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Corporate Environmental Lawyer Blog

February 9, 2018 Will Last-Minute Petition for Review Keep Natural Gas Flowing?

FERCMatthew G. Lawson By Matthew G. Lawson  

On February 7, 2018, the Federal Energy Regulatory Commission (“FERC”) moved for a last-minute review to save the Sabal Trail natural gas pipeline just hours before it was scheduled to be shut down.  In a motion filed on Tuesday in the U.S. Court of Appeals for the District of Columbia, FERC asked the court for a 45-day stay of issuance of the court’s mandate to allow the agency to issue an order on remand reauthorizing certificates for the pipeline project.

The request stems from an August 22, 2017 D.C. Circuit opinion concluding that FERC did not adequately analyze the impacts of greenhouse gas (“GHGs”) emissions that would result from the construction and operation of the $3.5 billion pipeline.  The court concluded that FERC had failed to comply with the requirements of the National Environmental Policy Act (“NEPA”) because the agency’s Environmental Impact Statement (“EIS”) did not consider the indirect environmental effects of authorizing the transportation of natural gas to be burned, which in turn generates GHG emissions.  The court remanded the matter back to FERC to give a quantitative estimate of the downstream GHG emissions that will stem from the pipeline or explain specifically why it was not able to do so.

On January 31, 2018, the D.C. Circuit court denied FERC’s petition to rehear the issue, setting the stage for a one week countdown to the shutdown of the major gas network, which has been operating since June 2017.  On Monday, FERC took a major step to keeping the pipeline in service by issuing a revised supplemental environmental impact statement (“SEIS”), but neglected to state whether it would issue an emergency order to prevent shutdown of the Sabal Trail pipeline.  However, it is unclear if FERC has the authority to immediately reissue certificates to the pipeline prior to a thirty day wait period following the issuance of the SEIS.  This may explain why the agency elected to request a short stay from the court for it to reauthorize the pipeline.

In its February 7th motion, FERC asserted that “[i]f pipeline service is halted, Florida Power & Light may not be able to meet its customers’ electricity needs efficiently or reliably.”  The utility services an estimated 4.9 million households in Florida.  FERC’s motion automatically stays the court’s mandate until February 16, which is when responses to the motion are due.

It is also unclear whether the D.C. Circuit will ultimately approve FERC’s SEIS.  The document provides an estimate that the pipeline could increase Florida’s GHG emissions by 3.6 to 9.9% over 2015 levels.  However, the agency declined to comment on the potential environmental effects from that increase, noting there was no “suitable” scientific method for doing so. We will continue to follow this issue and will provide updates as events warrant.

 

 

 

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

PEOPLE: Steven R. Englund

January 23, 2018 ECHA Adds Seven Chemicals to REACH’s “Substances of Very High Concern” List

Siros By Steven M. Siros  ECHA

On January 15, 2018, the European Chemicals Agency (“ECHA”) added seven chemicals to its Candidate List of “Substances of Very High Concern” (“SVHC”) for Authorization. These seven chemicals are:

  • Chrysene
  • Benz[a]anthracene
  • Cadmium nitrate
  • Cadmium hydroxide
  • Cadmium carbonate
  • 1,6,7,8,9,14,15,16,17,17,18,18- Dodecachloropentacyclo[12.2.1.16,9.02,13.05,10]octadeca-7,15-diene (“Dechlorane Plus”TM) [covering any of its individual anti- and syn-isomers or any combination thereof]
  • Reaction products of 1,3,4-thiadiazolidine-2,5-dithione, formaldehyde and 4-heptylphenol, branched and linear (RP-HP) [with ≥0.1% w/w 4-heptylphenol, branched and linear].  

If you are still with me after having read through those chemical names, here is some more useful information.  Once a chemical is listed on ECHA’s Candidate List, it triggers a number of regulatory obligations, including the requirement that importers of products containing one or more SVHC substances above 0.1 percent by weight file notifications with ECHA.  In addition, chemicals on the Candidate List may be subsequently targeted by ECHA for phase-out. 

According to a statement by ECHA in conjunction with its notice of listing, these specific seven chemicals are not widely used and ECHA does not view this listing as imposing substantive industry-wide regulatory burdens. There are now 181 substances on ECHA’s Candidate List. Please click here to go to the ECHA website for a list of 181 SVHCs.

CATEGORIES: Climate Change, Greenhouse Gas, Hazmat, 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

December 13, 2017 Following Keystone Pipeline Oil Spill, Judge Orders Parties to Prepare Oil Spill Response Plan for Dakota Access Pipeline

Torrence_jpgBy Allison A. Torrence

As we previously reported on this blog, in June, Federal District Court Judge James Boasberg found that the U.S. Army Corps of Engineers (the Corps) did not fully comply with the National Environmental Policy Act (NEPA) when it granted easements to the Dakota Access Pipeline (DAPL) to cross Lake Oahe, a federally regulated water in North Dakota. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534 (June 14, 2017). In light of that ruling, Plaintiffs, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe (the Tribes) asked the court to vacate the DAPL’s permits and easements and enjoin further operations until the Corps fully complies with NEPA. In October, Judge Boasberg denied the Tribes’ request and allowed DAPL to continue operations while the Corps completes its supplementary NEPA analysis.

Following the October ruling allowing operations to continue, in November, the TransCanada Keystone Pipeline leaked an estimated 210,000 gallons of crude oil in South Dakota. Following this widely report pipeline oil spill, on December 4, 2017, Jude Boasberg ordered DAPL owner, Dakota Access, LLC, the Corps and the Tribes to “coordinate to finalize an oil-spill response plan affecting Tribal resources and lands at Lake Oahe.” Judge Boasberg also ordered Dakota Access, with input from the Tribes, to hire an independent third-party engineering expert to conduct a compliance audit of the DAPL. Both the oil spill response plan and the compliance audit report must be submitted to the court by April 1, 2018.

In addition, Dakota Access was ordered to submit bi-monthly reports to the court providing detailed information with respect to the segment of the pipeline crossing Lake Oahe. These bi-monthly reports will include:

  • Inline-inspection run results or direct-assessment results performed on the pipeline during the reporting period;
  • The results of all internal-corrosion management programs and any actions taken in response to findings of internal corrosion;
  • Any new encroachment on the right‐of‐way during the reporting period;
  • Any new integrity threats identified during the reporting period;
  • Any reportable incidents that occurred during the reporting period;
  • Any leaks or ruptures that occurred during the reporting period;
  • A list of all repairs on the segment made during the reporting period;
  • Ongoing damage-prevention initiatives on the pipeline and an evaluation of their success or failure;
  • Any changes in procedures used to assess and monitor the segment; and
  • Any company mergers, acquisitions, transfers of assets, or other events affecting the management of the segment.

Judge Boasberg explained the reasoning behind his decision as follows:

Recent events have made clear, moreover, that there is a pressing need for such ongoing monitoring. Earlier this month, the Keystone Pipeline leaked 210,000 gallons of oil in Marshall County, South Dakota.…The spill occurred near the boundaries of the Lake Traverse Reservation, home of the Sisseton Wahpeton Oyate Tribe, thus highlighting the potential impact of pipeline incidents on tribal lands.

Dakota Access must file these detailed reports beginning December 31, 2017, and every 60 days thereafter until the remand is complete. The Corps anticipates completing its supplemental NEPA analysis by April 2018, at which point the court will determine whether the Corps has fully complied with NEPA.

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Allison A. Torrence

December 12, 2017 Cities Respond to Moody’s Global Warming Rating

Siros Moodys

By Steven M. Siros

On December 4, 2017, I wrote a blog regarding Moody’s Investors Service’s threat to downgrade state and municipal credit ratings if they failed to adequately plan for and attempt to mitigate climate change risks. A day later, in conjunction with the North American Climate Summit, Chicago’s mayor and dozens of other mayors signed the “Chicago Climate Charter,” which calls on mayors to work to achieve a reduction in greenhouse gas emissions that’s equal to or more than that required by the 2015 Paris Agreement. The charter would require participating cities to track and publicly report greenhouse gas emissions and take action to plan for climate change related impacts in local infrastructure and energy planning. While these actions may not have been in direct reaction to Moody’s threat, such forward thinking may minimize the risk for participating cities in future rating downgrades relating to climate change impacts.

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Steven R. Englund, 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

November 16, 2017 Great Lakes Legacy Act Key to CERCLA Innovation?
 

SirosBy Steven M. Siros   EPA logo 2017

U.S. EPA’s Office of Superfund Remediation and Technology Innovation (“OSRTI”) recently indicated that it may be looking to the Great Lakes National Program Office’s (“GLNPO”) sediment cleanup program for best practices that might be applicable to Superfund cleanups. OSRTI’s evaluation of GLNPO’s sediment program is consistent with comments submitted by responsible parties and cleanup contractors that U.S. EPA should give more consideration to leveraging public and private funds in Superfund cleanups. The Great Lakes Legacy Act established the GLNPO, which has been working closely with states, local government entities and other stakeholders to address sediment issues at 31 areas of concern in the Great Lakes area. U.S. EPA’s website notes that the Great Lakes Legacy Act program has invested approximately $338 million to address these sediment impacted sites while leveraging an additional $227 million from non-federal parties. Whether this approach can achieve similar results at other Superfund sites remains to be seen, but such flexibility would appear to be consistent with Administrator Pruitt’s priority to more quickly and economically address CERCLA sites.

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

PEOPLE: Steven R. Englund, Steven M. Siros

November 2, 2017 D.C. Circuit Rejects Sierra Club Challenges to LNG Exports

Linkedin_Steven_Siros_3130By Steven M. Siros

LNGOn November 1, 2017, the United States District Court of Appeals for the D.C. Circuit rejected the Sierra Club's National Environmental Policy Act (“NEPA”) challenges to the Department of Energy’s (“DOE”) authorization of export of liquefied natural gas from three facilities in Louisiana, Maryland, and Texas. The court noted that its decision in Sierra Club v. U.S. Department of Energy (Freeport), 867 F.3d 189 (D.C. Cir. 2017) was largely determinative of the Sierra Club’s challenges to the LNG exports from these three facilities. In the Freeport decision, the court agreed that DOE had provided a reasoned explanation as to why DOE believed the indirect effects pertaining to increased gas production were not reasonably foreseeable.  The court also found that DOE did not violate NEPA when declining to make specific projections regarding the environmental impacts associated with the increased production. The Freeport court also acknowledged that DOE had adequately considered the downstream greenhouse gas emissions resulting from the indirect effects of the LNG exports.

Notwithstanding the Freeport decision, the Sierra Club continued to challenge DOE’s authorizations for LNG exports for these three facilities, arguing that DOE’s reliance on an Environmental Assessment that found no significant impact (as opposed to an Environmental Impact Statement) is contradicted by evidence in the record. The court rejected this argument, noting that an agency’s finding of no significant impact will only be reversed if the decision was arbitrary, capricious, or an abuse of discretion which the court concluded was not supported by the record evidence. The Sierra Club also argued that DOE failed to consider the distributional impacts when evaluating “public interest” under the Natural Gas Act. However, the court noted that DOE had in fact considered the distributional impacts of the LNG exports.

Following this judgment, the Sierra Club will have lost all four petitions it filed against the DOE relating to NEPA assessments for LNG exports. The Sierra Club also lost all four of its petitions challenging FERC’s approval of these LNG exports. Please click here for a copy of the court’s November 1st decision.

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

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 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 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

August 22, 2017 Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline

SMS Dennis_Jeffery_COLOR

 

 

 

By Steven M. Siros and Jeffery S. Dennis

PipelineOn August 22, 2017, a divided D.C. Circuit panel sided with the Sierra Club and other environmental groups by concluding that the Federal Energy Regulatory Commission ("FERC") didn't adequately analyze the impacts of greenhouse gas ("GHGs") emissions that may result from a $3.5 billion natural gas pipeline to be constructed through Florida. The project in question is an approximately 500-mile long natural gas pipeline scheduled to be completed in 2021 and which is projected to carry over one billion cubic feet of natural gas per day.

Section 7 of the Natural Gas Act vests jurisdiction to approve such a pipeline with FERC. Before such a pipeline can be approved, FERC must grant the developer a certificate of public convenience and necessity (often referred to as a Section 7 certificate). Prior to issuing the Section 7 certificate for this project, FERC prepared an environmental impact statement ("EIS") as required by the National Environmental Policy Act ("NEPA"). Sierra Club and other environmental groups challenged FERC's EIS and subsequent Section 7 certificate on the grounds that it failed to adequately consider the pipeline's contribution to GHG emissions and its impact on low-income and minority communities.

After dealing with several jurisdictional issues (including standing), the court addressed the merits of plaintiffs' claims.  First, the court disagreed with plaintiffs' argument that the EIS failed to adequately consider the project's impact on low-income and minority communities, noting that the EIS acknowledged and considered all of the concerns that the plaintiffs now raised. The court stated that the EIS "gave the public and agency decision makers the qualitative and quantitative tools they needed to make an informed choice for themselves. NEPA requires nothing more."

Turning next to plaintiffs' argument that the EIS failed to adequately consider the effect of GHGs that would be emitted by power plants in Florida that would burn the natural gas transported by the pipeline, the court noted that NEPA requires that an agency consider not only the direct effects, but also the indirect environmental effects, of the project under consideration. The court concluded that the reasonably foreseeable effects of authorizing a pipeline that transports natural gas is that the natural gas will in fact be burned, which will in turn generate GHG emissions. As such, the court concluded that the EIS "should have either given a quantitative estimate of the downstream greenhouse gas emissions that will result from burning the natural gas the pipelines will transport or explained more specifically why it could not have done so." The EIS then needed to include a discussion as to the "significance" of these GHG emissions as well as the incremental impact of these emissions when added to other past, present, and reasonably foreseeable future actions. Notably, the court rejected FERC's "practical objection" that assessing GHG emissions in the EIS requires too much speculation because it cannot know exactly what quantity of GHGs may be emitted as a result of the pipeline approval, given uncertainty in how much gas may be consumed by the power plants. The court thus remanded the matter back to FERC for preparation of an EIS consistent with the court's opinion.

In her dissent, Judge Janice Rogers Brown concludes that because FERC has no authority over the GHG emissions that would be emitted by the power plants, it has no obligation to consider those emissions as part of its EIS.

The court's decision could have far-reaching impacts on FERC's EIS procedures for proposal pipeline projects, especially given the court's apparent rejection of the agency's long-held position that assessing GHG emissions beyond the operations of the pipeline itself is too speculative to be useful for NEPA purposes. It is possible that an en banc rehearing will be sought before the D.C. Circuit and/or a petition for certiorari will be filed with the Supreme Court.

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

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