February 2, 2018 FAA Proposes Record $1.1M Fine for Shipment of Lithium Batteries

Siros By Steven M. Siros  FAA

In what should be a wake-up call for companies that ship lithium batteries, the U.S. Transportation Department’s Federal Aviation Administration (“FAA”) recently levied a $1.1 million civil penalty for alleged violations of DOT shipping regulations. According to the FAA, on June 1, 2016, a Florida-based battery distribution company offered four shipments of 24-volt lithium batteries to FedEx for air transport. One of the batteries is alleged to have caught fire while being transported on a FedEx truck after having been shipped on an aircraft, destroying the truck. FAA contends that the shipped batteries failed both UN and U.S. testing standards, were not equipped to prevent reverse current flow, and were improperly packaged. FAA also alleges that the company did not provide proper training to its employees.

Although the $1.1M penalty has not been finalized, companies that ship lithium should ensure that their shipments are in full compliance with all applicable DOT shipping regulations. The transportation of lithium batteries in aircraft is the subject of ongoing evaluation and scrutiny by the FAA and companies that are deemed to be in violation of these requirements are likely to face significant penalties as evidenced by the $1.1M fine referenced above.

CATEGORIES: Air, Climate Change, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

December 28, 2017 2017: The Corporate Environmental Lawyer Year in Review

Siros Torrence_jpg 

By Steven M. Siros and Allison A. Torrence

As 2017 draws to an end, we wanted to thank everyone that follows our Corporate Environmental Lawyer blog. 2017 has been an interesting year and we have enjoyed providing information on critical environmental, health and safety issues for the regulated community. As part of the year in review, we thought it might be interesting to highlight the most popular posts from each of the four quarters in 2017.

Q1 2017:

  1. Trump Administration: 2017 Insights
  2. New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t
  3. World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series
  4. Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
  5. Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water

Q2 2017:

  1. Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
  2. Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards
  3. Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants
  4. News of OECA’s Demise May be Greatly Overstated
  5. EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule

Q3 2017:

  1. Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline
  2. Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer
  3. Who is in Charge of Protecting the Environment—The Role of U.S. EPA and State Environmental Agencies During a Hurricane
  4. Shell Latest Target of CWA Climate Change Citizen Suit
  5. New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?

Q4 2017:

  1. Cities Risk Ratings Downgrade for Failure to Address Climate Change Risks
  2. Dumpster Diving Results in $9.5M Penalty Recovery for California
  3. Following Keystone Pipeline Oil Spill, Judge Orders Parties to Prepare Oil Spill Response Plan for Dakota Access Pipeline
  4. EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory
  5. Imagine a Day Without Water

We look forward to continuing to blog on breaking environmental, health and safety issues and we are sure that we will have plenty to blog about in 2018. Warmest wishes for a wonderful holiday season.

Steve Siros and Allison Torrence

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

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

November 28, 2017 Dumpster Diving Results in $9.5M Penalty Recovery for California

Siros CA hazardous waste label

By Steven M. Siros

DirecTV recently agreed to pay $9.5 million to settle claims by the State of California that it had illegally shipped hazardous wastes such as batteries and aerosol cans to local landfills across the state. California accused DirecTV of violating California’s Hazardous Waste Control Law and Unfair Competition Law after an investigation of DirecTV dumpsters at 25 facilities throughout the state identified violations at each location. DirecTV agreed to pay $8.9 million in civil penalties, costs, and supplemental environmental projects, and another $580,000 on measures aimed at ensuring future compliance with California’s hazardous waste regulations. The company also agreed to injunctive relief prohibiting future violations.

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

PEOPLE: Steven R. Englund, Steven M. Siros

September 29, 2017 EPA Announces Smart Sectors Program to Ease Regulatory Burden on Industry

Torrence_jpgBy Allison A. Torrence

US EPAOn September 26, 2017, EPA announced its new Smart Sectors program, a program aimed at easing the regulatory burden on industry. The official notice for this program was published in the Federal Register on September 26th (82 FR 44783), with a correction published on September 29th (82 FR 45586). EPA explained the purpose behind the Smart Sectors program in the notice:

EPA’s Smart Sectors program will re-examine how EPA engages with industry in order to reduce unnecessary regulatory burden, create certainty and predictability, and improve the ability of both EPA and industry to conduct long-term regulatory planning while also protecting the environment and public health.

EPA has initially identified 13 sectors of industry to work with under this program, based on each sector’s potential to improve the environment and public health:

  • Aerospace
  • Agriculture
  • Automotive
  • Cement and concrete
  • Chemical manufacturing
  • Construction
  • Electronics and technology
  • Forestry and paper products
  • Iron and steel
  • Mining
  • Oil and gas
  • Ports and marine
  • Utilities and power generation.

EPA will designate staff-level points of contact for each industry who will act as liaisons among industry trade associations and companies, EPA program and regional offices, state and local governments, and other stakeholder groups.

Under this program, EPA will focus on three main areas:

  • Building relationships and improving customer service to sectors;
  • Developing additional expertise in each industry’s operations and environmental performance; and
  • Informing the planning of future policies, regulations, and Agency processes.

EPA is inviting participating industries to engage in dialogue and offer their own ideas to reduce environmental impacts. In addition, EPA will work to find creative ways to document environmental progress and regulatory burden reductions.

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

PEOPLE: Allison A. Torrence

September 26, 2017 Jenner & Block Welcomes Sam Hirsch Back from ENRD

Linkedin_Steven_Siros_3130By Steven M. Siros

Sam Hirsch

Jenner &  Block is pleased to report that Sam Hirsch, former Acting Assistant Attorney General and Principal Deputy at the U.S. Department of Justice’s Environment and Natural Resources Division (ENRD), has returned to the Firm as a Partner in our Washington, DC office. Sam was formerly an attorney with Jenner & Block until 2009 when he moved to the U.S. Department of Justice, where he served as Deputy Associate Attorney General  before taking on his most recent role. During his time at ENRD, Sam was primarily responsible for litigation and policy work relating to the prevention and cleanup of pollution, environmental challenges to federal programs, stewardship of public lands and natural resources, property acquisition, wildlife protection, and Indian rights and claims. As Acting Assistant Attorney General and Principal Deputy, he oversaw the drafting of more than 200 briefs, including more than 40 U.S. Supreme Court cert-stage, merits, and amicus briefs, as well as more than 150 appeal-recommendation memos to the Solicitor General. These briefs and memos dealt with cases in all 13 federal circuits and covered nearly the entire range of federal environmental and natural resources statutes, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act (NEPA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund), the Oil Pollution Act, the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Marine Mammal Protection Act, and the Lacey Act.

Sam was involved in all phases of the Deepwater Horizon litigation, including helping structure the global settlement, which directed more than $8.1 billion toward restoring damaged natural resources in the Gulf of Mexico. He also drafted portions of  the criminal plea agreements that created the National Academy of Sciences' $500 million Gulf Research Program, which funds and conducts studies and projects to enhance oil-system safety, human health, and environmental resources in the Gulf of Mexico and other U.S. outer-continental-shelf regions that support oil and gas production. 

Sam may be reached at (202) 637-6335 or shirsch@jenner.com.  Welcome back Sam!  

CATEGORIES: Air, Cercla, Climate Change, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

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