any time during the past three years. Based upon the information EPA receives, the Agency could decide to require new toxicity, exposure or other data or it could decide to impose restrictions on commercial activity.

Nanomaterials—a diverse category of materials defined mainly by their small size—often exhibit unique properties that can allow for novel applications but also have the potential to negatively impact human health and the environment. Some nanomaterials: more easily penetrate biological barriers than do their bulk counterparts; exhibit toxic effects on the nervous, cardiovascular, pulmonary and reproductive systems; or have antibacterial properties that may negatively impact ecosystems.

Regulation of nanomaterial has created conflict between industry and environmental groups. The Nanomanufacturing Association suggests the rule is a de facto permitting program, while environmental groups believe the rule is long overdue and its impacts are limited by the authorities and procedures already existing under the Toxic Substances and Control Act (TSCA), the federal statute authorizing the new rule. Nanomaterials are used in a variety of commercial and industrial applications including paints, coatings, resins and a host of consumer products ranging from washing machine parts to lithium ion batteries.

A number of scientific organizations have called for the need for the kinds of information on nanomaterials EPA will now be able to collect including the National Academy of Science and the National Nanotechnology Initiative. At this time, it is unclear if the EPA draft guidance will be finalized before the effective date of the new rule.

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

June 9, 2017 Exelon and Jenner & Block Beach Cleanup Day!

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By E. Lynn Grayson 

Exelon and Jenner & Block partnered today with the Alliance for the Great Lakes to cleanup 12th Street Beach, near the Adler Planetarium. Team members worked together to police the beach front picking up and disposing of waste and other discarded materials. The litter was identified, logged, recorded and weighed to aid in understanding the short term and long term impacts we are having on the Great Lakes and the many ecosystems that rely upon them.

The Alliance for the Great Lakes Adopt-a-Beach program promotes working together to protect the Great Lakes through beach cleanups and other community projects. For more than 25 years the Adopt-a-Beach program has worked to keep Great Lakes shorelines healthy, safe, and beautiful. The program is largest of its kind in the region. Adopt-a-Beach touches all five Great Lakes with volunteers from all eight Great Lakes states.

Thanks to our friends at Exelon for including us in this special environmental outreach!

Exelon and Jenner & Block

Exelon and Jenner & Block

 

Jenner & Block EHS Team

Jenner & Block EHS Team

 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Stephen H. Armstrong, Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

June 5, 2017 World Environment Day 5 June 2017

IMG_5257GraysonBy E. Lynn Grayson 

 

Today we celebrate World Environment Day—a global celebration of nature and a day to reconnect with the places that matter most to you. Initiated in 1972, World Environment Day is the United Nations' most important day for promoting worldwide awareness and action for protection of the environment. Since it began in 1974, it has grown to become an international platform for public outreach that is widely celebrated in over 100 countries.

This year's host country is Canada where the official celebrations will take place and the 2017 theme is connecting people to nature encouraging all of us to get outdoors and into nature.

There is greater international awareness and attention focused on the protection and preservation of the environment than ever before. Everyone understands the critical environmental concerns ranging from the politics of the Paris Climate Agreement, the adverse impacts of plastic waste in our oceans, to the international focus on water quality and quantity. World Environment Day is a time to reflect upon and appreciate that the welfare of the planet, including the economic viability of its many nations, depends on the collective efforts we make to protect, preserve and conserve our natural resources and the environment.

Learn more about World Environment Day and efforts around the world to celebrate and improve the environment.

CATEGORIES: Climate Change, Greenhouse Gas, Hazmat, Real Estate and Environment, Sustainability, Water

May 8, 2017 Jenner & Block Hosting Environmental Risk CLE Presentation with CBA and A&WMA

Torrence_jpgBy Allison A. Torrence

On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.

Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.

CBA AWMA Logos
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.

The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.

You can RSVP here.

Any questions can be directed to Pravesh Goyal: (312) 923-2643 or pgoyal@jenner.com

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

April 21, 2017 Earth Day 2017: Environmental and Climate Literacy

Steven M. Siros ImageBy Steven M. Siros

Earth day 2017 ImageAs has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day.  This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy".  This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.  

The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement.  Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.  

In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting.  The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here).  Happy Earth Day 2017.   

 

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

April 19, 2017 Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants

Lynn Grayson PhotoBy E. Lynn Grayson

Attorney-client-privilege ImageA recent case reminds us that not all communications between lawyers and environmental consultants are privileged despite best efforts to make them so. In Valley Forge Ins. V. Hartford Iron & Metal, Inc., the Northern District of Indiana ruled that the attorney-client privilege doesn’t protect a lawyer’s emails to environmental contractors when the communications concern remediation as opposed to litigation. This case provides a good overview of the protections afforded by the attorney-client privilege and the work-product doctrine in the environmental law context.

At issue are Hartford Iron’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. which were the subject of a motion to compel filed by Valley Forge. Following an in camera review of 185 emails, the court concluded that the evidence reflects that “….Hartford Iron retained Keramida and CH2M as environmental contractors for the primary purpose of providing environmental consulting advice and service to Hartford Iron in designing and constructing a new stormwater management system, not because Hartford Iron’s counsel needed them to “translate” information into a useable form so that counsel could render legal advice.”

The Court did find that certain of the emails were subject to the work-product doctrine as the communications were prepared for the purposes of litigation and that IDEM and EPA already had filed suit against Hartford Iron.

Despite the best efforts of lawyers, not all communications are privileged. The legal privileges are narrowly construed and generally do not protect communications with environmental consultants.

CATEGORIES: Cercla, Hazmat, RCRA, Real Estate and Environment, TSCA, Water

April 3, 2017 Waters of the United States Case Going Forward in Supreme Court Despite Trump Executive Order To Rescind or Revise the Rule

Seal of the US Supreme Court ImageAllison Torrence PhotoBy Allison A. Torrence


The controversial Waters of the United States (WOTUS) Rule, promulgated under the Obama Administration, will have its day in the U.S. Supreme Court, despite the Trump Administration’s efforts to stall that litigation while the rule is being revised by the new administration.

As previously discussed in this blog, the WOTUS Rule, also called the Clean Water Rule, was published by U.S. EPA and Army Corps of Engineers on June 29, 2015. The WOTUS Rule defines the scope of waters protected under the Clean Water Act (CWA). The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). U.S. EPA and the Army Corps of Engineers have attempted numerous times to define “waters of the United States”, and thereby define the jurisdictional scope of the CWA. Every such effort has been met with legal court challenges, with the previous definition being struck down by the U.S. Supreme Court in a plurality decision. Rapanos v. United States, 547 U.S. 715 (2006).

The 2015 WOTUS rule was challenged in court by numerous parties (including the State of Oklahoma, represented by then-Attorney General Scott Pruitt, who is now the Administrator of U.S. EPA) in several different venues, and the Sixth Circuit Court of Appeals decided that it had exclusive original jurisdiction under the CWA to hear the challenges in the case National Association of Manufacturers v. U.S. Department of Defense, et al., Case No. 15-3751. That threshold jurisdictional question (and not the substantive challenge to the WOTUS Rule) was appealed to the U.S. Supreme Court in September 2016 (Case No. 16-299). The U.S. Supreme Court accepted the appeal in January 2017, but the parties have not yet submitted their briefs.

On February 28, 2017, President Trump issued an Executive Order titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”. The stated policy behind the Executive Order is that:

It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

The Executive Order directs U.S. EPA and the Army Corps of Engineers to review the WOTUS Rule, and either rescind or revise the rule to define “Navigable Waters” in a manner consistent with the above-stated policy and the opinion of Justice Scalia in Rapanos. The executive Order also directs U.S. EPA and the Army Corps of Engineers to notify the Attorney General of the rule review so the Attorney General may inform the court in pending litigation and take actions as appropriate.

In accordance with the Executive Order, on March 6, 2017, the U.S. Department of Defense filed a motion to hold the briefing schedule in National Association of Manufacturers v. U.S. Department of Defense, et al. in abeyance. Several parties, including industry groups, environmental groups, and States, opposed the motion to hold the briefing schedule in abeyance. On April 3, 2017, the U.S. Supreme Court denied the federal government’s motion to hold the briefing schedule in abeyance.

Thus, the U.S. Supreme Court will decide whether the Sixth Circuit properly asserted exclusive jurisdiction over the challenges to the WOTUS Rule. Petitioner’s briefs are currently due on April 13, 2017, and the case will continue to be briefed over the next several months. Although the substance of the WOTUS Rule will most likely change per the direction in President Trump’s Executive Order, the jurisdiction for hearing future challenges will be determined by the U.S. Supreme Court, making the path of future litigation more clear.

CATEGORIES: Real Estate and Environment, Water

PEOPLE: Allison A. Torrence

March 23, 2017 U.S. Water Risks: It's Not Only About Flint

Lynn Grayson Photo

World Water Day 2017

By E. Lynn Grayson

By and large, Americans are blessed with clean, safe, plentiful and mostly free drinking water sources. The Flint, Michigan contaminated drinking water scandal was a wakeup call for many that drinking water sources we depend upon may not be as reliable, stable, or even as affordable as we think.

On December 19, 2016, Reuters released a startling report about the quality of America’s drinking water. Reuters' investigation found that at least 3,000 water supplies in the U.S. were contaminated with lead at levels at least double the rates detected in Flint’s drinking water. In addition, 1,100 of these communities had rates of elevated lead in blood tests at least four times higher. Reuters concluded that Flint’s water crisis doesn’t even rank among the most dangerous lead hotspots in the U.S. Like Flint, however, many of the other localities are plagued by legacy lead: crumbling paint, plumbing, or industrial wastes left behind. Unlike Flint, many have received little attention or funding to combat poisoning.

Another critical issue looming on the horizon for many will be the affordability of water. A new Michigan State University (MSU) report recently concluded that a variety of compounding factors in the U.S. could easily push large portions of the population out of the financial range to even afford water in the future. The MSU report concludes:

A variety of pressures ranging from climate change, to sanitation and water quality, to infrastructure upgrades, are placing increasing strain on water prices. Estimates of the costs to replace aging infrastructure in the U.S. alone project over $1 trillion dollars are needed in the next 25 years to replace systems built circa World War II, which could triple the cost of household water bills…. Over the next few decades, water prices are anticipated to increase four times current levels. Prices could go higher if cities look to private providers for water services, who have a tendency to charge higher rates than public providers.

The MSU report concludes that 36% of households will be unable to afford water within five years. The highest risk areas in the U.S. are in the South, with the most at-risk communities in Mississippi. The MSU report noted that Ohio is 9th on the list, followed by Michigan at 12th.

Water risks come in many forms and include not only sufficient quantities and acceptable quality, but also affordability. The latter issue has not been addressed in a meaningful manner in the U.S. and will become a growing concern as water risks of all kinds increase in number and scope.

CATEGORIES: Climate Change, Consumer Law and Environment, Hazmat, Real Estate and Environment, Sustainability, Water

March 22, 2017 Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water

Allison Torrence PhotoBy Allison A. TorrenceCompact Council

As previously reported here, the Great Lakes and St. Lawrence Cities Initiative (the Cities Initiative) requested a hearing before the Great Lakes-St. Lawrence River Basin Water Resources Council (the Compact Council) regarding the Compact Council’s June 21, 2016 decision to approve the City of Waukesha’s application for a diversion of Great Lakes Basin Water. The Waukesha diversion is the first-ever diversion of Great Lakes water approved under the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). Under the approved diversion, the City of Waukesha can divert up to 8.2 million gallons per day (annual average demand) from Lake Michigan.

On March 20, 2017, after extensive briefing by the Cities Initiative and the City of Waukesha, the Compact Council held a hearing and allowed oral argument by the parties. The Cities Initiative is a binational coalition of 127 U.S. and Canadian mayors and local officials, representing over 17 million people, working to advance the protection and restoration of the Great Lakes and St. Lawrence River. The Cities Initiative argued that the Compact Council should reconsider its decision to grant the diversion and clarify the standards used to evaluate the Waukesha diversion application as well as the standards it will use to evaluate diversion requests in the future. The City of Waukesha argued that the Compact Council acted reasonably to approve the diversion.

The Compact Council took the matter under advisement at the close of arguments and indicated it likely will issue a written decision in early May.

Jenner & Block is representing the Cities Initiative in this matter, and Jenner Partner Jill Hutchison argued on behalf of the Cities Initiative at the hearing.

News reports on the hearing are available here and here.

CATEGORIES: Sustainability, Water

PEOPLE: Allison A. Torrence