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January 22, 2020 U.S. Navy Does Not Have to Pay to Monitor Residents for PFOS/PFOA Exposure Issues

SongBy Leah M. Song

In our previous blog post, we discussed the case of Kristen Giovanni, et al. v. Navy. As an update, on January 15, 2020, the district court judge said that the Navy did not have to pay to monitor residents for potential health issues linked to PFOS and PFOA exposure. 

The court dismissed the suit finding that the regulator's failure to designate the chemicals as hazardous substances precluded the plaintiffs from filing under state law. To qualify for medical monitoring, Section 1115 of Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) stated that citizens must have been exposed to a hazardous substance, a designation that PFOA and PFOS lack under either federal or state law. The judge reasoned that “merely having the essential qualities of a hazardous waste…is not enough to be a hazardous substance under HSCA.”

Another basis for the Court’s ruling was that the state and federal governments are “well on their way to classifying PFAS as hazardous substances.” This may increase efforts to designate PFAS as hazardous substances under the federal Superfund law.

The plaintiffs’ attorney said that the decision would not be appealed but they would see what could be done in the future if the substances are designated as hazardous substances.

CATEGORIES: Air, Climate Change, Hazmat, Leah M Song, Sustainability

PEOPLE: Steven M. Siros

January 9, 2020 Trump Administration Proposes Landmark Changes to National Environmental Policy Act’s Review Process

HeadshotBy Matthew G. Lawson

CEQ SealMarking the 50th anniversary of the enactment of the National Environmental Policy Act (“NEPA”), on January 1, 2020, the Trump White House published a Presidential Message announcing the imminent release of newly proposed regulations designed to “modernize” the foundational environmental statute.  NEPA, which requires federal agencies to quantify and consider environmental impacts before undertaking actions that have the potential to “substantially impact” the environment, has far reaching applications. Under NEPA, federal agencies are often required to complete an Environmental Impact Assessment (“EIS”) prior to starting public infrastructure projects such as roads, bridges and ports, or before permitting certain private actions that require federal approval, such as construction of pipelines or commencement of mining operations. According to the 2018 Annual NEPA Report, EISs drafted by federal agencies between 2010 and 2017 took an average of 4.5 years to complete. The Presidential Message asserts that the existing NEPA review process “has become increasingly complex and difficult to navigate,” while causing “delays that can increase costs, derail important projects, and threaten jobs for American workers and labor union members.” The regulations proposed by the Trump Administration are expected to be released by the Council on Environmental Quality (“CEQ”) later this week.

If enacted, the proposed regulations could mark the first comprehensive update to NEPA’s review process in more than four decades. According to accounts of a draft memo from CEQ outlying the proposed changes, the modifications will bring substantial changes to the NEPA review process, including:

  • requiring that all EISs be completed within a two-year time limit;
  • limiting the scope of projects that trigger the requirement to draft an EIS; and
  • in the case of private actions that require federal approval, allowing private companies to take lead in reviewing potential environmental impacts under the supervision of a federal agency.

Perhaps most critically, CEQ is expected to advise that federal agencies are no longer required to consider “cumulative” environmental consequences when accounting for the environmental impacts of a specific action. This language appears aimed at eliminating the requirement that federal agencies consider the impact of increased greenhouse gas (“GHG”) emissions and climate change as part of their NEPA review. The proposal comes after several high profile infrastructure projects back by President Trump, including the Keystone XL oil pipeline, were blocked by federal judges on the basis that the project’s EIS failed to sufficiently consider the impacts of climate change.

While the CEQ regulations have not been comprehensively revised since 1986, in recent years the Obama and Trump Administrations have independently sought to clarify the obligation imposed on Federal agencies to consider GHG emissions and climate change under NEPA. In 2016, the Obama Administration CEQ released guidance endorsing the view that NEPA requires federal agencies to consider and quantify any reasonably foreseeable GHG emissions that are attributable to a proposed action. However, this guidance was subsequently withdrawn by the Trump Administration CEQ in 2017, and replaced in June 2019 with draft guidance that cautioned agencies to only consider GHG emissions that were “substantial enough to warrant quantification” and not “overly speculative.” 

Once the CEQ’s newly proposed regulations are released and filed in the federal register, the public will be afforded 60 days to comment on the changes. From this point, the Trump Administration is aiming to publish the final regulations before the presidential election in November. However, before the new regulations can take effect, environmental groups are expected to challenge them in court proceedings.

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

PEOPLE: Matthew G. Lawson

December 30, 2019 New York Bans PFAS Chemicals in Firefighting Foam as Industry Fights for Exemptions

HeadshotBy Matthew G. Lawson

On December 23, 2019, New York Governor Andrew M. Cuomo gave conditional approval to a state ban on firefighting foams containing per- and polyfluoroalkyl substances (known as “PFAS”).  PFAS, commonly referred to as “forever chemicals” due to their ongoing persistence in the environment, are a family of man-made chemicals commonly found in a variety of products, including food packaging, cookware, stain-resistant clothing, and, in the case of perfluorooctane sulfonic acid (PFOS), many types of firefighting foams.  According to the U.S. EPA, PFAS chemicals are not only “extremely persistent in the environment,” but have also been linked to numerous health conditions including cancer in humans.

The legislation (“A445A”) requires the New York Office of Fire Prevention and Control to promulgate regulations that will provide guidance for state agencies and local government to avoid the purchase of firefighting foams containing PFAS compounds and outright prohibits the manufacture of PFAS containing firefighting foams within two years of the effective date of the bill.  As a condition to his approval, Governor Cuomo noted that an amendment to the current legislation was needed to allow discretionary use of firefighting agents containing PFAS where no other viable options exist.  On the basis of an agreement with the New York legislature to implement these amendments, the Governor conditionally approved the bill.    

With the enactment of the legislation, New York becomes the third U.S. state to ban PFAS chemicals behind Washington and New Hampshire. In addition, six other states have enacted some form of partial prohibitions on the use of foams containing PFAS chemicals.  In response to the recent state legislation, the FluoroCouncil has affirmed that use of firefighting foam containing PFAS “is credited with saving lives and property” and that use of such foams may be essential for extinguishing fires caused by flammable liquids.

Regulation of PFAS chemicals is also being considered at the federal level.  As noted in a prior blog by the Corporate Environmental Lawyer, a federal bill is currently being considered that would require the U.S. EPA to promulgate drinking water standards for PFOS as well as perfluorooctanoic acid (PFOA), another common chemical in the PFAS family.  According to the Congressional Budget Office (CBO), the estimated cost of implementing these federal standards across the country are likely to exceed “several billion dollars.” The Corporate Environmental Lawyer will continue to update on forthcoming or pending state and federal legislation regarding PFAS chemicals.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, Sustainability, Toxic Tort

PEOPLE: Matthew G. Lawson

December 20, 2019 International Shipping Industry Plots New Course to Battle Climate Change

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By Matthew G. Lawson

GHGIn recent years, the global maritime shipping industry has faced pressure to reduce the large quantity of greenhouse gas (“GHG”) emissions associated with international shipping. About 90 percent of the world’s trade goods are transported by ship, and, according to one 2014 study, the shipment of these good via maritime vessels emits approximately 1.9 billion tonnes of GHG annually, or approximately 4% of human-made emissions worldwide. The annual GHG output of the shipping industry has been projected to rise by as much as 250% by 2050 if direct actions are not taken to modify industry practices.

Because of its international nature, global shipping is extremely difficult to regulate on a national basis, and therefore is often addressed through international agreements. To this end, in 2018, the International Maritime Organization (“IMO”), a branch of the United Nations, approved the world’s first broad agreement designed to reduce GHG from worldwide ocean shipping. The agreement reached by the IMO member provides the following target metrics:

(1) Reduce CO2 emissions per “transport work” (product of cargo transmitted and distance sailed) by at least 40% by 2030 and 70% by 2050; and

(2) Reduce total CO2 emissions from shipping by at least 50% by 2050.

The targets were designated to fall in line with the GHG reductions goals set out in the 2015 Paris Climate Accords (the "2015 Paris Agreement"). Though the 2015 Paris Agreement does not include an agreement to reduce GHGs in international shipping, the IMO has stated that it is committed to reducing GHGs in the industry to match the commitment put forward in the agreement.

On December 18, 2019, ship owner associations representing over 90% of the world’s merchant fleets formally presented to IMO their proposed strategy for meeting the international body’s 2018 GHG reduction goals. The industry’s plan proposed the creation of a $5 Billion USD research fund that will be used to research and develop more environmentally friendly fuels and ship propulsion systems. The fund would be fully funded from a $2 per ton tax on marine fuel purchased by shippers over a 10-year period. The associations argued that the fund would be critical to the development of alternative fuels—such as synthetic fuels created by renewable energy sources—which had the potential to drastically reduce the industry’s carbon footprint.

IMO’s environmental goals expand to areas beyond just GHG reduction. For example, in January 2020, the IMO’s new cap on the amount of Sulphur permitted fuel oil will take effect. The effort is aimed at reducing maritime vessel’s emissions of Sulphur oxides (SOx), which are known to be harmful to human health and can lead to acid rain and ocean acidification.  on December 10, 2019, the United States Environmental Protection Agency (“USEPA”) enacted a new Final Rule to help refiners comply with the IMO’s new global sulfur standard. As provided by the USEPA, the Final Rule was designed to “ensure that U.S. refiners can permissibly distribute distillate marine fuel up to the 5,000 ppm sulfur limit, which will facilitate smooth implementation of the 2020 global marine fuel standard.”

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

PEOPLE: Matthew G. Lawson

December 5, 2019 Dan Brouillette, Acting Secretary of Energy, Confirmed by Senate for Top DOE Spot

BandzaBy Alexander J. Bandza

BrouilletteThe Senate in a 70-15 vote confirmed Dan Brouillette this week as the new Secretary of Energy to succeed Secretary Rick Perry. All 47 Republicans who were present for the vote backed confirmation, as did 22 Democrats, including Joe Manchin III of West Virginia, Tom Udall of New Mexico, and Richard J. Durbin of Illinois, and one Independent, Angus King of Maine.

At his confirmation hearing, Mr. Brouillette stressed the role of the DOE in advancing research, including focusing his tenure on pushing direct air capture, carbon capture and sequestration (CCS), nuclear reactors, and the DOE commercialization work that fosters novel technologies in the private sector. He stated he would “absolutely” devote more DOE resources to researching DAC, and praised ongoing work on CCS and demonstrations of the technology in Wyoming in particular, nothing that he is “very excited about the work I see being done in Wyoming and within DOE writ large.” 

Wyoming has become a focal point of the tension as to the future of coal under climate change policies or other environmental laws and the potential opportunity for CCS to resolve this tension. (Wyoming supplies 40% of the United States’ coal to 29 states.) The Wyoming Public Service Commission Chair has recently spoke about the need for a hard look at the benefits of CCS before shuttering coal plants. Also this week, the University of Wyoming announced a partnership with DOE to accelerate research on carbon capture technology at two of the state’s coal-fired power plants. In light of Mr. Brouillette’s extensive comments in support of Wyoming and CCS, we can anticipate much more on this front.

As noted by the New York Times, before becoming deputy energy secretary, Mr. Brouillette was chief of staff to the House Energy and Commerce Committee and was assistant secretary of energy for congressional and intergovernmental affairs in the George W. Bush administration. He also worked as an executive at the United Services Automobile Association, a financial services provider to members of the military, and Ford Motor Company. He once was a member of Louisiana’s State Mineral and Energy Board.

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

November 27, 2019 D.C. Circuit Rejects Attempts by Trump Administration to Fast-Track Litigation on EPA Climate Rule

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By Matthew G. Lawson Power plant

On November 22, 2019, the D.C. Circuit rejected a bid by the Trump Administration to fast-track litigation over the United States Environmental Protection Agency’s (“USEPA”) Affordable Clean Energy Rule governing greenhouse gas emissions from power plants. The Order similarly rejected an opposing bid by environmental groups and twenty U.S. States which sought to stall the litigation.

The litigation revolves around the Trump Administration’s implementation of the Affordable Clean Energy Plan, a replacement for the Clean Power Plan enacted by the Obama Administration. The Obama-era Clean Power Plan—which itself was stalled by legal challenges—sought to impose carbon emissions caps on power plants and reduce the United States’ greenhouse gas emissions by 32% from 2005 levels by the year 2030. In contrast, the Trump-era Affordable Clean Energy Plan seeks a more modest reduction of greenhouse gas emissions and provides further latitude for individual U.S. States to design their own plans for paring carbon dioxide emissions at power plants. The challengers to Trump’s rule assert that the Affordable Clean Energy Plan does not meaningfully reduce greenhouse gas emissions and is a violation of USEPA’s duty to address pollution from power plants under the Clean Air Act. 

In its response to the challenges, the USEPA asserted that an “[e]xpeditious resolution of the petitions … would provide certain over EPA’s authority under the Clean Air Act, and the validity of the Affordable Clean Energy Rule promulgated under the Act.” The Trump Administration’s attempt to quickly resolve challenges to the Affordable Clean Energy Plan stems from the Administration’s goal to fully implement its final rule prior to any potential administration changes from the 2020 elections. A swift ruling in the Trump Administration’s favor would secure the validity of final rule and limit any future administration’s options for imposing additional regulations of greenhouse gas emissions under Clean Air Act. However, as a result of the D.C. Circuit’s ruling, it is estimated that the court will not hear oral arguments on the case until summer or fall of 2020, likely placing a final ruling after the results of the 2020 presidential election.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Matthew G. Lawson

November 25, 2019 U.S. EPA May Require Companies to Report PFAS Releases in TRI Reports

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On November 25, 2019, U.S. EPA submitted an advance notice of proposed rulemaking (ANPR) for publication in the Federal Register seeking public comment on whether certain per- and polyfluoroalkyl substances (PFAS) should be added to the list of chemicals subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). In its ANPR, U.S. EPA seeks comments on which, if any, PFAS compounds should be considered for listing, how to list them, and what would be the appropriate reporting thresholds given their persistence and bioaccumulation potential. U.S. EPA specifically notes that it is considering establishing a reporting threshold for PFAS that is lower than the usual statutory thresholds (25,000 pounds for manufacturing or processing and 10,000 pounds for otherwise using listing chemicals) due to concerns over the compounds environmental persistence and bioaccumulation potential.  The ANPR notes that perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) have been the most widely studied PFAS compounds but notes that there are more than 600 PFAS compounds that are being manufactured and/or used in the United States. 

If added to the list of chemicals subject to reporting under EPCRA, affected companies would be required to report annually how much of each listed PFAS compound is released into the environment or otherwise managed through energy recovery, recycling or treatment. This information is then publicly available through the Toxic Release Inventory database. The ANPR comes on the heels of action by the House Energy and Commerce Committee that approved legislation  (H.R. 535) on November 20th that seeks to add at least 13 PFAS compounds to the list of chemicals subject to EPCRA reporting.

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

PEOPLE: Steven R. Englund, Steven M. Siros

November 21, 2019 Environmental Groups Collaborate on Launch of National PFAS Clearinghouse
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In conjunction with a publicity blitz surrounding the release of “Dark Waters,” a movie targeting alleged environmental and health impacts associated with PFAS releases in Ohio and West Virginia, a group of environmental groups, lawmakers and other advocates of more stringent PFAS regulations launched a public clearinghouse that is intended to provide consumers with information on the adverse health impacts of PFAS and provide recommendations on ways to minimize exposure to these chemical substances. In a November 19, 2019 press conference, Mark Ruffalo (one of the actors in the "Dark Waters" movie) and Rob Bilott (author of the book Exposure), joined by members of Congress and several environmental groups, announced the launch of the clearinghouse, named “Fight Forever Chemicals,” noting that purpose behind the clearinghouse is to bring the fight against forever chemicals from the margins to the mainstream and thereby demand stronger protections from leaders in office.

As has been discussed in previous blog entries, both the States and U.S. EPA are feeling increasing pressure to adopt stringent PFAS regulations. Some states such as California have already adopted screening levels as low as 5 parts per trillion for perfluorooctanoic acid (PFOA) in drinking water (and suggested that the levels could be as low as 0.1 parts per trillion), even though the science regarding the toxicity of these compounds is still in flux.  On November 21, 2019, U.S. EPA released its fall regulatory agenda in which it confirmed its intent to designate PFOA and perfluorooctanesulfonic acid (PFOS) as hazardous substances through one of the available statutory mechanisms in Section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 

The publicity surrounding the launch of the clearinghouse and the opening of the movie will only increase the pressure felt by States and U.S. EPA.  As such, it is more important than ever for companies to ensure that they have carefully thought-out strategies in place to minimize the risks associated with PFAS impacts in the environment. These strategies need to take into consideration the allocation of PFAS risks in transactional settings, as well as assessing potential liabilities associated with historical manufacturing operations. The PFAS tidal wave seems to building, and companies should be proactive to guard against being caught up in the deluge.

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

PEOPLE: Steven R. Englund, Steven M. Siros

September 6, 2019 Recent DOJ Directive Marks Continuing Effort to Curb Availability of Supplemental Environmental Projects in Civil Environmental Settlements

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  By Matthew G. Lawson

On August 21, 2019, the Department of Justice issue a new memorandum reducing state and local governments’ ability to enter into settlement agreements that require the completion of supplemental environmental projects (SEPs) as compensation for alleged environmental violations. While impactful in its own right, the DOJ memo can be viewed as a continuation of an over two-year long effort by the DOJ to reduce the general availability of SEPs in the settlement of civil environmental cases. 

As defined by the EPA, “SEPs are projects or activities that go beyond what could legally be required in order for the defendant to return to compliance, and secure environmental and/or public health benefits in addition to those achieved by compliance with applicable laws.” Private parties or municipalities may offer to complete SEPs as part of a settlement with EPA or other environmental regulators. By doing so, the alleged violator effectively replaces a part or all of the penalty owed for an environmental violation with the commitment to develop an environmentally beneficial project.

Despite the widespread and longstanding use of SEPs in settlement agreements, recent actions by the DOJ demonstrate a clear effort by the Department to reduce the use of SEPs in the settlement of alleged environmental violations.

The trend started with a June 8, 2017 policy directive issued by then Attorney General Jeff Sessions which broadly prohibited settlement agreements from “directing or providing” payment to any third-parties that are neither victims nor parties to the lawsuits. The directive had the immediate effect of prohibiting SEPs that require violators to fund environmental project performed by third parties.

The 2017 directive was then followed by a second memorandum on November 11, 2018, which barred the use of consent decrees to achieve “general policy goals or to extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Finally, in its most recent move, the August 21st DOJ memorandum issued from the Department’s Environmental and Natural Resource Division details the DOJ’s determination that environmental SEPs are prohibited under the November 2018 directive. Specifically, the memo provides that “[t]he use of SEPs in consent decrees with state and local governments contravenes the prohibition on using consent decrees to ‘extract greater or different relief from [a state or local government] than could be obtained through agency enforcement authority or by litigating the matter to judgment.’” While the memorandum notes several conditions where SEPs may still be permitted, it cautions that exemptions to the general prohibition “are meant to be rare.”  

With the DOJ’s most recent actions, it appears that environmental regulators will no longer be permitted to agree to SEPs in most, if not all, settlement agreements. However, open questions remains whether regulators will be able to fashion future SEPs that comply with the recent DOJ directives.

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

PEOPLE: Matthew G. Lawson

September 5, 2019 Available Company Defenses to Climate Change Shareholder Activism: Trends in Climate Change Litigation, Part 5

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By Matthew G. Lawson

As noted in Jenner & Block’s prior blog post, Shareholder Activism: Trends in Climate Change Litigation, Part 4, an emerging issue for public companies in high greenhouse gas (“GHG”) emitting industries is increased pressure from environmentally focused “activist shareholders.” These shareholders often seek to leverage their ownership shares to influence companies into taking action to decrease GHG emissions and/or increase public disclosure of such emissions. These efforts may be undertaken through negotiations with company management or through the introduction of specific shareholder proposals and proxy materials to be presented and voted on at annual shareholder meetings.

Several recent actions taken by the SEC may now help shield public companies from certain attempts by shareholders to introduce climate change related proposals for consideration at shareholder meetings. Under SEC rule 14a-8(i)(7), public companies may exclude from shareholders’ voting ballots any proposals which seek to “micromanage” the company’s ordinary business operations. In recent months, the SEC has asserted that rule 14a-8(i)(7) may be utilized by companies to block certain types of climate change related proposals. The agency has articulated this position by issuing “no-action” letters to public companies seeking to block climate-change proposals from their shareholders. In effect, these letters act as an assurance that the SEC will not recommend enforcement action against the companies for blocking the respective proposals because the agency agrees that the proposal falls under the purview of rule 14a-8(i)(7). However, the SEC has, in a few instances, refused to issue “no-action” letters to companies seeking to block shareholder climate change proposals.

Whether a shareholder’s climate change proposal is excludable under rule 14a-8(i)(7) therefore appears to be a case-by-case determination which depends on the specific demands of a proposal. As a general rule, the SEC has found that proposals which only seek greater disclosure of a company’s GHG emissions cannot be excluded under rule 14a-8(i)(7), but proposals which impose GHG emission reduction targets on the company or require specific methods for reporting or calculating GHGs may be excluded under rule 14a-8(i)(7). A few instructive examples of these general conclusions are provided below:

  • On February 14, 2019, the SEC issued a no-action letter to J.B. Hunt Transport Services, Inc. approving the company’s request to block a shareholder proposal that, if implemented, would require the company to adopt quantitative targets for reducing GHG emissions and issue a report demonstrating its progress towards achieving these targets. The SEC found that the proposal sought to micromanage the business by probing into complex matters that were better left to the informed judgment of management.
  • On March 4, 2019, the SEC refused to issue a no-action letter to Anadarko Petroleum Corporation after the company sought to block a proposal requesting that the company describe if, and how, it planned to reduce its total contribution to climate change to fall in line with the global temperature objectives of Paris Agreement.
  • On April 2, 2019, the SEC issued a no-action letter to ExxonMobil which affirmed that the company could exclude a shareholder proposal which would require the company to adopt and disclose certain GHG emission reduction targets. The SEC noted that the proposal sought to replace the ongoing judgments of the company’s management with “specific methods” for implementing complex policies.

Of course, the threat of potential governmental enforcement actions is only one reason why a company may hesitate to block shareholder proposals. Beyond the business considerations of such a decision, public companies may also need to consider whether adopting certain types of shareholder proposals—particularly those calling for increased disclosure and transparency of GHG emissions—may be beneficial to protect the company from the risk of future lawsuits by the company’s shareholders.

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

PEOPLE: Matthew G. Lawson

August 29, 2019 EPA Proposes Rule to Rescind Methane Regulations for the Oil and Gas Industry

Torrence_jpgBy Allison A. Torrence

Fernwärmeleitung_Dü_StPö_mit_Kraftwerk_DürnrohrOn August 28, 2019, EPA issued a proposed rule titled Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review (the “Proposed Rule”). The Proposed Rule, if adopted, would rescind certain parts of the New Source Performance Standards (“NSPS”) related to methane and volatile organic compounds (“VOCs”) in the oil and gas industry.

First, EPA is proposing to redefine the operations included in the NSPS source category for the oil and gas industry. The original source category listing for the oil and gas industry, issued in 1979, included the production and processing segments of the industry. In 2012 and 2016, EPA expanded the oil and gas industry source category to include the transmission and storage segment of that industry. The Proposed Rule would remove sources in the transmission and storage segment from the oil and natural gas source category and would rescind the methane and VOC emission limits, adopted in 2012 and 2016, which currently apply to those sources.

Second, EPA is proposing to rescind emissions limits for methane (but keep limits for VOCs) in the production and processing segments of the oil and gas industry.  

Third, EPA is seeking comment on its legal authority to regulate methane under section 111 of the Clean Air Act (“CAA”). In 2016, EPA determined that it could regulate methane and other greenhouse gases (“GHGs”) under section 111 of the CAA without making a pollutant-specific determination that GHG emissions from the oil and gas industry cause or contribute to air pollution that endangers public health. In the alternative, in case such a determination was required, EPA found that methane and other GHG emissions from the oil and gas industry do cause or contribute to air pollution that endangers public health.

Specifically, EPA is requesting comment on the following three questions:

  • Whether section 111 of the CAA requires EPA to make a pollutant-specific significant contribution finding for GHG emissions (primarily methane) from the oil and natural gas industry.
  • If the law does require a pollutant-specific finding, whether the finding in the alternative in the 2016 rule properly satisfied that requirement.
  • The appropriate criteria to use when determining, under section 111, whether a pollutant emitted from a particular source category significantly contributes to air pollution that may reasonably be anticipated to endanger public health and the environment.

According to EPA’s analysis, the Proposed Rules would result in an increase in emissions of methane, VOCs, and hazardous air pollutants (“HAPs”). The estimated increases would be 370,000 short tons of methane (8.4 million metric tons of carbon dioxide equivalent), 10,000 short tons of VOCs, and 300 short tons of HAPs. The Proposed Rule would save the oil and gas industry a total of $97-$123 million from 2019 through 2025, which is $17-$19 million a year.

More information about the Proposed Rule is available at EPA’s website. EPA will be accepting comments on the Proposed Rule for 60 days after it is published in the Federal Register.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

July 29, 2019 Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

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Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

  1. I understand that you worked for U.S. EPA when it was first started as a federal agency in the early 1970s. What was your role at the “new” U.S. EPA?

I led the health sciences assessment work for the first 14 years after U.S. EPA was formed in December 1970. At the time, U.S. EPA was a very small agency. I was the only health scientist in an eight-person Office of Technical Analysis, reporting directly to U.S. EPA’s first Administrator, Bill Ruckelshaus. He is an extraordinary person—a terrific and committed leader, who also knew how to make hard work fun. The Administrator asked me to lead an intra-agency committee to write a cancer policy to address the zero risk tolerance expectation for substances with some evidence, often conflicting, of carcinogenicity, as indicated by tumors in animals or humans. Another challenge was that substances could be ubiquitous or important to our society. We knew a “zero tolerance” policy for all possible carcinogens would be unworkable, so my committee reported out a process rather than a cancer policy. That process was the first use of risk assessment to organize what is known and unknown about the likelihood that exposure to a particular agent might cause illness. On the assumption the agent might cause illness, the next step is to define what levels of risk and exposure would be acceptable and protective of public health. The concept of risk acceptance was novel at the time and was introduced in a social and political climate aimed at seeking the ideal, i.e., zero risk.

My office at U.S. EPA conducted and I co-authored more than 150 risk assessments between 1976 and 1983 as a basis for defining major regulatory policy. The National Academy of Sciences published its endorsement of this risk assessment process in 1983. The Academy’s report, referred to as “The Red Book,” inspired national and international adoption of the U.S. EPA’s approach to risk assessment started by my intra-agency committee. I led the effort to expand the health assessment program, which resulted in establishing the central risk assessment office for the Agency—the Office of Health and Environmental Assessment. This office reported directly to the Administrator, who granted us wide latitude to expeditiously conduct our assessments.

  1. What was your professional and academic background leading to your involvement in health risk assessment?

My academic background is in synthetic organic chemistry, the chemistry of making organic molecules, amongst other applications, to be biologically active. I was pre-med at the College of William and Mary, but I was strongly discouraged from pursuing medical school “because I would be taking the place of a man” (a quote from the Chairman of the Chemistry Department). Instead, I was granted a fellowship at the University of Virginia to pursue a master’s degree in synthetic organic chemistry. Next, I applied for a unique fellowship being granted by the U.S. Department of Defense and completed my Ph.D. work in synthetic organic chemistry. During those early years of U.S. EPA, my degree and training best fit the Agency’s needs. There were no degrees in toxicology, relevant applications in epidemiology were just emerging, and mechanism of action had received little attention. I was fortunate to be in the right place at the right time.

  1. What was it like to be part of the start of a new federal agency?

Most of all, it was challenging. Following the civil rights movement, the anti-Vietnam war movement, and 20 million people marching on the first Earth Day, the spirit of the time was that significant change can happen; every move at EPA was front-page news. We all felt a sense of urgency to make a difference and establish scientific credibility for all decisions that the Agency had to make. U.S. EPA inherited a rapidly cascading series of enabling legislation starting with the Clean Air Act in December of 1970, followed by amendments to the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; Radiation Authorities; the Drinking Water Act; “Superfund” (CERCLA); and the Resource Conservation and Recovery Act (RCRA). All compelled the Agency to be protective of public health. Implementing this Congressional directive was left to the Agency and, for our part, this meant meeting strict deadlines and establishing scientific foundations that defined protection and that could survive challenges from Congress and the scientific, private, public, and legal communities.

At a very young age, many of us at U.S. EPA inherited a great deal of responsibility. New areas of complexity seemed to develop on a daily basis. Looking back, a culture of committed, young professionals worked hard and achieved a great deal. We were inspired by the excitement and challenge of those times. Many of us have remained friends and colleagues until the present day. Some of us are still involved, as board members of the U.S. EPA Alumni Association.

  1. What were some of the accomplishments of which you were most proud that came out of your work for U.S. EPA?

I am proud of many things, but I am most proud of my role in co-authoring the first guidelines to establish risk assessment and risk management as the basis for setting public policy to protect public health and having the opportunity to found and direct U.S. EPA’s first health assessment offices, the Carcinogen Assessment Group, and the expanded Office of Health Environmental Assessment. In addition, I had the opportunity to found and direct the Agency’s expansion of health topics to include reproductive risk assessment, mutagen risk assessment, and exposure assessment groups; these offices conducted all risk assessments for the Agency’s program offices for many years.

I was fortunate to be a part of establishing the scholarship in this rapidly developing and complex field of health risk assessment. A small number of us founded the Society for Risk Analysis, a focal point for sharing scientific developments from all sectors, including engineering and the social sciences. I served as one of the early Presidents and, for 10 years, was Editor-in-Chief of the Society’s flagship journal, Risk Analysis: An International Journal. In addition, as U.S. EPA’s representative, I had the privilege of participating in the worldwide application of risk assessment first in Europe through the World Health Organization and subsequently through the Pan American Health Organization and other organizations.

  1. After you left U.S. EPA, you have had several professional engagements. Can you summarize those for us?

After spending 14 years being a part of U.S. EPA’s founding, I entered the private sector, initially as President and CEO of the first private health and environmental assessment consulting firm, Clement Associates. In addition to work for private clients, U.S. EPA contracted with me to oversee and direct the first risk assessments for all of its Superfund sites, as did the Agency for Toxic Substances and Disease Registry to direct and write the first Toxicity Profiles. Later, I founded my own company, Sciences International, and directed it for 13 years, during which we addressed a wide variety of interesting and challenging issues. Subsequently, Exponent asked me to serve as Vice President for Health Sciences, a post I served in for 10 years, then as Chief Science Officer. More recently, I am honored to accept the Exponent designation of Senior Fellow, a rare recognition by the Company. Presently, I continue my work in the field of health risk assessment. I know that the framework and process we created in the early years made it possible to identify gaps in knowledge and point to ways for improving the foundations for health risk assessment.

  1. What are the emerging policy issues in the area of human health risk assessment?

Without a doubt, the need to sensibly apply the science we know to separate the important from the unimportant issues. Often, I feel that we lose sight of the fact that health risk assessment has achieved endorsement worldwide as the premier way to address the complexity of issues involved in defining public health protection. Also, the outcomes of risk assessment now have challenging new applications, e.g., in toxic tort litigation or world trade decisions.

In the policy area, one important emerging issue is the use of health risk assessment to “prove safety.” Adopting ever-diminishing levels of possible protection to achieve this goal effectively creates a “zero tolerance” policy, the very policy that would have defeated U.S. EPA at its inception. I believe that little is gained by these controversial policies that create debate for years; under these approaches we can lose sight of what is important. For example, important EPA risk assessment documents may now take years to become final because of endless debates in areas of scientific uncertainty where societal impacts can be enormous but risk reduction uncertain and marginal. We accept risk in every other part of our society, so it is unrealistic to apply a zero-risk policy to our environmental decisions.

Secondly, I feel that it is most unfortunate that the sciences so essential to public health understanding are often caught in agendas that constrain even the most objective review and use of our public health documents. There is no question that science has become politicized. I contend that U.S. EPA would have been lost without access to all scientists of importance to our decisions, regardless of who had funded their work.

Finally, I see an increasing lack of understanding of the difference between science as applied to public health protection—to preempt and prevent disease—and the science of establishing causality. It is critical to use honest science, regardless of the setting, to avoid mistakes. Distortion of scientific foundations and fact to achieve economic or political gain is deplorable and should be rejected.

  1. What do you enjoy most about your work in the field of human health risk assessment?

The endless challenges. Risk assessment demands that we honestly express what is known and unknown. Exploring the unknowns and narrowing our knowledge gaps are endlessly rewarding endeavors.

  1. What do you find to be the most challenging aspect of your work?

It is very difficult to find a single answer to this question. Exploring new science will always be at the top of the list. The greatest non-scientific challenge is the fact that not all are in engaged in finding the truth. Trying to explain the known scientific facts in situations involving exploitation of scientific unknowns or distortion, whether in the courtroom or as a part of political debate, is challenging. The climate created by the spirit of the ’60s was to seek the truth. We were all essentially on the same page; we shared common goals even as we debated the best methods of scientific approach. Today, goals often do not converge; science in the age of polarization is challenging.

  1. What or who helped you succeed as a leader in the area of human health risk assessment?

I have been surrounded by thought leaders and gifted people throughout my career. The environmental movement attracted so many to the new U.S. EPA. One who contributed so much to my understanding was Dr. Roy Albert, the Deputy Director of the School of Environmental Medicine at NYU. He was blessed with an extraordinary intellect and excellent sense of balance. He was the outside Chair of our Carcinogen Assessment Group in the early years, a role that would not be possible in the bureaucracy today. And I must continue to give credit to U.S. EPA Administrator Ruckelshaus.

  1. What advice would you give a young person today who is considering starting out in your field?

Follow your dreams. Work is never work if you feel passionate about what you are doing. Achieve the best education you can get and keep your options open. You may need to help create your own opportunity. Have confidence in your capabilities to achieve your goals and set high ones.

Dr. Anderson was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Air, Cercla, Consumer Law and Environment, RCRA, Toxic Tort, Water

PEOPLE: Gabrielle Sigel

July 2, 2019 Exploring the E-Suite with Dr. Shalini Vajjhala, Founder and CEO, re:focus partners (San Diego, CA), and former Deputy Assistant Administrator in the Office of International & Tribal Affairs at the US EPA.

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Shalini Vajjhala

 

Exploring the E-Suite with Dr. Shalini Vajjhala, Founder and CEO, re:focus partners (San Diego, CA), and former Deputy Assistant Administrator in the Office of International & Tribal Affairs at the US EPA.

    1. Tell us about re:focus partners, including what the organization does and your role.

    re:focus is a design firm that specializes in developing resilient infrastructure solutions for cities and communities around the world and integrating project finance into the design process. Our team brings together expertise in policy, engineering, and risk management to craft integrated projects and develop new public-private partnerships. The goal of every re:focus project is to better align public funds and leverage greater private investment to protect and improve the lives of vulnerable communities.

     

    As Founder and CEO, my role involves setting the strategic direction of the organization and putting together our major initiatives and partnerships. Like most small organizations, everyone on our team does a little bit of everything, and on the day-to-day level, I usually have my sleeves rolled up on various project management, design, and analysis tasks and pieces of writing.

    1. What is your professional background that led you to become involved in the energy and environmental fields?

    I am an architect first and foremost, and I have always loved the field of green design. I went on to do graduate work in engineering and public policy (also at Carnegie Mellon University), which widened my view of the many ways to engage in the energy and environmental fields. My research focused on how community mapping could inform environmental decision-making. When I finished my PhD in 2005, I went on to join Resources for the Future, an economics think-tank in Washington, DC, as one of a handful of non-economists in the organization. Being more of a “methods” rather than domain-specific researcher gave me tremendous freedom to work on issues from infrastructure siting to environmental justice and climate change adaptation, which all have important spatial dimensions and community engagement at their core.

    In early 2009, I joined the Obama Administration and spent a few months at the White House Council on Environmental Quality before moving to the US EPA’s Office of International and Tribal Affairs. In my time in the Administration, I worked on a huge range of issues, but one of the common threads was pulling together interesting public-private partnerships to make progress where public-sector resources alone were insufficient.

    I stepped down from my position at the EPA in 2012, just before Hurricane Sandy hit the eastern seaboard, and was urged by our various partners to continue the green infrastructure and resilience work I had started at EPA. That’s how re:focus came to be. In hindsight, I feel tremendously fortunate to have had the chance to focus on interesting problems and follow those problems into new career opportunities that allowed me to tackle the same challenges from very different vantage points, from research to policy-making to entrepreneurship.

    1. What do you think are the emerging issues in the energy and environmental fields, especially your work in sustainable infrastructure?

    We all recognize when infrastructure fails, but we rarely invest in new systems to prevent disaster and protect communities. I think the biggest emerging issue in the energy and environmental field is how we create robust and resilient infrastructure systems of all kinds and recognize the value of the “avoided losses” or the successes where something doesn’t happen—a storm hits, but a community isn’t devastated. Just as with preventative healthcare, valuing and capturing the value of these kinds of investments is going to be essential if we are going to successfully transition to more resilient communities and economies over the coming decade.

    1. What aspects of working in the energy and environmental fields have you enjoyed most?

    My favorite part of working in a field that is so broad is learning from the experiences and perspectives of colleagues from very different backgrounds and disciplines, and finding new lenses through which to see old and stubborn problems.

    1. What do you find are some of the most challenging aspects of your work in the energy and environmental fields?

    Change is hard. Change in the public sector is even harder. One of the best strategies I have found to making real and persistent change is to gradually create space for something new by starting where an existing system is failing. It is much easier to talk someone from a sinking ship onto a lifeboat than it is to get someone to shift course if they don’t know their boat is taking on water. Too often we cling to a system that we know isn’t working for us today to avoid the unfamiliar tomorrow. Finding gentle ways to bring up existing problems and look for better solutions is the most reliable approach I have found to make something new seem like the preferred alternative to the status quo.

    One important thing I try to avoid is making a future problem or benefit more important than what is happening now. Lots of experts from behavioral economics to psychology know that people everywhere struggle to make decisions that have benefits in the distant future. Instead, we look for where stakeholders in a system are losing money or value today—for example, talking about the costs of current local flooding instead of only talking about future climate changes—since these same systems are likely to be the first to fail or worst off in future.

    1. How did you make the transition from several high-profile energy and environmental policy positions in Washington, DC to becoming a sustainable-infrastructure startup founder?

    I launched re:focus in 2012 after spending several years in multiple positions  at CEQ and EPA. My roles at EPA gave me the opportunity to work with many incredibly dedicated civil servants across the federal government. One of the initiatives that I created and that our team at the Office of International and Tribal Affairs was instrumental in developing was the US-Brazil Joint Initiative on Urban Sustainability (JIUS). The program was an experiment to see how government agencies could build new public-private partnerships to leverage funding for green infrastructure. Based on its early success in bringing together non-traditional partners, it quickly grew into a binational presidential initiative, announced by President Obama and Brazilian President Dilma Rousseff, to catalyze investment in sustainability in cities around the world. This collaboration brought together federal, state and local government officials with a whole bunch of unconventional private sector companies to find new ways to develop and finance green infrastructure in the cities of Rio de Janeiro, Brazil and Philadelphia, PA. Despite their many differences, these two cities still face many similar challenges when it comes to designing and financing new water, energy, and transportation systems. We turned the role of government on its head and found new ways for government agencies to tackle age-old problems. For example, in Rio, we explored how the local civil defense authorities could help fund water infrastructure in slums to reduce landslide risks and save money in their own disaster response budget.

    Thanks to the leadership of both of these cities, the lessons from the JIUS (pronounced: juice) were successfully highlighted at the UN Conference on Sustainable Development or Rio+20 in June 2012. Through the JIUS, it became clear that we were playing a unique role in designing and brokering new types of public-private partnerships for sustainable infrastructure, and re:focus was born to continue this unusual work. 

    Because I got nudged (by our many philanthropic, NGO, and corporate partners) into starting a social business to continue work that I was already doing, the transition to entrepreneurship was a bit more natural than it might have been otherwise.

    1. As a former policymaker turned startup founder that operates in the sustainable infrastructure space, what can today’s policymakers learn from your challenges and successes?

    I love this question. It’s something we think (and write!) a lot about, and most of our team has worked inside government at some point. We work hard to remember the constraints we faced and the things that were barriers for us when we were in their shoes. We also make an effort to share where and when we get stuck so our government collaborators can see things from “the other side.” As one example, over the past two years we’ve dedicated a significant amount of time to tackling procurement barriers to help both local governments and innovative companies struggling to find new solutions for their highest-priority challenges.

    The most important lessons we’ve learned are that designing major infrastructure projects takes time and investing in predevelopment (all the things you need to do before construction) is essential, so you don’t just build another version of what you had, but you genuinely get to a solution that will serve your community well into the future.

    1. What and/or who have helped you succeed as a startup founder?

    I have to credit my colleagues for every success we’ve had at re:focus. We are a tiny but mighty team, and working with good people who can laugh and persevere together through the daily ups and downs of any start-up is what makes the work worth doing. A couple of years ago, we realized that one of our major initiatives was worth spinning out into a sister company. My colleagues Elle Hempen and Ellory Monks launched The Atlas Marketplace and did an amazing job turning a spreadsheet into a social business to help cities find, source, and procure innovative solutions for everything from stormwater management to urban mobility systems. Having other female founders to celebrate the wins with and empathize when things are bumpy is one of my greatest sources of support.

    1. What advice would you give a young person today who is considering starting out in the energy and environmental fields?

    Follow interesting problems. Careers are no longer linear progressions within a single firm. Many of the biggest opportunities in energy, environment and sustainability are at the “seams” of existing sectors and fields. At re:focus we work hard to serve as ambassadors between traditional silos. Often our work involves finding other connectors and helping everyone see a problem in the same way. For example, in talking with both transportation and water experts about greening urban stormwater systems, we try to find simple illustrations—like turning the city from a funnel into a sponge—so we avoid jargon and create the space for collaborative problem solving. Often our most successful work will involve someone saying, “Well, we've never done this before, but it looks like a little bit of x and y with a dash of z thrown in.” No one can be an expert in everything but even someone just starting out can learn how to break through jargon, learn from lots of different kinds of people, and see problems from different angles. I think the energy and environment fields offer some of the most exciting opportunities to make real and meaningful change over the coming years, and I’m incredibly optimistic about our next generation of innovators!

    Dr. Vajjhala was interviewed by Alexander J. Bandza, Associate, Energy and Environmental and Workplace Health and Safety Law Practices, Jenner & Block LLP

CATEGORIES: Air, Climate Change, Sustainability, Water

April 24, 2019 Climate Change Lawsuits Brought by Coastal Municipalities and States Against the Fossil Fuel Industry: Trends in Climate Change Litigation, Part 3

Matthew G. Lawson

 

By Matthew G. Lawson Air pollution

 

In the third installment of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are discussing a quickly proliferating form of litigation—lawsuits filed by U.S. states and municipalities against companies that operate in industry sectors which have historically had high levels of greenhouse gas emissions.

At present, the most common target for this litigation in the United States has been the oil and gas industry. In these cases, plaintiff cities or states will often bring suit against a large number of oil and gas companies as members of the collective industry. These claims are usually brought in state court, where the plaintiffs can take advantage of potentially favorable state common law. Using this strategy, plaintiffs have asserted claims against the fossil-fuel industry under state law theories such as nuisance, failure to warn of the known impacts of climate change, and unjust enrichment. Of course, as a counter to this strategy and in hopes of demonstrating preemption under the Clean Air Act, defendants will often look to remove climate change cases to federal court.

In order to satisfy Article III Standing requirements, Plaintiffs in these cases have generally been coastal communities which allege that they have suffered harm or are uniquely at risk of suffering harm from rising sea levels as a result of climate change.

Several examples of this ongoing litigation includes:

  • County of San Mateo v. Chevron Corp. et al. (2018): claims brought by six California municipalities and counties against 37 fossil-fuel companies in California state court. The plaintiffs, alleging they will be damaged by the effects of climate change, brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. Following defendants’ removal of the case to federal court, plaintiffs successfully remanded back to state court on the grounds that their claims did not implicate a federal question or raise preemption issues. Defendants have filed an interlocutory appeal in the Ninth Circuit which is currently being briefed by the parties.
  • City of Oakland v. BP p.l.c. et al. (2018): claims brought by the City of Oakland and San Francisco against fossil-fuel companies under California common and statutory law. Plaintiffs asserted that the industry’s GHG emissions amounted to a “public nuisance” under California law. However, unlike San Mateo, the defendants in City of Oakland were able to successfully remove and ultimately retain the matter in federal court. The Northern District of California court denied plaintiff’s motion to remand the case back to state court based on its finding that federal common law necessarily governed the nuisance claims. The district court subsequently dismissed the suits on the grounds that the plaintiffs’ claims raised a “Political Question” best addressed by the legislature as opposed to judicial branch. This dismissal has also been appealed to the Ninth Circuit.
  • Rhode Island v. Chevron Corp. et al. (2018): The first such case to be brought by a U.S. State, Rhode Island asserted claims for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Environmental Rights Act against 21 fossil-fuel companies. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding, extreme precipitation events, and ocean warming and acidification. Defendants have removed the case to federal court, and the parties are currently briefing Rhode Island’s attempt to remand the case back to state court.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Matthew G. Lawson

April 24, 2019 Climate Change Lawsuits Brought by Coastal Municipalities and States Against the Fossil Fuel Industry: Trends in Climate Change Litigation, Part 3

Headshot

 

By Matthew G. Lawson Air pollution

 

In the third installment of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are discussing a quickly proliferating form of litigation—lawsuits filed by U.S. states and municipalities against companies that operate in industry sectors which have historically had high levels of greenhouse gas emissions.

At present, the most common target for this litigation in the United States has been the oil and gas industry. In these cases, plaintiff cities or states will often bring suit against a large number of oil and gas companies as members of the collective industry. These claims are usually brought in state court, where the plaintiffs can take advantage of potentially favorable state common law. Using this strategy, plaintiffs have asserted claims against the fossil-fuel industry under state law theories such as nuisance, failure to warn of the known impacts of climate change, and unjust enrichment. Of course, as a counter to this strategy and in hopes of demonstrating preemption under the Clean Air Act, defendants will often look to remove climate change cases to federal court.

In order to satisfy Article III Standing requirements, Plaintiffs in these cases have generally been coastal communities which allege that they have suffered harm or are uniquely at risk of suffering harm from rising sea levels as a result of climate change.

Several examples of this ongoing litigation includes:

  • County of San Mateo v. Chevron Corp. et al. (2018): claims brought by six California municipalities and counties against 37 fossil-fuel companies in California state court. The plaintiffs, alleging they will be damaged by the effects of climate change, brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. Following defendants’ removal of the case to federal court, plaintiffs successfully remanded back to state court on the grounds that their claims did not implicate a federal question or raise preemption issues. Defendants have filed an interlocutory appeal in the Ninth Circuit which is currently being briefed by the parties.
  • City of Oakland v. BP p.l.c. et al. (2018): claims brought by the City of Oakland and San Francisco against fossil-fuel companies under California common and statutory law. Plaintiffs asserted that the industry’s GHG emissions amounted to a “public nuisance” under California law. However, unlike San Mateo, the defendants in City of Oakland were able to successfully remove and ultimately retain the matter in federal court. The Northern District of California court denied plaintiff’s motion to remand the case back to state court based on its finding that federal common law necessarily governed the nuisance claims. The district court subsequently dismissed the suits on the grounds that the plaintiffs’ claims raised a “Political Question” best addressed by the legislature as opposed to judicial branch. This dismissal has also been appealed to the Ninth Circuit.
  • Rhode Island v. Chevron Corp. et al. (2018): The first such case to be brought by a U.S. State, Rhode Island asserted claims for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Environmental Rights Act against 21 fossil-fuel companies. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding, extreme precipitation events, and ocean warming and acidification. Defendants have removed the case to federal court, and the parties are currently briefing Rhode Island’s attempt to remand the case back to state court.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Matthew G. Lawson