Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
By Allison A. Torrence
On June 14, 2017, U.S. District Judge James Boasberg, of the U.S. District Court for the District of Columbia, issued an opinion in the case of Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534, finding that the U.S. Army Corps of Engineers (the Corps) did not fully comply with the National Environmental Policy Act (NEPA) when it granted easements to the Dakota Access Pipeline (DAPL) to cross Lake Oahe, a federally regulated water. Plaintiffs in the case, The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, both have Reservations that border Lake Oahe. Indeed, when Lake Oahe was created by the Corps in 1958 via a dam constructed on the Missouri River, the lake covered approximately 56,000 acres of the Standing Rock Reservation and 104,420 acres of the Cheyenne River Tribe’s trust lands.
The proposed DAPL will be nearly 1,200 miles long and will move more than half a million gallons of crude oil from North Dakota to Illinois every day (at a rate of 13,100 to 16,600 gallons per minute). DAPL will cross Lake Oahe 0.55 miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation. Both Tribes use Lake Oahe for drinking water, agriculture and industrial activities, and consider the waters to be “sacred”.
The Tribes have been challenging DAPL in court and through public protests since 2016, when the Corps issued its final Environmental Assessment and Mitigated Finding of No Significant Impact (FONSI). Under NEPA, a FONSI means that the Corps does not have to prepare a full-blown Environmental Impact Statement. The Tribes argue that the Corps analysis was flawed and its FONSI is not appropriate. The court agreed with some of the Tribes’ arguments, ruling that the Corps “failed to adequately consider the impacts of an oil spill on [the Tribes’] fishing and hunting rights and on environmental justice, and…it did not sufficiently weigh the degree to which the project’s effects are likely to be highly controversial…” The court held that “the Corps will have to reconsider those sections of its environmental analysis...”
Under the Administrative Procedure Act (APA), the court has the power to vacate DAPL’s permits and easements and force it to cease operations until the Corps fully complies with its NEPA requirements. However, the court noted that such a remedy would carry serious consequences. Thus, the court ordered the Tribes and the Corps to submit briefing on whether it should vacate DAPL’s permits and easements when it remands the case for further NEPA analysis. The schedule for such briefing will be set at a status hearing next week.
Nanomaterial Reporting Rule Update
By E. Lynn Grayson
EPA recently extended the effective date of the final reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale. EPA has delayed the effective date of the January 12, 2017 final rule from May 12, 2017 to August 14, 2017.
Industry sought to repeal the rule, or at a minimum, obtain an extension of the effective until EPA adopts guidance explaining how to comply with the new two-fold requirements including: 1) companies that make, import or process a distinct or “discrete” form of a nanoscale chemical at some time in the future are to provide information to EPA (135 days before they make, import or process the chemical or within 30 days of deciding to manufacture or process the chemical); and 2) companies must comply with a one-time obligation to report information known or reasonably attainable regarding any nanoscale chemicals made or processed at any time during the past three years. Based upon the information EPA receives, the Agency could decide to require new toxicity, exposure or other data or it could decide to impose restrictions on commercial activity.
Nanomaterials—a diverse category of materials defined mainly by their small size—often exhibit unique properties that can allow for novel applications but also have the potential to negatively impact human health and the environment. Some nanomaterials: more easily penetrate biological barriers than do their bulk counterparts; exhibit toxic effects on the nervous, cardiovascular, pulmonary and reproductive systems; or have antibacterial properties that may negatively impact ecosystems.
Regulation of nanomaterial has created conflict between industry and environmental groups. The Nanomanufacturing Association suggests the rule is a de facto permitting program, while environmental groups believe the rule is long overdue and its impacts are limited by the authorities and procedures already existing under the Toxic Substances and Control Act (TSCA), the federal statute authorizing the new rule. Nanomaterials are used in a variety of commercial and industrial applications including paints, coatings, resins and a host of consumer products ranging from washing machine parts to lithium ion batteries.
A number of scientific organizations have called for the need for the kinds of information on nanomaterials EPA will now be able to collect including the National Academy of Science and the National Nanotechnology Initiative. At this time, it is unclear if the EPA draft guidance will be finalized before the effective date of the new rule.
Exelon and Jenner & Block Beach Cleanup Day!
By E. Lynn Grayson
Exelon and Jenner & Block partnered today with the Alliance for the Great Lakes to cleanup 12th Street Beach, near the Adler Planetarium. Team members worked together to police the beach front picking up and disposing of waste and other discarded materials. The litter was identified, logged, recorded and weighed to aid in understanding the short term and long term impacts we are having on the Great Lakes and the many ecosystems that rely upon them.
The Alliance for the Great Lakes Adopt-a-Beach program promotes working together to protect the Great Lakes through beach cleanups and other community projects. For more than 25 years the Adopt-a-Beach program has worked to keep Great Lakes shorelines healthy, safe, and beautiful. The program is largest of its kind in the region. Adopt-a-Beach touches all five Great Lakes with volunteers from all eight Great Lakes states.
Thanks to our friends at Exelon for including us in this special environmental outreach!
Exelon and Jenner & Block
Jenner & Block EHS Team
EPA Extends Deadline for 2015 Ozone Air Quality Area Designations
By Allison A. Torrence
On June 6, 2017, EPA Administrator Scott Pruitt sent a letter to the nation’s governors, informing them that EPA is extending the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standards (“NAAQS”). The Obama Administration promulgated new ozone NAAQS in October 2015, lowering the standards from 75 parts per billion to 70 parts per billion. Under the Clean Air Act, EPA had two years, or until October 1, 2017, to designate areas in the U.S. as being in attainment or nonattainment with the new ozone NAAQS. Administrator Pruitt’s one-year extension pushes the deadline for those designation to October 1, 2018.
As we previously reported, the 2015 ozone NAAQS have been challenged in the U.S. Court of Appeals for the D.C. Circuit by various states, companies, and environmental organizations in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. On April 11, 2017, the D.C. Circuit Court granted EPA’s motion to continue oral argument and indefinitely delay any decision on challenges to the 2015 ozone NAAQS. In its motion, EPA stated that it was “closely reviewing the 2015 [ozone NAAQS] Rule to determine whether the Agency should reconsider the rule or some part of it.” The D.C. Circuit’s order directed EPA to submit status reports every 90 days.
The press release announcing EPA’s decision to extend this initial deadline explains the agency’s justification for the extension.
The Agency is taking time to better understand some lingering, complicated issues so that air attainment decisions can be based on the latest and greatest information. This additional time will also provide the agency time to review the 2015 ozone NAAQS, prior to taking this initial implementation step.
In his letter to state governors, Administrator Pruitt stated that:
States have made tremendous progress and significant investment cleaning up the air. Since 1980, total emissions of the six principal air pollutants have dropped by 63 percent and ozone levels have declined by 33 percent. Despite the continued improvement of air quality, costs associated with compliance of the ozone NAAQS have significantly increased. I am committed to working with you and your local officials to effectively implement the ozone standard in a manner that is supportive of your air quality improvement efforts, without interfering with local decisions or impeding economic growth.
Once again, EPA’s actions indicate it is considering whether it can and should scale back the ozone NAAQS, potentially to the 75 parts per billion levels set back in 2008.
You Are Invited: June 12 Environmental Ethics CLE Luncheon
By E. Lynn Grayson
On Monday, June 12, 2017, Jenner & Block's Environmental and Workplace Health & Safety Practice Group is hosting a special program targeted at environmental lawyers titled Drilling Down on the Risks: Ethics and Liabilities for Environmental Practitioners. The program will be held from 11:45-1:30 at Jenner & Block’s offices, 353 North Clark Street, in Chicago. You may participate in the program in person or via a webinar.
Three exceptional speakers—Deborah Green Shortridge (ALAS), April Otterberg and Gay Sigel (Jenner & Block)—will discuss a variety of ethical concerns often confronted by environmental lawyers. They will address prior work conflicts, joint representation, common interest agreements, retaining environmental consultants in transactional and litigation matters, positional conflicts, contacting government officials, community outreach, and public statements.
The CLE program will be eligible for 1.5 professional responsibility credits in Illinois.
If you would like to join us for this CLE program, please RSVP here.
World Environment Day 5 June 2017
By 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.