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September 28, 2016 En Banc D.C. Circuit Hears Oral Arguments in Clean Power Plan Challenge

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By Allison Torrence

On Tuesday, September 27, 2016, an en banc panel of the U.S. Court of Appeals for the D.C. Circuit heard nearly seven hours of oral arguments in one of the most significant environmental cases of the year: West Virginia v. EPA, Case No. 15-1363. This case involves more than 100 parties, who have filed dozens of petitions challenging EPA’s Clean Power Plan and its regulation of greenhouse gas emissions from existing power plants. Challengers include 27 States – led by West Virginia and Texas – labor unions, rural electric cooperatives, industry and trade groups, and private companies. Four intervenor briefs and 18 amici curiae briefs have been offered in support of the Clean Power Plan, by parties including 18 States, Washington D.C., utilities and power companies, environmental organizations, and former EPA administrators. Among other things, challengers argue that EPA exceeded its authority under the Section 111(d) of the Clean Air Act by including electricity-shifting measures and “Outside the Fenceline” requirements in the Clean Power Plan.

As we previously reported, in February 2016, the U.S. Supreme Court granted a stay of EPA’s Clean Power Plan. The stay was highly unusual because the case is still before the D.C. Circuit Court, which denied a request for a stay in January 2016. Adding to the unusual nature of this case, the D.C. Circuit, on its own motion, decided to hear the case en banc in the first instance, which is why the full court sat for oral arguments on September 27th. Notably, Judge Merrick Garland did not sit for oral arguments and will likely not take part in any decision, as he has recused himself from all decisions of the D.C. Circuit while he awaits resolution of his appointment by President Obama to the U.S. Supreme Court. The remaining 10 judges in the D.C. Circuit, Judges Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan, Millett, Pillard, Wilkins, took part in the oral arguments.

EPA’s defense of the Clean Power Plan went well during the oral arguments, with apparent support from the D.C. Circuit’s six democrat-appointed judges. The D.C. Circuit will likely expedite its decision in this widely-followed case, with an opinion expected in late 2016 or early 2017. Regardless of the outcome in the D.C. Circuit, the case will almost certainly be appealed to the U.S. Supreme Court for final resolution.

Audio recording of the oral argument is available on the U.S. Court of Appeals for the D.C. Circuit website.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

September 21, 2016 Paris Climate Agreement Ratified by 60 Countries and On Track to Enter Force Soon

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By Allison Torrence

During the annual meeting of the United Nations General Assembly in New York City, on Wednesday, September 21, 2016, UN Secretary-General Ban Ki-moon announced that more than 55 countries have formally joined the Paris Agreement on climate change, officially crossing one of the two thresholds required to bring the Agreement into force. At the annual meeting, 31 additional countries deposited their instruments of ratification for the Agreement, bringing the total to 60 countries that together represent more than 47.5% of global greenhouse gas emissions. Earlier this month, China and the United States, the world’s two largest greenhouse gas emitters, joined the Agreement.

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. The Paris Climate Agreement seeks to limit global temperature rise to well below 2 degrees Celsius, and to strive for 1.5 degrees Celsius. The Paris Climate Agreement was signed on April 22, 2016, by 175 countries at the largest, single-day signing ceremony in history. 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. Following today’s UN meeting, formal approval from countries representing 7.5% in global emissions is still needed.

Usually, international treaties of this size and complexity take years to come into effect, while the Paris Climate Agreement is close to achieving full legal force only 9 months after it was adopted. At least some of the urgency behind the ratification of the Agreement is the fact that Republican presidential candidate Donald Trump has vowed to pull the United States out of the Paris Climate Agreement if he is elected. If the Agreement comes into full legal force before the next president takes office, it would take four years for the United States to withdraw under the formal procedures of the Agreement, and the United States would be bound by the Agreement in the interim.

More information about the Paris Climate Agreement and a video of Secretary-General Ban Ki-moon’s remarks is available here.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

September 8, 2016 EPA Issues New Climate Change Fact Sheets

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By E. Lynn Grayson

EPA recently issued fact sheets detailing climate change impacts for each state and U.S. territory. In doing so, EPA confirmed some very basic, general findings about climate change impacts overall:

  1. Every state will become warmer.
  2. The impacts of climate change are likely to be very different from state to state.
  3. Increased rainfall intensity will cause more flooding in some states, while increasingly severe droughts may threaten water supplies in other states.
  4. Farms and forests will be less productive in some states, but warmer temperatures may extend growing seasons in others.

The fact sheets are short two page documents focused on differing issues for each state including, for example, climate change impacts related to ecosystems; air pollution and human health; the Great Lakes; agriculture; the Illinois, Ohio, and Mississippi Rivers; coastal flooding; heavy precipitation/flooding; sea level rise; and winter recreation. The fact sheet for Illinois provides good insight into the kind of information detailed.

While the new information supplements the existing climate change data available online from EPA, the information in many of the fact sheets appears dated, very general in nature, and perhaps geared to the general public. Existing climate change data associated with impacts by region and by sector is more detailed and may be more useful overall. See https://www3.epa.gov/climatechange/impacts/.

The new fact sheets are available via EPA’s climate change web page at  https://www3.epa.gov/climatechange/impacts/state-impact-factsheets.html

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

August 25, 2016 Jenner & Block CLE Program/Webinar: Environmental Litigation Update—September 1st at Noon

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By E. Lynn Grayson

On September 1, 2016, Jenner & Block is hosting a CLE program titled Overview of Critical Litigation Issues for Environmental Practitioners in our Chicago offices at Noon. The program will feature two of our environmental litigation partners as speakers, Steven Siros and Allison Torrence. Together, they will provide environmental litigation updates addressing new developments related to the Clean Power Plan, “waters of the United States,” emerging contaminants, and CERCLA cost recovery/contribution claims.

The program also will be shared via webinar for those who are unable to join us in person. To register for the program, please RSVP here.

CATEGORIES: Air, Climate Change, Sustainability

PEOPLE: Allison A. Torrence, Steven M. Siros

August 16, 2016 An Idled Pipeline Must Be an Abandoned Pipeline—New PHMSA Advisory

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By Steven M. Siros

A recently issued PHMSA advisory bulletin seeks to clarify the regulatory requirements that apply to mothballed or idled unused gas or hazardous liquid pipelines. As required by the Pipeline Safety Bill that was signed into law on June 22, 2016, PHMSA recently issued an advisory bulletin providing  guidance to owners and operators of gas or hazardous liquid pipelines regarding the requirements for idle and/or unused pipelines. 

Although the bulletin recognizes that owners and operators often refer to pipelines that are not in operation but that might be used again in the future as “idled,” “inactive,” or “decommissioned,” the PHMSA regulations do not recognize “idle” or “inactive” status for hazardous liquid or gas pipelines. Instead, the regulations consider such pipelines to either be active and fully subject to all relevant parts of the safety regulations or abandoned. Assuming that these pipelines have not been abandoned in accordance with the requirements set forth at 49 CFR §§ 192.727 and 195.402, these pipelines must comply with all relevant safety requirements, including periodic maintenance, integrity management assessments, damage prevention programs, and public awareness programs. 

The bulletin goes on to suggest, however, that in situations where the pipeline has been purged of all hazardous materials but not yet abandoned because of an expectation that the pipeline may later be used, the owner/operator may be able to defer certain of these safety requirements. Although PHMSA indicated that it intends to engage in a future rulemaking to provide further guidance as to which requirements might be deferred, in the interim the bulletin suggests that owners or operators planning to defer certain activities coordinate the deferral in advance with the regulators. 

The guidance also reiterates that notwithstanding that companies might not have access to records relating to where historical pipelines might be located and/or if these pipelines were properly purged of combustibles, the owners and operators still have a responsibility to assure facilities for which they are responsible or last owned do not present a hazard to people, property, or the environment. 

Please click here to see PHMSA's advisory bulletin.

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

PEOPLE: Steven M. Siros

July 27, 2016 2016 Democratic Party Platform: Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice

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By Allison Torrence

Last week, we examined the key environmental issues raised in the 2016 Republican platform. Now that the political focus has shifted from Cleveland to Philadelphia, where Democrats are holding their convention, we will examine what the Democratic Party has to say about its environmental priorities in the 2016 Democratic Party Platform. One of the Democratic Party platform’s 13 main sections is entitled “Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice.” Environmental issues are also raised in the section titled “Confront Global Threats”, which discusses “Global Climate Leadership.”

In the platform’s preamble, the Democrats state that:

Democrats believe that climate change poses a real and urgent threat to our economy, our national security, and our children’s health and futures, and that Americans deserve the jobs and security that come from becoming the clean energy superpower of the 21st century.

Other key positions from the Democratic environmental platform include: 

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Greenhouse Gas, Real Estate and Environment, Sustainability, Toxic Tort, Water

PEOPLE: Allison A. Torrence

July 21, 2016 2016 Republican Platform – A Focus on American Natural Resources

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By Allison Torrence

On Monday, Republicans gathered in Cleveland to kick off the Republican National Convention and adopt the official 2016 platform of the Republican Party. One of the platform’s six main sections is titled “American Natural Resources: Agriculture, Energy, and the Environment.” Republicans summarize their environmental platform by stating:

“We firmly believe environmental problems are best solved by giving incentives for human ingenuity and the development of new technologies, not through top-down, command-and-control regulations that stifle economic growth and cost thousands of jobs.”

Key positions from the Republican environmental platform include: 

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

PEOPLE: Allison A. Torrence

July 8, 2016 New Focus on Health and Safety of Infill Associated With Synthetic Turf Fields

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By Steven M. Siros

The National Toxicology Program (“NTP”) recently announced that it intends to join the crowded playing field (pun intended) of state, federal, and international agencies that are evaluating the potential human health risks associated with synthetic turf fields. Synthetic turf fields have been the subject of ongoing assessment by U.S. EPA, the Agency for Toxic Substances and Disease Registry, the Consumer Product Safety Commission, California’s Office of Environmental Health Hazard Assessment, and the European Union’s chemicals agency. However, the NTP intends to focus specifically on the tire crumb rubber used in those turf fields and to conduct short-term in vivo and in vitro toxicology studies on the crumb rubber. 

As more schools and other public facilities install synthetic turf fields, the potential health effects of the infill is an issue that is attracting increased attention. The NTP believes that its proposed study will help to fill what it views to be an important data gap. Although existing health study have not identified an elevated health risk from playing on artificial turf fields, these studies have generally focused on the potential health effects of exposure to lead other materials released from the artificial grass blades and/or exposure to possible emissions associated with the turf field in its entirety.   NTP and U.S. EPA have noted that there are limited studies on the effects of exposure to the tire crumb materials specifically which will be the focus of the NTP study.     

Please click here to go the NTP press release concerning its study.

CATEGORIES: Air, Climate Change, Hazmat, Sustainability

PEOPLE: Steven M. Siros

May 9, 2016 Jenner & Block CLE Webinar: "Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future"

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By E. Lynn Grayson

Jenner & Block Partner Gabrielle Sigel will discuss the development of climate change law under the Obama Administration and how that law may affect future efforts to regulate greenhouse gas emissions. She will provide a framework for understanding some of the most complex and dynamic legal decisions regarding administrative and environmental law since the Clean Air Act was enacted. Titled “Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future,” this CLE webinar will be held from 12:00 noon to 1:30 pm on May 12, 2016, at the firm’s Chicago office, 353 N. Clark Street.

Ms. Sigel is co-chair of the firm’s Climate and Clean Technology Law Practice and a founding member of the firm’s Environmental and Workplace Health & Safety Law Practice. She publishes extensively and is a frequent speaker on environmental law, climate change, and workplace health and safety issues.

Please click here to RSVP for attend the program in person or via a webinar.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Gabrielle Sigel

May 4, 2016 Climate Action Summit Brings Together Climate Leaders in Wake of Paris Agreement Signing

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By Allison Torrence

Approximately 700 participants, including leaders from government, business, finance, academia, philanthropy and civil society, will meet in Washington, DC on May 5-6, to attend the Climate Action 2016 Summit. Seven organizations have come together to jointly co-host the summit, providing this diverse group with the information, connections and tools they need to lead effective implementation in a new climate regime.

The co-hosts of the Summit are:

  • E. Mr. Ban Ki-moon, Secretary-General of the United Nations
  • Jim Yong Kim, President of the World Bank Group
  • Michael R. Bloomberg, UN Secretary-General’s Special Envoy for Cities and Climate Change; Founding Partner, Compact of Mayors
  • Naoko Ishii, Chief Executive Officer, Global Environment Facility
  • Judith Rodin, President, Rockefeller Foundation
  • Peter Bakker, Chief Executive Officer, World Business Council on Sustainable Development
  • Nigel Topping, Chief Executive Officer, We Mean Business
  • Wallace Loh, President, University of Maryland

The goal of the Summit is to strengthen the multi-stakeholder approach to climate implementation. The summit will address how to deliver on climate commitments and embed the transformation agenda across the globe in government, key sectors and among the general population. At the same time, the summit will focus on near-term implementation actions and long-term implementation needs. These will focus on City and Sub-national implementation; Transport; Land-use; Energy; Resilience/Adaptation; and Analysis and Tools to Support Decision Making.

More information about Climate Action 2016 is available here.

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

PEOPLE: Allison A. Torrence

April 21, 2016 More Than 150 Countries to Sign the Paris Climate Agreement on Earth Day

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By Allison Torrence

The United Nations has announced that up to 155 countries, including the United States, are planning to sign the Paris Climate Agreement at the Ceremony for Opening Signature, on Earth Day, April 22, 2016. The ceremony will take place at UN headquarters in New York. With over 150 world leaders set to sign the Paris Climate Agreement, the signing is expected to be the largest single signing of an international agreement in world history.

For more information about the signing ceremony and the Paris Climate Agreement, visit the United Nations Framework Convention on Climate Change website.

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

PEOPLE: Allison A. Torrence

April 20, 2016 What is Your Global Footprint?

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By Steven M. Siros

As part of our ongoing focus on Earth Day 2016, I found an interesting tool that allows one to measure one’s global footprint. The Earth Day Network has put together a Ecological Footprint Calculator that allows one to input specific parameters and determine how much of an impact each one of us has on the planet as a whole.  At least for me, the results were somewhat sobering. Please click here  to use the calculator to measure your impact.

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

PEOPLE: Steven M. Siros

April 18, 2016 Earth Day: Climate Change Attitudes and Perceptions

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By E. Lynn Grayson

One of the most significant environmental and energy policy issues today is climate change. One of the biggest events of the past year in environmental and energy policy was the Paris COP21 talks. More countries than ever have pledged to significant carbon cuts, yet in many people’s views, those pledges fall short of what a lot of scientists say is necessary. A recent interview of United Nations Secretary-General Ban Ki-moon with Kimberly Strassel, a member of The Wall Street Journal (WSJ) editorial board, highlights some of the challenges.

The WSJ found that attitudes toward climate change differ markedly by region of the world and by political affiliation:

WSJ climate change opinion graph

The U.S. has a plan to reduce emissions by 28% but the proposal is the subject of ongoing litigation. In his interview, Secretary-General Ban Ki-moon expressed concern over the impact internationally if the U.S. cannot obtain approval to meet its commitments to reduce GHG. President Obama has said that climate change is a bigger threat than terrorism and when asked if he agreed, the Secretary-General noted that “….longer term, it is a much, much more serious issue....concluding that climate change does not respect any borders. It affects a whole humanity, it affects our planet Earth.”

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

April 18, 2016 Earth Day 2016 Special Series: April 18–22, 2016

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By Steven M. Siros

In celebration of Earth Day 2016, the Corporate Environmental Lawyer blog will host a special campaign April 18-22 featuring unique news and stories about Earth Day events and activities taking place around the world, in addition to important developments in environmental law. As environmental lawyers, this is a good day for us to remember the contributions our clients and friends make to improving the environment in the communities where we live and work.

The theme for Earth Day 2016 is Trees for Earth.  In anticipation of the 50th anniversary of Earth Day in 2020, planting trees is the first of five major goals that will highlighted in each of the next five years.   The Earth Day Network challenges the world to plant 7.8 billion trees by 2020. 

You are invited to follow and participate in our Earth Day special series next week at http://environblog.jenner.com/ and follow us on Twitter @JennerBlockEHS.

If you have any questions about our Corporate Environmental Lawyer blog or this special series, please feel free to contact me at ssiros@jenner.com or 312-923-2717.

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

PEOPLE: Steven M. Siros

April 7, 2016 Can A Smartphone Be Used To Verify Compliance With My Air Permit—Surprisingly, the Answer Soon May Be Yes—and Other New Enforcement Initiatives

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Siros photoBy Steven M. Siros

In an effort to capitalize on what U.S. EPA characterizes as the successful integration of its Next Generation Compliance strategy into its enforcement arsenal, U.S. EPA recently confirmed that it intends to incorporate Next Generation Compliance into future environmental settlements. For those unfamiliar with the strategy, U.S. EPA’s Next Generation Compliance strategy is intended to achieve a higher rate of compliance and reduce pollution through the use of advanced monitoring and information technologies. For example, through the use of Electronic Discharge Monitoring Reports to monitor compliance with Clean Water Act NPDES permits, U.S. EPA is able to more readily identify and prosecute permit violations. Moreover, since much of this information is then publicly available, environmental organizations and citizen groups are more readily able to identify violators, which could result in an increased frequency of citizen suits and/or increased pressure being brought to bear on the regulators to enforce against repeated violators. 

CATEGORIES: Air, Greenhouse Gas, Sustainability

PEOPLE: Steven M. Siros