World Water Day: The Global Risks Report 2017
By E. Lynn Grayson
Today is World Water Day as proclaimed by the United Nations (UN) General Assembly in 1993. World Water Day is about taking action to tackle the global water crisis. Today, 1.8 billion people rely upon a drinking water source that is contaminated putting them at risk for cholera, dysentery, typhoid and polio. The UN Sustainability Development Goals launched in 2015 include a target to ensure everyone has access to safe water by 2030.
The World Economic Forum also has targeted water and water risks as one of the leading global risk factors as recently confirmed in its The Global Risks Report 2017. The Global Risks Report 2017 features perspectives from nearly 750 experts on the perceived impact and likelihood of 30 prevalent global risks as well as 13 underlying trends that could amplify them or alter the interconnections between them over a 10-year timeframe. The report notes that a cluster of environment-related risks—notably extreme weather events and failure of climate change mitigation and adaptation as well as water crisis—has emerged as a consistently central feature of the Global Risks Perception Survey risk landscape.
In 2017, water crises were identified as the third most significant risk based upon potential impacts. In doing so, the experts concluded that there had been “…a significant decline in the available quality and quantity of fresh water, resulting in harmful effects on human health and/or economic activity….”
World Water Day provides a good opportunity to reflect upon how we use water at home and work and in our businesses. It is becoming an increasingly precious natural resource that must be protected and conserved.
CDP A-List: Why It Matters
By E. Lynn Grayson
The Carbon Disclosure Project’s (CDP’s) Global Water Report 2016 titled Thirsty Business: Why Water is Vital to Climate Action analyzes water disclosures made through the CDP’s 2016 information request. It was aimed at companies facing water risks and opportunities and investors seeking to better understand how water issues might impact portfolios. The report provides insight into the connection between water, energy and private sector efforts to reduce carbon emissions.
Key findings from these corporate water disclosures include:
Water related risks cost business $14 billion dollars in 2016—a fivefold increase over prior year’s costs (These financial impacts come from drought, flooding, tightening environmental regulation and the cost of cleaning up water pollution and fines)
24% of greenhouse gas reductions depend on a stable supply of good quality water
53% of companies report better water management in the context of delivering greenhouse gas reductions
The CDP report evaluates corporate performance over five key metrics relating to water management, including tracking water use, reporting and target-setting. In 2016, 61% of companies reported that they track their water use , an increase of 3% over last year.
Ford and Colgate Palmolive are among the best companies in the world when it comes to water management, according to the CDP’s Water A List. The annual index highlights companies implementing best practices in sustainable water management. In 2016, 24 companies made the CDP Water A List, up from eight last year. Ford and Colgate Palmolive are the only two U.S. companies identified on the A List in 2016.
So what can companies do to better manage and reduce their water-related risk? The first step is assessing water use and setting measurable targets. But unlike corporate carbon emissions, there really is no standard methodology that business relies upon to measure and monitor water use. CDP has partnered with the UN CEO Water Mandate, The Nature Conservancy, World Resources Institute and WWF to develop a methodology that will help companies set context-based water targets — essentially a science-based targets approach to water management. In light of company disclosures confirming that 54% of the 4,416 water risks identified will materialize over the next six years, there should be no shortage of corporate interest in test-driving the upcoming water methodology.
World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series
By E. Lynn Grayson
World Water Day, held on March 22 every year, is about taking action to tackle the water crisis. Today, there are over 663 million people living without a safe water supply close to home, spending countless hours queuing or trekking to distant sources, and coping with the health impacts of using contaminated water.
In recognition of World Water Day 2017, the Corporate Environmental Lawyer blog plans to run a weeklong series focused on the critical issues concerning water quality and quantity in the U.S. and globally. This year’s theme for World Water Day is wastewater.
Globally, the vast majority of all the wastewater from our homes, cities, industry and agriculture flows back to nature without being treated or reused—polluting the environment and losing valuable nutrients and other recoverable materials.
Instead of wasting wastewater, we need to reduce and reuse it. In our homes, we can reuse greywater on our gardens and plots. In our cities, we can treat and reuse wastewater for green spaces. In industry and agriculture, we can treat and recycle discharge for things like cooling systems and irrigation.
By exploiting this valuable resource, we will make the water cycle work better for every living thing. And we will help achieve the United Nation's Sustainable Development Goal 6 target to halve the proportion of untreated wastewater and increase water recycling and safe reuse.
Learn more about the importance of how we manage wastewater by viewing this fact sheet.
Trump Adminstration: 2017 Insights
By E. Lynn Grayson
This week I published an article in the Chicago Daily Law Bulletin Trump election puts environment into less than green state. In this article, I discuss my thoughts on environmental issues during the transition from the Obama Administration to the Trump Administration. I specifically address: 1) what authority President Trump has to implement environmental changes; 2) what environmental actions have been taken to date; 3) insights into future environmental changes we are likely to see; and 4) reaction from the environmental community.
If you would like to hear more about what’s happening on the environmental front in the Trump administration, please join us next Tuesday, March 7 at Noon for a program titled Environmental, Health & Safety Issues in 2017: What to Expect From the Trump Administration. My partners Gay Sigel, Steve Siros and Allison Torrence will be providing the latest updates on what we know and what we can anticipate from the Trump administration in connection with environmental, health and safety considerations.
If you would like to join us for this program or participate via webinar, please RSVP here.
Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program
By E. Lynn Grayson
Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.
Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.
Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center
For more information about the program and to RSVP, please connect here.
Trump Overturns Stream Protection Rule
By E. Lynn Grayson
Last week, President Trump repealed the stream protection rule designed to halt water pollution caused by mountain top removal mining. Using the Congressional Review Act authority, he stopped implementation of a rule that would have restricted the placement of mining waste in streams and drinking water sources, as well as the amount of waste generated overall by mining operations.
Arguably, a law exists that prohibits mining-related discharges to waterways. The 1977 Surface Mining Control and Reclamation Act says that mining companies should not cause "material damage to the environment to the extent that it is technologically and economically feasible." The new stream protection rule was needed since many believed the Act’s existing language was vague and did not provide sufficient protections. Moreover, critics charged that the agency responsible for enforcing this law, the Office of Surface Mining Reclamation and Enforcement (OSMRE), had not clarified the scope and interpretation of the law since publishing the “stream buffer zone rule” in 1983.
The repeal means that the OSMRE will return to reliance upon the 1983 version of the stream protection rule which prevents mining activities within 100’ of a stream. Environmental groups and others claim that the existing rule is not protective of streams from mining-related discharges.
What is particularly notable about President Trump’s repeal of this rule is the fact it is only the third time that the Congressional Review Act (CRA) has been used to claw back a former president’s regulation. The CRA basically says the House and Senate can kill any recently finalized regulation with simple majority votes in both chambers, so long as the president agrees. What is interpreted to mean recently finalized can be challenging , but Congress can basically vote to overturn any Obama-era regulation that was finished on or about June 2016. It appears that this timing impacts at least 50 new regulations.
Scott Pruitt Confirmed by Senate to Lead EPA
By Allison A. Torrence
Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.
As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.
Mr. Pruitt’s confirmation came after a flurry of activity related to his nomination over the past several days. On Thursday, a federal judge ordered the Oklahoma Attorney General’s office to release thousands of emails related to Mr. Pruitt’s communications with fossil fuel companies while Attorney General. Senate Democrats wanted to delay Mr. Pruitt’s confirmation vote until after those emails were made public, and held an all-night session of the Senate to voice their concerns over Mr. Pruitt. However, when a motion to extend debate and delay Mr. Pruitt’s confirmation vote until February 27th was put forward by the Senate Democrats, the motion was voted down and the confirmation vote went forward today.
One of the first orders of business for Administrator Pruitt will be to review recent and pending EPA regulations that have been subject to the Trump Administration’s “Regulatory Freeze Pending Review.” As we previously reported here, all pending EPA regulations that have not yet been published in the Federal Register are on hold, and all EPA regulations that have been published in the Federal Register but had not reached their effective date (as of January 26, 2017) have be delayed until March 21, 2017.
Administrator Pruitt’s biography is already posted at EPA’s website. The biography sates that:
Administrator Pruitt believes that promoting and protecting a strong and healthy environment is among the lifeblood priorities of the government, and that EPA is vital to that mission.
As Administrator, Mr. Pruitt’s overarching goal is to lead EPA in a way so that our future generations inherit a better and healthier environment, as he works with the thousands of dedicated public servants at EPA who have devoted their careers to helping realize this shared vision, while faithfully administering environmental laws.
The EPA website also invites the public to join the new Administrator on Tuesday, February 21, 2017 at noon ET, as he addresses EPA employees, and to “stay tuned” for more information.
New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t
By Steven M. Siros
In a February 11, 2017 letter to U.S. EPA, New York Governor Andrew Cuomo indicated that if U.S. EPA didn’t move promptly to establish a federal maximum contaminant level (MCL) for 1,4-dioxane, New York would be forced to set its own MCL for drinking water in the state. Governor Cuomo pointed to a perceived regulatory gap, noting that New York has expended tremendous resources to address unregulated emerging contaminants such as 1,4-dioxane, PFOA and PFOS. The Governor also noted that water systems serving fewer than 10,000 people are not required to test for unregulated contaminants such as 1,4-dioxane but that New York was moving forward with a plan to require all public water systems on Long Island to test for these unregulated contaminants regardless of size. 1,4-dioxane is alleged to have been found in 40 percent of the public water supplies in Suffolk County.
1,4-dioxane is one of several emerging contaminants that does not currently have an MCL. 1,4-dioxane is a stabilizer that is commonly associated with the chlorinated solvent trichloroethane (TCA). However, it is also commonly found in shampoos, cosmetics, and other personal care products. In the absence of federal regulation, 1,4-dioxane regulatory levels vary from state to state. For example, Michigan recently lowered its 1,4-dioxane regulatory limit from 85 parts per billion (ppb) to 7.2 ppb. Other states have lower limits still, with Massachusetts having set a regulatory limit for 1,4-dioxane of 0.3 ppb.
This patchwork of standards illustrates the challenges that the regulated community faces in the absence of federal action to set an acceptable MCL for 1,4-dioxane and other emerging contaminants. It remains to be seen if the Trump administration will follow through with its expressed intent of relying to the states to implement and enforce environmental rules and regulations or if the administration will recognize the benefits to the regulated community of consistency, at least with respect to drinking water standards.
Happy New Year from the Corporate Environmental Lawyer Blog
By Steven M. Siros and Allison A. Torrence
As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.
2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.
Our five most popular blogs from 2016 were:
EPA Lacks Authority to Regulate Plastic Microbeads in Water, by E. Lynn Grayson
Court Orders New EPA Spill Prevention Rules, by E. Lynn Grayson
Bipartisan TSCA Reform Act Signed by President Obama, by Allison A. Torrence
Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman
ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes, by Alexander J. Bandza
As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.
We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:
The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.
We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.
Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
By Allison A. Torrence
Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:
Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
Regulations that have been sent to the Federal Register but not published will be withdrawn.
Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).
Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.
U.S. EPA Says Sorry But We Don’t Have to Pay for Gold King Mine Spill
By Steven M. Siros
On Friday, January 13, 2017, notwithstanding its previous promises to take full responsibility for the Gold King Mine environmental spill, U.S. EPA, with guidance from the United States Department of Justice, concluded that it was not legally liable to pay compensation for administrative claims for the Gold King Mine disaster under the Federal Tort Claims Act. According to U.S. EPA, the Federal Tort Claims Act does not authorize damages for discretionary acts by federal agencies (i.e., actions which require the exercise of judgment on the part of the agency). Because U.S. EPA was conducting a site investigation of the gold mine pursuant to CERCLA, the agency’s actions are considered a discretionary function under the law (at least according to U.S. EPA).
Not surprisingly, this action by U.S. EPA was blasted by New Mexico lawmakers and the Navajo nation with lawmakers vowing to continue to press for legislation that would hold U.S. EPA fully accountable for the spill. Moreover, U.S. EPA’s conclusion that it has no responsibility for administrative claims is likely to be challenged as aggrieved parties have six months from the date of denial to challenge U.S. EPA’s decision.
Please click here to see U.S. EPA’s public statement concerning its liability conclusion with respect to the Gold King Mine spill.
Special Master Orders Settlement Talks in Florida/Georgia Water Dispute
By E. Lynn Grayson
There is a new development in the continuing conflict between Florida and Georgia over the water-sharing arrangements involving the Chattahoochee, Flint, and Apalachicola Rivers. A U.S. Supreme Court-appointed special master has ordered the parties to participate in settlement discussions following a lengthy trial at the end of last year. Special Master Ralph Lancaster directed the states to meet for mediation by January 24 and to submit a memorandum to him by January 26 on the progress of settlement discussions.
Florida’s latest lawsuit filed in 2013 accused Georgia of hogging water from the Chattahoochee and Flint rivers to the economic and ecological detriment of the downstream Apalachicola River basin. Florida seeks a reliable amount of water from Georgia as well as a cap on metro Atlanta’s and/or southwest Georgia’s consumption of water. Florida claims that reduced water levels and resulting increased salinity in Apalachicola Bay have significantly damaged the oyster population and pose threats to mussels and other species.
Interested parties believe that a compromise can be reached here with the creation of a compact that monitors and advances water-saving measures across the basin. At the heart of the dispute are two issues: how much water flows from Georgia into Florida, and should Georgia cap the amount of water it consumes. To date, Georgia has appeared unwilling, at least publicly, to address caps and consumption issues.
Ever present water disputes between states are increasing in light of growing water scarcity concerns as well as quality and quantity challenges. The U.S. Supreme Court (SCOTUS) is seeing more of these original jurisdiction cases as conflicts arise between states over water rights and interstate compact interpretations. At least five cases appear to be pending before SCOTUS at this time involving not only Florida and Georgia but also Montana, Wyoming, Texas, New Mexico, Mississippi, Tennessee, and Colorado.
U.S. EPA Collects $6B in Penalties in 2016
By Steven M. Siros
According to U.S. EPA’s annual enforcement report, U.S. EPA collected approximately $6 billion in civil penalties and required companies to expend in excess of $13.7 billion for pollution control investments in 2016. U.S. EPA’s 2016 collections represented a significant increase over 2015, when U.S. EPA only collected $207 million in civil penalties. The significant increase in 2016 was mainly attributable to a record $5.6 billion Clean Water Act penalty assessed against BP for the Deepwater Horizon event. It is also important to note that the $13.7 billion in pollution control investments doesn’t include the approximately $15 billion that Volkswagen has agreed to expend, because those amounts will primarily be expended in 2017.
Notwithstanding the spike in civil penalties, inspections and evaluations continue their downward trend with approximately 13,500 inspections and evaluations taking place in 2016, as compared with nearly 20,000 in 2012. Pollution reduction also continues to its downward trend with U.S. EPA only requiring companies to reduce releases of pollution by 324 million pounds per year—a result that U.S. EPA attributes to a continuing focus on toxic pollutants which come from smaller volume emitters.
Please click here to see a copy of U.S. EPA’s 2016 enforcement report.
President Obama Bans Drilling in Over 100 Million Acres of the Arctic and Atlantic Oceans
By Allison Torrence
On December 20, 2016, President Obama announced that he was using his authority under the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.) to prohibit drilling and oil exploration in certain areas of the Arctic and Atlantic Oceans. President Obama’s action was coordinated with Canada, where Prime Minister Trudeau announced a similar ban in Canada’s Arctic waters. The action will ban drilling in approximately 115 million acres of the Arctic Ocean, which represents 98% of federally owned Arctic waters, and 3.8 million acres of the Atlantic coast around a series of sensitive coral canyons.
The Outer Continental Shelf Lands Act (“OCS Act”) was passed in 1953 to protect the waters above the outer continental shelf – submerged lands beginning 3 miles from shore and extending to the 200-mile international-waters boundary. 43 U.S.C. § 1331(a). The OCS Act states that:
"The outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs." 43 U.S.C. § 1332(3).
The OCS Act generally allows the federal government to grant oil and gas leases, following certain procedures, in the outer continental shelf. However, the OCS Act also states that:
"The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf." 43 U.S.C. § 1341(a).
President Obama is using the authority granted the President under Section 1341(a) to implement the massive ban of drilling in the Arctic and Atlantic Oceans. The ban will not impact any existing oil and gas leases in these areas, but will prevent the federal government from granting any new leases. Notably, the OCS Act does not state whether a future President can reinstate lands that have been “withdrawn from disposition.”
President Obama’s ban, and any attempt by the next President to reinstate the subject areas to oil and gas leases, will likely face legal challenges in court. There is little precedent for challenging these types of actions under the OCS Act, so any court ruling will be entering uncharted waters. In addition, President Obama’s ban could spur the Republican-led Congress to try to amend the OCS Act.
The White House statement on the joint efforts of the United States and Canada to protect the Arctic is available here.
U.S. EPA Issues Final Rule Adding Vapor Intrusion to NPL Site Scoring System
By Steven M. Siros
In a move that should not come as a great surprise, on December 7, 2016, U.S. EPA published a final rule which added a "subsurface intrusion” or “SsI" component to CERCLA’s Hazard Ranking System (HRS). More specifically, SsI can include either groundwater or vapor intrusion although vapor intrusion is the much more common exposure pathway. The new rule, which can be found here, will become effective within 30 days of publication in the federal register. According to U.S. EPA Waste Chief Mathy Stanislaus, the new rule expands the types of sites that be assessed by U.S. EPA to now include sites that solely have SsI issues, as well as sites that have SsI issues that are coincident with a groundwater or soil contamination problem.
The final rule is substantially similar to the draft rule but does have minor adjustments that were made in response to comments which U.S. EPA contends will better “help refine the mechanics of assigning an HRS site score.” Importantly, the new rule doesn’t change the existing HRS cutoff score of 28.5 for a site to qualify for listing on the NPL, nor does the new rule apply to sites that are already on or proposed to be listed on the NPL.
Industry groups and the Department of Defense had objected to the draft rule, and it is unclear whether the new rule will be retained or modified under the incoming Trump administration. We will continue to track this and other rulemaking efforts on the part of U.S. EPA as the administration continues to transition.