Jenner & Block

Corporate Environmental Lawyer Blog

September 12, 2017 Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14

Torrence_jpgBy Allison A. Torrence

On Thursday, September 14th, from 5 pm to 7 pm, environmental attorneys and professionals will come together for a networking reception at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. This is the third year Jenner & Block has hosted this event, which continues to grow every year. Jenner & Block will be joined by a number of bar associations and organizations:

  • CBA Environmental Law Committee
  • CBA Young Lawyers Section Environmental Law Committee
  • ISBA Environmental Law Section
  • ABA Section of Environment, Energy, and Resources
  • Air & Waste Management Association Lake Michigan States Section
  • DRI Toxic Tort and Environmental Law Committee

Jenner & Block partner Allison Torrence is a former Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.

Details for this event are below. If you would like to join us at this reception, please RSVP here.

Environmental Attorney Reception

September 14, 2017 | 5:00 pm to 7:00 pm

Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654

RSVP

Reception Sponsors:

Sponsors

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

September 8, 2017 Who is in Charge of Protecting the Environment--The Role of U.S. EPA and State Environmental Agencies During a Hurricane

Linkedin_Steven_Siros_3130Torrence_jpgBy Steven M. Siros and Allison A. Torrence

weather map of hurricane approaching Florida

Following Hurricane Harvey, and with the pending landfall of Hurricane Irma, the manner and degree to which federal and state agencies coordinate environmental protection duties may seem chaotic and disorganized. However, there is a specific protocol that guides these federal agencies in taking steps to protect the environmental in anticipation of and following a hurricane.

As brief background, in 1988, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”) was promulgated in an effort to establish an orderly process pursuant to which the Federal Government provides disaster and emergency assistance to State and local governments. At the request of the Governor of an affected State, the President may declare a major disaster or emergency. For example, on September 4, 2017, Florida Governor Rick Scott declared a state of emergency in anticipation of Hurricane Irma. Shortly thereafter, President Trump declared a major emergency. Upon declaration of such a major disaster or emergency, the President appoints a Federal Coordinating Officer (“FCO”), a FEMA official who is charged with coordination of Federal assistance to the affected State and local governments. 

FEMA’s primary focus is protection of human life and the majority of federal resources are obviously directed towards that goal. However, FEMA also works closely with other agencies such as U.S. EPA and state environmental agencies to implement emergency response activities focused on protecting the environment. FEMA has established numerous Emergency Support Functions (ESFs), which provide the structure for coordinating interagency support for a Federal response to declared disasters and emergencies. U.S. EPA has been designated as the ESF Coordinator for Emergency Response # 10—Oil and Hazardous Materials Response.

Here are some key environmental issues that federal and state agencies focus on during a natural disaster such as a hurricane:

  • Performing initial evaluations of drinking water systems to identify potential vulnerabilities, and then performing post-disaster damage assessments to identify impacted systems and provide resources to bring those systems back on line as rapidly as possible. Over 4,000 public drinking water systems were impacted in Texas and Louisiana as a result of Hurricane Harvey.
  • Taking steps to secure federal and state cleanup sites (i.e., proactively removing drums of waste and either shutting down remedial systems or ensuring that those systems will continue to operate) in advance of the hurricane, and then promptly assessing damage to those sites and taking emergency measures to abate any ongoing releases to the environment.
  • Assessing conditions at major industrial facilities and proactively ensuring that chemical and waste containers are appropriately secured and assisting in the implementation of preventive measures (i.e. process shutdowns).
  • Assessing and taking steps to abate releases from smaller industrial facilities that are likely to lack the emergency preparedness plans that should be present and implemented at larger industrial facilities.

U.S. EPA also has the ability to address potential fuel shortages by waiving certain fuel emission requirements under the Clean Air Act, as has already occurred in response to Hurricane Harvey.

U.S. EPA has a general hurricane website that provides useful information about protecting health and the environment before and after a hurricane. U.S. EPA will also typically set up websites that are intended to keep the public informed as to the status of its ongoing operations. For example, U.S. EPA set up a website for Hurricane Harvey and a website for Hurricane Irma.  State regulatory agencies have also set up similar websites—TCEQ has a Hurricane Harvey website and FDEP has a Hurricane Irma website.  Although we certainly hope that Hurricane Irma veers far east off into the Atlantic, if it does not (which unfortunately appears likely to be the case), federal and state resources are being readied in an effort to prevent and mitigate adverse environmental impacts associated with this storm.

CATEGORIES: Air, Climate Change, Sustainability, Water

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros

September 7, 2017 Hurricane Harvey Response: TCEQ Suspends Environmental Rules

TCEQ logoGrayson

 

By E. Lynn Grayson  

As the cleanup, rebuilding, and recovery continues in the aftermath of Hurricane Harvey, there has been increasing news coverage about the environmental consequences resulting from impacts of this devastating storm in Texas. We have all seen the coverage on the Arkema SA chemical plant explosion and fire in Crosby, Texas, as well as this weekend’s news that 13 Superfund sites in the Houston area have been flooded and are experiencing possible damage. What we have not heard much about is action on the part of the Texas Commission on Environmental Quality (TCEQ) to do its part to allow residents and their commercial and industrial businesses to recover.

Last week, TCEQ issued a Request for Suspension of TCEQ Rules that may prevent, hinder, or delay necessary action in coping with Hurricane Harvey. The rules suspended in order to manage Hurricane Harvey impacts address regulatory obligations related to air, water, storage tank, fuel and waste management. In addition, TCEQ has developed a Hurricane Response webpage and made clear the Agency's priority is the recovery efforts helping to restore water and wastewater services as well as to assess damage, manage debris, and bring other critical services back online.

Most substantive federal environmental laws and their implementing regulations also provide emergency exemptions that can be triggered following any natural or manmade disaster to ensure laws do not interfere with rescue and recovery efforts. Most emergency exemptions require a declaration or finding on the part of the United States Environmental Protection Agency (EPA) or of another high-ranking government official. We will address EPA's Hurricane response actions in future blogs.

At a time when the residents of Texas need the best of their government, TCEQ is providing an excellent example of support, help, and a willingness to do what is right under the circumstances. Kudos to TCEQ!

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

September 5, 2017 New Climate Change Disclosure Guidance

Grayson

SSGA logo

By E. Lynn Grayson  

State Street Global Advisors (SSGA), managing $2.6 trillion in assets, recently took action to motivate companies to treat climate change as a significant risk and to encourage businesses to ensure that assets and long-term business strategies are resilient to climate change impacts. SSGA published “Perspectives on Effective Climate Change Disclosure” to provide guidance to companies on best practices  for climate-related scenario-planning disclosure.

The new guidance provides insight into four (4) areas:

  1. Governance and board oversight of climate change;
  2. Establishing and disclosing long-term greenhouse gas emission goals;
  3. Disclosing the average and range of carbon price assumptions; and
  4. Discussing impacts of scenario planning on long-term capital allocation decisions.

The guidance is intended to identify current disclosure practices that are useful to investors in evaluating the robustness of climate-related scenario-planning exercises and climate-related strategic reports by companies in high impact sectors, such as oil and gas and mining.

SSGA drew upon its work with over 240 climate-related engagements with 168 companies that their Asset Stewardship Team had conducted over the past four (4) years.

This guidance document provides good insight to measure and evaluate existing climate change-related disclosures and may offer additional incentive to companies considering new or additional disclosures.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

September 1, 2017 Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer

Linkedin_Steven_Siros_3130

 

 

 By Steven M. Siros

Following the disaster that has unfolded in Texas as a result of the unprecedented flooding caused by Hurricane Harvey, affected businesses might be asking whether they might be able to avail themselves of the “Act of God” defense that is embodied in several federal environmental laws and the Texas Health and Safety Code. If ever an event qualified as an “Act of God,” many would likely agree that Hurricane Harvey falls into that category. However, if the experience of Hurricane Katrina provides any guidance, regulated entities are likely to face substantial hurdles triggering the “Act of God” defense for releases attributable to Hurricane Harvey.

Although not defined in the Texas Health and Safety Code, CERCLA defines an “Act of God” as the “unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented, or avoided by the exercise of due care or foresight.” 42 U.S.C. §9601(1). The Oil Pollution Act of 1990 contains a verbatim definition of “Act of God.” 33 U.S.C. §2701(1). 

One might ask how many times the “Act of God” defense has been successfully asserted, and the answer is that there is not a single reported case where that defense has been successful.

Perhaps one reason that the defense has never been successfully asserted is that it requires the natural event to have been “unanticipated” and that the effects of the natural event could “not have been prevented, or avoided by the exercise of due care and foresight.” Hurricanes in the summer in Texas are unlikely to be considered unanticipated events (even if occasioned by massive flooding), and, in fact, CERCLA’s legislative history specifically notes “[f]or example, a major hurricane may be an ‘act of god,’ but in an area (and at a time), where a hurricane should not be unexpected, it would not qualify” as an “Act of God”.  H.R. Rep. No. 99-253 (1977).  Moreover, proving that the effect could not have been prevented or avoided also is likely to prove difficult.  For example, during Hurricane Katrina, a 250,000 barrel above ground storage tank was dislodged which resulted in the release of approximately 1,000,000 gallons of crude oil.  However, the responsible entity did not assert an “Act of God” defense but instead proceeded to remediate the spilled oil. 

That is not to say that affected entities should not give due consideration to all potentially applicable defenses in the face of a natural disaster such as Hurricane Harvey. However, one should not turn a blind eye to the fact that reliance on an “Act of God” defense is likely to continue to face hurdles of biblical proportion.

CATEGORIES: Air, Climate Change, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

August 22, 2017 EPA Withdraws Delay on Ozone NAAQS Designations

Torrence_jpgBy Allison A. Torrence

We previously reported that on June 6, 2017, EPA Administrator Scott Pruitt announced that EPA was extending the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The Obama Administration promulgated new ozone NAAQS in October 2015, lowering the standards from 75 parts per billion (ppb) to 70 ppb. Under the Clean Air Act, EPA had two years, or until October 1, 2017, to designate areas in the U.S. as being in attainment or nonattainment with the new ozone NAAQS. The one-year extension would have pushed the deadline for those designation to October 1, 2018.

On August 1, 2017, 15 states and Washington D.C. filed a petition in the D.C. Circuit Court challenging EPA’s one-year delay of the ozone NAAQS deadline. Then, on August 2, 2017, EPA changed course and withdrew the extension. Now, EPA must designate areas as being in attainment or nonattainment with the new, 70 ppb ozone NAAQS by October 1, 2017.

More information about the ozone NAAQS and area designations is available on EPA’s website.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

August 8, 2017 D.C. Circuit Rejects U.S. EPA Efforts to Ban Hydrofluorocarbons

By Steven M. Siros Antarctic ozone map for 2017-08-06

On August 8, 2017, the United States District Court for the District of Columbia issued a decision concluding that the U.S. Environmental Protection Agency (U.S. EPA) did not have statutory authority to issue a 2015 rule that restricted the use of hydrofluorocarbons (HFCs) in a variety of products, including aerosols, motor vehicle air conditioners, commercial refrigerators and foams. 

Section 612(a) of the Clean Air Act required manufacturers to replace ozone-depleting substances (ODS) with "safe" product substitutes.  To that end, U.S. EPA was required to develop lists of "safe" and "prohibited" ODS substitutes.  Pursuant to this directive, U.S. EPA placed HFCs on the list of "safe" substitutes and manufacturers began to replace ODS with HFCs. 

However, over time, U.S. EPA began to learn that although not an ODS, HFCs were in fact greenhouse gases.  As such, in 2015, U.S. EPA promulgated a final rule that moved HFCs off of the "safe" list and onto the "prohibited" list.  See 80 Fed. Reg. 42,870 (July 20, 2015).  As part of the 2015 final rule, U.S. EPA also then prohibited the use of HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators and foams even if the manufacturers of these products had previously elected to replace the ODS in these products with the previously "safe" HFCs.  A lawsuit was subsequently filed by manufacturers of certain HFCs.    

The parties to the lawsuit both acknowledged that U.S. EPA had the ability to ban the use of ODS and that U.S. EPA could change or modify the lists of "safe" and "prohibited" ODS substitutes based on U.S. EPA’s assessment of the risks that those substances posed to human and the environment.  However, the key dispute was whether U.S. EPA had the authority under Section 612 of the Clean Air Act to prohibit manufacturers from making products that contain HFCs if those manufacturers had previously replaced an ODS with a HFC that at the time was listed as a "safe" substitute. 

The D.C. Circuit concluded that U.S.EPA did not have that authority.   The court rejected U.S. EPA’s argument that the term “replace” as used in the statute was intended to apply each time a manufacturer uses a substitute substance as opposed to when the manufacturer originally “replaced” the ODS with the HFC finding U.S. EPA's proposed interpretation to “border on the absurd.”  As such, the D.C. Circuit  vacated the 2015 rule to the extent the rule required manufacturers to replace HFCs with a substitute substance on the "safe" list. 

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

August 2, 2017 DHS Waives Environmental Laws to Construct San Diego Border Wall

Dept of Homeland SecurityGrayson

 By E. Lynn Grayson 

 

The Department of Homeland Security (DHS) announced yesterday its plans to waive numerous environmental laws to allow more expedient construction of barriers and roads in the vicinity of the international border near San Diego. The decision was signed by then DHS Secretary John Kelly and applies to a 15-mile border segment in San Diego where the Agency plans to upgrade fencing and build border wall prototypes.

DHS issued the waiver pursuant to its authority in Section 102 of the 2005 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law grants the DHS Secretary a number of authorities necessary to carry out DHS’s border security mission. Citing this authority, the DHS notice makes clear that these infrastructure projects will be exempt from complying with critically important environmental laws such as the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act and other laws related to wildlife, conservation, cultural and historic artifacts, and the environment.

This action has been under consideration by DHS and the subject of much discussion among environmental activists. The Center for Biological Diversity already sued DHS earlier this year seeking an updated environmental review of the southern border infrastructure projects.

According to yesterday’s notice, “…while the waiver eliminates DHS’s obligation to comply with various laws with respect to the covered projects, the Department remains committed to environmental stewardship with respect to these projects. DHS has been coordinating and consulting—and intends to continues to do so—with other federal and state agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible.”

Even in the wake of everything ongoing in D.C with the new Administration, this action is extraordinary and inconsistent with typical federal government practices, except in the case of an emergency or other exigent circumstances. The final decision will appear in the Federal Register soon.

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

July 26, 2017 Another Speedbump for U.S. EPA—Status of U.S. EPA RMP Stay May be at Risk
 
 
 
 
 

Methane

Likely emboldened by the U.S. Court of Appeals decision to vacate U.S. EPA's efforts to stay certain provisions of new source performance standards ("NSPS") relating to fugitive methane emissions, on July 24, 2017, a coalition of 11 Democratic state attorney generals filed a Petition for Review in the D.C. Circuit challenging U.S. EPA's June decision to delay implementation of the Obama administration's amendments to the Clean Air Act Risk Management Program ("RMP") for 20 months. This lawsuit is in addition to a previously filed lawsuit by environmental and labor groups that also challenged U.S. EPA's stay of the RMP amendments. 

In support of their petition, the AGs contend that the requirements of Section 307(d)(7)(B) of the CAA were not met which argument proved determinative in the earlier challenge to U.S EPA's stay of the  methane NSPS.  DOJ has already sought to distinguish U.S. EPA's delay of the methane NSPS from its delay of the RMP rule by noting that U.S. EPA sought public input on its proposed 20-month delay of the RMP rule in its March 30, 2017 federal register notice.  We will continue to track both of these lawsuits as they wind the D.C. Circuit.

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

PEOPLE: Steven R. Englund, Steven M. Siros

July 26, 2017 California Supreme Court Rules Environmental Report Need Not Address GHG Executive Order

By: Joshua Davids, J.D. Candidate, 2018, The University of Chicago Law School

On July 13, 2017, Judge Timothy Taylor of the Supreme Court of California issued an opinion in the case of Cleveland National Forest Foundation v. San Diego Association of Governments, no. S223603, ruling that the San Diego Association of Governments (SANDAG) did not abuse its discretion by issuing an Environmental Impact Report (EIR) for a new regional transportation infrastructure development plan (RTP) that failed to explicitly analyze whether the RTP will be consistent with an executive order issued by then-Governor Arnold Schwarzenegger. This executive order, issued on June 1, 2005 (Exec. Order No. S-3-05) and partially adopted by the California Legislature (although not legally binding itself), set greenhouse gas (GHG) emissions reduction targets for California, aiming to reduce emissions to eighty percent below 1990 emissions levels by the year 2050.

SANDAG issued the RTP (also extending through 2050) for the San Diego region in 2011 and, as required, released a draft of an EIR analyzing this plan’s environmental effects. The California Environmental Quality Act (CEQA) requires that public agencies assess (in an EIR) the environmental impacts of projects requiring government permits, including, specifically, whether each project will significantly increase GHG emissions. This draft EIR found that GHG emissions would decrease slightly in 2020, but would increase significantly by 2050. However, it did not analyze whether or not these projections were consistent with the goals set by the governor’s executive order, an omission that opened SANDAG up to criticism from parties including the California Attorney General. The Attorney General argued that without this explicit analysis, the report was inadequate.

Despite this criticism, in the final version of the EIR, SANDAG maintained that it had the discretion to select the emissions reduction thresholds with which to compare the projected emissions, and had no obligation to use the “aspirational” ones from the executive order. In response, several groups, the Cleveland National Forest Foundation among them, filed a petition for a writ of mandate challenging the EIR’s adequacy. The Cleveland National Forest Foundation succeeded in both the superior court (the trial court in California) and the Court of Appeal, and the case was then taken up by the Supreme Court of California.

The Supreme Court of California reversed the previous decision, ruling that despite the fact that SANDAG never explicitly addressed the discrepancies between the executive order’s goals and the RTP’s projected emissions, SANDAG did enough analysis of the projected emissions to make it easy for members of the public to make the comparison themselves. The court wrote, “[i]f the long-term rise in projected emissions was ‘the elephant in the room’… then a fair reading of the EIR confirms that an elephant is hard to hide.” No. S223603, slip op. at 20 (Cal. July 13, 2017). While an EIR that fails to present the true picture of the potential negative environmental impact of a project to the public in a clear manner would have been inadequate, the court was able to cite several places in SANDAG’s EIR which spelled out the negative aspects of the projections. “It is not clear,” the court added, “what additional information SANDAG should have conveyed to the public beyond the general point that the upward trajectory of emissions… may conflict with the 2050 emissions reduction goal.” Id. at 22. The court held that this omission itself was not enough to make the EIR inadequate.

However, the court emphasized the narrowness of the holding. It stated that its holding should not be taken as a “general endorsement” of the EIR or the RTP. Id. at 23. The court took no view on whether or not SANDAG failed to consider “sufficiently feasible mitigation measures” that would have reduced greenhouse gas emissions (and notes that the Court of Appeals did in fact conclude such a failure). Id. The court limited its opinion to the holding that “SANDAG… did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.” Id. The court made it clear that another set of circumstances, and a less complete EIR, would have resulted in a different ruling.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

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

 Steven M. SirosBy Steven M. Siros   Power plant

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

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

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

PEOPLE: Steven R. Englund, Steven M. Siros

July 5, 2017 U.S. EPA’s Stay of Methane Rule May Have Hit a “Speed Bump”

By Steven M. Siros   Methane

On July 3, 2017, the U.S. Court of Appeals for the District of Columbia issued an opinion which vacated U.S. EPA’s stay of certain provisions of new source performance standards (“NSPS”) relating to fugitive emissions of methane and other pollutants by the oil and natural gas industries.  After U.S. EPA originally published these NSPS rules in 2016, several industry groups sought reconsideration of these rules pursuant to Section 307(d)(7)(B) of the Clean Air Act (“CAA”). On April 18, 2017, U.S. EPA Administrator Scott Pruitt found that the petitions raised at least one objection to the rule that warranted reconsideration and on June 5, 2017, just two days prior to the deadline requiring regulated entities to conduct initial methane monitoring in order to identify potential equipment leaks, U.S. EPA agreed to stay the rule for 90 days while the rule was being reconsidered.   Then, on June 16, 2017, U.S. EPA published a notice of proposed rulemaking seeking to extend the stay for an additional two years. Several environmental groups filed an emergency motion challenging U.S. EPA’s decision to stay the rules for 90 days.   

In a split decision, the D.C. Circuit agreed that a stay pursuant to Section 307(d)(7)(B) of the CAA was only allowed if the following specific requirements of the rule are met: (1) it was impracticable to raise the objections now being raised during the notice and comment period and (2) the objection is of central relevance to the outcome of the rule. The Court found that both requirements were not met, noting that the “administrative record thus makes clear that the industry groups had ample opportunity to comment on all four issues for which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule.” The Court also addressed industries’ argument that U.S. EPA’s decision to reconsider the rule was not a final agency action. The Court agreed, over Judge Brown’s dissent, that although U.S. EPA’s decision to reconsider the rule was not a final agency action, U.S. EPA’s decision to stay the rule was tantamount to amending or revoking the rule and was in fact reviewable. It is important to note that notwithstanding the Court’s decision that U.S. EPA improperly stayed the NSPS rules pursuant to Section 307(d)(B)(7) of the CAA, the Court specifically stated that “nothing in this opinion in any way limits EPA’s authority to reconsider the final rule and to proceed with its June 16 [notice of proposed rulemaking]," which seeks to stay the effective date of the NSPS for two years. 

This decision may provide some insight as to how the Court intends to deal with a separate pending lawsuit filed by environmental groups which seeks to challenge U.S. EPA’s decision to stay revisions to the CAA’s risk management program; U.S. EPA relied on Section 307(B)(7) to justify its decision to stay those rules as well. 

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

PEOPLE: Steven R. Englund, Steven M. Siros

June 12, 2017 Nanomaterial Reporting Rule Update

Grayson

 

By E. Lynn Grayson 

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

Nanomaterials

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

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

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

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

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

June 7, 2017 EPA Extends Deadline for 2015 Ozone Air Quality Area Designations

Torrence_jpgBy Allison A. Torrence

SmogOn June 6, 2017, EPA Administrator Scott Pruitt sent a letter to the nation’s governors, informing them that EPA is extending the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standards (“NAAQS”). The Obama Administration promulgated new ozone NAAQS in October 2015, lowering the standards from 75 parts per billion to 70 parts per billion. Under the Clean Air Act, EPA had two years, or until October 1, 2017, to designate areas in the U.S. as being in attainment or nonattainment with the new ozone NAAQS. Administrator Pruitt’s one-year extension pushes the deadline for those designation to October 1, 2018.

As we previously reported, the 2015 ozone NAAQS have been challenged in the U.S. Court of Appeals for the D.C. Circuit by various states, companies, and environmental organizations in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. On April 11, 2017, the D.C. Circuit Court granted EPA’s motion to continue oral argument and indefinitely delay any decision on challenges to the 2015 ozone NAAQS. In its motion, EPA stated that it was “closely reviewing the 2015 [ozone NAAQS] Rule to determine whether the Agency should reconsider the rule or some part of it.” The D.C. Circuit’s order directed EPA to submit status reports every 90 days.

The press release announcing EPA’s decision to extend this initial deadline explains the agency’s justification for the extension.

The Agency is taking time to better understand some lingering, complicated issues so that air attainment decisions can be based on the latest and greatest information. This additional time will also provide the agency time to review the 2015 ozone NAAQS, prior to taking this initial implementation step.

In his letter to state governors, Administrator Pruitt stated that:

States have made tremendous progress and significant investment cleaning up the air. Since 1980, total emissions of the six principal air pollutants have dropped by 63 percent and ozone levels have declined by 33 percent. Despite the continued improvement of air quality, costs associated with compliance of the ozone NAAQS have significantly increased. I am committed to working with you and your local officials to effectively implement the ozone standard in a manner that is supportive of your air quality improvement efforts, without interfering with local decisions or impeding economic growth.

Once again, EPA’s actions indicate it is considering whether it can and should scale back the ozone NAAQS, potentially to the 75 parts per billion levels set back in 2008.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

June 2, 2017 President Announces Plan to Withdraw the United States from the Paris Climate Agreement

Torrence_jpgBy Allison A. Torrence

UNFCCCOn Thursday, June 1, President Trump announced his intention to withdraw the United States from the landmark Paris Agreement on Climate Change. As we previously reported, the Paris Agreement was adopted on December 12, 2015, at a meeting of the 195 parties to the United Nations Framework Convention on Climate Change (UNFCCC). The historic Paris Agreement is designed to reduce greenhouse gas emissions from both developed and developing nations. Specifically, governments must take actions to limit global temperature rise to well below 2 degrees Celsius, and to strive to limit global temperature rise to 1.5 degrees Celsius. The Paris Agreement also requires developed countries fund investments to assist developing countries meet the Agreement’s goals and adapt to climate change impacts.

The United States and over 150 other countries signed the Paris Agreement at ceremony at United Nations headquarters in New York on Earth Day, April 22, 2016. The Paris Agreement entered into force on November 4, 2016, after being ratified by more than 55 countries, accounting for 55% of global greenhouse gas emissions, per the terms of the Agreement. The Paris Agreement entered into force less than a year after it was adopted, a very quick schedule for a large and complex international treaty. At least one driver in that speed was the desire to have the Paris Agreement in force before the 2016 United States presidential elections, in light of the fact that then-candidate Trump had vowed to pull out of the Paris Agreement if elected.

President Trump is making good on that election promise to withdraw from the Paris Agreement. However, because the international community ratified the Paris Agreement so quickly, it went into full force before President Trump took office. The terms of the Paris Agreement do not allow a party to the agreement to withdraw immediately. Instead, the earliest a party can withdraw from the Paris Agreement is four years after it entered into force.

Specifically, Article 28 of the Paris Agreement states that:

At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.

Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.

Thus, the earliest that the United States can notify the UNFCCC that it will be withdrawing from the Paris Agreement is November 5, 2019. If the United States notifies the UNFCCC on that date, the withdrawal will take effect on November 5, 2020. Notably, the next presidential election will take place on November 3, 2020.

Although the United States can’t withdraw immediately, President Trump stated yesterday that the United States will not be following or implementing the Paris Agreement.

As of today, the United States will cease all implementation of the non-binding Paris Accord and the draconian financial and economic burdens the agreement imposes on our country. This includes ending the implementation of the nationally determined contribution and, very importantly, the Green Climate Fund, which is costing the United States a vast fortune.

World leaders have responded to the President’s decision to abandon an international agreement signed by every country in the world other than Syria and Nicaragua. President Trump indicated that he wants to renegotiate a new climate deal, but Italian Prime Minister Paolo Gentiloni, German Chancellor Angela Merkel and French President Emmanuel Macron rebuked President Trump in a rare joint statement:

We deem the momentum generated in Paris in December 2015 irreversible and we firmly believe that the Paris Agreement cannot be renegotiated since it is a vital instrument for our planet, societies and economies.

In the United States, many businesses, cities and states have reacted to the President’s announcement by pledging to meet the United States’ emissions reductions targets under the Paris Agreement. As reported by various news outlets, former New York City Mayor Michael Bloomberg is coordinating a group of 30 mayors, three governors, dozens of university presidents and over 100 businesses, which want to submit a plan to the UNFCCC documenting efforts to reduce greenhouse gas emissions.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence