Buckle Up for a Wild Ride: Environmental Policy in the Trump Administration

Posted in Articles, Environment, EPA, Federal, Federal Regulation, Legislation, Pennsylvania, Policy, Politics

Millions of Americans are coming to grips with the broad social and political ramifications of Donald Trump’s stunning upset victory in last Tuesday’s presidential election. And while the president-elect’s policy pronouncements to date have been short on detail, one thing is clear: those concerned with environmental protection and climate change had better buckle up for a wild ride.

As a 15-year veteran of the U.S. Environmental Protection Agency (EPA) and former agency enforcement official, I served under both Republican and Democratic administrations and played key roles in briefing incoming political leadership during transitions. As I know up close, for better or worse, federal agencies are not nimble and do not steer on a dime, a fact that often frustrates new political leadership.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly by clicking here.

Brexit: The Great Repeal Bill and the EU’s Chemicals, Emissions, and Medicines Regimes

Posted in Brexit, Chemicals, Environment, REACH

As discussed in our recent GT Alert, “Brexit: 100 Day Update“,  the UK Prime Minister Theresa May recently announced plans for a “Great Repeal Bill” for the repeal of the 1972 European Communities Act (ECA). Under the ECA, European Union (EU) law was established as part of the UK’s legal order and was given supremacy over the UK’s domestic laws.

It is intended that the Great Repeal Bill will enter into force on the date of Brexit (which appears to be March/April 2019 at the earliest). It is expected that the Great Repeal Bill will preserve the majority of existing EU law in domestic UK legislation until the UK Government has had an opportunity to assess individual EU-derived domestic laws and decide whether to retain, amend, or remove them. This process is likely to take many years, depending on the resources devoted to it.  New, post-Brexit EU law, including the decisions of the European Court of Justice, will not form part of UK domestic law.

Continue Reading.

Philadelphia’s Approach to Nuisance Abatement on Vacant Properties

Posted in Articles, Contamination, Environment, Pennsylvania, Real estate

Conventional environmental lawyers may find themselves in unfamiliar territory when faced with a municipal citation for allowing a vacant property to become a nuisance or a municipal claim to recover the costs of abating that nuisance.  In Philadelphia, the City has a regular program to do both.  That program proceeds under City ordinances and regulations, and not the more familiar state environmental laws.  A special unit within the City Solicitor’s Office handles this code enforcement program and brings enforcement proceedings before a single judge of the Philadelphia Court of Common Pleas.

Read more from my Pennsylvania Law Weekly article by clicking here.

U.S. EPA Declines to Require Permits for Stormwater Discharges from Commercial Properties

Posted in Clean Water Act, EPA, Permitting, Stormwater, Water

How to regulate stormwater discharges from impervious areas such as parking lots remains a hotly disputed environmental issue. Most recently, U.S. EPA Region 9 rejected a petition filed by environmental advocacy groups under the federal Clean Water Act calling for regulation of stormwater discharges into the Alamitos Bay/Los Cerritos Channel watershed in Los Angeles County from “privately-owned commercial, industrial, and institutional sites.”  This petition is one of a number of so-called Residual Designation Authority (RDA) petitions that have been filed around the country demanding that the U.S. EPA regulate stormwater discharges from commercial properties with large areas of impervious surface, like office parks, shopping centers, and apartment complexes.  If successful, these RDA petitions would impose costly regulatory requirements (including retrofitting stormwater treatment systems) on commercial property owners and developers.  Industrial and institutional properties, like warehouses, hospitals and college campuses could also be affected.

Section 402(p)(2)(E) of the Clean Water Act and 40 C.F.R § 122.26(a)(9) provides the U.S. EPA with authority to regulate certain otherwise unregulated stormwater discharges if itdetermines that those discharges are contributing to violations of water quality standards or are a significant contributor of pollutants. The U.S. EPA’s regulations expressly allow for third parties like environmental advocacy groups to file petitions seeking exercise of this RDA. 40 C.F.R. § 122.26(f)(2).

In this most recent case, three environmental groups filed an RDA petition demanding that U.S. EPA Region 9 require privately-owned commercial, industrial, and institutional sites in the Alamitos Bay/Los Cerritos Channel watershed to apply for Clean Water Act NPDES permits.  U.S. EPA Region 9 demurred on the grounds that other regulatory programs were already in place to address water quality impairments from stormwater discharges, and that these programs, including permitting requirements on municipal separate stormwater sewers, should be allowed adequate time to take effect before considering additional regulatory requirements.

This RDA petition was one of three filed last year targeting specific watersheds around the country. The two other petitions were filed in U.S. EPA Region 3 – one regarding the Back River watershed in Baltimore, MD and the other regarding Army Creek in New Castle County, DE.  U.S. EPA Region 3 has not responded to either of those petitions yet.

While environmental groups are increasingly turning to RDA petitions to force additional regulation of stormwater discharges from non-industrial sources, that strategy has yielded mixed results to date. The Conservation Law Foundation (CLF) first employed this approach in Vermont, where it secured a court order compelling the Agency for Natural Resources to implement an RDA stormwater permitting program.  In re Storwater NPDES Petition, 910 A.2d 824 (2006).  In another instance, CLF relied on the RDA provisions to provide a regulatory framework for a consensual stormwater management program implemented in a portion of the Long Creek watershed in Portland, ME.

Subsequent efforts with RDA petitions have proven less successful. CLF has filed several RDA petitions to force regulation of stormwater discharges from commercial properties into the Charles River watershed outside of Boston, MA.  U.S. EPA’s New England Region declined to act on these RDA petitions.  In response, CLF filed a Clean Water Act citizen suit last February seeking to compel U.S. EPA to take the actions demanded in the RDA petitions. Conservation Law Found. v. U.S EPA, Civil Action No. 1:16-cv-10397 (D. Mass.)  The government has moved to dismiss the case, but a decision on that motion is likely months away. (CLF filed a similar citizen suit in Rhode Island, which the government has also moved to dismiss).

In 2014, environmental groups filed RDA petitions in U.S. EPA Regions 1, 3 and 9 seeking broad residual designations for stormwater discharges in each of those regions. Each of those regions declined to take any action in response to any of those petitions.

The U.S. EPA’s approach with respect to RDA petitions appears consistent with its approach to the previously proposed national post-construction stormwater regulations.  In 2010, in connection with the settlement of a citizen suit involving water quality impacts in the Chesapeake Bay, the U.S. EPA agreed to propose regulations to manage stormwater discharges from commercial sites after they are developed or re-developed.  After four years of extensive rulemaking efforts, U.S. EPA announced that it would not move forward with these post-construction regulations, but would instead rely on existing regulatory programs, as well as providing additional incentives and technical assistance, to address stormwater impacts from commercial sites.

While that may seem like a sensible approach – both with respect to the previously proposed national post-construction regulations and the more recent watershed-specific RDA petitions – environmental advocacy groups continue to argue that the U.S. EPA has a non-discretionary duty to take regulatory action. The question then becomes whether these groups can convince a court to adopt their view that U.S. EPA lacks discretion to determine what if any administrative actions should be implemented to address stormwater impacts from commercial properties.

The use of RDA petitions to force implementation of stormwater permitting programs for commercial, industrial and institutional properties remains a developing issue that could have significant consequences for owners and developers of those properties, and we will continue to monitor this issue closely.

Steps for Young Environmental Lawyers to Take for Success

Posted in Articles, Environment

Autumn has arrived, and with it the promise of a fresh crop of law school graduates entering practice. That means that all the more experienced young lawyers move up a notch in our oddly hierarchical profession. Soon, they will have to sustain themselves; they will have to find enough work from their employers, their partners, or external clients to keep themselves busy without depending on some other, mature environmental lawyer (like me). There are some steps those young environmental lawyers might take to help the process. There are some opportunities in that process for clients. There are surely opportunities for the environmental bar to become more diverse if that process succeeds.

Read more from my Pennsylvania Law Weekly article by clicking here.

 

 

Environmental Crimes by Companies Will Now be Prosecuted at the International Criminal Court

Posted in Environment, International

The International Criminal Court (ICC) announced on 15 September 2016 that it will start to investigate environmental crimes under international law, raising the prospect that company executives could be prosecuted in The Hague in respect of corporate activities with serious environmental impacts.

An ICC policy paper on case selection and prioritisation states that the ICC Prosecutor “will give particular consideration to prosecuting [Rome Statute of the ICC] crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land“.

This marks a departure from the ICC’s historic focus on genocide, crimes against humanity, and war crimes associated with armed conflict.  The ICC’s announcement does not, however, constitute an extension of its jurisdiction, but rather the ICC will now investigate environmental crimes which arise within its existing remit – for example, environmental impacts which reach the threshold of and constitute crimes against humanity in their own right.

This development will require companies to carefully consider their activities in certain countries, particularly those activities which may, and potentially with the involvement of national governments, result in mass human rights violations such as the forcible transfer of populated land for commercial exploitation (so-called “land-grabbing”).

Any prosecutions would be subject to the normal rules and procedures governing the ICC including the requirement that any potential criminal activity can only be prosecuted if it takes place in a country which has ratified the Rome Statute, if the perpetrator originates from one of these countries, or if the UN Security Council refers a case to the ICC.  In addition, the activity must have taken place after 1 July 2002.

The United Kingdom, the Netherlands, Germany, Poland, Italy, Mexico, South Korea, and Japan are among the countries that have ratified the Rome Statute, but the United States has not yet done so.

The ICC’s policy paper is available at https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.

New Emergency Rule in Florida Requires Responsible Parties to Quickly Notify Public of Pollution Spills

Posted in Florida, Pollution, Regulatory

On Sept. 26, 2016, Governor Scott ordered the Florida Department of Environmental Protection to immediately issue an emergency rule requiring immediate notification of pollution spills to the general public, FDEP, and local governments. FDEP provides a copy of the Governor’s order and related materials on its website.

During an investigation of two recent pollution spills that had the potential to impact drinking water, the Governor concluded that the public should be immediately notified by responsible parties when pollution incidents occur.  This is not required under current law.

Under the new emergency rule, the owner or operator of any facility must now report any pollution spill within 24 hours of the incident to FDEP, local governments, and the public through the media.  The notification form is provided on the FDEP’s website.  This includes businesses and local governments responsible for the release of any pollution into the water or air.

Additionally, within 24 hours of becoming aware that a pollution spill has travelled off-site, responsible parties must also report the incident to adjacent and/or nearby properties, the FDEP, and local governments.

Responsible parties have additional notification obligations under the emergency rule.  Any potential risks to public health, safety, or welfare associated with the pollution spill must also be reported to FDEP, local governments, and the general public within 48 hours.

Governor Scott is expected to propose legislation during the next legislation session to codify this new public notification rule and to assess penalties for any violations of the new public notice requirements.

Massachusetts Gov. Baker Issues Comprehensive Climate Change Strategy

Posted in Climate Change, Greenhouse Gas, Massachusetts

The 2008 Massachusetts Global Warming Solutions Act (GWSA) set ambitious goals for reducing greenhouse gas (GHG) emissions and mitigating the potential risks posed by climate change.  Last week, Gov. Baker demonstrated a significant commitment to those goals by issuing Executive Order 569 Establishing an Integrated Climate Change Strategy for the Commonwealth (EO 569).  The implications of EO 569 are far-reaching and substantial for companies operating in the Commonwealth.

EO 569 specifies a number of concrete actions to further reduce GHG emissions and respond to climate change in Massachusetts:

Additional Interim GHG Reduction Targets.  Under the GWSA, state-wide GHG reduction targets were previously set for 2020 (25% below the 1990 baseline) and 2050 (80% below the 1990 baseline).  EO 569 requires that additional interim reduction goals be created for 2030 (to be set before December 31, 2020) and 2040 (to be set before December 31, 2030).

  1. Reduced GHG Emissions from the Transportation Sector.  The Massachusetts Department of Transportation will develop regional strategies to reduce GHG emissions from the transportation section consistent with the emission reduction goals established under the GWSA.
  2. Comprehensive Energy Plan.  EO 569 calls for a comprehensive state-wide energy plan, with particular emphasis on conservation, energy efficiency and other demand-reduction approaches to reduce energy consumption.  This plan must be created within two years and updated every five years thereafter.  In addition, the EO identifies the need for continued “reform of the regional wholesale electricity energy and capacity markets” to ensure that clean energy mandates are achieved in the “most cost-effective manner.”
  3. Climate Adaptation Plan.  The Energy and Environmental Affairs and Public Safety Secretariats are tasked with preparing a state Climate Adaptation Plan. This plan will provide information on climate trends and extreme weather impacts, guide state agencies and municipalities on developing resiliency and adaptation measures, and identify how natural resources can be used to “enhance climate adaptation, build resilience and mitigate climate change.”  The plan will be updated every five years.  In addition, the Secretariats must establish frameworks for state agencies and municipalities to use for conducting their own vulnerability assessments and developing and implementing adaptation plans in response.
  4. New GHG Emission Reduction Regulations.  Earlier this year, the Massachusetts Supreme Judicial Court ruled that the GWSA mandates promulgation of volumetric GHG emission limits, which limits must decline on an annual basis.  EO 569 establishes a specific schedule for the Massachusetts Department of Environmental Protection to issue regulations in order to comply with that ruling, including publishing notice of the proposed regulations by December 16, 2016 and holding a public hearing by February 24, 2017.  In addition, the EO identifies specific GHG sources to be considered for emissions reductions, including:  (i) natural gas distribution system leaks, (ii) emission permits for existing, new, and expanded sources, and (iii) the transportation sector.
  5. Climate Change Coordinator.  In an effort to bring some consistency to various state-level climate change initiatives, EO 569 creates a Climate Change Coordinator position within the Executive Office of Energy and Environmental Affairs.  This coordinator will lead in the development and implementation of the state-wide Climate Adaptation Plan, as well as performing vulnerability assessments.

Like all Executive Orders, EO 569 applies only to actions taken by the state government and is not directly enforceable against the private sector.  That said, EO 569 will have significant consequences for the private sector.  Parties seeking new or renewed air permits will likely be required to demonstrate efforts to reduce GHG emissions as a condition of those permits.  EO 569 will increase opportunities for companies offering energy conservation, energy efficiency and demand-response services and products in the Commonwealth.  Major GHG sources can anticipate mandatory emissions reductions, which will become more stringent over time.  The climate change vulnerability assessments and resulting Climate Adaptation Plan will affect real estate owners and developers – possibly including more stringent permitting standards in areas deemed to be at higher risk from future storm events.  And large power purchasers can hope that EO 569 will bring some price relief to one of the most expensive energy markets in the U.S.

EPA: Research Shows Herbicide Glyphosate Unlikely to Cause Cancer

Posted in Chemicals, EPA

Introduction

The Environmental Protection Agency (EPA) recently concluded that the available data at this time suggest that the herbicide, glyphosate, is “not likely to be carcinogenic to humans.”

The EPA’s Office of Pesticide Programs (OPP) undertook the glyphosate study as part of its periodic review of pesticides registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the federal statute governing the registration and use of pesticides. These reviews are conducted at least every fifteen years to determine if pesticides (a term which encompasses herbicides like glyphosate) still meet the criteria for FIFRA registration.

According to the report, “In epidemiological studies, there was no evidence of an association between glyphosate exposure and numerous cancer outcomes; however, due to conflicting results and various limitations identified in studies investigating [non-Hodgkin’s lymphoma], a conclusion regarding the association between glyphosate exposure and risk of [non-Hodgkin’s lymphoma] cannot be determined based on the available data.” U.S. EPA Off. of Pesticide Programs, Glyphosate Issue Paper: Evaluation of Carcinogenic Potential, at § 6.7 (Sept. 12, 2016). The report goes on to state: “Overall, animal carcinogenicity and genotoxicity studies were remarkably consistent and did not demonstrate a clear association between glyphosate exposure and outcomes of interest related to carcinogenic potential.” Id. The release of the 227-page issue paper precedes an EPA-organized meeting of independent scientists that is scheduled for October 18. At the meeting, which will take place at the OPP headquarters in Arlington, Virginia, outside scientists will review the EPA’s findings

Background 

Glyphosate is a non-selective, phosphonomethyl amino acid herbicide registered to control weeds in various agricultural and non-agricultural settings. An herbicide with a broad range of agricultural, commercial, and household applications, glyphosate has been the subject of intense debate surrounding its potential link to non-Hodgkin’s lymphoma and various other forms of cancer.

In March 2015, the International Agency for Research on Cancer (IARC), a subdivision of the World Health Organization (WHO), determined that glyphosate was a probable human carcinogen. The IARC also recommended that the Joint Meeting on Pesticide Residue (JMPR), another arm of the WHO, reevaluate glyphosate in light of the IARC’s findings.

Later, in November 2015, the European Food Safety Authority (EFSA) determined that glyphosate was unlikely to pose a carcinogenic hazard to humans. Additionally, in response to the IARC’s recommendation, the JMPR released its evaluation in May 2016, concluding that glyphosate was unlikely to pose a carcinogenic risk to humans from exposure through diet.

Moving Forward

The EPA’s October 18 meeting will have significant implications for food manufacturers and agrochemical companies alike. Following the meeting, the EPA plans to release its final report in early-2017. In the report, the EPA is expected to make its final determination as to whether companies may continue to use and sell glyphosate and, if so, create guidelines for doing so. We intend to closely monitor this meeting and plan to outline the EPA’s final report on our blog once it is released.

Israel Posts Information and Schedule Regarding Upcoming Bidding Round for New Oil and Gas Exploration Licenses

Posted in Energy, Environment, Natural Resources

Israel’s Ministry of National Infrastructure, Energy and Water Resources has posted on a dedicated website new information concerning the first round of bidding for offshore oil and gas exploration activity.  Israel’s Exclusive Economic Zone (EEZ) in the Mediterranean Sea is divided into 69 exploration areas or blocks.  The Ministry plans to conduct successive rounds for new exploration areas in the EEZ.  In the first round, the Ministry will offer for competitive bidding 24 blocks that are located in the central part of the offshore area. The Ministry states that the 24 blocks were chosen based on seismic and geologic data indicating a high potential for promising geological structures; some of the blocks are adjacent to the substantial deep water gas discoveries in Israel’s EEZ, including the Tamar and Leviathan fields.  The Ministry’s website offers a map showing Israel’s offshore EEZ, including the blocks to be offered for bidding and blocks covered by existing leases and licenses.

The bid documents for the upcoming round contain all the required information for bidding, including a description of the offering, the required qualifications and assessment criteria, license model, instructions for submission and the relevant forms and tables for submitting an application.  Potential bidders can obtain the tender documents by contacting Dina Levant, Coordinator, Foreign Relations and Information, Natural Resources Administration, via email at dinal@energy.gov.il or phone (972-2-5316042).  Interested parties wishing to remain initially anonymous may also acquire the tender documents through legal counsel.   

The Ministry also published the following bid timeframe:

            Publication of tender documents        Nov. 15, 2016

            Roadshow event in Houston              November 2016 (date TBD)

            End of Q&A                                       Jan. 31, 2017

            Closing Date                                       March 28, 2017

The Ministry also states that it has prepared a data package for potential bidders containing comprehensive information on the Levant Basin’s geology including highlights of the Petroleum System and Basin Analysis study performed by Beicip FranLab in 2015.  Importantly, the Ministry states on its website that purchasing the tender documents, including the data package, is a pre-condition for participation in the bidding round.  Details on the cost of the package can be obtained from Dina Levant at the same contact information noted above.  The data package includes, among other things:  (1) information from 19 wells that were drilled offshore Israel between 1970 and 2013 (list of wells and location map); (2) 2D seismic data acquired between 1970 and 2013 covering the entire bid area (raw field tapes can be purchased for additional cost); and (3) bathymetric, gravity and magnetic data covering most of the bid area. 

Greenberg Traurig is the only major international law firm with a registered office in Israel.  Together with the firm’s Energy and Natural Resources practice group, we are positioned to support clients on a wide range of legal issues relevant to world energy markets, including the upcoming Israel offshore bidding process.  We will continue to provide updates on the latest developments in the offshore bidding process through our GT Israel Law Blog.

For additional information about the upcoming offshore bidding round, please contact Joey Shabot (Tel Aviv, Israel – shabotj@gtlaw.com), Ken Minesinger (Washington, DC – minesingerk@gtlaw.com), Allan Reiss (New York, NY – reissa@gtlaw.com) or Derek Anchondo (Houston, TX – anchondod@gtlaw.com).

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