Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14
By 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
Who is in Charge of Protecting the Environment--The Role of U.S. EPA and State Environmental Agencies During a Hurricane
By Steven M. Siros and Allison A. Torrence
Following Hurricane Harvey, and with the pending landfall of Hurricane Irma, the manner and degree to which federal and state agencies coordinate environmental protection duties may seem chaotic and disorganized. However, there is a specific protocol that guides these federal agencies in taking steps to protect the environmental in anticipation of and following a hurricane.
As brief background, in 1988, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”) was promulgated in an effort to establish an orderly process pursuant to which the Federal Government provides disaster and emergency assistance to State and local governments. At the request of the Governor of an affected State, the President may declare a major disaster or emergency. For example, on September 4, 2017, Florida Governor Rick Scott declared a state of emergency in anticipation of Hurricane Irma. Shortly thereafter, President Trump declared a major emergency. Upon declaration of such a major disaster or emergency, the President appoints a Federal Coordinating Officer (“FCO”), a FEMA official who is charged with coordination of Federal assistance to the affected State and local governments.
FEMA’s primary focus is protection of human life and the majority of federal resources are obviously directed towards that goal. However, FEMA also works closely with other agencies such as U.S. EPA and state environmental agencies to implement emergency response activities focused on protecting the environment. FEMA has established numerous Emergency Support Functions (ESFs), which provide the structure for coordinating interagency support for a Federal response to declared disasters and emergencies. U.S. EPA has been designated as the ESF Coordinator for Emergency Response # 10—Oil and Hazardous Materials Response.
Here are some key environmental issues that federal and state agencies focus on during a natural disaster such as a hurricane:
Performing initial evaluations of drinking water systems to identify potential vulnerabilities, and then performing post-disaster damage assessments to identify impacted systems and provide resources to bring those systems back on line as rapidly as possible. Over 4,000 public drinking water systems were impacted in Texas and Louisiana as a result of Hurricane Harvey.
Taking steps to secure federal and state cleanup sites (i.e., proactively removing drums of waste and either shutting down remedial systems or ensuring that those systems will continue to operate) in advance of the hurricane, and then promptly assessing damage to those sites and taking emergency measures to abate any ongoing releases to the environment.
Assessing conditions at major industrial facilities and proactively ensuring that chemical and waste containers are appropriately secured and assisting in the implementation of preventive measures (i.e. process shutdowns).
Assessing and taking steps to abate releases from smaller industrial facilities that are likely to lack the emergency preparedness plans that should be present and implemented at larger industrial facilities.
U.S. EPA also has the ability to address potential fuel shortages by waiving certain fuel emission requirements under the Clean Air Act, as has already occurred in response to Hurricane Harvey.
U.S. EPA has a general hurricane website that provides useful information about protecting health and the environment before and after a hurricane. U.S. EPA will also typically set up websites that are intended to keep the public informed as to the status of its ongoing operations. For example, U.S. EPA set up a website for Hurricane Harvey and a website for Hurricane Irma. State regulatory agencies have also set up similar websites—TCEQ has a Hurricane Harvey website and FDEP has a Hurricane Irma website. Although we certainly hope that Hurricane Irma veers far east off into the Atlantic, if it does not (which unfortunately appears likely to be the case), federal and state resources are being readied in an effort to prevent and mitigate adverse environmental impacts associated with this storm.
Hurricane Harvey Response: TCEQ Suspends Environmental Rules
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!
New Climate Change Disclosure Guidance
By E. Lynn Grayson
State Street Global Advisors (SSGA), managing $2.6 trillion in assets, recently took action to motivate companies to treat climate change as a significant risk and to encourage businesses to ensure that assets and long-term business strategies are resilient to climate change impacts. SSGA published “Perspectives on Effective Climate Change Disclosure” to provide guidance to companies on best practices for climate-related scenario-planning disclosure.
The new guidance provides insight into four (4) areas:
Governance and board oversight of climate change;
Establishing and disclosing long-term greenhouse gas emission goals;
Disclosing the average and range of carbon price assumptions; and
Discussing impacts of scenario planning on long-term capital allocation decisions.
The guidance is intended to identify current disclosure practices that are useful to investors in evaluating the robustness of climate-related scenario-planning exercises and climate-related strategic reports by companies in high impact sectors, such as oil and gas and mining.
SSGA drew upon its work with over 240 climate-related engagements with 168 companies that their Asset Stewardship Team had conducted over the past four (4) years.
This guidance document provides good insight to measure and evaluate existing climate change-related disclosures and may offer additional incentive to companies considering new or additional disclosures.
Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer
By Steven M. Siros
Following the disaster that has unfolded in Texas as a result of the unprecedented flooding caused by Hurricane Harvey, affected businesses might be asking whether they might be able to avail themselves of the “Act of God” defense that is embodied in several federal environmental laws and the Texas Health and Safety Code. If ever an event qualified as an “Act of God,” many would likely agree that Hurricane Harvey falls into that category. However, if the experience of Hurricane Katrina provides any guidance, regulated entities are likely to face substantial hurdles triggering the “Act of God” defense for releases attributable to Hurricane Harvey.
Although not defined in the Texas Health and Safety Code, CERCLA defines an “Act of God” as the “unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented, or avoided by the exercise of due care or foresight.” 42 U.S.C. §9601(1). The Oil Pollution Act of 1990 contains a verbatim definition of “Act of God.” 33 U.S.C. §2701(1).
One might ask how many times the “Act of God” defense has been successfully asserted, and the answer is that there is not a single reported case where that defense has been successful.
Perhaps one reason that the defense has never been successfully asserted is that it requires the natural event to have been “unanticipated” and that the effects of the natural event could “not have been prevented, or avoided by the exercise of due care and foresight.” Hurricanes in the summer in Texas are unlikely to be considered unanticipated events (even if occasioned by massive flooding), and, in fact, CERCLA’s legislative history specifically notes “[f]or example, a major hurricane may be an ‘act of god,’ but in an area (and at a time), where a hurricane should not be unexpected, it would not qualify” as an “Act of God”. H.R. Rep. No. 99-253 (1977). Moreover, proving that the effect could not have been prevented or avoided also is likely to prove difficult. For example, during Hurricane Katrina, a 250,000 barrel above ground storage tank was dislodged which resulted in the release of approximately 1,000,000 gallons of crude oil. However, the responsible entity did not assert an “Act of God” defense but instead proceeded to remediate the spilled oil.
That is not to say that affected entities should not give due consideration to all potentially applicable defenses in the face of a natural disaster such as Hurricane Harvey. However, one should not turn a blind eye to the fact that reliance on an “Act of God” defense is likely to continue to face hurdles of biblical proportion.
Shell Latest Target of CWA Climate Change Citizen Suit
By Steven M. Siros
On August 28, 2017, Shell Oil Company became the latest target of a Clean Water Act citizen suit lawsuit filed by the Conservation Law Foundation (“CLF”). Coming on the heels of the unfolding disaster in Texas caused by Hurricane Harvey, this most recent lawsuit alleges that Shell’s stormwater pollution prevention plan for its Providence, Rhode Island Terminal is inadequate in that it fails to account for sea level rise, increased precipitation generally, and the increased frequency of storms that CLF alleges will occur due to climate change. This latest lawsuit follows a previously filed citizen suit by CLF against Exxon under both the Clean Water Act and Resource Conservation and Recovery Act relating to Exxon’s Everett Terminal located in Everett, Massachusetts. A hearing on Exxon’s pending motion to dismiss is currently set for September 12, 2017.
Events like Hurricane Harvey will provide continuing fodder for what is likely to be sharp increase in citizen suits being filed by environmental organizations seeking to advance their agendas in light of the current regulatory climate.