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January 9, 2020 Trump Administration Proposes Landmark Changes to National Environmental Policy Act’s Review Process

HeadshotBy Matthew G. Lawson

CEQ SealMarking the 50th anniversary of the enactment of the National Environmental Policy Act (“NEPA”), on January 1, 2020, the Trump White House published a Presidential Message announcing the imminent release of newly proposed regulations designed to “modernize” the foundational environmental statute.  NEPA, which requires federal agencies to quantify and consider environmental impacts before undertaking actions that have the potential to “substantially impact” the environment, has far reaching applications. Under NEPA, federal agencies are often required to complete an Environmental Impact Assessment (“EIS”) prior to starting public infrastructure projects such as roads, bridges and ports, or before permitting certain private actions that require federal approval, such as construction of pipelines or commencement of mining operations. According to the 2018 Annual NEPA Report, EISs drafted by federal agencies between 2010 and 2017 took an average of 4.5 years to complete. The Presidential Message asserts that the existing NEPA review process “has become increasingly complex and difficult to navigate,” while causing “delays that can increase costs, derail important projects, and threaten jobs for American workers and labor union members.” The regulations proposed by the Trump Administration are expected to be released by the Council on Environmental Quality (“CEQ”) later this week.

If enacted, the proposed regulations could mark the first comprehensive update to NEPA’s review process in more than four decades. According to accounts of a draft memo from CEQ outlying the proposed changes, the modifications will bring substantial changes to the NEPA review process, including:

  • requiring that all EISs be completed within a two-year time limit;
  • limiting the scope of projects that trigger the requirement to draft an EIS; and
  • in the case of private actions that require federal approval, allowing private companies to take lead in reviewing potential environmental impacts under the supervision of a federal agency.

Perhaps most critically, CEQ is expected to advise that federal agencies are no longer required to consider “cumulative” environmental consequences when accounting for the environmental impacts of a specific action. This language appears aimed at eliminating the requirement that federal agencies consider the impact of increased greenhouse gas (“GHG”) emissions and climate change as part of their NEPA review. The proposal comes after several high profile infrastructure projects back by President Trump, including the Keystone XL oil pipeline, were blocked by federal judges on the basis that the project’s EIS failed to sufficiently consider the impacts of climate change.

While the CEQ regulations have not been comprehensively revised since 1986, in recent years the Obama and Trump Administrations have independently sought to clarify the obligation imposed on Federal agencies to consider GHG emissions and climate change under NEPA. In 2016, the Obama Administration CEQ released guidance endorsing the view that NEPA requires federal agencies to consider and quantify any reasonably foreseeable GHG emissions that are attributable to a proposed action. However, this guidance was subsequently withdrawn by the Trump Administration CEQ in 2017, and replaced in June 2019 with draft guidance that cautioned agencies to only consider GHG emissions that were “substantial enough to warrant quantification” and not “overly speculative.” 

Once the CEQ’s newly proposed regulations are released and filed in the federal register, the public will be afforded 60 days to comment on the changes. From this point, the Trump Administration is aiming to publish the final regulations before the presidential election in November. However, before the new regulations can take effect, environmental groups are expected to challenge them in court proceedings.

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

PEOPLE: Matthew G. Lawson

December 20, 2019 International Shipping Industry Plots New Course to Battle Climate Change

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By Matthew G. Lawson 

GHGIn recent years, the global maritime shipping industry has faced pressure to reduce the large quantity of greenhouse gas (“GHG”) emissions associated with international shipping. About 90 percent of the world’s trade goods are transported by ship, and, according to one 2014 study, the shipment of these good via maritime vessels emits approximately 1.9 billion tonnes of GHG annually, or approximately 4% of human-made emissions worldwide. The annual GHG output of the shipping industry has been projected to rise by as much as 250% by 2050 if direct actions are not taken to modify industry practices.

Because of its international nature, global shipping is extremely difficult to regulate on a national basis, and therefore is often addressed through international agreements. To this end, in 2018, the International Maritime Organization (“IMO”), a branch of the United Nations, approved the world’s first broad agreement designed to reduce GHG from worldwide ocean shipping. The agreement reached by the IMO member provides the following target metrics:

(1) Reduce CO2 emissions per “transport work” (product of cargo transmitted and distance sailed) by at least 40% by 2030 and 70% by 2050; and

(2) Reduce total CO2 emissions from shipping by at least 50% by 2050.

The targets were designated to fall in line with the GHG reductions goals set out in the 2015 Paris Climate Accords (the "2015 Paris Agreement"). Though the 2015 Paris Agreement does not include an agreement to reduce GHGs in international shipping, the IMO has stated that it is committed to reducing GHGs in the industry to match the commitment put forward in the agreement.

On December 18, 2019, ship owner associations representing over 90% of the world’s merchant fleets formally presented to IMO their proposed strategy for meeting the international body’s 2018 GHG reduction goals. The industry’s plan proposed the creation of a $5 Billion USD research fund that will be used to research and develop more environmentally friendly fuels and ship propulsion systems. The fund would be fully funded from a $2 per ton tax on marine fuel purchased by shippers over a 10-year period. The associations argued that the fund would be critical to the development of alternative fuels—such as synthetic fuels created by renewable energy sources—which had the potential to drastically reduce the industry’s carbon footprint.

IMO’s environmental goals expand to areas beyond just GHG reduction. For example, in January 2020, the IMO’s new cap on the amount of Sulphur permitted fuel oil will take effect. The effort is aimed at reducing maritime vessel’s emissions of Sulphur oxides (SOx), which are known to be harmful to human health and can lead to acid rain and ocean acidification.  on December 10, 2019, the United States Environmental Protection Agency (“USEPA”) enacted a new Final Rule to help refiners comply with the IMO’s new global sulfur standard. As provided by the USEPA, the Final Rule was designed to “ensure that U.S. refiners can permissibly distribute distillate marine fuel up to the 5,000 ppm sulfur limit, which will facilitate smooth implementation of the 2020 global marine fuel standard.”

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

PEOPLE: Matthew G. Lawson

December 10, 2019 NY AG Strikes Out in Climate Fraud Suit Against Exxon

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Following a three-week bench trial, the New York Supreme Court ruled in favor of Exxon Mobil Corp. in the climate fraud case brought by New York’s attorney general, who accused the energy company of deceiving its investors about climate change-related risks to its business. In reaching this holding, Justice Barry Ostrager found that the attorney general “failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor,” which was the threshold for sustaining claims under the Martin Act.  

As noted in in Jenner & Block’s previous blog post, the attorney general began its investigation into Exxon Mobil in 2015. The attorney general’s investigation was grounded in New York's shareholder-protection statute, the Martin Act, as well as New York’s consumer protection and general business laws. After a three-year investigation, the attorney general’s office sued Exxon on October 24, 2018.

Exxon Mobil’s victory was foreshadowed when the attorney general dropped two of its four claims, one for common law fraud and one for equitable fraud, on the last day of trial. These claims were important to the state’s case because they alleged that Exxon Mobil’s misstatements were part of a scheme to mislead its investors and that Exxon Mobil’s investors had in fact relied on the misstatements when purchasing the company’s stock. Only two Martin Act investor fraud claims remained, which did not require the government to prove fraudulent intent.

An Exxon spokesperson said the ruling affirmed the position Exxon has held throughout the investigation and trial. "The court agreed that the attorney general failed to make a case, even with the extremely low threshold of the Martin Act in its favor," the spokesperson said.

Despite ruling against the attorney general, Judge Ostrager clarified that “nothing in [the] opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products.” The judge continued “ExxonMobil is in the business of producing energy, and this is a securities fraud case, not a climate change case.”

Exxon is battling similar accusations in other state and federal courts. Jenner & Block's Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability

PEOPLE: Leah M. Song

December 5, 2019 Dan Brouillette, Acting Secretary of Energy, Confirmed by Senate for Top DOE Spot

BandzaBy Alexander J. Bandza

BrouilletteThe Senate in a 70-15 vote confirmed Dan Brouillette this week as the new Secretary of Energy to succeed Secretary Rick Perry. All 47 Republicans who were present for the vote backed confirmation, as did 22 Democrats, including Joe Manchin III of West Virginia, Tom Udall of New Mexico, and Richard J. Durbin of Illinois, and one Independent, Angus King of Maine.

At his confirmation hearing, Mr. Brouillette stressed the role of the DOE in advancing research, including focusing his tenure on pushing direct air capture, carbon capture and sequestration (CCS), nuclear reactors, and the DOE commercialization work that fosters novel technologies in the private sector. He stated he would “absolutely” devote more DOE resources to researching DAC, and praised ongoing work on CCS and demonstrations of the technology in Wyoming in particular, nothing that he is “very excited about the work I see being done in Wyoming and within DOE writ large.” 

Wyoming has become a focal point of the tension as to the future of coal under climate change policies or other environmental laws and the potential opportunity for CCS to resolve this tension. (Wyoming supplies 40% of the United States’ coal to 29 states.) The Wyoming Public Service Commission Chair has recently spoke about the need for a hard look at the benefits of CCS before shuttering coal plants. Also this week, the University of Wyoming announced a partnership with DOE to accelerate research on carbon capture technology at two of the state’s coal-fired power plants. In light of Mr. Brouillette’s extensive comments in support of Wyoming and CCS, we can anticipate much more on this front.

As noted by the New York Times, before becoming deputy energy secretary, Mr. Brouillette was chief of staff to the House Energy and Commerce Committee and was assistant secretary of energy for congressional and intergovernmental affairs in the George W. Bush administration. He also worked as an executive at the United Services Automobile Association, a financial services provider to members of the military, and Ford Motor Company. He once was a member of Louisiana’s State Mineral and Energy Board.

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

PEOPLE: Alexander J. Bandza

November 25, 2019 U.S. EPA May Require Companies to Report PFAS Releases in TRI Reports

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On November 25, 2019, U.S. EPA submitted an advance notice of proposed rulemaking (ANPR) for publication in the Federal Register seeking public comment on whether certain per- and polyfluoroalkyl substances (PFAS) should be added to the list of chemicals subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). In its ANPR, U.S. EPA seeks comments on which, if any, PFAS compounds should be considered for listing, how to list them, and what would be the appropriate reporting thresholds given their persistence and bioaccumulation potential. U.S. EPA specifically notes that it is considering establishing a reporting threshold for PFAS that is lower than the usual statutory thresholds (25,000 pounds for manufacturing or processing and 10,000 pounds for otherwise using listing chemicals) due to concerns over the compounds environmental persistence and bioaccumulation potential.  The ANPR notes that perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) have been the most widely studied PFAS compounds but notes that there are more than 600 PFAS compounds that are being manufactured and/or used in the United States. 

If added to the list of chemicals subject to reporting under EPCRA, affected companies would be required to report annually how much of each listed PFAS compound is released into the environment or otherwise managed through energy recovery, recycling or treatment. This information is then publicly available through the Toxic Release Inventory database. The ANPR comes on the heels of action by the House Energy and Commerce Committee that approved legislation  (H.R. 535) on November 20th that seeks to add at least 13 PFAS compounds to the list of chemicals subject to EPCRA reporting.

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

PEOPLE: Steven R. Englund, Steven M. Siros

November 21, 2019 Environmental Groups Collaborate on Launch of National PFAS Clearinghouse
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In conjunction with a publicity blitz surrounding the release of “Dark Waters,” a movie targeting alleged environmental and health impacts associated with PFAS releases in Ohio and West Virginia, a group of environmental groups, lawmakers and other advocates of more stringent PFAS regulations launched a public clearinghouse that is intended to provide consumers with information on the adverse health impacts of PFAS and provide recommendations on ways to minimize exposure to these chemical substances. In a November 19, 2019 press conference, Mark Ruffalo (one of the actors in the "Dark Waters" movie) and Rob Bilott (author of the book Exposure), joined by members of Congress and several environmental groups, announced the launch of the clearinghouse, named “Fight Forever Chemicals,” noting that purpose behind the clearinghouse is to bring the fight against forever chemicals from the margins to the mainstream and thereby demand stronger protections from leaders in office.

As has been discussed in previous blog entries, both the States and U.S. EPA are feeling increasing pressure to adopt stringent PFAS regulations. Some states such as California have already adopted screening levels as low as 5 parts per trillion for perfluorooctanoic acid (PFOA) in drinking water (and suggested that the levels could be as low as 0.1 parts per trillion), even though the science regarding the toxicity of these compounds is still in flux.  On November 21, 2019, U.S. EPA released its fall regulatory agenda in which it confirmed its intent to designate PFOA and perfluorooctanesulfonic acid (PFOS) as hazardous substances through one of the available statutory mechanisms in Section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 

The publicity surrounding the launch of the clearinghouse and the opening of the movie will only increase the pressure felt by States and U.S. EPA.  As such, it is more important than ever for companies to ensure that they have carefully thought-out strategies in place to minimize the risks associated with PFAS impacts in the environment. These strategies need to take into consideration the allocation of PFAS risks in transactional settings, as well as assessing potential liabilities associated with historical manufacturing operations. The PFAS tidal wave seems to building, and companies should be proactive to guard against being caught up in the deluge.

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

PEOPLE: Steven R. Englund, Steven M. Siros

September 6, 2019 Recent DOJ Directive Marks Continuing Effort to Curb Availability of Supplemental Environmental Projects in Civil Environmental Settlements

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  By Matthew G. Lawson

On August 21, 2019, the Department of Justice issue a new memorandum reducing state and local governments’ ability to enter into settlement agreements that require the completion of supplemental environmental projects (SEPs) as compensation for alleged environmental violations. While impactful in its own right, the DOJ memo can be viewed as a continuation of an over two-year long effort by the DOJ to reduce the general availability of SEPs in the settlement of civil environmental cases. 

As defined by the EPA, “SEPs are projects or activities that go beyond what could legally be required in order for the defendant to return to compliance, and secure environmental and/or public health benefits in addition to those achieved by compliance with applicable laws.” Private parties or municipalities may offer to complete SEPs as part of a settlement with EPA or other environmental regulators. By doing so, the alleged violator effectively replaces a part or all of the penalty owed for an environmental violation with the commitment to develop an environmentally beneficial project.

Despite the widespread and longstanding use of SEPs in settlement agreements, recent actions by the DOJ demonstrate a clear effort by the Department to reduce the use of SEPs in the settlement of alleged environmental violations.

The trend started with a June 8, 2017 policy directive issued by then Attorney General Jeff Sessions which broadly prohibited settlement agreements from “directing or providing” payment to any third-parties that are neither victims nor parties to the lawsuits. The directive had the immediate effect of prohibiting SEPs that require violators to fund environmental project performed by third parties.

The 2017 directive was then followed by a second memorandum on November 11, 2018, which barred the use of consent decrees to achieve “general policy goals or to extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Finally, in its most recent move, the August 21st DOJ memorandum issued from the Department’s Environmental and Natural Resource Division details the DOJ’s determination that environmental SEPs are prohibited under the November 2018 directive. Specifically, the memo provides that “[t]he use of SEPs in consent decrees with state and local governments contravenes the prohibition on using consent decrees to ‘extract greater or different relief from [a state or local government] than could be obtained through agency enforcement authority or by litigating the matter to judgment.’” While the memorandum notes several conditions where SEPs may still be permitted, it cautions that exemptions to the general prohibition “are meant to be rare.”  

With the DOJ’s most recent actions, it appears that environmental regulators will no longer be permitted to agree to SEPs in most, if not all, settlement agreements. However, open questions remains whether regulators will be able to fashion future SEPs that comply with the recent DOJ directives.

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

PEOPLE: Matthew G. Lawson

September 5, 2019 Available Company Defenses to Climate Change Shareholder Activism: Trends in Climate Change Litigation, Part 5

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By Matthew G. Lawson

As noted in Jenner & Block’s prior blog post, Shareholder Activism: Trends in Climate Change Litigation, Part 4, an emerging issue for public companies in high greenhouse gas (“GHG”) emitting industries is increased pressure from environmentally focused “activist shareholders.” These shareholders often seek to leverage their ownership shares to influence companies into taking action to decrease GHG emissions and/or increase public disclosure of such emissions. These efforts may be undertaken through negotiations with company management or through the introduction of specific shareholder proposals and proxy materials to be presented and voted on at annual shareholder meetings.

Several recent actions taken by the SEC may now help shield public companies from certain attempts by shareholders to introduce climate change related proposals for consideration at shareholder meetings. Under SEC rule 14a-8(i)(7), public companies may exclude from shareholders’ voting ballots any proposals which seek to “micromanage” the company’s ordinary business operations. In recent months, the SEC has asserted that rule 14a-8(i)(7) may be utilized by companies to block certain types of climate change related proposals. The agency has articulated this position by issuing “no-action” letters to public companies seeking to block climate-change proposals from their shareholders. In effect, these letters act as an assurance that the SEC will not recommend enforcement action against the companies for blocking the respective proposals because the agency agrees that the proposal falls under the purview of rule 14a-8(i)(7). However, the SEC has, in a few instances, refused to issue “no-action” letters to companies seeking to block shareholder climate change proposals.

Whether a shareholder’s climate change proposal is excludable under rule 14a-8(i)(7) therefore appears to be a case-by-case determination which depends on the specific demands of a proposal. As a general rule, the SEC has found that proposals which only seek greater disclosure of a company’s GHG emissions cannot be excluded under rule 14a-8(i)(7), but proposals which impose GHG emission reduction targets on the company or require specific methods for reporting or calculating GHGs may be excluded under rule 14a-8(i)(7). A few instructive examples of these general conclusions are provided below:

  • On February 14, 2019, the SEC issued a no-action letter to J.B. Hunt Transport Services, Inc. approving the company’s request to block a shareholder proposal that, if implemented, would require the company to adopt quantitative targets for reducing GHG emissions and issue a report demonstrating its progress towards achieving these targets. The SEC found that the proposal sought to micromanage the business by probing into complex matters that were better left to the informed judgment of management.
  • On March 4, 2019, the SEC refused to issue a no-action letter to Anadarko Petroleum Corporation after the company sought to block a proposal requesting that the company describe if, and how, it planned to reduce its total contribution to climate change to fall in line with the global temperature objectives of Paris Agreement.
  • On April 2, 2019, the SEC issued a no-action letter to ExxonMobil which affirmed that the company could exclude a shareholder proposal which would require the company to adopt and disclose certain GHG emission reduction targets. The SEC noted that the proposal sought to replace the ongoing judgments of the company’s management with “specific methods” for implementing complex policies.

Of course, the threat of potential governmental enforcement actions is only one reason why a company may hesitate to block shareholder proposals. Beyond the business considerations of such a decision, public companies may also need to consider whether adopting certain types of shareholder proposals—particularly those calling for increased disclosure and transparency of GHG emissions—may be beneficial to protect the company from the risk of future lawsuits by the company’s shareholders.

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

PEOPLE: Matthew G. Lawson

August 26, 2019 How Low Will The Regulators Go: California Sets New PFOA/PFOS Drinking Water Notification Guidelines

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By Steven M. Siros

On August 23, 2019, California’s State Water Resources Control Board (Water Board) announced updated guidelines for local water agencies with respect to perfluorooactanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) in drinking water. The updated guidelines lower the notification levels from 14 parts per trillion (ppt) to 5.1 ppt for PFOA and from 13 ppt to 6.5 ppt for PFOS. Public water supply systems are required to report exceedances of these guidelines to their governing boards and the Water Board.

According to the Water Board, these new guidelines were predicated on updated health recommendations issued by California’s Office of Environmental Health Hazard Assessment (OEHHA), which published its own recommended notification levels for PFOA and PFOS, albeit at much lower levels. In a recently issued report, OEHHA recommended that the notification levels be set at 0.1 ppt for PFOA and 0.4 ppt for PFOS. However, OEHHA recognized that these levels are lower than what can reasonably be detected in the laboratory and therefore recommended that the Water Board set the notification levels at the lowest reliable detection levels. 

In addition to the updated notification levels, the Water Board requested that OEHHA proceed to develop public health goals for both PFOA and PFOS, which is the next step in the process of establishing maximum contaminant levels for these contaminants in drinking water.  We will continue to monitor and provide updates with respect to these regulatory efforts. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Water

PEOPLE: Steven M. Siros

July 29, 2019 Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

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Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

  1. I understand that you worked for U.S. EPA when it was first started as a federal agency in the early 1970s. What was your role at the “new” U.S. EPA?

I led the health sciences assessment work for the first 14 years after U.S. EPA was formed in December 1970. At the time, U.S. EPA was a very small agency. I was the only health scientist in an eight-person Office of Technical Analysis, reporting directly to U.S. EPA’s first Administrator, Bill Ruckelshaus. He is an extraordinary person—a terrific and committed leader, who also knew how to make hard work fun. The Administrator asked me to lead an intra-agency committee to write a cancer policy to address the zero risk tolerance expectation for substances with some evidence, often conflicting, of carcinogenicity, as indicated by tumors in animals or humans. Another challenge was that substances could be ubiquitous or important to our society. We knew a “zero tolerance” policy for all possible carcinogens would be unworkable, so my committee reported out a process rather than a cancer policy. That process was the first use of risk assessment to organize what is known and unknown about the likelihood that exposure to a particular agent might cause illness. On the assumption the agent might cause illness, the next step is to define what levels of risk and exposure would be acceptable and protective of public health. The concept of risk acceptance was novel at the time and was introduced in a social and political climate aimed at seeking the ideal, i.e., zero risk.

My office at U.S. EPA conducted and I co-authored more than 150 risk assessments between 1976 and 1983 as a basis for defining major regulatory policy. The National Academy of Sciences published its endorsement of this risk assessment process in 1983. The Academy’s report, referred to as “The Red Book,” inspired national and international adoption of the U.S. EPA’s approach to risk assessment started by my intra-agency committee. I led the effort to expand the health assessment program, which resulted in establishing the central risk assessment office for the Agency—the Office of Health and Environmental Assessment. This office reported directly to the Administrator, who granted us wide latitude to expeditiously conduct our assessments.

  1. What was your professional and academic background leading to your involvement in health risk assessment?

My academic background is in synthetic organic chemistry, the chemistry of making organic molecules, amongst other applications, to be biologically active. I was pre-med at the College of William and Mary, but I was strongly discouraged from pursuing medical school “because I would be taking the place of a man” (a quote from the Chairman of the Chemistry Department). Instead, I was granted a fellowship at the University of Virginia to pursue a master’s degree in synthetic organic chemistry. Next, I applied for a unique fellowship being granted by the U.S. Department of Defense and completed my Ph.D. work in synthetic organic chemistry. During those early years of U.S. EPA, my degree and training best fit the Agency’s needs. There were no degrees in toxicology, relevant applications in epidemiology were just emerging, and mechanism of action had received little attention. I was fortunate to be in the right place at the right time.

  1. What was it like to be part of the start of a new federal agency?

Most of all, it was challenging. Following the civil rights movement, the anti-Vietnam war movement, and 20 million people marching on the first Earth Day, the spirit of the time was that significant change can happen; every move at EPA was front-page news. We all felt a sense of urgency to make a difference and establish scientific credibility for all decisions that the Agency had to make. U.S. EPA inherited a rapidly cascading series of enabling legislation starting with the Clean Air Act in December of 1970, followed by amendments to the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; Radiation Authorities; the Drinking Water Act; “Superfund” (CERCLA); and the Resource Conservation and Recovery Act (RCRA). All compelled the Agency to be protective of public health. Implementing this Congressional directive was left to the Agency and, for our part, this meant meeting strict deadlines and establishing scientific foundations that defined protection and that could survive challenges from Congress and the scientific, private, public, and legal communities.

At a very young age, many of us at U.S. EPA inherited a great deal of responsibility. New areas of complexity seemed to develop on a daily basis. Looking back, a culture of committed, young professionals worked hard and achieved a great deal. We were inspired by the excitement and challenge of those times. Many of us have remained friends and colleagues until the present day. Some of us are still involved, as board members of the U.S. EPA Alumni Association.

  1. What were some of the accomplishments of which you were most proud that came out of your work for U.S. EPA?

I am proud of many things, but I am most proud of my role in co-authoring the first guidelines to establish risk assessment and risk management as the basis for setting public policy to protect public health and having the opportunity to found and direct U.S. EPA’s first health assessment offices, the Carcinogen Assessment Group, and the expanded Office of Health Environmental Assessment. In addition, I had the opportunity to found and direct the Agency’s expansion of health topics to include reproductive risk assessment, mutagen risk assessment, and exposure assessment groups; these offices conducted all risk assessments for the Agency’s program offices for many years.

I was fortunate to be a part of establishing the scholarship in this rapidly developing and complex field of health risk assessment. A small number of us founded the Society for Risk Analysis, a focal point for sharing scientific developments from all sectors, including engineering and the social sciences. I served as one of the early Presidents and, for 10 years, was Editor-in-Chief of the Society’s flagship journal, Risk Analysis: An International Journal. In addition, as U.S. EPA’s representative, I had the privilege of participating in the worldwide application of risk assessment first in Europe through the World Health Organization and subsequently through the Pan American Health Organization and other organizations.

  1. After you left U.S. EPA, you have had several professional engagements. Can you summarize those for us?

After spending 14 years being a part of U.S. EPA’s founding, I entered the private sector, initially as President and CEO of the first private health and environmental assessment consulting firm, Clement Associates. In addition to work for private clients, U.S. EPA contracted with me to oversee and direct the first risk assessments for all of its Superfund sites, as did the Agency for Toxic Substances and Disease Registry to direct and write the first Toxicity Profiles. Later, I founded my own company, Sciences International, and directed it for 13 years, during which we addressed a wide variety of interesting and challenging issues. Subsequently, Exponent asked me to serve as Vice President for Health Sciences, a post I served in for 10 years, then as Chief Science Officer. More recently, I am honored to accept the Exponent designation of Senior Fellow, a rare recognition by the Company. Presently, I continue my work in the field of health risk assessment. I know that the framework and process we created in the early years made it possible to identify gaps in knowledge and point to ways for improving the foundations for health risk assessment.

  1. What are the emerging policy issues in the area of human health risk assessment?

Without a doubt, the need to sensibly apply the science we know to separate the important from the unimportant issues. Often, I feel that we lose sight of the fact that health risk assessment has achieved endorsement worldwide as the premier way to address the complexity of issues involved in defining public health protection. Also, the outcomes of risk assessment now have challenging new applications, e.g., in toxic tort litigation or world trade decisions.

In the policy area, one important emerging issue is the use of health risk assessment to “prove safety.” Adopting ever-diminishing levels of possible protection to achieve this goal effectively creates a “zero tolerance” policy, the very policy that would have defeated U.S. EPA at its inception. I believe that little is gained by these controversial policies that create debate for years; under these approaches we can lose sight of what is important. For example, important EPA risk assessment documents may now take years to become final because of endless debates in areas of scientific uncertainty where societal impacts can be enormous but risk reduction uncertain and marginal. We accept risk in every other part of our society, so it is unrealistic to apply a zero-risk policy to our environmental decisions.

Secondly, I feel that it is most unfortunate that the sciences so essential to public health understanding are often caught in agendas that constrain even the most objective review and use of our public health documents. There is no question that science has become politicized. I contend that U.S. EPA would have been lost without access to all scientists of importance to our decisions, regardless of who had funded their work.

Finally, I see an increasing lack of understanding of the difference between science as applied to public health protection—to preempt and prevent disease—and the science of establishing causality. It is critical to use honest science, regardless of the setting, to avoid mistakes. Distortion of scientific foundations and fact to achieve economic or political gain is deplorable and should be rejected.

  1. What do you enjoy most about your work in the field of human health risk assessment?

The endless challenges. Risk assessment demands that we honestly express what is known and unknown. Exploring the unknowns and narrowing our knowledge gaps are endlessly rewarding endeavors.

  1. What do you find to be the most challenging aspect of your work?

It is very difficult to find a single answer to this question. Exploring new science will always be at the top of the list. The greatest non-scientific challenge is the fact that not all are in engaged in finding the truth. Trying to explain the known scientific facts in situations involving exploitation of scientific unknowns or distortion, whether in the courtroom or as a part of political debate, is challenging. The climate created by the spirit of the ’60s was to seek the truth. We were all essentially on the same page; we shared common goals even as we debated the best methods of scientific approach. Today, goals often do not converge; science in the age of polarization is challenging.

  1. What or who helped you succeed as a leader in the area of human health risk assessment?

I have been surrounded by thought leaders and gifted people throughout my career. The environmental movement attracted so many to the new U.S. EPA. One who contributed so much to my understanding was Dr. Roy Albert, the Deputy Director of the School of Environmental Medicine at NYU. He was blessed with an extraordinary intellect and excellent sense of balance. He was the outside Chair of our Carcinogen Assessment Group in the early years, a role that would not be possible in the bureaucracy today. And I must continue to give credit to U.S. EPA Administrator Ruckelshaus.

  1. What advice would you give a young person today who is considering starting out in your field?

Follow your dreams. Work is never work if you feel passionate about what you are doing. Achieve the best education you can get and keep your options open. You may need to help create your own opportunity. Have confidence in your capabilities to achieve your goals and set high ones.

Dr. Anderson was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Air, Cercla, Consumer Law and Environment, RCRA, Toxic Tort, Water

PEOPLE: Gabrielle Sigel

July 17, 2019 California Clarifies Proposition 65 Safe Harbor Warning for Rental Cars

Webres_Steven_Siros_3130

Prop 65

By Steven M. Siros

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) recently adopted amendments to California’s Proposition 65 regulations regarding appropriate warnings for rental vehicles. More specifically, OEHHA’s amendments add new Sections 25607.36 and 25607.37 to Article 6 that provide more specificity regarding the content of safe harbor warnings for rental vehicle exposures, and the corresponding methods for providing those warnings that are specific and appropriate for rental-car businesses.

Proposition 65 regulations currently provide guidance concerning safe harbor warning methods and content warnings for vehicle exposures. Under the vehicle exposure regulation set forth at Section 25607.16, warnings must be provided as follows:

  1. The warning is printed in the owner’s manual for the passenger vehicle or off-highway motor vehicle, in no smaller than 12-point type enclosed in a box printed or affixed to the inside or outside of the front or back cover of the manual or on the first page of the text; and
  2. The warning is provided on a label attached to the front window on the driver’s side of the passenger vehicle or off-highway motor vehicle. If the vehicle does not have a driver’s side window, the warning may be provided on a hang tag which is hung from the rear view mirror. If the vehicle does not have a driver’s side window or rear view mirror, the warning may be placed in another prominent location. The label need not be permanently affixed.

Although OEHHA continues to state that the safe harbor warning methods in Sections 25607.16 are appropriate for exposures to listed chemicals from vehicles purchased by consumers, concerns were raised that compliance with Section 25607.16 for rental vehicles could pose public safety concerns. According to OEHHA, when placed and maintained on the driver’s side window, the vehicle exposure tailored warning has the potential to flag the vehicle as a rental vehicle, which increases the risk that the vehicle may be targeted by thieves believing that the vehicles contains valuables.

The new amendments provide several options for providing rental car warnings. Consistent with the intent of the Proposition 65 regulations, the warning must be provided to the renter prior to the renter’s use of a vehicle. The warning must be prominently displayed using a font size no smaller than the largest type size used for other important consumer information but in no circumstances can the warning be printed in smaller than six point type.

The new amendments also provide car rental companies with a number of options for communicating this warning to consumer. More specifically, the warning must be provided using one or more of the following methods:

  1. A warning printed in the rental agreement or on the rental ticket jacket;A warning provided on a hang tag which is hung from the rear view mirror in the rental vehicle;
  2. A warning provided on a sign, in no smaller than 22-point type, that is posted at the counter or similar area of the rental facility where rental transactions occur, where it will be likely to be seen, read, and understood by the renter during the process of renting the vehicle;
  3. A warning provided in an electronic rental contract;
  4. A warming provided in a confirmation email that is sent to the renter’s email address; or
  5. A warning provided through a clearly marked hyperlink using the word “WARNING” on the online reservation page, or by otherwise prominently displaying the warning to the renter prior to completing the online reservation.

These amendments will become effective on October 1, 2019.

CATEGORIES: Consumer Law and Environment, Sustainability

PEOPLE: Steven M. Siros

April 16, 2019 Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes

Exploring The E-Suite@2x-100

Joel Brammeier

 

 

Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes 

  1. Tell us about Alliance for Great Lakes, including what the organization does and your role.

The Alliance drives the local, state and federal policy reforms and implementation necessary to create a healthy Great Lakes for all people and wildlife, forever. We do this by communicating our thought leadership on issues, building powerful networks of influencers, and educating and activating tens of thousands of volunteers, advocates and donors each year who bring their voices to our priorities.

As President and CEO of the Alliance, I concentrate on three principal responsibilities. The first is making sure that the Alliance is focused on the most significant issues affecting clean water in the Great Lakes. That involves a lot of listening, reading, and prioritizing our work.  Second, I focus on the financial viability of the Alliance.  Fundraising is  is my time to listen to what is important to our supporters and communicate to them   how their investment in clean water is impacting the Great Lakes.  Finally, I work to support the core components of the Alliance—our staff, our volunteers, and the Board of Directors. Everyone needs to be fully engaged, informed, and moving forward to advance the Alliance’s mission.

  1. What is your professional background that you led you to become involved in policy issues concerning protection of fresh water assets and related environmental issues?

After undergrad at Valparaiso University and grad school at University of Michigan, I moved to Chicago in the late 1990s to follow the person who eventually became my spouse. At that time, I began volunteering with a number of NGOs in the Chicago area in order to build my network of relationships and assess how I could become professionally involved. I carried a deep values commitment to non-profit service, mostly due to observing the work of my parents as a teacher and member of the clergy. I had decided on focusing on environmental work in high school after a variety of positive outdoor experiences with my family. After about a year volunteering in various capacities in Chicago, an entry-level position opened up with a group called the Lake Michigan Federation. The combination of my personal value for the Great Lakes that was imprinted on me in childhood, along with my expertise from my education and volunteering, was enough to get me the job. Since that time, I have advanced through the growth and expansion of the organization to become the president of the Alliance for the Great Lakes.

  1. What do you think are the emerging policy issues regarding fresh water assets and the environment of the Great Lakes and how do you think they should be addressed?

It is still all about clean water, but in a much more inclusive and equitable way than is traditional for the mainstream environmental movement. The greatest emerging challenge is how to ensure Great Lakes water is protected and restored in a way that matters personally to all the people of the Great Lakes. For example, drinking water protection is commonly a top reason the public cites as a reason to protect the Great Lakes. The Great Lakes Water Resources Compact & Agreement is a monumental agreement among the states and provinces to ensure water is not diverted to far-flung locations, and that the natural hydrology of the lakes is protected. But this policy doesn’t ensure people can actually access safe, clean and affordable drinking water. It is not credible to say a large natural source of drinking water is truly protected if millions of people who rely on that water cannot safely or reliably use it. And this is today’s unfortunate reality, from manure contamination in northeast Wisconsin, to toxic algae in Lake Erie, to lead and PFAS contamination across the region. Often those harms are falling on people who are already suffering an outsize burden in other parts of their lives.

On specific issues, I think the greatest challenges are 1) changing how we grow food so the agricultural economy does not pollute our water 2) restoring the vital water infrastructure that is the basis of people’s health and the Great Lakes regional economy and 3) preventing the continued influx of invasive species that threaten to torpedo our way of life. Solving these challenges depends on a broad and engaged public that is motivated to action to protect the Great Lakes.  

  1. What do you enjoy most about your work at the Alliance for the Great Lakes?

The people I work with, the ability to protect something that is personally important to me and the fact that clean water for all people and wildlife is a hard cause to argue against.

  1. What do you find to be the most challenging aspect of your work?

Environmental advocacy works on big problems with many deeply embedded interests and motivations. Changing that system takes time and can be frustrating. The flip side of that is when you are successful, you are changing a system in a lasting way and you know it will benefit people now and well into the future.

  1. What or who helped you succeed as a policy maker and advocate?

I’m not the kind of person who needs or wants to be in the spotlight taking credit, I just want to work smart and get the result I’m looking for. I’ve relied on so many people because this work is by nature collaborative and I would miss many if I named names. But I will mention one. Cameron Davis, who is now a commissioner at Chicago’s Metropolitan Water Reclamation District, gave me my first real shot at being an environmental professional. I’m sure I screwed up plenty while working for him, but he still let me follow him around and listen to him for years. This was fundamental to me learning how environmental policy change happens. I’m truly thankful for that time. I’ve had five Board of Directors chairs in my time leading the Alliance, without whom I never would have been able to figure out how to run an organization. School does not train you for that and board leadership is vital. The Alliance is fortunate to have a large and diverse base of financial supporters, and I reflect constantly on my obligation to them to make sure our work is addressing their desire for clean and safe water.

  1. Describe those projects as an environmental policy advocate of which you are the proudest.

I’ve done some transformative work in invasive species prevention where I can look back at policies and decisions by elected officials and know that I was one of the people at the center of making those things happen. If you get to be part of one thing like that in a lifetime, it’s pretty great. I’ve been a core part of, though definitely not the leader, of a successful movement to make the Great Lakes a national priority in the United States. I’m also quite proud of dramatically expanding the reach of my organization and becoming a leader in engaging people in advocacy, as public support is critical for success.

  1. What advice would you give a young person today who is considering starting out in your field?

Looking back, I realize today that I received a  privileged opportunity when I joined the Lake Michigan Federation. It was a relatively small group rebounding from a tough time in the right way, and I was fortunate to get that job. Today, the green & blue movement is pervasive in our economy and culture in a way that just did not exist twenty years ago. Young professionals can and should seek out careers with environmental organizations, but also remember that there are opportunities to shape systems change throughout the private sector. They should ask their future bosses to communicate their personal vision for change. Look for somewhere in your work where you can take the lead on at least one thing that is important to you and your career. Listen to understand how environmental choices affect the daily lives of people and build your work around that knowledge. And consider spending some time in politics early on – understanding what motivates our decision makers is absolutely critical to devising strategies to make sure the right decisions are made.

Mr. Brammeier was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Water

PEOPLE: Gabrielle Sigel

April 16, 2019 Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes

Exploring The E-Suite@2x-100

Joel 1

 

 

Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes 

  1. Tell us about Alliance for Great Lakes, including what the organization does and your role.

The Alliance drives the local, state and federal policy reforms and implementation necessary to create a healthy Great Lakes for all people and wildlife, forever. We do this by communicating our thought leadership on issues, building powerful networks of influencers, and educating and activating tens of thousands of volunteers, advocates and donors each year who bring their voices to our priorities.

As President and CEO of the Alliance, I concentrate on three principal responsibilities. The first is making sure that the Alliance is focused on the most significant issues affecting clean water in the Great Lakes. That involves a lot of listening, reading, and prioritizing our work.  Second, I focus on the financial viability of the Alliance.  Fundraising is  is my time to listen to what is important to our supporters and communicate to them   how their investment in clean water is impacting the Great Lakes.  Finally, I work to support the core components of the Alliance—our staff, our volunteers, and the Board of Directors. Everyone needs to be fully engaged, informed, and moving forward to advance the Alliance’s mission.

  1. What is your professional background that you led you to become involved in policy issues concerning protection of fresh water assets and related environmental issues?

After undergrad at Valparaiso University and grad school at University of Michigan, I moved to Chicago in the late 1990s to follow the person who eventually became my spouse. At that time, I began volunteering with a number of NGOs in the Chicago area in order to build my network of relationships and assess how I could become professionally involved. I carried a deep values commitment to non-profit service, mostly due to observing the work of my parents as a teacher and member of the clergy. I had decided on focusing on environmental work in high school after a variety of positive outdoor experiences with my family. After about a year volunteering in various capacities in Chicago, an entry-level position opened up with a group called the Lake Michigan Federation. The combination of my personal value for the Great Lakes that was imprinted on me in childhood, along with my expertise from my education and volunteering, was enough to get me the job. Since that time, I have advanced through the growth and expansion of the organization to become the president of the Alliance for the Great Lakes.

  1. What do you think are the emerging policy issues regarding fresh water assets and the environment of the Great Lakes and how do you think they should be addressed?

It is still all about clean water, but in a much more inclusive and equitable way than is traditional for the mainstream environmental movement. The greatest emerging challenge is how to ensure Great Lakes water is protected and restored in a way that matters personally to all the people of the Great Lakes. For example, drinking water protection is commonly a top reason the public cites as a reason to protect the Great Lakes. The Great Lakes Water Resources Compact & Agreement is a monumental agreement among the states and provinces to ensure water is not diverted to far-flung locations, and that the natural hydrology of the lakes is protected. But this policy doesn’t ensure people can actually access safe, clean and affordable drinking water. It is not credible to say a large natural source of drinking water is truly protected if millions of people who rely on that water cannot safely or reliably use it. And this is today’s unfortunate reality, from manure contamination in northeast Wisconsin, to toxic algae in Lake Erie, to lead and PFAS contamination across the region. Often those harms are falling on people who are already suffering an outsize burden in other parts of their lives.

On specific issues, I think the greatest challenges are 1) changing how we grow food so the agricultural economy does not pollute our water 2) restoring the vital water infrastructure that is the basis of people’s health and the Great Lakes regional economy and 3) preventing the continued influx of invasive species that threaten to torpedo our way of life. Solving these challenges depends on a broad and engaged public that is motivated to action to protect the Great Lakes.  

  1. What do you enjoy most about your work at the Alliance for the Great Lakes?

The people I work with, the ability to protect something that is personally important to me and the fact that clean water for all people and wildlife is a hard cause to argue against.

  1. What do you find to be the most challenging aspect of your work?

Environmental advocacy works on big problems with many deeply embedded interests and motivations. Changing that system takes time and can be frustrating. The flip side of that is when you are successful, you are changing a system in a lasting way and you know it will benefit people now and well into the future.

  1. What or who helped you succeed as a policy maker and advocate?

I’m not the kind of person who needs or wants to be in the spotlight taking credit, I just want to work smart and get the result I’m looking for. I’ve relied on so many people because this work is by nature collaborative and I would miss many if I named names. But I will mention one. Cameron Davis, who is now a commissioner at Chicago’s Metropolitan Water Reclamation District, gave me my first real shot at being an environmental professional. I’m sure I screwed up plenty while working for him, but he still let me follow him around and listen to him for years. This was fundamental to me learning how environmental policy change happens. I’m truly thankful for that time. I’ve had five Board of Directors chairs in my time leading the Alliance, without whom I never would have been able to figure out how to run an organization. School does not train you for that and board leadership is vital. The Alliance is fortunate to have a large and diverse base of financial supporters, and I reflect constantly on my obligation to them to make sure our work is addressing their desire for clean and safe water.

  1. Describe those projects as an environmental policy advocate of which you are the proudest.

I’ve done some transformative work in invasive species prevention where I can look back at policies and decisions by elected officials and know that I was one of the people at the center of making those things happen. If you get to be part of one thing like that in a lifetime, it’s pretty great. I’ve been a core part of, though definitely not the leader, of a successful movement to make the Great Lakes a national priority in the United States. I’m also quite proud of dramatically expanding the reach of my organization and becoming a leader in engaging people in advocacy, as public support is critical for success.

  1. What advice would you give a young person today who is considering starting out in your field?

Looking back, I realize today that I received a  privileged opportunity when I joined the Lake Michigan Federation. It was a relatively small group rebounding from a tough time in the right way, and I was fortunate to get that job. Today, the green & blue movement is pervasive in our economy and culture in a way that just did not exist twenty years ago. Young professionals can and should seek out careers with environmental organizations, but also remember that there are opportunities to shape systems change throughout the private sector. They should ask their future bosses to communicate their personal vision for change. Look for somewhere in your work where you can take the lead on at least one thing that is important to you and your career. Listen to understand how environmental choices affect the daily lives of people and build your work around that knowledge. And consider spending some time in politics early on – understanding what motivates our decision makers is absolutely critical to devising strategies to make sure the right decisions are made.

Mr. Brammeier was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Water

PEOPLE: Gabrielle Sigel

April 12, 2019 Trends in Climate Change Litigation: Part 2—Investigations & Litigation by State Attorneys General

Matthew G. Lawson

Del

By Matthew G. Lawson

 

In the second installation of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are highlighting recent investigations brought by US state attorneys general against private companies for allegedly misleading the public and/or company shareholders regarding the potential climate impacts of their operations. 

In recent years, several major state investigations were launched following investigative journalism reports of private companies’ failures to disclose the causes and effects of climate change. One such example is the Los Angeles Times 2015 exposé into Exxon Mobil Corp.’s historic in-house research on climate change.

Approximately one month after the publication of the Los Angeles Times’ article, the New York Attorney General subpoenaed Exxon, seeking documents related to the company’s research on the causes and effects of climate change; the integration of its research findings into business decisions; and the company's disclosures of this information to shareholders and the Securities and Exchange Commission. The attorney general’s investigation was grounded in New York's shareholder-protection statute, the Martin Act, as well as New York’s consumer protection and general business laws.

In 2016, New York’s investigation was publically supported by a coalition of top state enforcement officials from Vermont, Virginia, Massachusetts, Maryland, Connecticut, and the Virgin Islands, all of which agreed to share information and strategies in similar climate change investigations and future litigation. Exxon responded by filing its own lawsuit seeking to block New York and Massachusetts’ investigations.

After a three-year contentious investigation, the New York Attorney General's office sued Exxon on October 24, 2018, alleging that Exxon engaged in “a longstanding fraudulent scheme” to deceive investors by providing false and misleading information about the financial risks the company faced from its contributions to climate change. 

Jenner & Block’s Corporate Environmental Lawyer will continue to update on this matter, as well as other important climate change litigation cases, as they unfold.

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

PEOPLE: Matthew G. Lawson

April 12, 2019 Trends in Climate Change Litigation: Part 2—Investigations & Litigation by State Attorneys General

Headshot

Del

By Matthew G. Lawson

 

In the second installation of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are highlighting recent investigations brought by US state attorneys general against private companies for allegedly misleading the public and/or company shareholders regarding the potential climate impacts of their operations. 

In recent years, several major state investigations were launched following investigative journalism reports of private companies’ failures to disclose the causes and effects of climate change. One such example is the Los Angeles Times 2015 exposé into Exxon Mobil Corp.’s historic in-house research on climate change.

Approximately one month after the publication of the Los Angeles Times’ article, the New York Attorney General subpoenaed Exxon, seeking documents related to the company’s research on the causes and effects of climate change; the integration of its research findings into business decisions; and the company's disclosures of this information to shareholders and the Securities and Exchange Commission. The attorney general’s investigation was grounded in New York's shareholder-protection statute, the Martin Act, as well as New York’s consumer protection and general business laws.

In 2016, New York’s investigation was publically supported by a coalition of top state enforcement officials from Vermont, Virginia, Massachusetts, Maryland, Connecticut, and the Virgin Islands, all of which agreed to share information and strategies in similar climate change investigations and future litigation. Exxon responded by filing its own lawsuit seeking to block New York and Massachusetts’ investigations.

After a three-year contentious investigation, the New York Attorney General's office sued Exxon on October 24, 2018, alleging that Exxon engaged in “a longstanding fraudulent scheme” to deceive investors by providing false and misleading information about the financial risks the company faced from its contributions to climate change. 

Jenner & Block’s Corporate Environmental Lawyer will continue to update on this matter, as well as other important climate change litigation cases, as they unfold.

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

PEOPLE: Matthew G. Lawson