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May 15, 2018 Fracking Industry Warns of “Devastating Effects” from Pennsylvania Court Ruling

On April 2, 2018, the Pennsylvania Superior Court issued a potentially groundbreaking decision by holding that trespass and conversion claims arising from hydraulic fracturing are not precluded by the rule of capture. In reaching this conclusion, the court found that the Southwestern Energy Production Company (“Southwestern”) may have committed trespass when it extracted natural gas located under neighboring properties by draining the gas through fissures created from hydrofracturing fluid. Such a holding was almost universally thought to be precluded by the rule of capture. The rule of capture, which can be traced back to 18th century fox hunting, has historically been applied to find that oil and gas companies cannot be held liable for “capturing” oil and gas that drain naturally from neighboring land as a result of legal extraction activities. In differentiating hydraulic fracking from traditional oil and gas extraction, the court focused on the fact that hydraulic fracking actually pumps fluid across property lines to open up non-natural fissures that allow the natural gas to seep back across the property to be extracted. 

Fracking Image

 

The potential impact of the Pennsylvania court’s decision has spurred high levels of concern from the greater fracking industry. On the same day that Southwestern filed an appeal requesting an en banc rehearing of the decision, seven separate industry trade groups filed leave with the court seeking permission to file amicus briefs urging the court to grant Southwestern the rehearing. One of these groups, the Marcellus Shale Coalition (“MSC”), is a collection of approximately 200 producers, midstream, and local supply-chain companies that produce more than 95% of the natural gas in Pennsylvania. The group has asserted that the April 2nd ruling interrupts well-established law and creates an “unprecedented form of tort liability” that threatens the entire industry. In a similar filing, the Pennsylvania Chamber of Business and Industry stressed that the decisions could have devastating effects on the industry and the economy of Pennsylvania. According to the American Petroleum Institute, the hydraulic fracking industry currently provides an estimated 322,600 jobs to Pennsylvania and contributes nearly $44.5 million in revenue to the state’s economy.

In Southwestern’s own appeal, the company echoed many of the concerns proclaimed by the industry. The company stressed that the decision would “unleash a torrent of speculative lawsuits” that could threaten the economic livelihood of the industry throughout the state. The company also characterized the April 2nd ruling as an impractical precedent for future decisions. Southwestern noted that the opinion would require courts and juries to speculate whether hydrofracturing fluid located miles below the surface ever moved onto neighboring property, which is a task the company portrayed as “a fool’s errand.”

The ultimate resolution of the matter has potentially far-reaching impacts on the U.S. energy markets. Behind Texas, Pennsylvania is the United States’ second largest producer of natural gas. The state generated 19 percent of the United States’ total output in 2017 and has seen steady gains in production output since 2010. Further, the decision raises questions about whether other state courts may adopt the logic of the Pennsylvania Superior Court and similarly hold that trespass and conversion claims against hydraulic fracking are not precluded by the historic rule of capture.

We will continue to track this case as it moves through the Pennsylvania courts.

CATEGORIES: Climate Change, Real Estate and Environment, Sustainability

PEOPLE: Matthew G. Lawson

March 8, 2018 Who Wants to Buy a Superfund Site?

 By Matthew G. LawsonSuperfund Sign

On July 25, 2017, Environmental Protection Agency (“EPA”) administrator Scott Pruitt’s “Superfund Task Force” issued a final report revealing the Task Force’s recommendations for streamlining the remediation process of over 1,300 Superfund sites currently overseen by the EPA.  The Task Force’s recommendations included a strong emphasis on facilitating the redevelopment of Superfund sites by encouraging private sector investment into future use of contaminated sites.  The recommendations were subsequently adopted by Mr. Pruitt, who has repeatedly affirmed that a top priority of the administration is revamping the Superfund program.  In the recent months, it appears EPA and the Trump administration have taken new steps to further the objective of pushing private redevelopment for Superfund Sites. 

On January 17, 2018, EPA posted a “Superfund Redevelopment Focus List” consisting of thirty-one Superfund sites that the agency believes “pose the greatest expected redevelopment and commercial potential.”  EPA claims that the identified sites have significant redevelopment potential based on previous outside interest, access to transportation corridors, high land values, and other development drivers.  “EPA is more than a collaborative partner to remediate the nation’s most contaminated sites, we’re also working to successfully integrate Superfund sites back into communities across the country,” said EPA Administrator Scott Pruitt.  “[The] redevelopment list incorporates Superfund sites ready to become catalysts for economic growth and revitalization.”

Along the same lines, President Donald Trump’s sweeping infrastructure proposal, released February 12, 2018, proposed an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that would allow Superfund sites to access funding from the EPA’s Brownfield Program, which the administration believes could help stimulate redevelopment of the sites.  The proposal further requests Congress pass an amendment to CERCLA that would allow EPA to enter into settlement agreements with potentially responsible parties to clean up and reuse Superfund sites without filing a consent decree or receiving approval from the Attorney General.  The proposal claims that CERCLA’s limitations “hinder the cleanup and reuse of Superfund sites and contribute to delays in cleanups due to negotiations.”

Time will tell whether the administration’s strategy will be enough to entice new development into the Superfund sites.  To follow the progress of EPA’s Superfund redevelopment efforts, visit EPA’s Superfund Redevelopment Initiative website here

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

PEOPLE: Steven R. Englund

March 5, 2018 EPA “Year in Review”

Torrence_jpgBy Allison A. Torrence

Year in ReviewOn Monday, March 5, 2018, EPA issued a report titled EPA Year in Review 2017-2018. The report contains an introductory letter from Administrator Pruitt, who states that he has been “hard at work enacting President Donald Trump’s agenda during [his] first year as EPA Administrator.” The report highlights accomplishments at EPA over the past year, with a focus on the roll back of regulations from the Obama Administration, such as the Clean Power Plan and the Waters of the United States Rule. Administrator Pruitt stated that “[i]n year one, EPA finalized 22 deregulatory actions, saving Americans more than $1 billion in regulatory costs.”

According to the report, Administrator Scott Pruitt set forth a “back-to-basics agenda” with three objectives:

  1. Refocusing the Agency back to its core mission
  2. Restoring power to the states through cooperative federalism
  3. Adhering to the rule of law and improving Agency processes

The report also identifies EPA’s “core mission” as “clean air, land, and water,” and argues that in recent years, “central responsibilities of the Agency took a backseat to ideological crusades, allowing some environmental threats – like cleaning up toxic land – to go unaddressed.” In light of these alleged lapses, EPA states that:

Administrator Pruitt returned the Agency to its core mission and prioritized issues at the heart of EPA’s purpose: ensuring access to clean air and water, cleaning up contaminated lands and returning them to communities for reuse, improving water infrastructure, and ensuring chemicals entering the marketplace are reviewed for safety. In just one year, EPA made immense progress on these fronts, and the American people have seen real, tangible results.

Topics covered in the report include:

  • Air: Improving Air Quality
  • Water: Provide for Clean and Safe Water
  • Land: Revitalize Land for Reuse
  • Chemicals: Ensure Safety of Chemicals
  • Enforcement
  • Cooperative Federalism and Public Participation
  • Rule of Law

The report concludes with several pages of quotes from elected officials, state environmental agencies, and industry representatives, offering praise for the work done by EPA and Administrator Pruitt:

Leslie Rutledge, Attorney General, Ark.: “Administrator Pruitt’s decision last month to completely re-evaluate the WOTUS rule, minimizing the regulatory burden on countless landowners, demonstrates his commitment to building stronger relationships with state partners.” (07/20/17)

The Year in Review report was tweeted out by Administrator Pruitt and can be found on EPA’s website.

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

PEOPLE: Allison A. Torrence

October 12, 2017 Imagine a Day Without Water

Grayson

 

By E. Lynn Grayson  Imagine a Day Without Water 2017

  Today recognizes the third annual Imagine a Day Without Water event to raise awareness and educate America about the value of water. Over 500 organizations, cities, water authorities, and corporations have joined together once again to focus attention on the importance of this valuable resource and the critical need to upgrade and improve water infrastructure throughout the U.S.

No water to drink, or even to make coffee with. No water to shower, flush the toilet, or do laundry. Hospitals would close without water. Firefighters couldn't put out fires, and farmers couldn't water their crops. Some communities in America already know how impossible it is to try to go a day without our most precious resource: water.

The 2017 Infrastructure Report Card published by the American Society of Civil Engineers provided an overall grade of a D+ for the status and condition of U.S. infrastructure. Particularly as to drinking water, the Report Card noted the following:

  1. One million miles of pipes deliver drinking water and most date from the early 20th century with a 75-100 year lifespan
  2. Over 240,000 water main breaks occur annually
  3. Over $1 trillion dollars is the estimate needed to maintain/upgrade/expand service to meet water demands over the next 25 years.

Can you imagine a day without water? In the context of your business and its operations, please consider the resources available from these two organizations that address the following water-related considerations, including conditions and capacity, funding, public safety, future needs, and resilience and innovation.

CATEGORIES: Climate Change, Real Estate and Environment, Sustainability, Water

September 12, 2017 Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14

Torrence_jpgBy Allison A. Torrence

On Thursday, September 14th, from 5 pm to 7 pm, environmental attorneys and professionals will come together for a networking reception at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. This is the third year Jenner & Block has hosted this event, which continues to grow every year. Jenner & Block will be joined by a number of bar associations and organizations:

  • CBA Environmental Law Committee
  • CBA Young Lawyers Section Environmental Law Committee
  • ISBA Environmental Law Section
  • ABA Section of Environment, Energy, and Resources
  • Air & Waste Management Association Lake Michigan States Section
  • DRI Toxic Tort and Environmental Law Committee

Jenner & Block partner Allison Torrence is a former Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.

Details for this event are below. If you would like to join us at this reception, please RSVP here.

Environmental Attorney Reception

September 14, 2017 | 5:00 pm to 7:00 pm

Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654

RSVP

Reception Sponsors:

Sponsors

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

PEOPLE: Allison A. Torrence

September 7, 2017 Hurricane Harvey Response: TCEQ Suspends Environmental Rules

TCEQ logoGrayson

 

By E. Lynn Grayson  

As the cleanup, rebuilding, and recovery continues in the aftermath of Hurricane Harvey, there has been increasing news coverage about the environmental consequences resulting from impacts of this devastating storm in Texas. We have all seen the coverage on the Arkema SA chemical plant explosion and fire in Crosby, Texas, as well as this weekend’s news that 13 Superfund sites in the Houston area have been flooded and are experiencing possible damage. What we have not heard much about is action on the part of the Texas Commission on Environmental Quality (TCEQ) to do its part to allow residents and their commercial and industrial businesses to recover.

Last week, TCEQ issued a Request for Suspension of TCEQ Rules that may prevent, hinder, or delay necessary action in coping with Hurricane Harvey. The rules suspended in order to manage Hurricane Harvey impacts address regulatory obligations related to air, water, storage tank, fuel and waste management. In addition, TCEQ has developed a Hurricane Response webpage and made clear the Agency's priority is the recovery efforts helping to restore water and wastewater services as well as to assess damage, manage debris, and bring other critical services back online.

Most substantive federal environmental laws and their implementing regulations also provide emergency exemptions that can be triggered following any natural or manmade disaster to ensure laws do not interfere with rescue and recovery efforts. Most emergency exemptions require a declaration or finding on the part of the United States Environmental Protection Agency (EPA) or of another high-ranking government official. We will address EPA's Hurricane response actions in future blogs.

At a time when the residents of Texas need the best of their government, TCEQ is providing an excellent example of support, help, and a willingness to do what is right under the circumstances. Kudos to TCEQ!

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

August 2, 2017 DHS Waives Environmental Laws to Construct San Diego Border Wall

Dept of Homeland SecurityGrayson

 By E. Lynn Grayson 

 

The Department of Homeland Security (DHS) announced yesterday its plans to waive numerous environmental laws to allow more expedient construction of barriers and roads in the vicinity of the international border near San Diego. The decision was signed by then DHS Secretary John Kelly and applies to a 15-mile border segment in San Diego where the Agency plans to upgrade fencing and build border wall prototypes.

DHS issued the waiver pursuant to its authority in Section 102 of the 2005 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law grants the DHS Secretary a number of authorities necessary to carry out DHS’s border security mission. Citing this authority, the DHS notice makes clear that these infrastructure projects will be exempt from complying with critically important environmental laws such as the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act and other laws related to wildlife, conservation, cultural and historic artifacts, and the environment.

This action has been under consideration by DHS and the subject of much discussion among environmental activists. The Center for Biological Diversity already sued DHS earlier this year seeking an updated environmental review of the southern border infrastructure projects.

According to yesterday’s notice, “…while the waiver eliminates DHS’s obligation to comply with various laws with respect to the covered projects, the Department remains committed to environmental stewardship with respect to these projects. DHS has been coordinating and consulting—and intends to continues to do so—with other federal and state agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible.”

Even in the wake of everything ongoing in D.C with the new Administration, this action is extraordinary and inconsistent with typical federal government practices, except in the case of an emergency or other exigent circumstances. The final decision will appear in the Federal Register soon.

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

July 31, 2017 Renegotiation of NAFTA Includes Environmental Considerations

Grayson

 

By E. Lynn Grayson 

Exec Office of President Office of US Trade Rep

The Trump Administration signaled its plans to renegotiate the 1994 North American Free Trade Agreement (NAFTA) by issuing the Summary of Objectives for the NAFTA Renegotiation this month. President Trump committed to renegotiate NAFTA in order to obtain more open, equitable, secure, and reciprocal market access with our two largest export markets in Canada and Mexico.

Environmental considerations currently are managed in a side agreement to NAFTA, but one of the Administration’s priorities is to incorporate environmental provisions into the new NAFTA. The Summary outlines 13 environmental issues to be addressed as part of the renegotiation process: 

  1. Bring the environmental provisions into the core of the agreement, rather than in a side agreement.
  2. Establish strong and enforceable environmental obligations that are subject to the same dispute settlement mechanism that applies to other enforceable obligations of the agreement.
  3. Establish rules that will ensure that NAFTA countries do not waive or derogate from the protections afforded in their environmental laws for the purpose of encouraging trade or investment.
  4. Establish rules that will ensure that NAFTA countries do not fail to effectively enforce their environmental laws through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the parties.
  5. Require NAFTA countries to adopt and maintain measures implementing their obligations under select Multilateral Environmental Agreements (MEAs) to which the NAFTA countries are full parties, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
  6. Establish a means for stakeholder participation, including commitments for public advisory committees, and a process for the public to raise concerns directly with its government if they believe it is not meeting its environmental commitments.
  7. Require NAFTA countries to ensure access to fair, equitable, and transparent administrative and judicial proceedings for enforcing their environmental laws, and provide appropriate sanctions or remedies for violations of their environmental laws.
  8. Provide for a framework for conducting, reviewing, and evaluating cooperative activities that support implementation of the environmental commitments, and for public participation in these activities.
  9. Establish or maintain a senior-level Environmental Committee, which will meet regularly to oversee implementation of environmental commitments, with opportunities for public participation in the process.
  10. Combat illegal, unreported, and unregulated (IUU) fishing, including by implementing port state measures and supporting increased monitoring and surveillance.
  11. Establish rules to prohibit harmful fisheries subsidies, such as those that contribute to overfishing and IUU fishing, and pursue transparency in fisheries subsidies programs.
  12. Promote sustainable fisheries management and long-term conservation of marine species, including sharks, sea turtles, seabirds, and marine mammals.
  13. Protect and conserve flora and fauna and ecosystems, including through actions by countries to combat wildlife and timber tracking.

Critics note that the above environmental considerations look much like the provisions in the now defunct Trans-Pacific Partnership that many environmental advocates opposed.

The first round of talks on the possible renegotiation of NAFTA is scheduled to take place in Washington August 16-20. The Summary confirms that “…the new NAFTA will be modernized to reflect 21st century standards and will reflect a fairer deal, addressing America’s persistent trade imbalances in North America.” While part of the agenda, it does not appear that environmental considerations will be a critical portion of these upcoming negotiations.

CATEGORIES: Climate Change, Hazmat, RCRA, Real Estate and Environment, Sustainability, TSCA, Water

July 27, 2017 EPA’s AAI Requirement References Updated ASTM AAI Standard

Jenner & Block's Corporate Environmental Lawyer is pleased to present a guest blog prepared by John Claypool, Director of Project Management at Brown and Caldwell. Brown and Caldwell is a national engineering consulting firm focused on the U.S. environmental sector. The degree to which and manner in which these ASTM standards are incorporated into regulatory standards is an important topic and we appreciate Brown and Caldwell's insight on this topic.

By John Claypool EPA logo

EPA recently issued a direct final rule to amend the requirements for conducting All Appropriate Inquires (AAI) to qualify for the Bona Fide Prospective Purchaser (BFPP) defense under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The direct final rule allows for the use of ASTM International E2247-16, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property. When the final rule becomes effective on September 18, 2017, ASTM E2247-16 can be used to satisfy the statutory requirements for conducting AAI.

Since 2008, the AAI rule at 40 CFR Part 312 has allowed the use of E2247-08 on transactions involving forestland or rural properties. As part of its 5-year review and reapproval cycle, ASTM International made significant changes to E2247-08 and reapproved/reissued it under the E2247-16 designation. A summary of the differences between E2247-08 and E2247-16 is available in the USEPA rulemaking docket (Docket EPA-HQ-OLEM-2016-0786).

The revisions to the AAI rule published in the Federal Register on June 20, 2017 allow the use of E2247-08 and E2247-16 for conducting AAI on forestland and rural property. Since E2247-08 is no longer considered an active standard by ASTM International, the practical implication is that AAI for forestland and rural properties will henceforth be conducted per E2247-16. The direct final rule did not make any changes to the AAI requirements for other types of properties, continuing to allow the use of ASTM E1527-13, Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

This addition of E2247-16 to the AAI rule may impact both public and private parties intending to claim a limitation on CERCLA liability in relation to the purchase of large tracts of forested land or large rural property. It may also impact parties conducting site characterizations or assessments on large tracts of forested land or large rural properties, when the parties are intending to use a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii), including state, local, and tribal governments receive brownfields site assessment grants.

Brown and Caldwell's John Claypool, Brent Callihan and Julie Byrd contributed to the development of the revised ASTM standard, submitting comments to ASTM that led to the development of a working group to revise the standard, ultimately leading to the revised AAI rule.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, Real Estate and Environment, Sustainability

PEOPLE: Steven R. Englund

July 18, 2017 Using GRI Framework Improves ESG Disclosures

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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

June 28, 2017 EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule

Torrence_jpgBy Allison A. Torrence

Pond2On June 27, 2017, EPA Administrator Scott Pruitt announced that EPA and the Army Corps of Engineers will be publishing a proposed rule (the Recodification Rule) that would rescind the Obama Administration’s definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). EPA states that the Recodification Rule is necessary to “ensure certainty as to the scope of CWA jurisdiction on an interim basis” while EPA and the Army Corps of Engineers conduct “a substantive review of the appropriate scope of ‘waters of the United States’”.

As we previously reported on this blog, the WOTUS Rule (a/k/a the Clean Water Rule) was promulgated by the Obama Administration in 2015, and was the latest attempt to define the jurisdictional limits of the CWA. The CWA limits its jurisdiction to “navigable waters”, which are obliquely defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). The precise definition of “waters of the United States” has been a controversial and well-litigated issue for years.

As we also previously reported, the WOTUS Rule was challenged in court by numerous parties, and the Sixth Circuit Court of Appeals issued a stay of the new rule on October 9, 2015. One aspect of that litigation – whether the Sixth Circuit has exclusive original jurisdiction under the CWA to hear the challenges – is currently on appeal before the U.S. Supreme Court.

The Recodification Rule was drafted in response to the February 28, 2017, Executive Order titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”. The stated policy behind the Executive Order is that:

It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

The Executive Order directs EPA and the Army Corps of Engineers to review the WOTUS Rule, and either rescind or revise the rule to define “Navigable Waters” in a manner consistent with the above-stated policy and the plurality opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, Justice Scalia determined that:

The phrase waters of the United States includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes…[and] only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right…

Id. at 739-42.

The 2015 WOTUS Rule was EPA’s first attempt to define “waters of the United States” since the Supreme Court rejected the previous definition in Rapanos. The Recodification Rule would rescind the 2015 WOTUS Rule and replace it with a recodification of the regulatory text in place prior to 2015, informed by applicable guidance documents and consistent with the Rapanos decision. At some future date, EPA and the Army Corps of Engineers state that they will pursue notice-and-comment rulemaking to promulgate a new definition of “waters of the United States.”

The public will be able to submit comments on the proposed Recodification Rule for 30 days from the date of publication in the Federal Register.

CATEGORIES: Real Estate and Environment, Water

PEOPLE: Allison A. Torrence

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

April 19, 2017 Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants

Lynn Grayson PhotoBy E. Lynn Grayson

Attorney-client-privilege ImageA recent case reminds us that not all communications between lawyers and environmental consultants are privileged despite best efforts to make them so. In Valley Forge Ins. V. Hartford Iron & Metal, Inc., the Northern District of Indiana ruled that the attorney-client privilege doesn’t protect a lawyer’s emails to environmental contractors when the communications concern remediation as opposed to litigation. This case provides a good overview of the protections afforded by the attorney-client privilege and the work-product doctrine in the environmental law context.

At issue are Hartford Iron’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. which were the subject of a motion to compel filed by Valley Forge. Following an in camera review of 185 emails, the court concluded that the evidence reflects that “….Hartford Iron retained Keramida and CH2M as environmental contractors for the primary purpose of providing environmental consulting advice and service to Hartford Iron in designing and constructing a new stormwater management system, not because Hartford Iron’s counsel needed them to “translate” information into a useable form so that counsel could render legal advice.”

The Court did find that certain of the emails were subject to the work-product doctrine as the communications were prepared for the purposes of litigation and that IDEM and EPA already had filed suit against Hartford Iron.

Despite the best efforts of lawyers, not all communications are privileged. The legal privileges are narrowly construed and generally do not protect communications with environmental consultants.

CATEGORIES: Cercla, Hazmat, RCRA, Real Estate and Environment, TSCA, Water

April 3, 2017 Waters of the United States Case Going Forward in Supreme Court Despite Trump Executive Order To Rescind or Revise the Rule

Seal of the US Supreme Court ImageAllison Torrence PhotoBy Allison A. Torrence


The controversial Waters of the United States (WOTUS) Rule, promulgated under the Obama Administration, will have its day in the U.S. Supreme Court, despite the Trump Administration’s efforts to stall that litigation while the rule is being revised by the new administration.

As previously discussed in this blog, the WOTUS Rule, also called the Clean Water Rule, was published by U.S. EPA and Army Corps of Engineers on June 29, 2015. The WOTUS Rule defines the scope of waters protected under the Clean Water Act (CWA). The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). U.S. EPA and the Army Corps of Engineers have attempted numerous times to define “waters of the United States”, and thereby define the jurisdictional scope of the CWA. Every such effort has been met with legal court challenges, with the previous definition being struck down by the U.S. Supreme Court in a plurality decision. Rapanos v. United States, 547 U.S. 715 (2006).

The 2015 WOTUS rule was challenged in court by numerous parties (including the State of Oklahoma, represented by then-Attorney General Scott Pruitt, who is now the Administrator of U.S. EPA) in several different venues, and the Sixth Circuit Court of Appeals decided that it had exclusive original jurisdiction under the CWA to hear the challenges in the case National Association of Manufacturers v. U.S. Department of Defense, et al., Case No. 15-3751. That threshold jurisdictional question (and not the substantive challenge to the WOTUS Rule) was appealed to the U.S. Supreme Court in September 2016 (Case No. 16-299). The U.S. Supreme Court accepted the appeal in January 2017, but the parties have not yet submitted their briefs.

On February 28, 2017, President Trump issued an Executive Order titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”. The stated policy behind the Executive Order is that:

It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

The Executive Order directs U.S. EPA and the Army Corps of Engineers to review the WOTUS Rule, and either rescind or revise the rule to define “Navigable Waters” in a manner consistent with the above-stated policy and the opinion of Justice Scalia in Rapanos. The executive Order also directs U.S. EPA and the Army Corps of Engineers to notify the Attorney General of the rule review so the Attorney General may inform the court in pending litigation and take actions as appropriate.

In accordance with the Executive Order, on March 6, 2017, the U.S. Department of Defense filed a motion to hold the briefing schedule in National Association of Manufacturers v. U.S. Department of Defense, et al. in abeyance. Several parties, including industry groups, environmental groups, and States, opposed the motion to hold the briefing schedule in abeyance. On April 3, 2017, the U.S. Supreme Court denied the federal government’s motion to hold the briefing schedule in abeyance.

Thus, the U.S. Supreme Court will decide whether the Sixth Circuit properly asserted exclusive jurisdiction over the challenges to the WOTUS Rule. Petitioner’s briefs are currently due on April 13, 2017, and the case will continue to be briefed over the next several months. Although the substance of the WOTUS Rule will most likely change per the direction in President Trump’s Executive Order, the jurisdiction for hearing future challenges will be determined by the U.S. Supreme Court, making the path of future litigation more clear.

CATEGORIES: Real Estate and Environment, Water

PEOPLE: Allison A. Torrence

March 23, 2017 U.S. Water Risks: It's Not Only About Flint

Lynn Grayson Photo

World Water Day 2017

By E. Lynn Grayson

By and large, Americans are blessed with clean, safe, plentiful and mostly free drinking water sources. The Flint, Michigan contaminated drinking water scandal was a wakeup call for many that drinking water sources we depend upon may not be as reliable, stable, or even as affordable as we think.

On December 19, 2016, Reuters released a startling report about the quality of America’s drinking water. Reuters' investigation found that at least 3,000 water supplies in the U.S. were contaminated with lead at levels at least double the rates detected in Flint’s drinking water. In addition, 1,100 of these communities had rates of elevated lead in blood tests at least four times higher. Reuters concluded that Flint’s water crisis doesn’t even rank among the most dangerous lead hotspots in the U.S. Like Flint, however, many of the other localities are plagued by legacy lead: crumbling paint, plumbing, or industrial wastes left behind. Unlike Flint, many have received little attention or funding to combat poisoning.

Another critical issue looming on the horizon for many will be the affordability of water. A new Michigan State University (MSU) report recently concluded that a variety of compounding factors in the U.S. could easily push large portions of the population out of the financial range to even afford water in the future. The MSU report concludes:

A variety of pressures ranging from climate change, to sanitation and water quality, to infrastructure upgrades, are placing increasing strain on water prices. Estimates of the costs to replace aging infrastructure in the U.S. alone project over $1 trillion dollars are needed in the next 25 years to replace systems built circa World War II, which could triple the cost of household water bills…. Over the next few decades, water prices are anticipated to increase four times current levels. Prices could go higher if cities look to private providers for water services, who have a tendency to charge higher rates than public providers.

The MSU report concludes that 36% of households will be unable to afford water within five years. The highest risk areas in the U.S. are in the South, with the most at-risk communities in Mississippi. The MSU report noted that Ohio is 9th on the list, followed by Michigan at 12th.

Water risks come in many forms and include not only sufficient quantities and acceptable quality, but also affordability. The latter issue has not been addressed in a meaningful manner in the U.S. and will become a growing concern as water risks of all kinds increase in number and scope.

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