April 22, 2022 Embracing the Winds of Change Through Investments in the United States’ Energy Future

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By Matthew G. Lawson

 

Earth Week
“When the wind of change blows, some people build walls, others build windmills.” While this ancient Chinese proverb most likely did not envision the construction of large-scale, offshore wind farms, its wisdom remains strikingly applicable to the United States’ energy and infrastructure policies in the 21st Century.  At a time of growing concern over fossil fuel availability, climate change and energy grid security, the Corporate Environmental Lawyer is taking a moment during Earth Day 2022 to look towards our nation’s investment into improved infrastructure and clean, self-sustaining energy sources.

Undoubtably one of the largest recent, public investments in the United States’ infrastructure and energy future occurred on November 15, 2021, when President Biden signed into law the bipartisan and highly anticipated $1.2 trillion Infrastructure Investment and Jobs Act.  According to the bill’s Summary, over the next five years, the legislation will provide significant infrastructure investments, including an additional $110 Billion in funding towards bridge and roadway repairs, along with approximately $30 Billion in public transportation.  In addition, the bill allocates approximately $65 Billion to the Country’s power infrastructure, with nearly $29 billion dedicated solely to bolstering and protecting the electric grid.  Finally, the bill includes $7.5 billion to deploy a national network of electric vehicle chargers across highway corridors throughout the United States.

Perhaps even more critical than the legislation’s investment is infrastructure spending, is its investment in future clean energy sources.  Funds allocated through 2025 for clean energy projects include $84,000,000 for enhanced geothermal systems, $100,000,000 for wind energy, and $80,000,000 for solar energy. Moreover, the Biden Administration is betting big on “Clean hydrogen”—an emerging form of clean energy that utilizes surplus from other renewable sources to create additional power by splitting water molecules—by earmarking approximately $8 million in funding for investment in the technology.

Looking beyond the United States’ public infrastructure investments, private investment into clean-energy assets also skyrocketed in 2021, reaching a record $105 billion.  This investment represents an 11% jump from 2020 and a 70% surge during the past five years, according to the Business Council for Sustainable Energy. Private backing into U.S. assets such as wind farms and solar plants represents about 14% of the $755 billion in global private investment made last year, including investment in the United States’ first commercial-scale offshore windfarm, the 30 MW Block Island Wind Farm, which is set to supply power to the energy grid by 2023.  The project is the first of what the Department of Energy (DOE) anticipates being a major rollout of privately-funded offshore wind, including an estimated addition of more than 30 gigawatts of offshore wind power by the year 2030.

At a time when Americans are increasingly feeling pessimistic about the future of our Country, it is important to embrace the opportunity for bilateral agreement presented through future investments in the nation’s infrastructure and clean energy.  Safe roads, reliable energy grids, clean air and new jobs are an area of common agreement between Americans at a time when such agreements appear to be increasingly rare.  As a nation, we would do well to embrace our changing world and new challenges by investing in ourselves and our future.

CATEGORIES: Air, Real Estate and Environment, Sustainability, Water

PEOPLE: Allison A. Torrence

April 19, 2022 Earth Week Series: The Future of Environmental Regulation

Torrence_jpgBy Allison A. Torrence

Earth Week
As we near Earth Day 2022, the United States may be headed toward a profound change in the way EPA and similar administrative agencies regulate the complex areas of environmental law. EPA began operating more than 50 years ago in 1970, and has been tasked with promulgating and enforcing some of the most complex regulations on the books. From the Clean Air Act to the Clean Water Act; to CERCLA and RCRA and TSCA; and everything in between.

EPA has penned voluminous regulations over the past 50 years to implement vital environmental policies handed down from Congress—to remarkable effect. While there is certainly progress left to be done, improvements in air and water quality in the United States, along with hazardous waste management, has been impressive. For example, according to EPA data, from 1970 to 2020, a period in which gross domestic product rose 272% and US population rose 61%, aggregate emissions of the six criteria pollutants decreased by 78%.

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(source: epa.gov)

For the past 50 years the environmental administrative law process has worked mostly the same way: First, Congress passes a law covering a certain environmental subject matter (e.g., water quality), which provides policy objectives and a framework of restrictions, prohibitions and affirmative obligations. Second, EPA, the administrative agency tasked with implementing the environmental law, promulgates detailed regulations defining terms used in the law and explaining in a more comprehensive fashion how to comply with the obligations outlined in the statute. Depending on the subject matter being addressed, Congress may leave more details up to EPA, as the subject matter expert, to fill in via regulation. In some instances, there is a third step, where additional authority is delegated to the states and tribes to implement environmental regulations at the state-level based on the framework established by Congress and EPA. Occasionally someone thinks EPA overstepped its authority under a given statute, or failed to act when it was supposed to, and litigation follows to correct the over or under action.

Currently, this system of administrative law is facing challenges from parties that believe administrative agencies like EPA have moved from implementing Congress’s policy to setting their own. The most significant such challenge has come in the consolidated Clean Air Act (“CAA”) cases pending before the U.S. Supreme Court, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780.[1] In West Virginia v. EPA, challengers object to the Obama-EPA’s Clean Power Plan (“CPP”), which used a provision in the New Source Performance Standards (“NSPS”) section of the CAA to set greenhouse gas emission standards for existing power plants. The biggest issue with the CPP, according to challengers, is that the new standards would require many operators to shut down older coal-fired units and shift generation to lower-emitting natural gas or renewable units. Challengers, which include several states, power companies and coal companies, argue the CPP implicates the “major questions doctrine” or “non-delegation doctrine”. These doctrines provide that large-scale initiatives that have broad impacts can't be based on vague, minor, or obscure provisions of law. Challengers argue that the NSPS provision used as the basis for the CPP is a minor provision of law that is being used by EPA to create a large-scale shift in energy policy. EPA argues that, although it is currently revising its greenhouse gas regulations, the actions taken in the CPP were authorized by Congress in the CAA, are consistent with with the text of the CAA as written, and do not raise the specter of the major questions or non-delegations doctrines.

While this case will certainly dictate how EPA is permitted to regulate greenhouse gases under the CAA, it will likely have broader impacts on administrative law. On the one hand, the Court may issue a narrow opinion that evaluates the CPP based on the regulations being inconsistent with the text or intent of the CAA. On the other hand, the Supreme Court may issue a broader opinion that invokes the major questions or non-delegation doctrines to hold that based on the significant-impacts of the regulation, it is an area that should be governed by Congress, not an administrative agency. If the Supreme Court takes the latter route, it could set more limits on Congress’s ability to delegate regulatory authority to administrative agencies like EPA.

Indeed, in the Supreme Court’s recent decision on the OSHA emergency temporary standard on employer vaccine or test mandate (“the OSHA ETS”), Ohio v. Dept. of Labor, et al., 595 U.S. ____ (2022), the Court struck down an administrative regulation in a preview of what might be coming in the EPA CAA case. As everyone knows by now, the Supreme Court struck down the OSHA ETS, holding it was an overstep of the agency’s authority to regulate safety issues in the workplace. The Court’s opinion focused on the impact of the OSHA ETS—that it will impact 84 million employees and it went beyond the workplace—instead of the statutory language. The Court stated, “[i]t is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” Slip op. at 8.  

Justices Thomas, Alito and Gorsuch invoked the major questions doctrine in their concurring opinion, stating that Congress must speak clearly if it wishes to delegate to an administrative agency decisions of vast economic and political import. In the case of OSHA and COVID-19, the Justices maintained that Congress did not clearly assign to OSHA the power to deal with COVID-19 because it had not done so over the past two years of the pandemic. Notably, the fact that when Congress passed the Occupational Safety and Health Act, it authorized OSHA to issue emergency regulations upon determining that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful” and “that such emergency standard[s] [are] necessary to protect employees from such danger[s]”, was not a sufficient basis for the Court or the three consenting Justices. In their view, in order to authorize OSHA to issue this vaccine or test mandate, Congress had to do more than delegate to OSHA general emergency powers 50 years ago, but instead would have had to delegate authority specific to the current pandemic.

Applying this logic to EPA and the currently-pending CAA case, Justices Thomas, Alito and Gorsuch may conclude that provisions of the CAA written 50 or 30 years ago, before climate change was fully on Congress’s radar, should not be used to as the basis for regulations that impact important climate and energy policy. Of course, many questions remain: Will a majority of the court adopt this view, and how far they will take it? If Congress can’t delegate climate change and energy policy, what else is off the table—water rights? Hazardous waste? Chemical management? If Congress can’t delegate to EPA and other administrative agencies at the same frequency as in the past, how will Congress manage passing laws dealing with complex and technical areas of law?

All of these questions and more may arise, depending on how the Supreme Court rules in West Virginia v. EPA. For now, we are waiting to see what will happen, in anticipation of some potentially significant changes on the horizon.

 

[1] Jenner & Block filed an Amicus Curiae brief in this case on behalf of Former Power Industry Executives in support of EPA.

CATEGORIES: Air, Cercla, Climate Change, Contamination, COVID-19, Emerging Contaminants, Greenhouse Gas, OSHA, RCRA, TSCA, Water

PEOPLE: Allison A. Torrence

April 18, 2022 Earth Week Series: Imagine a Day Without Environmental Lawyers

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By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Earth Week
On this 52nd anniversary of Earth Day, I am not writing yet another, typically not very funny, riff on one of Shakespeare’s most famous lines.[1] Instead, I am inspired by one of the most popular of our blogs, written in 2017 by our talented former partner, E. Lynn Grayson, “Imagine a Day Without Water.” To start our Earth Week series of daily blogs by our firm’s EHS department, I offer words of hope and gratitude for the vast amount of work that has been done to improve and protect the environment – work done by lawyers, scientists, policy makers, and members of the public, to name a few.

Imagine what lawyers and scientists faced in 1970, the year of the first Earth Day. There was oppressive soot and polluted air throughout urban and industrial areas in the United States. The Cuyahoga River was so blighted it had caught fire. Although there was a new federal Environmental Protection Agency and two new environmental statutes – the National Environmental Policy Act and the Clean Air Act, one of the most highly complex and technical statutes ever written – both needed an entire regulatory structure to be created in order to be operationalized and enforced. This foundational work had to be done when there was not even an accepted method for determining, much less regulating, environmental and public health risk. Then two years later, in 1972, a comprehensively overhauled Clean Water Act was enacted, followed within the next decade by TSCA, RCRA, and CERCLA, to address the consequences of past waste and chemical use, and to control their future more prudently. Other laws were also passed in that time period, including the Safe Drinking Water Act and the Endangered Species Act.

Although Earth Day was created in the U.S. – the idea of Senator Gaylord Nelson (WI-D) and supported by Representative Pete McCloskey (CA-R) (both lawyers) and grass roots organizers – environmental consciousness also was growing worldwide. The 1972 Stockholm Declaration, from the first UN Conference of the Human Environment, recognized the importance of environmental protection amid the challenge of economic disparities. That work, including of the United Nations Environment Programme, led to the 1992 “Earth Summit” issuing the Rio Declaration on Environment and Development, which adopted a focus on sustainable development and the precautionary approach to protecting the environment in the face of scientific uncertainty, and creating the United Nations Framework Convention on Climate Change, which itself led to the 1997 Kyoto Protocol and the 2015 Paris Agreement, as well as other global efforts focusing on climate change and resource conservation.

Thus, within a split-second on our earth’s timeline, humans were able to tangibly improve and focus attention on the environment, through laws, agreements, governmental and private commitments, and public support. I note these developments, which were stimulated by lawyers on all sides, not to naively suggest that the global climate change, water accessibility, toxic exposure, and other environmental challenges that we face today can easily be solved, nor do I suggest that only lawyers can provide the solution. Instead, let’s take hope from the fact that in fewer years than the average for human life expectancy, there have been significant environmental improvements in our air, land, and water, and our collective focus on preserving the planet has been ignited.

These past efforts have improved the environment – not perfectly, but demonstrably. The legal structure that helped make these improvements happen has worked – not perfectly, but demonstrably. Hopefully, we will continue to work on these issues, despite their seeming intractability, under a system of national laws and global agreements. The alternative is too painful to contemplate.

Closing on a personal note, our firm’s Environmental Law Practice lost one of the best environmental lawyers in the profession, when Stephen H. Armstrong passed away last week. Steve was one of the first in-house environmental counsel I had the opportunity to work with when I began my focus on environmental law in the 1980s. He demonstrated how to respect the science, embrace the legal challenges, fight hard for your client, and always act with integrity. Although I was a young woman in a relatively new field, he consistently valued my opinions, supported my professional development, and with his deep, melodious laugh and sparkle in his eye, made working together feel like we shared a mission. And a ”mission” it was for him; I have never met any lawyer who cared more or wrestled harder about their clients’ position, while always undergirded by a deep reverence for doing the right thing. Once he joined our firm more than a decade ago, he continued being a role model for all of us. Our firm’s Environmental Law Practice, and all those who worked with him, will miss having him as a devoted colleague, friend, and mentor. Our earth has been made better for his life on it.

 

[1]“The first thing we do, let’s kill all the lawyers.” William Shakespeare, Henry VI, Part 2, Act Iv, Scene 2 (circa 1591).

CATEGORIES: Air, Cercla, Climate Change, Contamination, Emerging Contaminants, Greenhouse Gas, Groundwater, NEPA, RCRA, Sustainability, TSCA, Water

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

April 15, 2022 U.S. EPA’s Addition of 1-BP to CERCLA Hazardous Substance List Likely Precursor to Similar Actions on PFAS

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

Epa

On April 8, 2022, U.S. EPA added the industrial solvent 1-bromopropane (1-BP) to its list of CERCLA hazardous substances; this listing was triggered by U.S. EPA’s decision to add 1-BP to the Clean Air Act’s list of hazardous air pollutants in January 2022. The addition of 1-BP to the Clean Air Act’s list of hazardous air pollutants may have come as a bit of a surprise since U.S. EPA hasn’t added a new pollutant to the hazardous air pollutant list since the list was originally promulgated in 1990. However, once on the Clean Air Act list of hazardous air pollutants, the pollutant automatically falls with the CERCLA definition of “hazardous substances”. In addition to adding 1-BP to the list of hazardous substances in Table 302.4 in the Code of Federal Regulations, U.S. EPA set a CERCLA reportable quantity for 1-BP at one pound (the CERCLA statutory default).

The manner in which U.S. EPA treats 1-BP at CERCLA sites may be illustrative as to how U.S. EPA will treat PFOS and PFOA, two PFAS compounds that are currently under consideration for listing as CERCLA hazardous substances. Will U.S. EPA add 1-BP to the CERCLA required analyte list at all Superfund sites or will U.S. EPA adopt a more selective approach by relying on Toxics Release Inventory (TRI) data to identify nearby sites or manufacturing facilities that may have used the industrial solvent? The more likely scenario is that U.S. EPA will utilize some screening criteria to determine whether to sample for 1-BP but how wide of a  1-BP net that U.S. EPA decides to cast remains to be seen.

1-BP is also a volatile substance so U.S. EPA could also rely on the new listing to reopen and investigate sites for potential vapor intrusion concerns. However, it is unlikely that a site would be reopened solely on the basis of 1-BP vapor intrusion risks.

We will continue to track how U.S. EPA elects to address 1-BP at Superfund sites in an effort to gain insight as to how U.S. EPA may approach future hazardous substance designations at the Corporate Environmental Lawyer.

CATEGORIES: Air, Cercla, Climate Change, Contamination, Emerging Contaminants, Hazmat, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

March 23, 2022 U.S. EPA Releases “ECHO Notify” to Increase Public Awareness of Enforcement Related Information

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

Echo

On March 22, 2022, U.S. EPA released a new web tool designed to ensure that information regarding environmental violations and enforcement actions is more readily available to the public. The new tool, called ECHO Notify, allows users to sign up for weekly emails when new information is available with respect to violations of environmental statutes or enforcement actions in a specific geographic area or with respect to a particular facility. 

ECHO Notify provides information on both state and federal enforcement and compliance activities under the following programs: Clean Air Act (stationary sources), Clean Water Act (point sources), Resource Conservation and Recovery Act (hazardous waste handlers), and Safe Drinking Water Act (public water system). The tool provides U.S. EPA-specific enforcement-related information with respect to other environmental statutes. 

In a press release that accompanied the release of the new tool, U.S. EPA Administrator Michael Regan stated that “EPA is committed to empowering communities with the information they need to understand and make informed decisions about their health and environment.” Administrator Regan went on to state “EPA has developed ECHO Notify so that finding updates on environmental enforcement and compliance activities is as easy as checking your email.” 

This new tool is another example of U.S. EPA’s continued focus on environmental justice communities and its desire to ensure that information regarding environmental compliance and enforcement activities is readily available to those communities. We will continue to provide updates regarding U.S. EPA initiatives at the Corporate Environmental Lawyer.

CATEGORIES: Air, Climate Change, Contamination, Emerging Contaminants, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

February 9, 2022 Heightened Risk to the Regulated Community: U.S. EPA Overfiling

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

EpaIn what could portend significant risk to the regulated community, a recent “overfiling” by U.S. EPA in connection with a Clean Air Act (CAA) settlement between the Louisiana Department of Environmental Quality (LDEQ) and a steel plant should at a minimum cause the regulated community to be cautious when entering into settlement agreements with state regulators. On January 24, 2022, U.S. EPA Region 6 filed a Notice of Violation (NOV) alleging that a steel plant in Louisiana was emitting excess hydrogen sulfide, sulfuric acid mist and sulfur dioxide in violation of the plant’s CAA Title V permit. 

Back in October 2021, the Tulane Environmental Clinic had filed a formal request that U.S. EPA exercise its overfiling and supervisory authority pursuant to 42 U.S.C. § 7413(a)(a), (b), and (d) on the basis that the LDEQ settlement agreement imposed insufficient penalties and mitigation measures to ensure future compliance. It is interesting to note that the U.S. EPA NOV does not specifically reference the LDEQ settlement nor directly challenge its provisions. Moreover, the three pollutants identified in the NOV were not specifically called out in the LDEQ settlement, and, in fact, hydrogen sulfide and sulfuric acid mist are not currently part of the plant’s Title V permit.

However, it would be naïve to believe that U.S. EPA’s NOV is unrelated to the request filed by the Tulane Environmental Law Clinic. In fact, U.S. EPA held a number of meetings with the Tulane Environmental Law Clinic and other environmental groups following the overfiling request. U.S. EPA’s decision to overfile may be an indication of more aggressive enforcement oversight over state regulatory agencies, especially in situations involving vulnerable communities. As such, when evaluating whether to enter into settlements with state regulatory entities to address compliance issues with federal environmental statutes, companies should carefully consider the possibility of U.S. EPA overfiling, especially in situations where objections to the settlement have been raised by environmental groups, or in circumstances involving vulnerable communities.   

We will continue to provide updates on U.S. EPA enforcement trends on the Corporate Environmental Lawyer.

CATEGORIES: Air, Climate Change, Toxic Tort

PEOPLE: Steven R. Englund, Steven M. Siros

August 13, 2021 The Need to Be Green: Focus on Environmental Sustainability Can Inure to Bottom Line for Cannabis Industry

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice 

A recent article published in Politico highlights some of the potential impacts of cannabis production on the environment.   As the production of cannabis accelerates across the United States, it is becoming increasingly likely that the environmental impacts of cannabis production will become more regulated especially in the areas of energy use and water reliance.   Cannabis companies would be well served to ensure that they have effective environmental management strategies in place to not only ensure continued compliance but also to reduce the companies’ environmental footprint that could in turn result in significant cost savings.   

For example, according to the article, a typical growing operation can consume up to 2,000 watts of electricity per square meter for indoor growing operations as compared to 50 watts of electricity for growing other leafy greens such as lettuce.  According to a recent study, at least one expert estimates that cannabis production accounts for about one percent of electricity consumption in the United States.  Depending on the source of electricity, greenhouse gas emissions may be generated in the course of energy production that could be attributable to the cannabis operation’s carbon footprint.  President Biden is focused on reducing greenhouse gas emissions and one the key focus industries for President Biden is the agricultural industry.  Implementing an energy efficiency program with a focus on renewable energy sources may allow cannabis companies to be better positioned to comply with future regulations while at the same time reducing overall energy costs.       

Although not discussed in the article, cannabis production can be a fairly water intensive process with some studies estimating usage as high as six gallons per plant.  A recent study concluded that by 2025, total water use in the legal cannabis market is expected to increase by 86%.  As water scarcity issues become more prevalent especially in light of the changing climate, ensuring adequate sources of water will be critical to ensuring the ability to continue to grow cannabis plants.  At the same time, adopting effective water conservation procedures will allow facilities to reduce their environmental footprint with resulting cost savings. 

For more detailed insight on these issues, please click here for an article that was recently published in the Cannabis Law Journal. 

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

PEOPLE: Steven R. Englund, Steven M. Siros

July 1, 2021 Industry Organization Challenges EPA Cross State Air Pollution Rule

Torrence_jpgBy Allison A. Torrence

SmokeAs the saying goes, “no good neighbor rule goes unpunished.” Thus, the latest attempt by the U.S. Environmental Protection Agency (“EPA”) to promulgate a Revised Cross-State Air Pollution Rule (“CSAPR”) Update under the “good neighbor provision” of the Clean Air Act and in response to the D.C. Circuit’s remand of the previous version of the CSAPR Update has been challenged in court. On June 25, 2021, Midwest Ozone Group—an affiliation of companies, trade organizations, and associations created to advance its members interests regarding national ambient air quality programs—filed a petition for review of the final rule of EPA published in the Federal Register at 86 Fed. Reg. 23,054 (April 30, 2021) entitled the “Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS.” The petition does not provide any details at this point regarding the basis for the group’s challenge to the Revised CSAPR Update.

As we previously reported on this Blog, the Revised CSAPR Update became effective 60 days after it was published (effective on June 29, 2021), and has requirements that begin right away in the 2021 ozone season (the ozone season is May 1 through September 30). The rule requires additional emissions reductions of nitrogen oxides (“NOX”) from power plants in 12 states: Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia. EPA determined that additional emissions reductions were necessary in these 12 states because projected 2021 ozone season NOX emissions from these states were found to significantly contribute to downwind states’ nonattainment and/or maintenance problems for the 2008 ozone National Ambient Air Quality Standards (“NAAQS”). NOX is an ozone precursor, which can react with other ozone precursors in the atmosphere to create ground-level ozone pollution (a/k/a smog). These pollutants can travel great distances, often crossing state lines and making it difficult for downwind states to meet or maintain the ozone NAAQS.

One part of the Revised CSAPR Update that may be of particular interest to the challengers is that EPA issued new or amended Federal Implementation Plans (“FIPs”) for these 12 states that replaces those states’ existing CSAPR emissions budgets for power plants. The revised emission budgets take effect immediately with the 2021 ozone season and will adjust through 2024. The 2021 emission budgets will require power plants in these states to take advantage of existing, already-installed selective catalytic reduction (“SCR”) and selective non-catalytic reduction (“SNCR”) controls. Emissions reductions in the 2022 budgets will require installation or upgrade of state-of-the-art NOX combustion controls at power plants. Emission budgets will continue to be adjusted, through 2024, until air quality projections demonstrate that the upwind states are no longer significantly contributing to downwind states’ nonattainment of the 2008 ozone NAAQS.

Midwest Ozone Group is required to submit a Statement of Issues to be Raised by July 28, 2021, which should shed more light on the strengths or weaknesses of the petitioner’s challenges to this rule. Stay tuned to the Corporate Environmental Lawyer Blog for additional analysis at that time and if any other significant developments arise in the meantime.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

May 7, 2021 EPA Announces Plans to Require Additional Chemical Reporting under its Toxic Release Inventory

LawsonBy Matthew G. Lawson

EpaOn Friday, April 30, 2021, the Biden Administration’s Environmental Protection Agency (EPA) announced significant steps the agency intends to take under the Toxics Release Inventory (TRI) Program to implement expanded reporting requirements for companies that store and utilize hazardous chemicals, including new obligations to report the storage, use and any releases of ethylene oxide, a commonly used industrial chemical and sterilant for medical equipment and supplies.  The TRI Program, which was established under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), serves as a resource for the public to learn about annual chemical releases, waste management, and pollution prevention activities reported by nearly 22,000 industrial and federal facilities.  Under the TRI Program, U.S. facilities operating in various industry sectors must report annually the quantity of certain chemicals they release to the environment and/or manage through recycling, energy recovery and treatment.  A “release” of a chemical in the context of the TRI Program means that the chemical is emitted to the air or water, or placed in some type of land disposal.

A major component of EPA’s announcement is the agency’s intent to regulate ethylene oxide. The use and release of ethylene oxide by medical device sterilization companies have prompted a number of recent high-profile lawsuits alleging that releases of the chemical into the environment have caused increased cancer rates in communities adjacent to the facilities.  EPA’s announcement notes that many existing sterilization facilities “are located near areas with Environmental Justice concerns,” and that individuals living adjacent to these facilities may be at a heightened risk from exposure to ethylene oxide.  “Every person in the United States has a right to know about what chemicals are released into their communities,” EPA Administrator Michael S. Regan stated.  “By requiring new and more data on chemical releases from facilities, EPA and its partners will be better equipped to protect the health of every individual, including people of color and low-income communities that are often located near these facilities but have been left out of the conversation for too long.”  In the coming months, EPA will provide further details regarding the specific actions the agency intends to take to require sterilization facilities that use ethylene oxide to report under the TRI Program.

In addition to implementing new reporting requirements for companies utilizing ethylene oxide, EPA announced several other steps the agency plans to take that will increase reporting and public access to information under the TRI Program, including:

  • Finalizing a longstanding proposed rule that will add natural gas processing facilities to the industry sectors covered under the TRI Program thereby increasing the publicly available information on chemical releases and other waste management activities of TRI-listed chemicals from this sector;
  • Continuing to add new per- and polyfluoroalkyl substances (“PFAS”) to the list of chemicals that require reporting under the TRI Program, including the addition of perfluorobutane sulfonic acid (PFBS) following EPA’s toxicity assessment of the substance;
  • Proposing a new rule to add high-priority substances under the Toxic Substances Control Act (TSCA) and chemicals included in the TSCA workplan to the list of chemicals that require reporting under the TRI Program; and
  • Increasing public access to TRI data through improved search functionality and improved website interface.

EPA’s announcement marks the most recent step by the agency to implement the Biden Administration’s focus on environmental justice as a top priority of its environmental agenda.  On the same day that EPA announced the agency’s updated TRI policy, EPA circulated a memorandum to all EPA-staff, indicating the additional actions the agency intends to take to fulfill its environmental justice commitment.  These actions include: (1) increasing inspections of facilities that pose the most serious threats to overburdened communities; (2) focusing on implementing remedies that benefit communities, including through the incorporation of supplemental environmental projects; (3) increasing communications with overburdened communities to develop improved cleanup and non-compliance solutions; and (4) identifying locations where state regulators are not adequately protecting local communities and taking increased enforcement actions to “pick up the slack” if state regulators have not taken appropriate or timely actions.

The Corporate Environmental Blog will continue to follow developments on this issue in the coming months as EPA provides additional details on the specific actions it intends to take to expand the TRI Program.

CATEGORIES: Air, Climate Change, Contamination, Groundwater, Sustainability, Toxic Tort, TSCA, Water

April 30, 2021 Jenner & Block to Host Webinar on EHS Issues Facing the Cannabis Industry

CannabisOn May 4, Jenner & Block Partner Steven M. Siros and Associate Leah M. Song will present a CLE webinar on environmental, health, and safety (EHS) issues facing the cannabis industry. The market value of the cannabis industry in the United States is expected to reach $30 billion by 2025. Currently, 36 states allow the use of cannabis for medicinal purposes and 15 states allow the recreational use of cannabis. To sustain this rapid industry growth, and avoid potential penalties and lawsuits, it is crucial that cannabis companies ensure consistent compliance with EHS rules and regulations.

In this CLE Program, Mr. Siros and Ms. Song will cover the particular EHS challenges that the cannabis industry currently faces, including issues related to emissions, water resources, waste regulation, and pesticides. The program will also address worker safety issues and the state and federal OSHA regulations cannabis operations are subject to as well as post-consumer issues cannabis companies face such as packaging issues and recycling. Please email dl_webinar@jenner.com if you are interested in attending. Space is limited.

Mr. Siros is chair of the Environmental Litigation Practice and co-chair of the Environmental Workplace Health & Safety Law Practice. He focuses primarily on environmental and toxic tort matters.

Ms. Song is an associate in the firm’s Environmental and Workplace Health & Safety Law Practice.

CATEGORIES: Air, Consumer Law and Environment, Sustainability

PEOPLE: Steven M. Siros

April 21, 2021 Earth Day 2021: Heightened Chemical Regulation under the Biden Administration

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

PogoA key platform of President Biden’s environmental agenda is increased regulatory scrutiny with respect to chemical substances under the Toxic Substances Control Act (TSCA).  Regulating chemicals in order to minimize the threat to human health and the environment is clearly also critical to achieving the aims and goals of Earth Day, especially considering that the publication of Rachel Carson’s Silent Spring helped spark the global environmental movement that eventually culminated in the first Earth Day in 1970. 

Turning now to the present, in the waning months of the Trump administration, there was a flurry of U.S. EPA activity under TSCA, including the issuance of risk evaluations for a number of high-priority chemical substances, including asbestos, 1,4-dioxane, and  trichloroethylene. Notwithstanding that these risk evaluations concluded that at least some uses of each of the ten high priority chemicals posed an unreasonable risk, these risk evaluations were widely criticized for failing to take into consideration reasonably foreseeable uses or failing to adequately consider various scientific studies. There had been much speculation that President Biden would reject  all of the Trump-era TSCA risk evaluations and in fact, one of President Biden’s first actions in the White House was to direct U.S. EPA to review the TSCA risk evaluation process as well as the methylene chloride risk evaluation specifically. 

Rather than throwing the baby out with the bathwater, however, U.S. EPA is moving forward to develop risk mitigation plans for each of these high priority chemicals. At the same time, Michal Freedhoff, the acting assistant administrator for U.S. EPA’s Office of Chemical Safety and Pollution, noted that U.S. EPA would be taking a hard look at these risk evaluations. In a prepared statement, Ms. Freedhoff stated:

Our goal is to allow risk management actions on these first ten chemicals to move forward as much as possible, while looking back surgically at specific areas in some of the risk evaluations to supplement them as appropriate in order to ensure we are meeting our statutory obligations and using the best available science to truly protect human health and the environment. 

As to the next 20 chemicals in the risk assessment pipeline, U.S. EPA has already announced that it will reassess its TSCA risk evaluation process, including refining its approach for selecting and reviewing scientific studies. U.S. EPA noted that it would not rely on U.S. EPA’s Application of Systematic Review in TSCA Risk Evaluations, a guidance document issued by U.S. EPA in 2018 that was  much maligned by the National Academy of Scientists. 

One can also expect an increased focus on environmental justice issues by U.S. EPA in connection with evaluating the risks posed by chemical substances. This will most likely play out in connection with an increased focus on chemical substance exposure for fence-line and front-line communities during the risk evaluation process.

Finally, there will also be increasing pressure on the Biden Administration to regulate new emerging contaminants such as per- and polyfluoroalkyl substances (PFAS) under both TSCA and the Safe Drinking Water Act. PFAS compounds have not yet been considered for prioritization under TSCA but are likely to be on a list of high priority chemicals in the future. In the meantime, U.S. EPA is likely to move forward with designating at least PFAS compounds as hazardous substances under CERCLA as well as evaluating whether to set an MCL for these compounds under the Safe Drinking Water Act.   

Please check back on Jenner & Block’s Corporate Environmental Lawyer for more Earth Day content throughout the week.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Emerging Contaminants, Sustainability, TSCA

PEOPLE: Steven R. Englund, Steven M. Siros

April 20, 2021 Earth Day 2021: Climate Change under the Biden Administration

Song
By Leah Song 


President Biden has made climate change a main focus of his administration.  At the beginning of his term, President Biden issued several executive orders addressing climate change: “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (January 20, 2021) and “Executive Order on Tackling the Climate Crisis at Home and Abroad” (January 27, 2021) (“Day 7 Environmental Executive Order”). This article will highlight the administration’s international focus, climate justice, climate litigation, and several priorities of the recent executive orders.

As President Biden promised prior to inauguration, he recommitted the U.S. to the Paris Climate Agreement, which is intended to limit the global temperature increase to 2 degrees Celsius above pre-industrial levels. Trump had announced his intent to terminate the U.S.’s involvement in the Paris Climate Agreement shortly after taking office, but due to the rules, was not able to formally withdraw until November 4, 2019, which became final a year later on November 4, 2020. The U.S. had originally committed to cut GHG emissions by at least 26% below 2005 levels by 2025. Countries were supposed to submit new targets for 2030 by the end of 2020. The Biden administration will likely submit its updated Nationally Determined Contribution (“NDC”) by the end of 2021 in time for the COP26 event scheduled at the end of the year. Given the rollbacks during the Trump administration and predicted increase in emissions as the world recovers from the COVID-19 pandemic, President Biden will need to carefully consider the new target NDCs.

Keeping with the international focus, the Biden administration committed to treating climate change as a national security threat and fully integrating climate change into foreign policy and national security strategies. President Biden selected former Secretary of State John Kerry as the Special Presidential Envoy for Climate and to sit on the National Security Council. Kerry’s role is complemented by Gina McCarthy, White House National Climate Advisor, and Ali Zaidi, Deputy White House National Climate Advisor, in the White House Office of Domestic Climate Policy. The Day 7 Environmental Executive Order also discusses the establishment of a National Climate Task Force, working across 21 federal agencies and departments to enable a “whole-of-government” approach to combatting the climate crisis. For summaries of the recent National Climate Task Force meetings, click here and here.

During his campaign and into his presidency, President Biden has made clear his focus on environmental and climate justice. The Day 7 Environmental Executive Order establishes the White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council in order to prioritize environmental justice and ensure a “whole-of-government” approach to addressing current and historical environmental injustices. There will be a focus on environmental justice monitoring and enforcement through new or strengthened offices at the U.S. Environmental Protection Agency, Department of Justice, and Department of Health and Human Services.

In time for Earth Day, the administration invited 40 world leaders to the Leaders Summit on Climate that will be hosted on April 22 and 23. The virtual Leaders Summit will be live streamed for public viewing. For an initial overview of the Leaders Summit, click here.

Check back on Jenner & Block’s Corporate Environmental Lawyer for more Earth Day content throughout the week.

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CATEGORIES: Air, Climate Change

April 19, 2021 Reflections on Earth Day, 2021

SigelBy Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

This week, as we celebrate Earth Day on April 22, Jenner & Block’s Environmental and Workplace Health and Safety Law Practice will be focusing, each day, on a different aspect of the environment and how this year will affect our planet. I thought I would begin our week-long focus on Earth Day with a more personal reflection.

This past pandemic year on Earth gave me a chance to spend more time reading and lots more time thinking about our society and how we communicate with each other. Purely by coincidence, I had a chance to read two pieces of fiction that focus on both the environment and communication. In Richard Powers’s Pulitzer Prize winning, “The Overstory,” we learn about trees’ ability to communicate with each other as part of their survival network. The female scientist who makes this discovery in “The Overstory” calls to mind the work of Dr. Suzanne Simard, a professor of in the Department of Forest and Conservation Sciences at the University of British Columbia, who demonstrated how trees, even of different species, communicate and support each other through underground networks of fungi, known as mycorrhizal networks. The need to communicate, to support each other, to have deep, underground roots is central to all living things. Our ability to communicate as humans starts and ends with our planet.

A complementary novel to “The Overstory” is “A Children’s Bible” by Lydia Millet. Millet’s dystopian view of our planet’s future also has an understory about each generation’s inability to communicate their perspectives about their roles in taking care of each other and society. In my reading of “Children’s Bible,” the ultimate collapse occurs not just because of an environmental disaster, but because the generations stopped being able to communicate with and rely on each other.

Using one of our most useful forms of communication—humor, our first Earth Day cartoonist, Walt Kelly, tied together the need for both protection and connection in an elegant and powerful drawing:

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We are all like trees in a giant forest called Earth. We have tentacles and roots touching each other in ways we cannot see, and we cannot continue living if we fail to acknowledge these connections. As we care for each other, we are also caring for our common home. As we communicate with each other, we must remember that we are connected to each other in ways that science is continuing to discover and that our personal experience is still learning.

As with many yearly events, Earth Day gives us an opportunity to reflect, discuss, and share. Thank you for letting me have the opportunity to connect with you.

CATEGORIES: Air, Climate Change, Sustainability

PEOPLE: Gabrielle Sigel

April 7, 2021 Environmental Organizations Petition EPA to Expand Enforcement of Clean Air Act’s General Duty Clause

LawsonBy Matthew G. Lawson

Air pollutionVarious environmental organizations, led by the Environmental Integrity Project (“EIP”), are urging the United States Environmental Protection Agency (“EPA”) to expand enforcement of Section 112(r)(1) of the Clean Air Act (CAA)—commonly known as the General Duty Clause (“GDC”)—in order to more closely regulate the handling of hazardous substances at industrial facilities permitted under the CAA. EIP’s ongoing efforts include petitioning EPA to require that the obligations of the GDC be incorporated in state-issued Title V air emission permits, such that these obligations may be enforced against permit holders by state regulators or through citizen suits. As explained below, efforts to expand enforcement of the GDC were for the most part blocked under the Trump Administration’s EPA, but it remains to be seen whether these efforts may achieve renewed success under the Biden Administration.

The GDC, which was first enacted as part of the 1990 amendments to the CAA, requires that owners and operators of regulated facilities that handle, process, or store “extremely hazardous substances” take certain actions to “prevent the accidental release and … minimize the consequences of any [] release” of such substances. Specifically, the GDC requires facility owners and operators to: (i) conduct a hazardous risk assessment to identify potential risks from extremely hazardous substances at their facilities; (ii) design and maintain safe facilities that protect against releases; and (iii) develop and implement protocols to minimize the consequences from any accidental releases. While “extremely hazardous substances” is not defined by the GDC, the Senate Report from the 1990 CAA amendments provides that “extremely hazardous substance” includes any agent “which may as the result of short-term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity.” Although not necessarily exhaustive, EPA has created a list of extremely hazardous substances in 40 CFR part 68. Jurisdiction for enforcement of the GDC remains an issue of contention between EPA and environmental organizations. While enforcement of the GDC has traditionally been left to the exclusive purview of EPA, environmental groups are increasingly arguing that state air authorities can and should request delegation authority from the EPA to enforce the GDC at permitted facilities within their jurisdiction. 

A key example of EIP’s efforts to increase enforcement of the GDC is provided in the organization’s April 14, 2020 Petition Objecting to a Title V Permit issued to Hazlehurst Wood Pellets LLC (“Hazlehurst”), a wood pellet mill operating in the State of Georgia. At the time of the petition, Hazlehurst’s Title V permit had been approved by state authorities, but remained subject to final review by EPA. EIP’s Petition asked EPA to deny Hazlehurst’s air emissions permit on the grounds that the permit failed to recognize or incorporate the requirements of the GDC. According to the Petition, ensuring compliance with the GDC was critical due to the fact that Hazlehurst regularly handles hazardous products, including “copious amount of wood dust,” which had previously caused flash fires at the facility. The Trump Administration EPA’s subsequent Order Denying the Petition rejected EIP’s request, finding that the GDC is not an “applicable requirement” for the purposes of Title V, and as such, “Title V permits need not—and should not—include terms to assure compliance with the [GDC] as it is an independent requirement…” EPA reasoned that if the requirements of the GDC were integrated into a Title V permit, the obligations would ostensibly be enforceable through citizen suits. Concluding that “neither citizens nor state and local air agencies may enforce the [GDC] under the CAA,” EPA rejected the Petition. At the same time, EPA clarified that because the GDC is “self-implementing,” it is independently enforceable by EPA and applies even when it is not expressed as part of a facility’s air permit.

While EPA’s Order denied the environmental organization’s request to expressly require GDC compliance in Title V permits, the Order did make clear that facilities holding Title V permits are still subject to the GDC’s requirements which may be enforced by EPA. According to recently issued EPA Guidance on the GDC, owners and operators who maintain extremely hazardous substances must adhere, at a minimum, to recognized industry standards and any applicable government regulations for handling such substances. While it remains to be seen whether the Biden Administration EPA will continue to resist expressly incorporating the GDC in Title V permits, the Biden Administration’s emphasis on regulatory compliance and environmental justice indicates that future enforcement of the GDC is likely to increase. For this reason, facilities holding air emission permits should review their existing protocols for handling and storing hazardous substances and ensure these protocols are consistent with prevailing industry standards and the requirements of the GDC.

CATEGORIES: Air, Hazmat, Sustainability

April 5, 2021 Oil Industry Scores Big Win in Second Circuit Greenhouse Gas Litigation

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

Oil and gasBreaking from the pack and potentially creating a circuit split, the Second Circuit’s decision in City of New York v. Chevron, et al. dismissing New York’s City’s climate change lawsuit is a significant victory for the oil and gas industry.  The unanimous ruling from the Second Circuit affirmed a district’s court decision dismissing New York’s common law claims, finding that issues such as global warming and greenhouse gas emissions invoked questions of federal law that are not well suited to the application of state law.

Taking a slightly different tact than state and local plaintiffs in other climate change lawsuits, the State of New York sued five oil producers in federal court asserting causes of action for (1) public nuisance, (2) private nuisance, and (3) trespass under New York law stemming from the defendants’ production, promotion and sale of fossil fuels.  New York sought both compensatory damages as well as a possible injunction that would require defendants to abate the public nuisance and trespass.  Defendants filed motions to dismiss that were granted.  The district court determined that New York’s state-law claims were displaced by federal common law and that those federal common law claims were in turn displaced by the Clean Air Act.  The district court also concluded that judicial caution counseled against permitting New York to bring federal common law claims against defendants for foreign greenhouse gas emissions. 

The Second Circuit agreed with the district court, noting that the problems facing New York can’t be attributed solely to greenhouse gas emissions in the state nor the emissions of the five defendants. Rather, the greenhouse gas emissions that New York alleges required the City to launch a “$20 billion-plus multilayered investment program in climate resiliency across all five boroughs” are a byproduct of emissions around the world for the past several hundred years. 

As the Second Circuit noted, “[t]he question before it is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by greenhouse gas emissions.  Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’” 

Finding that New York’s state common law claims were displaced by federal common law, the Second Circuit then considered whether the Clean Air Act displaced these federal common law claims.  The Second Circuit noted that the Supreme Court in Am. Elec. Power Co. v. Connecticut (AEP) (2011) had previously held that the “’Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement’ of greenhouse gas emissions.”    As to the State’s damage claims, the Second Circuit agreed with the Ninth Circuit’s reasoning in Native Vill. Of Kivalina v. Exxonmobil Corp. (9th Cir. 2012) that the “displacement of federal common law does not turn on the nature of the remedy but rather on the cause of action.”  As such, the Second Circuit held that “whether styled as an action for injunctive relief against the Producers to stop them from producing fossil fuels, or an action for damages that would have the same practical effect, the City’s claims are clearly barred by the Clean Air Act. 

The Second Circuit was careful to distinguish its holding from the holdings reached by the First, Fourth, Ninth and Tenth circuits in prior climate change cases, noting that in those other cases, the plaintiffs had brought state-law claims in state court and defendants then sought to remove the cases to federal courts.  The single issue in those cases was whether defendants’ federal preemption defenses singlehandedly created federal question jurisdiction.   Here, because New York elected to file in federal as opposed to state court, the Second Circuit was free to consider defendants’ preemption defense on its own terms and not under the heightened standard applicable to a removal inquiry. 

Whether the Second Circuit’s decision has any impact on BP PLC, et al. v. Mayor and City Council of Baltimore, a case that has now been fully briefed and argued before the Supreme Court remains to be seen.  The Baltimore case was one of the state court cases discussed above that was removed to federal court.  The defendants had alleged a number of different grounds for removal, one of which is known as the “federal officer removal statute” that allows removal to federal court of any lawsuit filed against an officer or person acting under that office of the United States or an agency thereof.  The limited issue before the Supreme Court was whether the appellate court could only consider the federal-officer removal ground or whether it could instead review any of the grounds relied upon in defendants’ removal petition. 

Some commenters have noted that the Second Circuit’s decision creates a circuit split that may embolden the Supreme Court to address these climate change cases in one fell swoop.  The more likely scenario, however, is that the Supreme Court limits its opinion to the narrow issue before it and leaves resolution of whether state law climate change nuisance actions are preempted by federal law for another day. 

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

PEOPLE: Steven R. Englund, Steven M. Siros