March 2, 2010 BLM Settlement Requires Review of NEPA Obligations to Evaluate Climate Impacts

By Jennifer Cassel

On March 18, 2010, the U.S. District Court for the District of Montana approved a settlement between the U.S. Bureau of Land Management (“BLM”) and the Montana Environmental Information Center under which BLM has agreed to review its duties under National Environmental Policy Act ("NEPA"), the Federal Law Policy and Management Act (“FLPMA”), the Mineral Leasing Act (“MLA”), and a Department of Interior order, to evaluate the climate impact of leasing lands for oil and gas development.  BLM has also agreed to temporarily suspend 61 oil and gas leases it has issued, representing over 30,000 acres of land, while conducting that review.  Plaintiffs filed the settled lawsuit in January 2009, at which time they alleged that BLM had violated NEPA, FLPMA, MLA and the Department of Interior order in issuing those 61 leases. 

The settlement agreement is available at http://meic.org/files/energy/2010-blm-settlement-docs/MEIC__ExecutedSettlementAgreementSTAMP_3.11.2010.pdf

CATEGORIES: Climate Change

March 2, 2010 EPA Settles Suit Challenging Failure to Act on Ocean Acidification

By Jennifer Cassel

On March 10, 2010, EPA entered into a legal settlement with the Center for Biological Diversity (“CBD”) in which EPA agreed to sign, by March 15, 2010, a Federal Register notice seeking comments on ocean acidification as it pertains to § 303(d) of the Clean Water Act (“CWA”).  The settlement resolves a suit in which CBD sued EPA for alleged violating its CWA duties to identify Washington’s ocean waters as impaired due to acidification (caused by absorption of CO2).  Under the terms of the settlement, EPA will seek comment on (1) whether EPA should issue guidance concerning the listing of waters as impaired or threatened due to ocean acidification, and if so, what that guidance should state; (2) how states can determine if waters are threatened or impaired by acidification; (3) how states can monitor acidification and its effects; and (4) recommendations for development of Total Maximum Daily Loads (“TMDL”) for waters impaired or threatened by acidification.  By November 15, 2010, EPA will issue a memorandum detailing EPA’s plan for its CWA § 303(d) program in light of the comments it receives in response to the Federal Register notice.  EPA issued the Federal Register notice on March 22, 2010, and the comment period will close on May 21, 2010.   

More information on the settlement agreement is available at http://www.biologicaldiversity.org/news/press_releases/2010/ocean-acidification-03-11-2010.html

The Federal Register notice is available at http://www.biologicaldiversity.org/campaigns/ocean_acidification/pdfs/EPA_Ocean_Acidification_Notice_2010.pdf.

CATEGORIES: Climate Change, Water

March 2, 2010 India and China Declare Support for Copenhagen Accord

By Jennifer Cassel

On March 8 and 9, 2010, respectively, India and China submitted letters to the executive secretary of the United Nations Framework Convention on Climate Change (“UNFCCC”) indicating their support for the “Copenhagen Accord,” reached in December 2009 at the 15th Annual Conference of the Parties to the UNFCCC in Denmark. In its letter, India, represented by joint secretary of the Ministry of Environment and Forests, Rajani Ranjan Rashmi, states that India may be listed in the introductory text of the agreement - the “chapeau” - with the caveat that India understands the accord to be “a political document” which is not legally binding, but rather which “could have value if the areas of convergence reflected in the Accord are used to help the Parties reach agreed outcomes under the UN multilateral negotiations….” In Chinese Premier Wen Jiabao’s letters, one of which was originally sent to U.N. Secretary General Ban Ki-moon and the other to the Prime Minister of Denmark, China states that it “highly commends and supports the Copenhagen Accord” and reaffirms that China will “take active steps to meet the targets we have set out for our voluntary domestic actions….”

The letter from India is available at http://unfccc.int/files/meetings/application/pdf/indiacphaccord.pdf 

The letter from China is available at http://unfccc.int/files/meetings/application/pdf/chinacphaccord.pdf

CATEGORIES: Air, Climate Change, Water

March 2, 2010 Higher Clearing Price for Carbon Allowances at Seventh RGGI Auction

By Jennifer Cassel

On March 10, 2010, the Regional Greenhouse Gas Initiative (“RGGI”), comprised of Connecticut, Delaware, Massachusetts, Rhode Island, Maine, Maryland, Vermont, New Jersey, New York, and New Hampshire, held its seventh auction of carbon dioxide (CO2) emission allowances.  RGGI reported on March 12 that all 40.6 million CO2 allowances available for immediate use were sold for a clearing price of $2.07 per allowance, up from $2.05 at the previous RGGI auction last December.  Approximately two million allowances available for use after 2012 also were sold at the March 10, 2010, auction for a clearing price of $1.86 per allowance.  The auction raised approximately $88 million, increasing the total proceeds from all seven auctions to $582 million. 

More information on the seventh RGGI auction is available at http://www.rggi.org/docs/Auction_7_Release_MM_Report_2010_03_12.pdf

CATEGORIES: Air, Climate Change

March 1, 2010 February 2010 Update: Climate Change

By Gabrielle Sigel and Jennifer L. Cassel

Federal Legislative Developments

  • Obama Requests Increased Funding for Climate Change

    On February 1, 2010, President Obama sent to Congress a budget request for fiscal year 2011 in which he requested increased funding for climate change measures even as he decreased his overall budget request. 

    Some of the items listed in the President’s budget request include: $54.5 billion for Dept of Energy loan guarantees for clean energy technologies; $21 million for EPA to implement the mandatory greenhouse gas (“GHG”) reporting rule; $56 million for EPA and State climate change programs, including $25 million to be used to assist EPA and the States to incorporate GHG emission restrictions into Clean Air Act (“CAA”) permitting, $5 million to develop best available control technology (“BACT”) for GHG emission limits in CAA permits, and $7 million to develop new source performance standards for certain sources that produce GHG emissions; $7 million to fund carbon capture and sequestration (“CCS”) projects and $545 million to fund research of CCS technologies; $6 million for EPA to implement GHG emission standards for vehicles; and $2.6 billion to fund research related to climate change.  Unlike his budget request for FY 2010, President Obama does not request funding to implement a cap-and-trade program in FY 2011.

CATEGORIES: Air, Climate Change, Water

February 26, 2010 What You Need To Know About The New SEC Guidance on Climate Change Disclosure

By Jerry J. Burgdoerfer, Gabrielle Sigel, William L. Tolbert, Jr., Elaine Wolff, and Lee E. Dionne

On February 2, 2010, the Securities and Exchange Commission (“SEC”) issued guidance, in the form of an interpretive release (the “Release”), as to a public company’s disclosure requirements on climate change issues.[1]  The SEC puts companies on notice that it will review the effect of the Release on companies’ filings through its disclosure review program.  This Release should be considered in the context of the SEC staff’s recent reminders that their review will look beyond the four corners of a company’s SEC filings, including considering disclosures in a company’s earnings calls, earnings releases, website and press releases.[2]  The SEC expects to hold a public “roundtable” on climate change disclosures in the spring of 2010.

CATEGORIES: Climate Change

February 12, 2010 SEC Issues New Guidance Regarding Climate Change Disclosures

By Jerry J. Burgdoerfer, Gabrielle Sigel, William L. Tolbert, Jr., Elaine Wolff, Lee E. Dionne

At an open meeting held January 27, 2010, the Securities and Exchange Commission voted to issue an interpretive release (the “Release”) to provide guidance on existing climate change disclosure obligations.[1] Specifically, the Commission’s discussion identified four categories of information about climate change that companies should consider disclosing:  

  • the impact of legislation and regulation;
  • the impact of international accords;
  • the indirect consequences of regulation or business trends; and
  • the physical impacts of climate change.

CATEGORIES: Climate Change

February 10, 2010 January 2010 Update: Climate Change

By Gabrielle Sigel and Jennifer L. Cassel

Federal Legislative Developments

  • Obama Calls for Comprehensive Energy and Climate Bill in Address to Nation

    On January 27, 2010, in his first State of the Union address, President Obama reiterated his desire to see a comprehensive energy and climate bill adopted in the coming year. In his speech, Obama tied such legislation to job creation, providing examples of “green jobs” and emphasizing that, “to create more of these clean energy jobs, we need more production, more efficiency, more incentives.” Among the programs Obama espoused are the construction of new, “safe, clean” nuclear power plants; “continued investment in advanced biofuels and clean coal technologies,” and the passage of a “comprehensive energy and climate bill with incentives that will finally make clean energy the profitable kind of energy in America.” While Obama did not mention the words “cap and trade” in his speech, he supported his plea for climate legislation by stating that “providing incentives for energy-efficiency and clean energy are the right thing to do for our future—because the nation that leads the clean energy economy will be the nation that leads the global economy.” Obama also indicated that he would be willing to make “tough decisions about opening new offshore areas for oil and gas development,” but only as one component of his energy plan for the country.

 

CATEGORIES: Air, Climate Change

February 5, 2010 February 2010 Update: Environmental Lender Liability

By Gabrielle Sigel and Genevieve Essig

CERCLA Case Law Developments

  • District Court Finds Owner of Leased Equipment Liable Under CERCLA
    On February 9, 2010, the United States District Court for the Northern District of Illinois held that an owner of equipment leased for use in an electroplating operation is a PRP under CERCLA as a “facility owner at the time [of cleanup].”  United States v. Saporito, No. 07-C-3169, slip op. at 15 (N.D. Ill. Feb. 9, 2010).  In Saporito, the federal government sought to recover $1.5 million it spent to clean up hazardous substances affecting soil and groundwater at the former Crescent Plating Works site on the northwest side of Chicago from defendant individuals James Saporito and Paul Carr.  During the electroplating process, items to be plated were dipped into a series of chemical baths through which an electrical current was run, and hazardous materials contained in the baths, such as sodium cyanide, hexavalent chromium, and TCE, at times splashed onto the concrete floor, ultimately reaching the soil below.  Saporito, whose dealings with Crescent Plating included his purchasing and leasing back to Crescent Plating equipment used in the electroplating process, filed a number of counterclaims against the government and moved for summary judgment on his liability.  The government moved for summary judgment on its claims that Saporito was both an owner and an operator liable under CERCLA, and moved to dismiss Saporito’s counterclaims, both of which the court granted.
January 18, 2010 January 2010 Update: Environmental Lender Liability

By Gabrielle Sigel and Genevieve Essig

CERCLA Case Law Developments

  • District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree

    On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp., No. 08-124 (N.D. W. Va. Jan. 15, 2010).  In Exxon, U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John’s Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million.  Exxon, previously identified by EPA as a PRP due to its predecessor’s coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon’s liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i).  Overruling EPA’s objections, the court granted Vertellus’s and CBS’s motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon, No. 08-124, slip op. at 20.

CATEGORIES: Cercla, OSHA, RCRA, Water

January 13, 2010 A green economy: What lawyers need to know

Grayson PhotoBy E. Lynn Grayson

A media buzz surrounds the politically charged concept of developing a green economy by investing in initiatives that are good for the environment and financially beneficial for business.

CATEGORIES: Air, Climate Change

August 31, 2009 Water Scarcity: A Critical Climate Change Challenge for Business

Grayson photoBy E. Lynn Grayson

While reduction of greenhouse gas emissions is the best known, most often debated climate change challenge, water scarcity is emerging as the more significant concern confronting the international environment. A report recently released by Ceres and the Pacific Institute, Water Scarcity & Climate Change: Growing Risks for Business & Investors, details the risks posed by the declining availability of water resources throughout the world.[1] The Ceres/Pacific Institute report concludes that climate change will exacerbate these water risks, especially as the world population grows by an expected 50 million a year. This report supports other recent findings from the Intergovernmental Panel on Climate Change concluding that global warming will lead to changes in all components of the freshwater system and that water and its availability and quantity will be the main pressures on, and issues for, societies and the environment under climate change.[2]

CATEGORIES: Water