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May 11, 2017 Senate Rejects Resolution to Repeal Obama Administration Climate Change Methane Rule

Torrence_jpgBy Allison A. Torrence

Oil pump imageIn a surprising move, on Wednesday May 10th, the U.S. Senate voted 51 to 49 to reject a resolution under the Congressional Review Act (CRA) to repeal a 2016 Bureau of Land Management (BLM) rule aimed at reducing methane releases from oil and gas wells on public land. The rule at issue was published by BLM in the Federal Register on November 18, 2016 (81 FR 83008), and amends 43 CFR Parts 3100, 3160 and 3170 (the Methane Rule).

BLM has stated that the goal of the Methane Rule is to bring the 30-year-old oil and gas production rules in line with technological advances in the industry. The Methane Rule provides numerous rules and restrictions on oil and gas production operations on public and Indian lands, including:

  • Setting an upper limit on routine gas flaring.
  • Requiring operators to evaluate opportunities for gas capture and prepare a waste minimization plan before drilling a development oil well.
  • Requiring operators to use an instrument-based leak detection program to find and repair leaks.
  • Prohibiting operators from venting natural gas, except in narrowly specified circumstance.

The Methane Rule was part of the Obama Administration’s Climate Action Plan, aimed at reducing greenhouse gasses (GHGs) from various industries. While many of the past administration’s climate change regulations focused on carbon dioxide emissions, methane is an important GHG because it has over 25 times the warming potential of carbon dioxide.

Under the CRA, Congress can vote to repeal regulations within 60 legislative days of their completion. When a regulation is repealed under the CRA, current and future administrations are prohibited from issuing any substantially similar regulations. Since President Trump took office, Congress and the White House have repealed more than a dozen regulations promulgated at the end of the Obama Administration. With the Methane Rule set to be the next regulation repealed, three Republican Senators decided to join with the Democrats and vote against the resolution – Senators John McCain of Arizona, Lindsey Graham of South Carolina and Susan Collins of Maine.

Now that the Senate has rejected efforts to repeal the Methane Rule, it remains good law unless and until BLM takes new regulatory action to amend or replace it through traditional rulemaking procedures. More information about the Methane Rule can be found on the BLM website.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

May 8, 2017 Jenner & Block Hosting Environmental Risk CLE Presentation with CBA and A&WMA

Torrence_jpgBy Allison A. Torrence

On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.

Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.

CBA AWMA Logos
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.

The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.

You can RSVP here.

Any questions can be directed to Pravesh Goyal: (312) 923-2643 or pgoyal@jenner.com

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

PEOPLE: Allison A. Torrence

April 21, 2017 Earth Day 2017: Environmental and Climate Literacy

Steven M. Siros ImageBy Steven M. Siros

Earth day 2017 ImageAs has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day.  This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy".  This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.  

The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement.  Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.  

In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting.  The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here).  Happy Earth Day 2017.   

 

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

PEOPLE: Steven R. Englund, Steven M. Siros

April 12, 2017 Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards

EPA LogoAllison Torrence PhotoBy Allison A. Torrence

On Tuesday, April 11th, the U.S. Court of Appeals for the D.C. Circuit granted EPA’s motion to continue oral argument and indefinitely delay any decision on challenges to the agency’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. The Clean Air Act requires EPA to issue NAAQS for certain criteria air pollutants, like ozone, and review those NAAQS every five years. The NAAQS establish the permissible levels of air pollutants in the ambient air. If an area has pollution at levels above the NAAQS, it is classified as a nonattainment area. States with nonattainment areas are required to create and implement plans, under EPA’s oversight, to reduce air pollutants to levels below the NAAQS.

Prior to the rule at issue, EPA last revised the ozone NAAQS in 2008, setting the primary and secondary ozone standards at 75 parts per billion (ppb). Shortly after President Obama took office in 2009, EPA began reviewing the NAAQS and conducted extensive scientific, medical, technical and policy research. EPA found that ozone was strongly linked to serious health effects, such as triggering asthma attacks and other respiratory effects. Based on that research, in 2015, EPA issued a revised NAAQS for ozone, lowering the primary and secondary standards to 70 ppb. Numerous parties challenged the 2015 ozone NAAQS in the D.C. Circuit Court – industry challengers claimed the rule was too stringent, while environmental and public health organizations claimed it was not protective enough.

The parties completed briefing on the merits on September 26, 2016, and oral argument was scheduled for April 19, 2017. On April 7th, just eight business days before oral arguments were scheduled, EPA filed a motion to continue oral argument. EPA stated in its motion that “EPA officials appointed by the new Administration are closely reviewing the 2015 [ozone NAAQS] Rule to determine whether the Agency should reconsider the rule or some part of it.” As precedent for the requested delay, EPA cited a similar request from the Obama Administration in 2009, which stayed challenges to the 2008 ozone NAAQS prior to briefing on the merits, as EPA evaluated the rules set by the prior administration. The Obama Administration eventually decided to leave the 2008 ozone NAAQS as they were and instead began working on the 2015 ozone NAAQS. The challenges to the 2008 ozone NAAQS were allowed to go forward and where eventually denied by the D.C. Circuit Court.

As additional support for its motion, EPA cited President Trump’s March 28, 2017 Executive Order, which directs EPA to review for possible reconsideration any rule that could “potentially burden the development or use of domestically produced energy sources,  with particular attention to oil, natural gas, coal, and nuclear energy sources.” Under the Executive Order, for any such rule, EPA must (1) submit a review plan to the White House within 45 days; (2) submit a draft plan with “specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production” within 120 days, and (3) submit a final report within 180 days. EPA stated that it “is currently reviewing the Executive Order to determine whether the 2015 [ozone NAAQS] Rule is potentially subject to the review process set forth in this Executive Order.”

Despite opposition from public health and environmental organizations, including Sierra Club, Natural Resources Defense Council, and the American Lung Association, the D.C. Circuit granted EPA’s motion and indefinitely continued oral argument. The court directed EPA to submit status reports every 90 days.

EPA appears to be at the very initial stages of its review of the 2015 ozone NAAQS, and how it may ultimately decide to act on that rule remains unclear. Nevertheless, EPA’s statements to the D.C. Circuit Court, in connection with President Trump’s March 28, 2017 Executive Order, indicate EPA is considering whether it can and should scale back the ozone NAAQS, potentially to the 75 ppb levels set back in 2008.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

February 17, 2017 Scott Pruitt Confirmed by Senate to Lead EPA

EPA logoAllison A. Torrence PhotoBy Allison A. Torrence

Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.

As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.

Mr. Pruitt’s confirmation came after a flurry of activity related to his nomination over the past several days. On Thursday, a federal judge ordered the Oklahoma Attorney General’s office to release thousands of emails related to Mr. Pruitt’s communications with fossil fuel companies while Attorney General. Senate Democrats wanted to delay Mr. Pruitt’s confirmation vote until after those emails were made public, and held an all-night session of the Senate to voice their concerns over Mr. Pruitt. However, when a motion to extend debate and delay Mr. Pruitt’s confirmation vote until February 27th was put forward by the Senate Democrats, the motion was voted down and the confirmation vote went forward today.

One of the first orders of business for Administrator Pruitt will be to review recent and pending EPA regulations that have been subject to the Trump Administration’s “Regulatory Freeze Pending Review.” As we previously reported here, all pending EPA regulations that have not yet been published in the Federal Register are on hold, and all EPA regulations that have been published in the Federal Register but had not reached their effective date (as of January 26, 2017) have be delayed until March 21, 2017.

Administrator Pruitt’s biography is already posted at EPA’s website. The biography sates that:

Administrator Pruitt believes that promoting and protecting a strong and healthy environment is among the lifeblood priorities of the government, and that EPA is vital to that mission.

As Administrator, Mr. Pruitt’s overarching goal is to lead EPA in a way so that our future generations inherit a better and healthier environment, as he works with the thousands of dedicated public servants at EPA who have devoted their careers to helping realize this shared vision, while faithfully administering environmental laws.

The EPA website also invites the public to join the new Administrator on Tuesday, February 21, 2017 at noon ET, as he addresses EPA employees, and to “stay tuned” for more information.

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

PEOPLE: Allison A. Torrence

January 30, 2017 Happy New Year from the Corporate Environmental Lawyer Blog

Steven Siros Photo Allison TorranceBy Steven M. Siros and Allison A. Torrence

As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.

2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.

Our five most popular blogs from 2016 were:

EPA Lacks Authority to Regulate Plastic Microbeads in Water, by E. Lynn Grayson

Court Orders New EPA Spill Prevention Rules, by E. Lynn Grayson

Bipartisan TSCA Reform Act Signed by President Obama, by Allison A. Torrence

Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman

ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes, by Alexander J. Bandza

As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.

We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:

The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.

We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

January 24, 2017 Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules

Allison Torrence PhotoBy Allison A. Torrence

Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:

  • Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
  • Regulations that have been sent to the Federal Register but not published will be withdrawn.
  • Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).

Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

January 13, 2017 OSHA Issues Final Beryllium Rule Reducing Workplace Exposure Limit 10-Fold

Allison Torrence Photo

By Allison Torrence

The Occupational Safety and Health Administration (OSHA) published a final rule on Occupational Exposure to Beryllium in the Federal Register on January 9, 2017. The final rule reduces the permissible exposure limit (PEL) for beryllium to 0.2 μg/m3, averaged over 8-hours. The previous PEL for beryllium, established more than 40 years ago, was 2.0 μg/m3. The rule also establishes a new short term exposure limit for beryllium of 2.0 μg/m3, over a 15-minute sampling period.

As we discussed previously on this blog, OSHA proposed this rule on August 7, 2015 and took extensive public comment before issuing this final version. OSHA estimates that approximately 62,000 workers are exposed to beryllium in their workplaces and that the rule will save almost 100 lives from beryllium-related diseases and prevent 46 new cases of chronic beryllium disease each year, once the effects of the rule are fully realized.

In addition to the PEL reductions, the final rule requires employers to use engineering and work practice controls (such as ventilation and change rooms) to limit worker exposure to beryllium; provide respirators when controls cannot adequately limit exposure; limit worker access to high-exposure areas; develop a written exposure control plan; and train workers on beryllium hazards. The rule also provides for medical exams to monitor exposed workers and medical removal protection benefits to workers identified with a beryllium-related disease.

The rule will take effect on March 10, 2017. Employers will have one year (until March 12, 2018) to comply with most of the requirements, two years (until March 11, 2019) to provide any required change rooms and showers, and three years (until March 10, 2020) to implement engineering controls.

More information on the Occupational Exposure to Beryllium rule is available on the OSHA website.

CATEGORIES: Air, Hazmat, OSHA, Toxic Tort

PEOPLE: Allison A. Torrence

January 11, 2017 VW Agrees to $4.3 Billion Settlement of Diesel Emission Claims

Torrence_jpg

By Allison Torrence

On January 11, 2017, the U.S. Department of Justice announced that Volkswagen AG (VW) has agreed to plead guilty to three criminal felony counts and pay a $2.8 billion criminal penalty for selling approximately 590,000 diesel vehicles in the U.S. that had installed defeat devices to cheat on emissions tests mandated by the Environmental Protection Agency (EPA). VW will be on probation for three years and under an independent corporate compliance monitor who will oversee the company for at least three years. VW has also agreed to pay $1.5 billion to settle separate civil violations under the Clean Air Act (CAA) as well as other customs and financial claims.

We previously reported on EPA’s CAA lawsuit on this blog, which was filed on January 4, 2016, and alleged multiple CAA violations stemming from allegations that VW installed defeat devices in the subject diesel vehicles designed to cheat EPA emissions tests. EPA sought civil penalties and injunctive relief. In October, VW settled EPA’s injunctive relief claims along with consumer class action claims in a settlement valued at approximately $15.3 billion.

In addition, a federal grand jury in the Eastern District of Michigan returned an indictment on January 11, 2017, charging six VW executives and employees with criminal conspiracy to defraud the United States, defraud VW’s U.S. customers and violate the CAA. One of these VW employees, Oliver Schmidt, was arrested on January 7, 2017, in Miami during a visit to the United States and appeared in federal court there on Monday. The other defendants are believed to presently reside in Germany.

The settlement announcement was made by Attorney General Loretta E. Lynch, who was joined by EPA Administrator Gina McCarthy. Attorney General Lynch stated that:

Today’s actions reflect the Justice Department’s steadfast commitment to defending consumers, protecting our environment and our financial system and holding individuals and companies accountable for corporate wrongdoing. In the days ahead, we will continue to examine Volkswagen’s attempts to mislead consumers and deceive the government. And we will continue to pursue the individuals responsible for orchestrating this damaging conspiracy.

The Department of Justice statement on the VW settlement is available here.

CATEGORIES: Air, Consumer Law and Environment

PEOPLE: Allison A. Torrence

December 7, 2016 Oklahoma Attorney General Scott Pruitt Picked to Lead EPA

Allison Torrence Photo

Epa

By Allison Torrence

Several news outlets are reporting that President-elect Donald Trump will nominate Oklahoma Attorney General Scott Pruitt to serve as the Administrator of the U.S. Environmental Protection Agency. Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. In his role as Oklahoma Attorney General, Mr. Pruitt has been active in litigation challenging current EPA regulations in court, most significant of which have been challenges to the Obama Administration’s Clean Power Plan.

Mr. Pruitt and Oklahoma are part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit, which recently heard nearly seven hours of oral arguments and is expected to issue a ruling soon.

Environmental groups have been quick to react to Mr. Pruitt’s apparent nomination. Sierra Club Executive Director, Michael Brune released a statement critical of the pick:

Having Scott Pruitt in charge of the U.S. Environmental Protection Agency is like putting an arsonist in charge of fighting fires…We strongly urge Senators, who are elected to represent and protect the American people, to stand up for families across the nation and oppose this nomination.

Mr. Pruitt’s appointment must be confirmed by the U.S. Senate. Several Democratic Senators have already raised concerns over his nomination, including Senator Brian Schatz (D-HI), who tweeted that he “will do everything I can to stop this.”

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

PEOPLE: Allison A. Torrence

November 29, 2016 EPA Finalizes Renewable Fuel Standards for 2017

Allison Torrence

By Allison Torrence

Section 211 of the Clean Air Act requires EPA to set annual Renewable Fuel Standard (RFS) volume requirements for four categories of biofuels: cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. On November 23, 2016, EPA finalized rules under the RFS program, increasing the amount of renewable fuels that must blended into gasoline and diesel fuel in 2017.

Under the new RFS rules, total renewable fuel volumes will grow by 1.2 billion gallons from 2016 to 2017, a 6 percent increase.

Renewable Fuel Standard

Source: EPA website.

In the final rule, EPA describes the significance of renewable fuels, currently and in the future:

Today, nearly all of the approximately 142 billion gallons of gasoline used for transportation purposes contains 10 percent ethanol (E10), and a substantial portion of diesel fuel contains biodiesel. Renewable fuels represent an opportunity for the U.S. to move away from fossil fuels towards a set of lower lifecycle GHG transportation fuels, and the RFS program provides incentives for these lower lifecycle GHG fuels to grow and compete in the market.

The final RFS rules have been submitted to the Federal Register and will be published in the coming weeks. More information about the RFS program and the final RFS rule can be found on the EPA website.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

October 26, 2016 Federal Court Approves $14.7 Billion Volkswagen Settlement

TailpipeAllison Torrence Photo

By Allison Torrence

On October 25, 2016, Judge Charles Breyer of the U.S. District Court for the Northern District of California approved a $14.7 billion partial settlement in the Volkswagen “defeat device” MDL litigation. The settlement resolves injunctive relief claims brought by the United States and the State of California, as well as consumer class action claims related to Volkswagen’s 2.0 liter vehicles.

The United States had sued Volkswagen (and its subsidiaries, including Audi and Porsche) in January 2016, alleging that over 500,000 vehicles sold by Volkswagen in the United States from 2009 through 2016 contained software, known as a “defeat device”, that senses when the vehicle is being tested for compliance with emission standards. The defeat devices produced compliant emission results during testing but then reduced the effectiveness of emission control systems during normal driving. The United States alleged that the defeat devices cause increased NOx emissions up to 40 times allowable levels in 2.0 liter vehicles and 9 times allowable levels in 3.0 liter vehicles.

A consolidated consumer class action complaint was filed in federal court in the Norther District of California in February 2016. The consumer class action alleged that Volkswagen used defeat devices in the subject vehicles and also alleged that damage to consumers was compounded by Volkswagen’s false and misleading “clean” diesel advertising.

The United States complaint, along with dozens of other complaints filed by individual states and other parties, were transferred to a Multi-District Litigation (MDL) docket in the U.S. District Court for the Norther District of California.

The partial settlement just approved by the court totals approximately $14.7 billion, and contains the following, key elements:

  • Volkswagen will invest $2 billion to support zero emission vehicle technology.
  • Volkswagen will create a $2.7 billion environmental remediation fund to mitigate the excess emissions.
  • Volkswagen will set aside over $10 billion to buy back cars and provide cash compensation to owners.

Notably, this settlement does not resolve the following claims:

  • Claims related to 3.0 liter vehicles – Volkswagen sold approximately 80,000 3.0 liter vehicles containing defeat devices in the United States, compared to 500,000 such 2.0 liter vehicles.
  • Claims for civil penalties under the Clean Air Act – which have the potential to reach $65 billion.
  • Potential criminal claims.

The district court has a hearing scheduled on November 3, 2016, to address claims related to 3.0 liter vehicles.

Due to the level of interest in this case, the United States District Court for the Northern District of California has created a website to provide important news and information about the Volkswagen MDL to the public.

CATEGORIES: Air, Consumer Law and Environment

PEOPLE: Allison A. Torrence

October 17, 2016 170 Nations Agree to Legally Binding Accord to Limit Global Warming HFCs

Allison Torrence Photo

By Allison Torrence

On October 15, 2016, representatives from 170 countries concluded negotiations in Kigali, Rwanda that resulted in a legally binding accord to limit hydrofluorocarbons (HFCs) in an effort to combat climate change. HFCs are chemical coolants used in air conditioners and refrigerants. Chemical companies developed HFCs in the late 1980s after the Montreal Protocol banned ozone-depleting coolants called chlorofluorocarbons (CFCs). HFCs do not harm the ozone layer, but they have 1,000 times the heat trapping potential of carbon dioxide.

The Kigali accord is an amendment to the 1987 Montreal Protocol (which was ratified by the U.S. Senate during the Regan Administration). Thus, the Kigali accord has the legal force of a treaty without further ratification by the current U.S. Senate. Although HFCs make up a small percentage of greenhouse gasses in the atmosphere, because of their extremely high warming potential, the reductions called for in the Kigali accord will lead to the reduction of the equivalent of 70 billion tons of carbon dioxide, which is approximately two times the amount of carbon dioxide emitted globally each year.

The Kigali agreement contains three tracks for HFC reductions, determined by a county’s wealth and need for air conditioning. The richest countries, including the United States and those in the European Union, are in the first track. Those countries will freeze the production and consumption of HFCs by 2018, reducing them to 15 percent of 2012 levels by 2036. The second track contains most of the rest of the world, including China, Brazil and all of Africa. Second track countries will freeze HFC use by 2024, reducing it to 20 percent of 2021 levels by 2045. Finally, the third track contains a small group of the world’s hottest countries — India, Pakistan, Iran, Saudi Arabia and Kuwait. Those countries will not have to freeze HFC use until 2028, and will have to reduce it to 15 percent of 2025 levels by 2047.

Secretary of State John Kerry participated in the negotiations in Kigali, along with EPA Administrator Gina McCarthy. Secretary Kerry praised the final outcome, stating that “It is likely the single most important step we could take at this moment to limit the warming of our planet and limit the warming for generations to come.”

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

PEOPLE: Allison A. Torrence

October 12, 2016 Ninth Circuit Denies Rehearing Petition in Novel Aerial Deposition CERCLA Case

Allison Torrence photo

By Allison Torrence

The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.

The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.

The defendant filed a motion to dismiss the plaintiffs’ CERCLA claims, which the trial court denied. The trial court found that air emissions could constitute disposal under CERCLA, but, recognizing the novel nature of this argument, certified the issue for immediate appeal to the Ninth Circuit. The three-judge panel in the Ninth Circuit reversed.

CERCLA does not set forth its own definition of “disposal”, rather it cross-references the definition in RCRA. Thus, under both CERCLA and RCRA “disposal” is defined as:

the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3).

The Ninth Circuit found that plaintiffs’ interpretation of “disposal” to include “aerial deposition” is “a reasonable enough construction”, but ultimately determined that Congress did not mean to include the gradual spread of contaminants without human intervention in the definition of “disposal” in CERCLA (or RCRA). Instead, hazardous waste must first be placed into or on the land by human involvement. Thus, the defendants in this case did not arrange for the disposal of hazardous waste and were not responsible parties under CERCLA.

The State of Washington and the Tribes filed for rehearing and rehearing en banc, which were denied without further explanation on October 11, 2016. The plaintiffs now have 90 days to seek an appeal in the U.S. Supreme Court, if they choose to do so.

CATEGORIES: Air, Cercla, RCRA, Real Estate and Environment, Toxic Tort

PEOPLE: Allison A. Torrence

October 6, 2016 Paris Climate Agreement Will Enter Into Force On November 4th

Allison Torrence photoUNFCCC3

By Allison Torrence

As we previously reported, two weeks ago, UN Secretary-General Ban Ki-moon announced that more than 55 countries, including the United States and China, had formally joined the Paris Climate Agreement, officially crossing one of the two thresholds required to bring the Agreement into force. The Paris Climate Agreement was adopted by the 195 Parties to the UN Framework Convention on Climate Change (UNFCCC) at a conference known as COP21 in December 2015. It will enter into force 30 days after at least 55 countries, accounting for 55% of global greenhouse gas emissions, deposit their instruments of ratification.

On Wednesday, October 5th, the UN announced that the European Union and 10 additional countries have deposited their instruments of ratification. Now, countries that have ratified the Paris Climate Agreement account for more than 55% of global greenhouse gas emissions, surpassing the second requirement for the Agreement to enter force. Thus, the Paris Climate Agreement will enter into force on November 4, 2016.

UN Secretary-General Ban Ki-moon made a statement to mark this “momentous occasion”:

“Global momentum for the Paris Agreement to enter into force in 2016 has been remarkable. What once seemed unthinkable is now unstoppable.

Strong international support for the Paris Agreement entering into force is testament to the urgency for action, and reflects the consensus of governments that robust global cooperation is essential to meet the climate challenge.”

The Paris Climate Agreement calls on countries to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low-carbon future, as well as to adapt to the increasing impacts of climate change. Specifically, governments must take actions to limit global temperature rise to well below 2 degrees Celsius, and to strive for 1.5 degrees Celsius. The Paris Climate Agreement also requires developed countries fund $100 billion in investments to assist developing countries meet the Agreement’s goals.

More information about the Paris Climate Agreement is available at the UNFCCC website.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence