Jenner & Block

Corporate Environmental Lawyer Blog

October 17, 2018 Trump Administration Releases Fall 2018 Regulatory Agenda

Torrence_jpgBy Allison A. Torrence

The Trump Administration has released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. This regulatory agenda “reports on the actions administrative agencies plan to issue in the near and long term [and] demonstrates this Administration’s ongoing commitment to fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burdens on the American people.”

According to the Trump Administration, the regulatory agenda reflects the following broad regulatory reform priorities:

  • Advancing Regulatory Reform
  • Public Notice of Regulatory Development
  • Transparency
  • Consistent Practice across the Federal Government

The EPA-specific regulatory agenda lists 148 regulatory actions in either the proposed rule stage or final rule stage, and provides information about the planned regulatory actions and the timing of those actions. Notable regulatory actions under consideration by EPA include:

More information, and EPA's Statement of Priorities, can be found here.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, Hazmat, RCRA, TSCA, Water

PEOPLE: Allison A. Torrence

September 17, 2018 EPA Finalizes Unprecedented NPL Listing

By Matthew G. Lawson 

Rockwell GrenadaOn September 13, 2018, the United States Environmental Protection Agency (“EPA”) took the final, unprecedented step of adding a contaminated site to the Superfund National Priorities List (“NPL”) based solely on the risk to human health posed by indoor air vapor intrusion at the site. The newly designated site, which consists of the former Rockwell International Wheel & Trim facility and its surrounding 76 acres (the “Site”), is located in Grenada, Mississippi. The Site has an extensive history. Beginning in 1966, the Rockwell facility operated as a wheel cover manufacturing and chrome plating plant. After chrome plating operations ceased in 2001, the facility was used for metal stamping until approximately 2007. According to EPA, the Site’s historic operations resulted in multiple releases of trichloroethene, toluene, and hexavalent chromium into the surrounding soil and adjacent wetland. However, EPA’s primary concern—and reason for listing the site—is the potential for airborne volatile organic compounds (“VOCs”) to enter the facility through cracks, joints, and other openings, resulting in contaminated indoor air. The potential for indoor air contamination appears to be of particular concern to EPA, given that nearly 400 individuals currently work within the facility.

The Site will now join a list of approximately 160 contaminated sites that have been federally designated as NPL sites. The NPL includes the nation’s most contaminated and/or dangerous hazardous waste sites. A contaminated site must be added to the NPL to become eligible for federal funding for permanent cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act. While EPA’s decision to list the Site based on risks from indoor air contamination is unprecedented, the move is not all together surprising, given EPA’s recent rulemaking actions. In May 2017, EPA passed a final rule expanding the list of factors the agency is allowed to consider when designating NPL sites to specifically include risks to human health from impacted indoor air. In the preamble to the rule, EPA noted that it needed the authority to list sites on the basis of significant risk to human health from vapor intrusion contamination. 

In contrast to EPA’s position, environmental consultants operating at the Site have strongly opposed the NPL designation. Several of the firms submitted comments on the final listing, asserting that EPA’s risk evaluation failed to take into account the Sub Slab Depressurization System (“SSDS”) installed at the facility in 2017, which subsequently reduced levels of VOCs in the indoor air to safe levels. However, EPA rejected these arguments, noting that even though the SSDS may protect workers from immediate threats, “it is not intended to address possible long-term remedial goals such as addressing the sources of the contamination below the building.”

EPA’s designation of the Site should alert potentially responsible parties that vapor intrusion issues may result in an increased chance of a site becoming listed on the NPL. In addition, parties relying on engineering controls to maintain compliant indoor air vapor levels should note the potential for EPA to deem such actions insufficient as long-term site remedies.

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Steven R. Englund, Matthew G. Lawson

September 14, 2018 United Airlines Steps Up to Cut Greenhouse Gases

Siros By Steven M. Siros United-airlines-logo-01

United Airlines became the first U.S. airline to publicly commit to reducing its greenhouse gas emissions (GHG) by 50% by 2050. In a press release issued on September 13, 2018, United Airlines explained that it would achieve that reduction by expanding its use of more sustainable biofuels and by relying on more fuel-efficient aircraft and implementing other operational changes to better conserve fuel. United Airlines' commitment to reduce GHG emissions by 50% by 2020 is consistent with reduction targets established by the International Air Transport Association in May 2018. 

U.S. EPA has yet to regulate GHG emissions from aircraft in the United States, notwithstanding U.S. EPA’s July 25, 2016 endangerment finding for GHG emissions from aircraft and U.S. EPA’s Advanced Notice of Proposed Rulemaking contemplating adoption of the International Civil Aviation Organization’s (ICAO) aviation carbon emission design standards. 

The decision by United Airlines is likely to be followed by other U.S. carriers that have international routes because those carriers will be subject to the ICAO standards when flying internationally.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

June 7, 2018 White House Cites National Security Concerns as Administration Moves to Save Coal and Nuclear Power Plants

A combination of stagnant power consumption growth and the rise of natural gas and renewable power sources has resulted in the displacement and potential closure of many older coal and nuclear power plants in the United States. According to the U.S. Energy Information Administration, since 2008, coal and nuclear energy have seen a continuous decline in their percentage of the nation’s total energy generation market. And in 2015, the closure of coal fueled power plants accounted for more than 80% of the nation’s retired energy generating capacity.

In an attempt to reverse these trends, President Donald Trump has ordered Energy Secretary Rick Perry to take “immediate action” to stem the closure of nuclear and coal power plants. In an official White House statement issued on June 1, 2018, the Trump Administration stated that “keeping America's energy grid and infrastructure strong and secure protects our national security… Unfortunately, impending retirements of fuel-secure power facilities are leading to a rapid depletion of a critical part of our nation's energy mix, and impacting the resilience of our power grid.” 

The statement is not the first time the Administration has asserted that coal and nuclear plants are critical to national security. In January of this year, Mr. Perry presented a sweeping proposal to the Federal Energy Regulatory Commission (“FERC”), which requested subsidies for struggling coal and nuclear plants that were no longer able to operate profitably in the current energy markets. In presenting the proposal, Mr. Perry argued that coal and nuclear plants’ unique ability to store at least 90 days of fuel on-site made the energy sources critical to the reliability and stability of the United States’ energy markets. In a 5-0 decision, FERC rejected the Energy Secretary’s proposal, and casted doubt on Mr. Perry’s claims that energy markets would become vulnerable and unreliable without contributions from coal and nuclear power.

It appears the Trump Administration may now be seeking a more direct route to provide assistance to coal and nuclear power plants. According to Bloomberg, a draft memo from the Department of Energy (“DOE”) reveals that the agency is considering using its authority under Section 202(c) of the Federal Power Act and the Defense Production Act of 1950 to force regional grid operators to buy electricity from a list of coal and nuclear plants the department deems crucial to national security. The plan would require suppliers to purchase power from the plants for 24 months in order to starve off closures as the Administration works to provide a long-term solution. If the DOE plan is implemented, it is likely to face legal challenges from both utilities and environmental groups. Regardless of whether the DOE elects to pursue this strategy, it appears that the Trump Administration is focused on working to protect aging coal and nuclear plants.

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

PEOPLE: Matthew G. Lawson

June 7, 2018 White House Cites National Security Concerns as Administration Moves to Save Coal and Nuclear Power Plants

A combination of stagnant power consumption growth and the rise of natural gas and renewable power sources has resulted in the displacement and potential closure of many older coal and nuclear power plants in the United States. According to the U.S. Energy Information Administration, since 2008, coal and nuclear energy have seen a continuous decline in their percentage of the nation’s total energy generation market. And in 2015, the closure of coal fueled power plants accounted for more than 80% of the nation’s retired energy generating capacity.

In an attempt to reverse these trends, President Donald Trump has ordered Energy Secretary Rick Perry to take “immediate action” to stem the closure of nuclear and coal power plants. In an official White House statement issued on June 1, 2018, the Trump Administration stated that “keeping America's energy grid and infrastructure strong and secure protects our national security… Unfortunately, impending retirements of fuel-secure power facilities are leading to a rapid depletion of a critical part of our nation's energy mix, and impacting the resilience of our power grid.” 

The statement is not the first time the Administration has asserted that coal and nuclear plants are critical to national security. In January of this year, Mr. Perry presented a sweeping proposal to the Federal Energy Regulatory Commission (“FERC”), which requested subsidies for struggling coal and nuclear plants that were no longer able to operate profitably in the current energy markets. In presenting the proposal, Mr. Perry argued that coal and nuclear plants’ unique ability to store at least 90 days of fuel on-site made the energy sources critical to the reliability and stability of the United States’ energy markets. In a 5-0 decision, FERC rejected the Energy Secretary’s proposal, and casted doubt on Mr. Perry’s claims that energy markets would become vulnerable and unreliable without contributions from coal and nuclear power.

It appears the Trump Administration may now be seeking a more direct route to provide assistance to coal and nuclear power plants. According to Bloomberg, a draft memo from the Department of Energy (“DOE”) reveals that the agency is considering using its authority under Section 202(c) of the Federal Power Act and the Defense Production Act of 1950 to force regional grid operators to buy electricity from a list of coal and nuclear plants the department deems crucial to national security. The plan would require suppliers to purchase power from the plants for 24 months in order to starve off closures as the Administration works to provide a long-term solution. If the DOE plan is implemented, it is likely to face legal challenges from both utilities and environmental groups. Regardless of whether the DOE elects to pursue this strategy, it appears that the Trump Administration is focused on working to protect aging coal and nuclear plants.

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

PEOPLE: Matthew G. Lawson

May 17, 2018 EPA Air Chief Supports Draft House Bill Revising CAA ‘Modification’ Definition

Allison A. Torrence PhotoBy Allison A. Torrence

Seal of the US House of RepresentativesCongressman Morgan Griffith (R-VA) has introduced a discussion draft of a bill that proposes to revise the definition of “modification” in the Clean Air Act (CAA) to “clarify when a physical change in, or change in the method of operation of, a stationary source constitutes a modification or construction.”

Under current law, EPA determines whether a change at an existing facility is a “modification” that requires new source review (NSR) by looking at whether the change increases the annual emission rate of an air pollutant. Under Congressman Griffith’s proposal, a change at an existing facility will only be a “modification” if it results in an increase to the hourly emission rate of an air pollutant. This change is significant because it would enable facilities to make changes that would allow them to operate for longer hours, thus increasing annual emissions, as long as the hourly emissions don’t increase.

The proposed bill also makes clear that the term “modification” does not include changes to an existing stationary source that reduce the amount of any air pollutant or that are designed to restore, maintain, or improve the reliability or safety of the source.

At the May 16, 2018, Energy and Commerce Committee Subcommittee on the Environment hearing, William Wehrum, EPA Assistant Administrator for Air and Radiation, told the subcommittee that he strongly supported the proposed bill. The Democrats on the subcommittee opposed the proposal and ranking member Frank Pallone, Jr. (D-NJ) made a statement critical of the proposed bill:

The ultimate test for any legislation to reform the NSR program is simply this: will it reduce air pollution? By that test, this bill fails. There is no doubt this bill will increase pollution. Republicans are simply resurrecting previously rejected ideas promoted during the Bush Administration by two of today’s witnesses: Assistant Administrator Wehrum and Mr. Holmstead. Together, they have worked for years to undermine the NSR program.

The current definition of “modification” for the NSR program is found at 42 U.S.C. § 7411(a)(4):

The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.

Congressman Griffith’s discussion draft proposes the following, revised definition:

(A)  The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. For purposes of the preceding sentence, a change increases the amount of any air pollutant emitted by such source only if the maximum achievable hourly emission rate of an air pollutant for such source after the change is higher than such maximum achievable hourly emission rate for such source during the 10-year period immediately preceding the change.

(B)  Notwithstanding subparagraph (A), the term ‘modification’ does not include a change at a stationary source that—

(i) reduces the amount of any air pollutant emitted by the source per unit of output; or

(ii) is designed to restore, maintain, or improve the reliability or safety of the source, except when the change increases the maximum achievable hourly emission rate of any air pollutant for the source relative to such rate during the 10-year period immediately preceding the change and the Administrator determines that such increase is harmful to human health or the environment and that the change is not environmentally beneficial.

This proposal is in its initial stages and the prospects of this or a similar bill emerging from committee and passing the House and Senate are uncertain. We will be following this issue and report on any further developments.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

May 17, 2018 EPA Air Chief Supports Draft House Bill Revising CAA ‘Modification’ Definition

Torrence_jpgBy Allison A. Torrence

2000px-Seal_of_the_United_States_House_of_Representatives.svgCongressman Morgan Griffith (R-VA) has introduced a discussion draft of a bill that proposes to revise the definition of “modification” in the Clean Air Act (CAA) to “clarify when a physical change in, or change in the method of operation of, a stationary source constitutes a modification or construction.”

Under current law, EPA determines whether a change at an existing facility is a “modification” that requires new source review (NSR) by looking at whether the change increases the annual emission rate of an air pollutant. Under Congressman Griffith’s proposal, a change at an existing facility will only be a “modification” if it results in an increase to the hourly emission rate of an air pollutant. This change is significant because it would enable facilities to make changes that would allow them to operate for longer hours, thus increasing annual emissions, as long as the hourly emissions don’t increase.

The proposed bill also makes clear that the term “modification” does not include changes to an existing stationary source that reduce the amount of any air pollutant or that are designed to restore, maintain, or improve the reliability or safety of the source.

At the May 16, 2018, Energy and Commerce Committee Subcommittee on the Environment hearing, William Wehrum, EPA Assistant Administrator for Air and Radiation, told the subcommittee that he strongly supported the proposed bill. The Democrats on the subcommittee opposed the proposal and ranking member Frank Pallone, Jr. (D-NJ) made a statement critical of the proposed bill:

The ultimate test for any legislation to reform the NSR program is simply this: will it reduce air pollution? By that test, this bill fails. There is no doubt this bill will increase pollution. Republicans are simply resurrecting previously rejected ideas promoted during the Bush Administration by two of today’s witnesses: Assistant Administrator Wehrum and Mr. Holmstead. Together, they have worked for years to undermine the NSR program.

The current definition of “modification” for the NSR program is found at 42 U.S.C. § 7411(a)(4):

The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.

Congressman Griffith’s discussion draft proposes the following, revised definition:

(A)  The term “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. For purposes of the preceding sentence, a change increases the amount of any air pollutant emitted by such source only if the maximum achievable hourly emission rate of an air pollutant for such source after the change is higher than such maximum achievable hourly emission rate for such source during the 10-year period immediately preceding the change.

(B)  Notwithstanding subparagraph (A), the term ‘modification’ does not include a change at a stationary source that—

(i) reduces the amount of any air pollutant emitted by the source per unit of output; or

(ii) is designed to restore, maintain, or improve the reliability or safety of the source, except when the change increases the maximum achievable hourly emission rate of any air pollutant for the source relative to such rate during the 10-year period immediately preceding the change and the Administrator determines that such increase is harmful to human health or the environment and that the change is not environmentally beneficial.

This proposal is in its initial stages and the prospects of this or a similar bill emerging from committee and passing the House and Senate are uncertain. We will be following this issue and report on any further developments.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

April 19, 2018 Can Blockchain Technology Disrupt Renewable Energy Finance?

 By Matthew G. Lawson  Blockchain

In 2016, the world underwent its largest ever annual increase in renewable power by adding an estimated 161 gigawatts of capacity in renewable power generation. The increased stemmed from a world-wide investment of USD $240 billion in renewable energy, marking the seventh straight year that the world’s investment in renewable power sources topped $200 billion dollars. Despite the world’s growing investment in renewable power, an estimated 1.2 billion people still live without access to electricity. Individuals without electricity must supplement their energy needs through fuel based lighting and heating. Burning these sources is not only more expensive relative to many forms of renewable power, but also results in the release of toxic fumes and black carbon, which are major contributors to local air pollution and climate change.

So why the disconnect between the world’s rapidly growing supply of more affordable renewable energy and the large quantity of individuals left relying on expensive and dirty alternatives? According to Renewables 2017 Global Status Report, the problem primarily stems from an inability of traditional electricity grids to provide power to these populations. With roughly 80% of those without power living in rural areas, it simply is technologically or economically infeasible to extend traditional grid networks to many of the residents. In cases where the grid has been extended, the added cost of additional infrastructure and energy transport waste can price residents out of purchasing power.

The solution to this problem could be Distributed Renewable Energy (“DRE”) systems combined with Blockchain technology. In short, DRE systems generate and distribute power to local users independent of a centralized grid. The systems often consist of module solar panels or small-scale wind turbines and operate on a Pay-As-You-Go (PAYG) network that allows energy users to pay for only the energy they use on an ongoing basis. In order to manage the creation of PAYG networks, several companies are now turning to Blockchain technology. Blockchain, best known for its use in cryptocurrencies like Bitcoin, functions as a public ledger that allows massive amounts of data to be securely stored and accessed by the general public without a centralized platform. According to one company’s recently released white paper, utilization of Blockchain technology can spur the development of DRE systems by allowing those seeking power generation to connect seamlessly with potential financiers on a global basis without the need for utility companies or governmental bodies acting as a central coordinator. The company’s platform aims to allow applicants, from a single business owner to large-scale communities, to propose energy generating projects, which can be viewed and approved by a community of financers anywhere in the world. Approval of a project, construction of the DRE system, and even future payments for energy use are all conducted utilizing the Blockchain platform.

While the use of Blockchain technology is originating in areas typically underserved by traditional electrical grids, proponents argue that the platform’s built-in efficiencies will result in the technology one day competing with traditional utility owned grids on a worldwide basis. In fact, some companies are already taking steps towards this goal. For example, a microgrid is currently being installed in Brooklyn, New York, which will allow users to generate and sell renewable energy throughout their neighborhood. While it is still unclear what larger role DRE systems will play in future energy networks, the marriage between DRE and Blockchain creates a new playing field for alternative energy generation and delivery.

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

PEOPLE: Matthew G. Lawson

April 19, 2018 Can Blockchain Technology Disrupt Renewable Energy Finance?

 By Matthew G. Lawson  Blockchain

In 2016, the world underwent its largest ever annual increase in renewable power by adding an estimated 161 gigawatts of capacity in renewable power generation. The increase stemmed from a world-wide investment of USD $240 billion in renewable energy, marking the seventh straight year that the world’s investment in renewable power sources topped $200 billion dollars. Despite the world’s growing investment in renewable power, an estimated 1.2 billion people still live without access to electricity. Individuals without electricity must supplement their energy needs through fuel based lighting and heating. Burning these sources is not only more expensive relative to many forms of renewable power, but also results in the release of toxic fumes and black carbon, which are major contributors to local air pollution and climate change.

So why the disconnect between the world’s rapidly growing supply of more affordable renewable energy and the large quantity of individuals left relying on expensive and dirty alternatives? According to Renewables 2017 Global Status Report, the problem primarily stems from an inability of traditional electricity grids to provide power to these populations. With roughly 80% of those without power living in rural areas, it simply is technologically or economically infeasible to extend traditional grid networks to many of the residents. In cases where the grid has been extended, the added cost of additional infrastructure and energy transport waste can price residents out of purchasing power.

The solution to this problem could be Distributed Renewable Energy (“DRE”) systems combined with Blockchain technology. In short, DRE systems generate and distribute power to local users independent of a centralized grid. The systems often consist of module solar panels or small-scale wind turbines and operate on a Pay-As-You-Go (PAYG) network that allows energy users to pay for only the energy they use on an ongoing basis. In order to manage the creation of PAYG networks, several companies are now turning to Blockchain technology. Blockchain, best known for its use in cryptocurrencies like Bitcoin, functions as a public ledger that allows massive amounts of data to be securely stored and accessed by the general public without a centralized platform. According to one company’s recently released white paper, utilization of Blockchain technology can spur the development of DRE systems by allowing those seeking power generation to connect seamlessly with potential financiers on a global basis without the need for utility companies or governmental bodies acting as a central coordinator. The company’s platform aims to allow applicants, from a single business owner to large-scale communities, to propose energy generating projects, which can be viewed and approved by a community of financers anywhere in the world. Approval of a project, construction of the DRE system, and even future payments for energy use are all conducted utilizing the Blockchain platform.

While the use of Blockchain technology is originating in areas typically underserved by traditional electrical grids, proponents argue that the platform’s built-in efficiencies will result in the technology one day competing with traditional utility owned grids on a worldwide basis. In fact, some companies are already taking steps towards this goal. For example, a microgrid is currently being installed in Brooklyn, New York, which will allow users to generate and sell renewable energy throughout their neighborhood. While it is still unclear what larger role DRE systems will play in future energy networks, the marriage between DRE and Blockchain creates a new playing field for alternative energy generation and delivery.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Steven R. Englund

March 27, 2018 Townships Look to Take the Air Out of Wind Farm

 By Matthew G. Lawson  Wind

NextEra Energy Resources LLC (“NextEra”), the largest generator of wind energy in North America, is currently locked in legal disputes with local townships over its new wind energy project, the “Tuscola Wind III Energy Center.”  NextEra’s subsidiary, Tuscola Wind III LLC (“Tuscola”), plans to construct the 55 turbine wind farm across the Fairgrove, Almer, and Ellington Townships of Tuscola Country, Michigan.  The project, if completed, will be the third wind farm constructed by NextEra in Tuscola County.  The proposed $200 million dollar wind farm is projected to supply wind energy for up to 50,000 homes.

After reaching agreements with nearly 100 landowners to secure land for the project, Tuscola submitted a Special Land Use Permit (“SLUP”) to the local townships for construction and operation of the wind farm.  However, two of the townships, Almer and Ellington, denied the permits and enacted one year moratoriums on the construction of wind farms.  According to Tuscola, its permits were blocked by newly elected members of the Townships’ Boards who were affiliated with a regional anti-wind citizens advocacy group.  The company alleged that the organization was engaged in a systematic effort to block the Tuscola project and that the group had used “tactics of intimidation, threats of lawsuits, referenda, and recalls . . . in an effort to prevent the development of wind projects.”

The company is now fighting back.  In lawsuits filed in the Eastern District of Michigan, NextEra is seeking to have the Board of Trustees’ denial of the SLUP overturned.  On November 3, 2017, the district court issued its first decision on the matter, affirming the denial of the SLUP by the Almer Township.  The court found that the Township’s Board had properly denied the application after it determined that the purposed wind farm would violate Almer’s noise zoning ordinance. The court noted that although Almer’s noise ordinance was admittedly ambiguous, the Board should be provided deference to interpret the meaning of its own ordinance.  Finding that the board’s interpretation of the ordinance was reasonable, the court elected not to overturn the decision.

On March 13, 2018, the district court reached a markedly different result in Tuscola’s parallel suit against the Ellington Township.  Here, the District Court overturned the Ellington Township’s denial of the SLUP.  Unlike the Almer Township Board, it appears Ellington’s Board refused to even consider the merits of Tuscola’s SLUP, and relied entirely on its newly enacted moratorium to block consideration of the application.  The Court concluded that the township’s moratorium was an inappropriate suspension of its zoning ordinance, and was thus void.  Therefore, the Board could no longer rely on the moratorium as a reason to refuse to consider the SLUP application.  Left open by the decision was whether Ellington could successfully deny the SLUP on other grounds or what timeframe the township had to approve/deny the permit.  Interestingly, the Ellington decision arrived exactly one day after the district court reaffirmed its earlier holding in the Almer case (Both decisions were authored by the same Judge). 

Finally, in the newest twist, landowners of property proposed for the Tuscola Wind III site have now filed suit in Tuscola County Circuit Court seeking a court order to ouster the newly elected board members alleged to be part of the anti-wind organization. The ultimate resolution of Tuscola’s dispute may end up relying in part on the success of this new suit.

CATEGORIES: Air, Climate Change, Sustainability

PEOPLE: Steven R. Englund, Matthew G. Lawson

March 27, 2018 Townships Look to Take the Air Out of Wind Farm

 By Matthew G. Lawson  Wind

NextEra Energy Resources LLC (“NextEra”), the largest generator of wind energy in North America, is currently locked in legal disputes with local townships over its new wind energy project, the “Tuscola Wind III Energy Center.”  NextEra’s subsidiary, Tuscola Wind III LLC (“Tuscola”), plans to construct the 55 turbine wind farm across the Fairgrove, Almer, and Ellington Townships of Tuscola Country, Michigan.  The project, if completed, will be the third wind farm constructed by NextEra in Tuscola County.  The proposed $200 million dollar wind farm is projected to supply wind energy for up to 50,000 homes.

After reaching agreements with nearly 100 landowners to secure land for the project, Tuscola submitted a Special Land Use Permit (“SLUP”) to the local townships for construction and operation of the wind farm.  However, two of the townships, Almer and Ellington, denied the permits and enacted one year moratoriums on the construction of wind farms.  According to Tuscola, its permits were blocked by newly elected members of the Townships’ Boards who were affiliated with a regional anti-wind citizens advocacy group.  The company alleged that the organization was engaged in a systematic effort to block the Tuscola project and that the group had used “tactics of intimidation, threats of lawsuits, referenda, and recalls . . . in an effort to prevent the development of wind projects.”

The company is now fighting back.  In lawsuits filed in the Eastern District of Michigan, NextEra is seeking to have the Board of Trustees’ denial of the SLUP overturned.  On November 3, 2017, the district court issued its first decision on the matter, affirming the denial of the SLUP by the Almer Township.  The court found that the Township’s Board had properly denied the application after it determined that the purposed wind farm would violate Almer’s noise zoning ordinance. The court noted that although Almer’s noise ordinance was admittedly ambiguous, the Board should be provided deference to interpret the meaning of its own ordinance.  Finding that the board’s interpretation of the ordinance was reasonable, the court elected not to overturn the decision.

On March 13, 2018, the district court reached a markedly different result in Tuscola’s parallel suit against the Ellington Township.  Here, the District Court overturned the Ellington Township’s denial of the SLUP.  Unlike the Almer Township Board, it appears Ellington’s Board refused to even consider the merits of Tuscola’s SLUP, and relied entirely on its newly enacted moratorium to block consideration of the application.  The Court concluded that the township’s moratorium was an inappropriate suspension of its zoning ordinance, and was thus void.  Therefore, the Board could no longer rely on the moratorium as a reason to refuse to consider the SLUP application.  Left open by the decision was whether Ellington could successfully deny the SLUP on other grounds or what timeframe the township had to approve/deny the permit.  Interestingly, the Ellington decision arrived exactly one day after the district court reaffirmed its earlier holding in the Almer case (Both decisions were authored by the same Judge). 

Finally, in the newest twist, landowners of property proposed for the Tuscola Wind III site have now filed suit in Tuscola County Circuit Court seeking a court order to ouster the newly elected board members alleged to be part of the anti-wind organization. The ultimate resolution of Tuscola’s dispute may end up relying in part on the success of this new suit.

CATEGORIES: Air, Climate Change, Sustainability

PEOPLE: Steven R. Englund, Anne Samuels Kenney (Andi)

March 15, 2018 In the Absence of Any Federal Movement, States Continue to Attempt to Legislate Carbon Rules or Taxes

By Alexander J. Bandza CO2

As reported in Salon and Law360 (sub. req.), states, the “laboratories of democracy,” continue to attempt to experiment with legislation carbon rules or taxes. Washington and Oregon are the latest examples, although such efforts have so far failed. Washington’s proposal would have taxed carbon emissions, whereas Oregon’s proposal would have established a cap-and-trade program.

After the Washington tax bill failed, a coalition of environmental, community and labor groups filed a proposed citizens’ initiative that would put a price on carbon emissions. The proposal would charge $15 per metric ton of carbon content of fossil fuels and electricity sold or used in the state starting in 2020. It would increase by $2 a year in 2021 until the state meets its carbon emissions reduction goal for 2035.

As of February of this year, as reported in Law360 (sub. req.), 10 states have released bills to combat climate change and raise revenue by using the tax system, with some 30 different bills in play. According to this report, the range of carbon taxes are from $5-35/ton (bills in Vermont set the base rate at $5 per ton of carbon while bills in New York set it at $35 per ton).

These state-level efforts underscore the challenge of convincing the public and a broad base of stakeholders to act on a problem that Congress first tried to address over a decade ago, most famously through the McCain-Lieberman Climate Stewardship Act of 2003 and the Waxman-Markey American Clean Energy and Security Act of 2009. Interestingly, it may be this patchwork of state-level action that induces Congress to act sometime in the future.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Alexander J. Bandza

March 15, 2018 In the Absence of Any Federal Movement, States Continue to Attempt to Legislate Carbon Rules or Taxes

By Alexander J. Bandza CO2

As reported in Salon and Law360 (sub. req.), states, the “laboratories of democracy,” continue to attempt to experiment with legislation carbon rules or taxes. Washington and Oregon are the latest examples, although such efforts have so far failed. Washington’s proposal would have taxed carbon emissions, whereas Oregon’s proposal would have established a cap-and-trade program.

After the Washington tax bill failed, a coalition of environmental, community and labor groups filed a proposed citizens’ initiative that would put a price on carbon emissions. The proposal would charge $15 per metric ton of carbon content of fossil fuels and electricity sold or used in the state starting in 2020. It would increase by $2 a year in 2021 until the state meets its carbon emissions reduction goal for 2035.

As of February of this year, as reported in Law360 (sub. req.), 10 states have released bills to combat climate change and raise revenue by using the tax system, with some 30 different bills in play. According to this report, the range of carbon taxes are from $5-35/ton (bills in Vermont set the base rate at $5 per ton of carbon while bills in New York set it at $35 per ton).

These state-level efforts underscore the challenge of convincing the public and a broad base of stakeholders to act on a problem that Congress first tried to address over a decade ago, most famously through the McCain-Lieberman Climate Stewardship Act of 2003 and the Waxman-Markey American Clean Energy and Security Act of 2009. Interestingly, it may be this patchwork of state-level action that induces Congress to act sometime in the future.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Alexander J. Bandza

March 8, 2018 Who Wants to Buy a Superfund Site?

 By Matthew G. LawsonSuperfund Sign

On July 25, 2017, Environmental Protection Agency (“EPA”) administrator Scott Pruitt’s “Superfund Task Force” issued a final report revealing the Task Force’s recommendations for streamlining the remediation process of over 1,300 Superfund sites currently overseen by the EPA.  The Task Force’s recommendations included a strong emphasis on facilitating the redevelopment of Superfund sites by encouraging private sector investment into future use of contaminated sites.  The recommendations were subsequently adopted by Mr. Pruitt, who has repeatedly affirmed that a top priority of the administration is revamping the Superfund program.  In the recent months, it appears EPA and the Trump administration have taken new steps to further the objective of pushing private redevelopment for Superfund Sites. 

On January 17, 2018, EPA posted a “Superfund Redevelopment Focus List” consisting of thirty-one Superfund sites that the agency believes “pose the greatest expected redevelopment and commercial potential.”  EPA claims that the identified sites have significant redevelopment potential based on previous outside interest, access to transportation corridors, high land values, and other development drivers.  “EPA is more than a collaborative partner to remediate the nation’s most contaminated sites, we’re also working to successfully integrate Superfund sites back into communities across the country,” said EPA Administrator Scott Pruitt.  “[The] redevelopment list incorporates Superfund sites ready to become catalysts for economic growth and revitalization.”

Along the same lines, President Donald Trump’s sweeping infrastructure proposal, released February 12, 2018, proposed an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that would allow Superfund sites to access funding from the EPA’s Brownfield Program, which the administration believes could help stimulate redevelopment of the sites.  The proposal further requests Congress pass an amendment to CERCLA that would allow EPA to enter into settlement agreements with potentially responsible parties to clean up and reuse Superfund sites without filing a consent decree or receiving approval from the Attorney General.  The proposal claims that CERCLA’s limitations “hinder the cleanup and reuse of Superfund sites and contribute to delays in cleanups due to negotiations.”

Time will tell whether the administration’s strategy will be enough to entice new development into the Superfund sites.  To follow the progress of EPA’s Superfund redevelopment efforts, visit EPA’s Superfund Redevelopment Initiative website here

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

PEOPLE: Steven R. Englund

March 8, 2018 Who Wants to Buy a Superfund Site?

 By Matthew G. LawsonSuperfund

On July 25, 2017, Environmental Protection Agency (“EPA”) administrator Scott Pruitt’s “Superfund Task Force” issued a final report revealing the Task Force’s recommendations for streamlining the remediation process of over 1,300 Superfund sites currently overseen by the EPA.  The Task Force’s recommendations included a strong emphasis on facilitating the redevelopment of Superfund sites by encouraging private sector investment into future use of contaminated sites.  The recommendations were subsequently adopted by Mr. Pruitt, who has repeatedly affirmed that a top priority of the administration is revamping the Superfund program.  In the recent months, it appears EPA and the Trump administration have taken new steps to further the objective of pushing private redevelopment for Superfund Sites. 

On January 17, 2018, EPA posted a “Superfund Redevelopment Focus List” consisting of thirty-one Superfund sites that the agency believes “pose the greatest expected redevelopment and commercial potential.”  EPA claims that the identified sites have significant redevelopment potential based on previous outside interest, access to transportation corridors, high land values, and other development drivers.  “EPA is more than a collaborative partner to remediate the nation’s most contaminated sites, we’re also working to successfully integrate Superfund sites back into communities across the country,” said EPA Administrator Scott Pruitt.  “[The] redevelopment list incorporates Superfund sites ready to become catalysts for economic growth and revitalization.”

Along the same lines, President Donald Trump’s sweeping infrastructure proposal, released February 12, 2018, proposed an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that would allow Superfund sites to access funding from the EPA’s Brownfield Program, which the administration believes could help stimulate redevelopment of the sites.  The proposal further requests Congress pass an amendment to CERCLA that would allow EPA to enter into settlement agreements with potentially responsible parties to clean up and reuse Superfund sites without filing a consent decree or receiving approval from the Attorney General.  The proposal claims that CERCLA’s limitations “hinder the cleanup and reuse of Superfund sites and contribute to delays in cleanups due to negotiations.”

Time will tell whether the administration’s strategy will be enough to entice new development into the Superfund sites.  To follow the progress of EPA’s Superfund redevelopment efforts, visit EPA’s Superfund Redevelopment Initiative website here

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

PEOPLE: Steven R. Englund