Jenner & Block

Corporate Environmental Lawyer Blog

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

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

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

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

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

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

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

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

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

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

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

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

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

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

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

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

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

 Steven M. SirosBy Steven M. Siros   Power plant

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

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

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

PEOPLE: Steven R. Englund, Steven M. Siros

July 18, 2017 Using GRI Framework Improves ESG Disclosures

Grayson

 

By E. Lynn Grayson 

G+A Logo

 

New research confirms that the quality of environmental, social and corporate governance (ESG) disclosures is greatly improved when companies use  the Global Reporting Initiative (GRI) Sustainability Reporting Framework. The Governance & Accountability Institute, Inc. (G&A), the data partner for GRI, also confirms that more companies than ever before are developing and disclosing sustainability reports.

In the first year of its study in 2010, G&A found that 80% of leading U.S. large-cap companies did not publish sustainability reports. The trend has changed over time with 53% of the S&P 500 companies reporting in 2012; 72% reporting in 2013; 75% reporting in 2014; 81% reporting in 2015; and 82% reporting in 2016.

To explore the quality of sustainability reports, G&A worked with The CSR-Sustainability Monitor (CSR-S Monitor) research team at the Weissman Center for International Business, Baruch College/CUNY. The CSR-S Monitor evaluated sustainability reports using a scoring methodology that categorizes the content of each report into 11 components referred to as “contextual elements” including: Chair/Executive Message; Environment; Philanthropy & Community Involvement; External Stakeholder Engagement; Supply Chain; Labor Relations; Governance; Anti-Corruption; Human Rights; Codes of Conduct; and Integrity Assurance. Companies using the GRI framework consistently achieved average contextual element scores higher than the companies not using the GRI for their reporting meaning, in part, that the data provided was of a higher quality and overall more helpful to stakeholders.

Sustainability reporting and ESG disclosures are on the rise. The trend clearly is to encourage and promote more standardized sustainability reporting helping companies provide more reliable, consistent and material information to the public.

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

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

By Steven M. Siros   Methane

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

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

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

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

PEOPLE: Steven R. Englund, Steven M. Siros

June 5, 2017 World Environment Day 5 June 2017

IMG_5257GraysonBy E. Lynn Grayson 

 

Today we celebrate World Environment Day—a global celebration of nature and a day to reconnect with the places that matter most to you. Initiated in 1972, World Environment Day is the United Nations' most important day for promoting worldwide awareness and action for protection of the environment. Since it began in 1974, it has grown to become an international platform for public outreach that is widely celebrated in over 100 countries.

This year's host country is Canada where the official celebrations will take place and the 2017 theme is connecting people to nature encouraging all of us to get outdoors and into nature.

There is greater international awareness and attention focused on the protection and preservation of the environment than ever before. Everyone understands the critical environmental concerns ranging from the politics of the Paris Climate Agreement, the adverse impacts of plastic waste in our oceans, to the international focus on water quality and quantity. World Environment Day is a time to reflect upon and appreciate that the welfare of the planet, including the economic viability of its many nations, depends on the collective efforts we make to protect, preserve and conserve our natural resources and the environment.

Learn more about World Environment Day and efforts around the world to celebrate and improve the environment.

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

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

Torrence_jpgBy Allison A. Torrence

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

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

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

Specifically, Article 28 of the Paris Agreement states that:

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

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

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

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

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

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

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

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

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence

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

February 28, 2017 Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program

Lynn Grayson Photo

Jenner Block logo

By E. Lynn Grayson

Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.

Program Details:

Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.

Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center 

For more information about the program and to RSVP, please connect here.

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

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

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 4, 2017 New Climate Change Financial Disclosure Recommendations

E Lynn Grayson photo TCFD logo

By E. Lynn Grayson

The Task Force on Climate-Related Financial Disclosures has issued a report detailing is recommendations for helping businesses disclose climate-related financial risks and opportunities within the context of their existing disclosure requirements. The Task Force developed four widely adoptable recommendations on climate-related financial disclosures that are applicable to organizations across sectors and jurisdictions: 1) adoptable by all organizations; 2) included in financial filings; 3) designed to solicit decision-useful, forward-looking information on financial impacts; and 4) strong focus on risks and opportunities related to transition to lower-carbon economy.

The recommendations are incorporated into a comprehensive report that provides good insight into climate-related risks and financial impacts, sector focused guidance, scenario analysis for climate issues and identification of key issues requiring further consideration. Appendices include a summary of select disclosure frameworks and other guidance including fundamental principles for effective disclosure.

In a letter to the Financial Stability Board transmitting the recommendations, Chairman Michael Bloomberg notes “….Warming of the planet caused by greenhouse gas emissions poses serious risks to the global economy and will have an impact across many economic sectors……without effective disclosure of these risks, the financial impacts of climate change may not be correctly priced and as the costs eventually become clearer, the potential for rapid adjustments could have destabilizing effects on markets.” He concludes in his letter that the Task Force’s recommendations “…aim to begin fixing this problem.”

The recommendations are designed to help companies identify and disclose information needed by investors, lenders and insurance underwriters to appropriately assess and price climate related risks and opportunities. Even with the upcoming changes in D.C., it is clear there will be continuing focus on climate change-related disclosures in 2017.

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