GHG Regulation under the Existing CAA: Coming Soon to a [Large] Stationary Source Near You

Posted on October 7, 2009 by Seth Jaffe

On Thursday, EPA issued its long-awaited proposed rule describing how thresholds would be set for regulation of GHG sources under the existing Clean Air Act PSD authority. Having waded through the 416-page proposal, I’m torn between the appropriate Shakespeare quotes to describe it: “Much ado about nothing” or “Methinks thou dost protest too much.”

First, notwithstanding its length, the proposal is quite limited in scope. In essence, it has three parts:

Establishment of an applicability threshold for PSD and Title V purposes of 25,000 tons per year of CO2e.

Establishment of a PSD significance level of from 10,000 tpy CO2e and 25,000 CO2e.

Development over the next five years of means to streamline GHG regulation of sources greater than the current statutory levels of 100-250 tpy.

Basically, EPA’s position is that, once it begins to regulate GHGs as a pollutant by promulgating its mobile source rule – expected next spring – stationary source regulation under the PSD and Title V programs follow automatically. Thus, the issue for EPA at this point is not whether to regulate stationary sources, but how to do so without the entire program grinding to a halt.

Here’s where the protestation comes in. Most of the proposal is devoted to explaining EPA’s reliance of the doctrines of “absurd results” and “administrative necessity” to justify exclusion of sources that would seem to be categorically included by the explicit language of the statute. Members of the regulated community will understand the irony in EPA’s extensive discussion regarding how the purpose of the PSD program is to achieve environmental protection and economic development – and that this latter purpose would be jeopardized by regulation of sources at the 100/250 tpy threshold. I don’t think we will ever again see EPA devote this many pages to a description of its concern about economic growth.

I’m not going to predict here whether EPA will win any challenge to the higher thresholds. Certainly, the absurd results doctrine argument is the stronger of the two. It is noteworthy that the four leading environmental cases EPA cites in support of its administrative necessity argument, while acknowledging the existence of the doctrine, all went against EPA.

More relevant still is the question of who would in fact challenge this regulation and what would be the result even if the challenge succeeded. Following the debacle that resulted from vacation of the CAIR rule, what is the likelihood that a successful challenge would result in vacation of the rule in its entirety? Isn’t it more likely that the rule would stay in effect as to the large sources, with the remanding the case to EPA to promulgate rules governing smaller sources? In fact, that’s what EPA is already doing, which is probably EPA’s strongest practical argument in support of the rule.

Public comments will be due 60 days from Federal Register promulgation and there are some issues that the regulated community should consider. These include the significance threshold, and suggestions regarding how to streamline the program for smaller sources. EPA has proposed some interesting ideas, including presumptive BACT determinations and general permits. 

Bottom line? Large sources better get ready to comply. Smaller sources, take a deep breath and count your blessings – for now. 

GHG Regulation under the Existing CAA: Coming Soon to a [Large] Stationary Source Near You

Posted on October 7, 2009 by Seth Jaffe

On Thursday, EPA issued its long-awaited proposed rule describing how thresholds would be set for regulation of GHG sources under the existing Clean Air Act PSD authority. Having waded through the 416-page proposal, I’m torn between the appropriate Shakespeare quotes to describe it: “Much ado about nothing” or “Methinks thou dost protest too much.”

First, notwithstanding its length, the proposal is quite limited in scope. In essence, it has three parts:

Establishment of an applicability threshold for PSD and Title V purposes of 25,000 tons per year of CO2e.

Establishment of a PSD significance level of from 10,000 tpy CO2e and 25,000 CO2e.

Development over the next five years of means to streamline GHG regulation of sources greater than the current statutory levels of 100-250 tpy.

Basically, EPA’s position is that, once it begins to regulate GHGs as a pollutant by promulgating its mobile source rule – expected next spring – stationary source regulation under the PSD and Title V programs follow automatically. Thus, the issue for EPA at this point is not whether to regulate stationary sources, but how to do so without the entire program grinding to a halt.

Here’s where the protestation comes in. Most of the proposal is devoted to explaining EPA’s reliance of the doctrines of “absurd results” and “administrative necessity” to justify exclusion of sources that would seem to be categorically included by the explicit language of the statute. Members of the regulated community will understand the irony in EPA’s extensive discussion regarding how the purpose of the PSD program is to achieve environmental protection and economic development – and that this latter purpose would be jeopardized by regulation of sources at the 100/250 tpy threshold. I don’t think we will ever again see EPA devote this many pages to a description of its concern about economic growth.

I’m not going to predict here whether EPA will win any challenge to the higher thresholds. Certainly, the absurd results doctrine argument is the stronger of the two. It is noteworthy that the four leading environmental cases EPA cites in support of its administrative necessity argument, while acknowledging the existence of the doctrine, all went against EPA.

More relevant still is the question of who would in fact challenge this regulation and what would be the result even if the challenge succeeded. Following the debacle that resulted from vacation of the CAIR rule, what is the likelihood that a successful challenge would result in vacation of the rule in its entirety? Isn’t it more likely that the rule would stay in effect as to the large sources, with the remanding the case to EPA to promulgate rules governing smaller sources? In fact, that’s what EPA is already doing, which is probably EPA’s strongest practical argument in support of the rule.

Public comments will be due 60 days from Federal Register promulgation and there are some issues that the regulated community should consider. These include the significance threshold, and suggestions regarding how to streamline the program for smaller sources. EPA has proposed some interesting ideas, including presumptive BACT determinations and general permits. 

Bottom line? Large sources better get ready to comply. Smaller sources, take a deep breath and count your blessings – for now. 

Power Point Presentations from the 2009 Annual Meeting in Maine

Posted on October 6, 2009 by Rachael Bunday

Climate Change Update

Panelists: Michael Gerrard, Jeffrey Thaler, Linda Bullen, John Cruden

Moderator: Karen Crawford

 

Climate Change Legislation and Regulation

Panelists: Carol Dinkins, Bradley Marten, Stephen Ramsey

Moderator: David Farer

Power Point Presentations from the 2009 Annual Meeting in Maine

Posted on October 6, 2009 by Rachael Bunday

Climate Change Update

Panelists: Michael Gerrard, Jeffrey Thaler, Linda Bullen, John Cruden

Moderator: Karen Crawford

 

Climate Change Legislation and Regulation

Panelists: Carol Dinkins, Bradley Marten, Stephen Ramsey

Moderator: David Farer

It's Here: EPA's Final Mandatory GHG Reporting Rule

Posted on September 25, 2009 by Mary Ellen Ternes

On April 14, 2009, I alerted you to EPA’s proposed Mandatory GHG Reporting rule on April 10, 2009.  And while we are still waiting for EPA’s Endangerment Finding, and new energy legislation may not see the Senate floor in 2009, we do have a final GHG rule. On September 22, 2009, EPA Administrator Jackson signed the final Mandatory Greenhouse Gas Reporting Rule. This rule should be published in the Federal Register soon, so that it becomes effective before January 1, 2010. The rule imposes monitoring requirements beginning January 1, 2010, and reporting by impacted facilities and other entities by March 31, 2011.

 

With this rule, EPA is requiring reporting of Greenhouse Gas (“GHG”) emissions by specified GHG emission source categories that exceed 25,000 metric tons of carbon dioxide (“MTCO2”), or varying amounts of several other GHG representing equivalent amounts of emissions based upon their “global warming potential,” referred to as “CO2e.” The rule also requires emissions reporting from suppliers of fuels and industrial gases, as well as mobile source (vehicle) manufacturers. EPA finds its authority for this rule in the Clean Air Act, Sections 114 and 208. The GHGs tracked by the rule include carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6) and other fluorinated compounds. Those familiar with the annual Inventory of United States GHG Emissions and Sinks will recognize the sources and GHGs tracked by this rule.

 

Generally, the final rule is not significantly changed from the proposed rule. However, several source categories were reserved. Thus, this final rule does not currently require reporting of the following source categories: electronics manufacturing, ethanol production, fluorinated GHG production, food processing, industrial landfills, magnesium production, oil and natural gas systems, SF6 from electrical equipment, underground coal mines, wastewater treatment, suppliers of coal.

 

Additionally, there are several important revisions. In response to significant objections to the “once in, always in” approach for reporting requirements, EPA also included provisions allowing exit from the program upon reduction of GHG emissions below certain thresholds. Specifically, if a facility decreases its emissions below 25,000 metric tons of CO2e per year for five years in a row, or decreases its emissions below 15,000 metric tons of CO2e per year for three years in a row, the facility can apply to exit the program. Facilities can also cease reporting if they shut down GHG-emitting processes or operations.

 

In response to concern about lack of adequate preparation time, EPA added a provision allowing the use of best available monitoring methods for the initial quarter of 2010, rather than the required monitoring methods. Impacted facilities needing a longer period of time to install necessary monitoring equipment can request an extension beyond March 2010, but not beyond 2010. EPA has also modified monitoring options, changed monitoring locations and allowed use of calculations rather than monitoring to lessen the monitoring burden.

All environmental practitioners will need to become familiar with the requirements of this rule due to its broad applicability. EPA has committed to posting guidance for each subpart and conducting training. EPA has even posted an “applicability tool” computer software program to assist in applicability determinations. This guidance cannot be available soon enough. Clients need to determine applicability and prepare for implementation immediately.

Statute of Limitations: Don't Miss Your CERCLA Deadline

Posted on September 14, 2009 by Earl Phillips

Overview       

There are three avenues of recovery under CERCLA - a contribution action and two types of cost recovery actions. These cost recovery actions are based on either the plaintiff’s “removal” of the hazardous substances or “remediation” efforts at the site. Each of these avenues has an independent statute of limitations provision.  Thus, whether the statute of limitations period has been triggered will depend on how an action is characterized, i.e. whether the action constitutes a contribution action, a cost recovery removal action, or a cost recovery remedial action. While there are various state-specific causes of action related to environmental contamination in Connecticut, this article is confined to the statute of limitations for CERCLA cost recovery and contribution claims. 

 

Analysis         

            Contribution Claim

           

            The statute of limitations analysis related to contribution claims is thankfully quite straight forward. Under CERCLA Section 113, these claims must be brought within three years of a civil action under Section 106 or 107, a CERCLA administrative order, or a judicially approved settlement with respect to costs or damages.  42 U.S.C. § 9613(g)(3). While questions may arise as to what may constitute a CERCLA “administrative order” or whether a “judicially approved settlement” must reference Section 106 or 107, we leave those discussions for another article.

 

            Cost Recovery Claim

 

 

            The analysis of what constitutes a viable cost recovery claim, whether it is removal or remedial, and when the statute of limitations is first triggered is more intricate. First, it is important to note that certain actions performed on a site may not trigger the statute of limitations period.   “[T]here are some cases in which work on a site is neither a remedial nor a removal action, but rather constitutes ‘preliminary’ or ‘interim’ measures that do not trigger the statute of limitations . . ..” Yankee Gas Servs. Co. v. UGI Utils., Inc., 2009 U.S. Dist. LEXIS 44282, *117 (D. Conn. May 22, 2009). While caselaw on what constitutes a preliminary remedy, as opposed to a permanent remedy, is limited, at least one court has determined that “evaluation, sampling, surveying and measuring” do not constitute the initiation of physical on-site construction because “these activities [do] not constitute ‘construction.’” Schaefer v. Town of Victor, 457 F.3d 188, 204 (2d Cir. 2006)(quoting United States v. Findett Corp., 220 F.3d 842, 848 (8th Cir. 2000)).

 

            Beyond this, the characterization of a cost recovery action as either removal or remedial is crucial to determining whether an action to recover response costs is time-barred because there are different statute of limitations periods for a removal action and a remedial action. The statute of limitations for recovery of costs related to removal actions is three years after the completion of the removal action, whereas the limitations period for recovery of costs related to remedial actions is six years after the initiation of physical on-site construction of the remediationAlthough there is a lack of clarity as to what constitutes a removal verses a remedial action, removal actions have generally been construed as “time-sensitive responses to public health threats . . ..”[1] Remedial actions, in contrast, are often described as “permanent remedies to threats for which an urgent response is not warranted.”[2]

 

             Assuming for this discussion that the efforts undertaken at a site are beyond preliminary, there is inconsistency as to whether the statute of limitations for remedial actions would only run after a final Remedial Action Plan (RAP) has been approved for the site. One court in the Ninth Circuit, for example, concluded that initiation of physical on-site construction of the remedial action “can only occur after the final remedial action plan is adopted, and that . . . the statute of limitations, therefore, could not have begun to run until the final remedial action was approved . . ..” Cal. v. Neville Chem. Co., 358 F.3d 661, 671 (9th Cir. 2004).  The Second Circuit, however, has rejected such a bright line rule and determined that the statute of limitations can be triggered without a final RAP, if the action is “consistent with a permanent remedy.” Schaefer v. Town of Victor, 457 F.3d 188, 205 (2d Cir. 2006). 

 

            Compounding the important distinction between removal and remedial actions is variability within the courts in determining the initial trigger for the statute of limitations period. Some courts apply a statute of limitations to an entire site after remediation commences on one portion of the site, while others look to multiple statute of limitations at a single property. See Colorado v. Sunoco, 337 F.3d 1233 (10th Cir. 2003) contra U.S. v. Manzo, 2006 U.S. Dist. LEXIS 70860 (D.N.J. Sept. 29, 2006). While the Second Circuit has not spoken on this issue, a recent District of Connecticut case has adopted the opinion that “there can be only one removal and one remedial action per facility, regardless of the number of phases in which the clean-up occurs.” Yankee Gas Servs. Co. v. UGI Utils., Inc., 2009 U.S. Dist. LEXIS 44282 (D. Conn. May 22, 2009)(emphasis added).  Should a court adopt a one site, one action approach, the statute of limitations would be triggered by the first removal or remedial action at the site.  Id.; see also Colorado v. Sunoco   Thus, it is important to evaluate what actions have occurred at your facility and whether those actions would be considered “removal” or “remedial” to ensure the statute of limitations for a cost recovery action does not run., 337 F.3d 1233 (10th Cir. 2003).

 

At Robinson & Cole, we have environmental attorneys who have broad experience representing clients in CERCLA actions and the prosecution or defense of other environmental claims. We stand ready to apply this experience and insight to your specific needs. If you would like to discuss statute of limitations concerns, or broader environmental issues, please contact any of the attorneys in our Environmental and Utilities Practice Group. 

 

Earl Phillips                                           W. Richard Smith                                 Lauren Vinokur

(860) 275-8220                                   (860) 275- 8218                                  (860) 275-8341

ephillips@rc.com                                  wrsmith@rc.com                                  lvinokur@rc.com



[1] United States v. W.R. Grace & Co., 429 F.3d 1224, 1228 (9th Cir. 2005); see also OBG Tech. Servs. v. Northrop Grumman Space & Mission Sys. Corp., 503 F. Supp. 2d 490, 524 (D. Conn. 2007)(“[w]hether . . .actions are properly characterized as remedial or removal actions is a question of law for the Court to decide”); Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917, 926 (5th Cir. 2000)(“the CERCLA definitions [of removal and remedial action] are expansive enough that certain activities may well be covered by both…[and] the cases on this issue tend to be highly fact-specific . . ..”)

[2] United States v. W.R. Grace & Co., 429 F.3d 1224, 1228 (9th Cir. 2005); see also W.R. Grace & Co. v. Zotos Int'l, Inc., 559 F.3d 85, 92 (2d Cir. 2009). Under 42 U.S.C. § 9601(24) a remedial action “includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.”

Obama Administration Environmental Initiatives & Priorities

Posted on September 14, 2009 by Rachael Bunday

Audio Now Available:

 A Special ACOEL Event

Obama Administration Environmental Initiatives and Policies

 

DAVID J. HAYES

Deputy Secretary, U.S. Department of the Interior

 

Interviewed by David B. Farer, Farer Fersko

 

Audio of Mr. Farer's interview of Mr. Hayes at the Department of Interior on July 14, 2009, with discussion topics focusing on Interior's priorities concerning climate change, renewable energy and water.

 

Running time:  Approx. 45 min.

More than Indemnity?

Posted on September 8, 2009 by Brian Rosenthal

Is an indemnity for a third party’s liabilities just an indemnity and not a right of direct action? Yes, says the District Court for the Eastern District of Pennsylvania because the indemnitor avoided words like “assume,” “become liable for,” or “assume all of the liabilities and obligations.” 

 

Here, the United States argued the indemnitor had crossed the line of indemnity into the land of assumption. The federal government pointed to a settlement agreement where the indemnitor agreed to provide remediation required by “law, regulation, order, judgment, or settlement agreement.” Finding the question one of contractual intent, the court found the language to defend and hold harmless does not sound in assumption and is only triggered when an indemnitee suffers a claim or pays damages on a claim. Finding the agreement lacking in the standard words of assumption, the indemnitor prevailed by summary judgment. United States v. Sunoco, Inc. No. 05-633 (E.D. Pa. 2009).

NATIVE AMERICAN WATER RIGHTS IN OKLAHOMA - CHAPTER 2

Posted on September 3, 2009 by Linda C. Martin

On March 9, 2009, we posted an article regarding issues raised in the United States District Court for the Northern District of Oklahoma, State of Oklahoma v. Tyson Foods, Inc., et al., Case No. 05-CV-329-GFK regarding the Cherokee Nation ownership interests in the Illinois River and its watershed. In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in eastern Oklahoma as the result of the disposal of poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA, trespass and nuisance, among other things. The State of Oklahoma sought money damages and injunctive relief against the poultry companies.

The Poultry Defendants filed a Motion to Dismiss for Failure to Join the Cherokee Nation as a Required Party under Rule 19, or in the Alternative, Motion for Judgment on the Pleadings alleging the State lacks standing to prosecute the case. The Poultry Defendants alleged the Cherokee Nation possessed significant, legally protected interests in the Illinois River and it’s Watershed that would be impaired or impeded by its absence from the litigation, and further that the Court should grant judgment as a matter of law to the defendants because the State did not have standing to bring the suit.

 

In an apparent response to the Motion, the State of Oklahoma filed a “Notice of Filing of Document” to which was attached an agreement between the Cherokee Nation and the State of Oklahoma (Agreement). The Agreement, dated May 19, 2009, acknowledged, among other things, that the Cherokee Nation “has substantial interests in . . . water and other natural resources located within the Illinois River Watershed though the extent of those interests has not been fully adjudicated.”

The Agreement stated that the Cherokee Nation “to the extent of its interests in lands, water and other natural resources in the Illinois River . . . delegates and assigns to the State of Oklahoma any and all claims it has or may have against Defendants named in the [Tyson litigation] for their alleged pollution of the lands, water and other natural resources of the Illinois River Watershed resulting from poultry waste.” The Agreement purported to have a retroactive effective date of June 13, 2005, and was signed by the Attorneys General of the Cherokee Nation and the State of Oklahoma. 

The Poultry Defendants immediately challenged the Agreement by filing a “Counter-Notice” the following day, raising several issues as to the procedural and substantive validity of the Notice and Agreement under Oklahoma Law. The Court did not allow further briefing on the issues. 

Instead, the Court ruled on the Defendants’ Motions in a recent Opinion and Order. ___F.R.D.___ 2009 WL 2176337 (N.D. Okla. July 22, 2009)  The Court held that Oklahoma law explicitly sets forth the requirements the State must follow when entering into agreements such as the purported Agreement with the Cherokee Nation, which procedures were not followed in this instance. After examining other issues negating the validity of the Agreement, the Court concluded that that the Agreement was invalid and does not resolve or moot the Rule 19 Motion to Dismiss raised by the Poultry Defendants.  Id. at **3-4.

The Court undertook a Rule 19 analysis to determine if the Cherokee Nation is a required party to the action. Under Rule 19(a)(1), the Court analyzed (1) whether the Cherokee Nation claims an interest relating to the subject of the action, and (2) is so situated that disposing of the action in the Cherokee Nation’s absence may impair or impede its ability to protect the interest or leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. 

The Court stated that Rule 19 does not require an absent party to possess an interest; it only requires that it claim an interest in the subject matter of the action. Id. at *4. Thus, the Court did not actually rule on the Cherokee Nation’s rights in the Illinois River watershed. It did, however, determine that the Cherokee Nation claims rights to the Illinois River and its watershed. The Court also noted that the Agreement operates as an admission by Oklahoma of the Cherokee Nation’s interest in the action. Id. at *5.

In addition, the Court examined portions of the Cherokee Nation Code, and noted that it evidences the Cherokee Nation’s interest in protecting the Illinois River and in vindicating its rights for pollution of the Illinois River watershed. It further claims an interest in recovering for itself civil remedies, including damages, for the same injuries to the watershed which are claimed in this action. The Court noted other provisions of the Cherokee Nation Code which evidence the Cherokee Nation’s substantial interest in the subject matter of the instant action. 

The Court noted: “The claimed interests of the Cherokee Nation in the water rights portion of the subject matter of this action are substantial and are neither fabricated nor frivolous.” (citation omitted) Id. at *6. Thus, the Court concluded that the Cherokee Nation claims an interest relating to the subject matter of the instant case for Rule 19 purposes. Id. at *7.

Under the second prong of Rule 19 analysis, the Court reviewed, among other things, whether the Cherokee Nation was so situated that disposing of the action in the Cherokee Nation’s absence might impair or impede its ability to protect its interest or leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. After conducting its analysis of the foregoing factors, the Court concluded that proceeding with the case in the absence of the Cherokee Nation would subject the defendants to a substantial risk of incurring double, multiple or otherwise inconsistent obligations with respect to the claims for monetary damages, and would potentially cause prejudice to the Cherokee Nation’s sovereign interests, among other things. Id. at *9 (The parties had agreed that the joinder of the Cherokee Nation in the case was not feasible because of sovereign immunity. Id. at *9.

The Court also noted that the State had an adequate remedy if the damage claims were dismissed in that it could dismiss and refile the action after the State and the Cherokee Nation entered into a legally binding agreement under Oklahoma law authorizing the State to assert the Cherokee Nation’s CERCLA and other damage claims. Id. at *11.

The Court concluded that the State lacked standing to assert the claims of the Cherokee Nation, Id. at *12, and that the Cherokee Nation is a necessary party under Rule 19 with respect to the State’s claims for damages. Id. at *13. (The Poultry Defendants did not seek dismissal of the claims for injunctive relief.) The Court held that the Cherokee Nation is not a required party to the claims for violation of state environmental and agricultural regulations. Id.

On September 2, 2009, the Cherokee Nation filed its Motion to Intervene in the case, only two weeks prior to trial, and one day prior to the Pretrial Conference. 

Stay tuned, we’ll keep you updated.

2009 AMERICAN COLLEGE OF ENVIRONMENTAL LAWYERS ANNUAL MEETING

Posted on August 11, 2009 by Rachael Bunday

Portland, Maine - October 1-3, 2009

****THIS MEETING OPEN TO MEMBERS ONLY****

It's finally that time of year! The American College of Environmental Lawyers is having its Annual Meeting in Portland, Maine, October 1-3, 2009 at The Portland Regency http://www.theregency.com. Conference fees may be paid online below.  Please note that dress attire is business casual. The agenda is as follows:

THURSDAY

6 PM: Welcome Reception hosted by Bernstein Shur at the Portland Museum of
Art. Open to College members and their spouses/significant others.

 
FRIDAY

7:30-9:00 AM: Breakfast at the hotel (For members and spouses/significant others, in a large room)

9:00 - 9:15: Presidential Welcome and other announcements

9:15 - 10:30: Round the room member introductions: a quick 20 seconds of  info and humor to introduce yourself and describe what you do in the area of environmental law.
 
10:30 - 10:45: Break

10:45 - 11:50: Business Meeting: 1) Election and Induction of New Fellows (5 minutes); 2) Discussion and Vote on by-law changes (5-10 minutes); 3) Election of Officers and Board of Regents (5 minutes); 4) Plans for 2009-10 from incoming President (15 minutes); 5) Announcement of Committee Chairs and Duties of Committees—Nominating and Membership, Program and Education, Website, and Policy Committees; (5 minutes); 4) Committees each break into separate rooms have a preliminary meeting; those who have not previously selected a Committee can sit in on any meeting (45-50 minutes)

12:00 PM: College lunch at the hotel, guest speaker former Maine Governor Angus King

1:30-4:30: College member presentations/program

 

Session 1:

Climate Change Legislation and Regulation

Panelists:

Carol Dinkins – Vinson & Elkins, LLP

Bradley Marten – Marten Law Group PLLC

Stephen Ramsey – Yale Law School and Yale School of Forestry & Environmental Studies

Moderator:

David Farer – Farer Fersko

Session 2:

Climate Change Litigation

Panelists:

Linda Bullen – Lionel Sawyer & Collins

John Cruden – U.S. Department of Justice

Michael Gerrard – Columbia University Center for Climate Change Law

Jeffrey Thaler – Bernstein Shur

Moderator:

Karen Crawford –Nelson Mullins Riley & Scarborough LLP

 

Friday Excursion to Freeport

For those not attending the conference, enjoy a half-day trip to Freeport, Maine. Freeport is home to L.L. Bean’s famous flagship store, several dozen designer factory stores (Burberry, Coach, and Cole Haan to name a few), cafes, and a quaint historic district. Also nearby is Wolfe’s Neck State Park for anyone wanting to hike mild trails and enjoy the foliage, or possibly a stop in at the Delorme Map Store and visit “Eartha” the world’s largest to-scale and revolving globe

Cost $40 per person, minimum of 8 people needed

http://www.freeportusa.com/index.html

Saturday Lobster Bake

Take a short scenic ferry trip across Casco Bay to Peak’s Island. Once there, you will take a short walk to the historic Fifth Maine Regiment for a classic New England Lobster Bake, including fresh Maine lobsters, steamers, corn on the cob, blueberry cake, and more. The Fifth Maine Regiment sits atop Peak’s rocky coast, overlooking Cushing Island,  with quaint garden featuring breathtaking views, and  a wraparound porch (weather permitting) or dining hall. After the lobster bake, you can explore the island and return to Portland at your convenience (or come early and explore!); ferries run hourly through the evening. The bake will start at 12:30, so you’ll want to make the 11:15 (or earlier) ferry from the Casco Bay Ferry Terminal.

Cost $75 per person, minimum of 25 people needed

 
HOTEL

We have reserved a block of rooms at The Portland Regency, http://www.theregency.com, (207) 774-4200. There are a limited number of rooms still available. Please make sure to mention you are with the American College of Environmental Lawyers to get our discounted rate.

 

REGISTER HERE - http://acoel.eroievent.com/

 

PAY HERE - 
To add multiple items you will need to select one item at a time, add to your cart, then select "Continue Shopping".

 

ACOEL Meeting Fee and Optional Additions

 Friday and Saturday Night Dinner Options

Portland is Bon Appetit’s  2010 Foodiest Small Town (article here), and Food & Wine’s Kate Krader has written that Portland’s culinary scene is “all-around terrific.” While there is no shortage of great restaurants in Portland, most of the dining venues are small and intimate. For Friday night's No Host Dinner, we have secured reservations at the most talked (and written) about restaurants in Portland that are within walking distance of The Portland Regency (the conference hotel). Please e-mail acoel@bernsteinshur.com with your first and second choices for Friday (and Saturday, if applicable) night’s dinner. Please have your selection in no later than September 23.

 

555

Five Fifty-Five classifies its cuisine as modern American and New England fare. Chef Steve Corry changes the menu frequently, but keeps some signature dishes on the menu year-round, such as truffled lobster mac n’ cheese, pepper crusted diver scallops with butter and vanilla emulsion, and Bangs Island mussels.

http://fivefifty-five.com/

Reservations: Availability for 30 at 8:00

 

Hugos

Hugo’s chef/owner Rob Evans is this year’s recipient of the prestigious James Beard Foundation’s Best Chef Northeast. Hugo’s passion lies in its love for creative food, good wine and wholesome Maine ingredients. The culinary team at Hugo’s, under Rob’s direction, delivers regional cuisine that is both unexpected yet ultimately familiar. The menu will be a blind tasting menu (prix fixe, $85 per person).

http://hugos.net/

Reservations: 2 tables of 4 at 6:15

1 table of 4, 1 table of 6 at 6:30

 

Fore Street Grill

Fore Street’s menu changes daily is founded upon the very best raw materials from a community of Maine farmers, fishermen, foragers, and cheesemakers, who are also our friends and neighbors. Most of these Maine foods are organically grown or harvested wild, each brought to us at the peak of its season. Fore Street was one of five national finalists for the James Beard Outstanding Restaurant category.

http://www.forestreet.biz/en/Home

Reservations: 2 tables of 10 at 6:00; 1 table of 10 at 9:00

 

Street & Company

Street & Company specializes in fresh, local seafood dishes and is considered by many to be Portland’s best seafood restaurant. In fact, they serve only seafood based dishes. It is a local’s favorite that is in its 20th year of operation. Like most of the menus on this list, it changes daily, but there are a few specialty items that are always available.

http://www.streetandcompany.net/home

Reservations: 2 tables of 6 at 8:00

 

Cinque Terre

Cinque Terre serves “old school” Northern Italian cuisine, using produce grown on its owners’ farm. They were named in the “Top Ten Farm-to-Table Restaurants in the U.S.” by epicurious.com.

http://www.cinqueterremaine.com/main.html

Reservations: 2 tables of 10 at 6:30

 

Vignola

Vignola is the sister restaurant to Cinque Terre, and also serves Italian cuisine, in a more relaxed and casual atmosphere. It has an extensive beer and wine menu. Like Cinque Terre, the produce is grown by the owners for farm-to-table freshness.

http://www.vignolamaine.com/

Reservations: 2 tables of 10 at 6:30

 

Emilitsa

Emilitsa boasts a contemporary and casual atmosphere and brings a wide array of Mezethes (small plates), Megala Piata (large plates), and pristinely fresh seafood to the seacoast area. They take pride in honoring the breadth of traditional cuisine from all regions of Greece and prepare their dishes with as many local, fresh, organic, and natural ingredients as are available.

http://www.emilitsa.com/index.htm

Reservations: 16 seats at 7:00

 

Grace

Portland’s newest fine dining establishment is housed in a breathtaking restored church. The eclectic menu draws inspiration from all parts of the globe, using seasonal local ingredients.

http://www.restaurantgrace.com/

Reservations: 1 table for 10 at 7:00

 

For those of you staying for the weekend, also have the following reservations for Saturday night. Please note Saturday and your first and second choices in your response.

 

Fore Street Table for 10 at 6:00

Hugo’s Table for 6 at 8:30

Grace Table for 10 at 6:30

555 Table for 10 at 6:00

Stormwater Discharges From Construction Activity: What Next From EPA?

Posted on August 10, 2009 by Seth Jaffe

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically, 13 nephelometric turbidity units (NTUs), which I had to include in this post just because it sounds so cool). Developers have opposed the numeric limits; the National Association of Home Builders estimates that the cost to comply would be $15,000 to $45,000 per acre.

On the other hand, the NRDC and Waterkeeper Alliance have threatened to sue EPA if EPA does not revise the propose rule to include post-construction controls as part of the rule. EPA has stated that it is not planning to do so. It’s not obvious that NRDC and Waterkeeper Alliance have the better of this specific debate, but the argument regarding post-construction controls is similar to the ongoing discussion in Massachusetts and elsewhere regarding the need for ongoing stormwater controls at properties other than industrial facilities that are already regulated.

The issue is not going to go away.  EPA is under a deadline to issue the rule by December 1, 2009.

MIXED RESULTS FOR OREGON CLIMATE CHANGE LEGISLATION

Posted on August 3, 2009 by Rick Glick

In my February 23, 2009 posting, I described Oregon Governor Ted Kulongoski’s ambitious agenda for state action to reduce green house gases (GHG). But then the tumbling economy got in the way and GHG lost its position at center stage. Still, some things did get done in the session that ended last month.

 

Oregon had already adopted renewable energy portfolio standards (RPS) for its electric utilities, adopted California automotive emissions standards and had the nation’s most generous business energy tax credit (BETC). This year the plan was to add a GHG cap and trade program and establish fuel standards, among other things.   Some of it passed, some didn’t, and the Governor has said little as to which he will sign into law.

 

SB 80 would have established the cap and trade program, in line with the Western Climate Initiative, but failed. The principle reason seems to be that a federal bill may be imminent. That legislation, the Waxman-Markey bill (HR 2454) passed the House on June 26 by a razor thin vote along party lines (219-212). The bill includes a provision pre-empting state legislation. Its fate is in the Senate, where it will need at least 60 votes to survive a filibuster, and the final shape of the bill is anyone’s guess. If it appears a federal cap and trade bill is not achievable or indefinitely delayed, SB 80 is likely to be reintroduced in Oregon in some form.

Other climate bills did pass. 

 

  • SB 38 authorizes a rulemaking to require registration and reporting for import to the state of electricity or fossil fuels. 
  • SB 101 establishes a GHG standard for electricity generation and prohibits utilities from long-term financial commitments for resources that do not meet the standard, effectively banning import of coal fired plant output. 
  • HB 2186 calls for development of a standard to reduce GHG emissions from transportation fuel 10% by 2020 and to conduct a study on retrofitting of trucks to make them more efficient; this element was proposed as mandatory, but a compromise calling for the study was adopted. This provision is intended to piggy-back on a California study of improving existing truck efficiency. HB 2186 also established a task force to look at reducing GHG emissions through integrated land use and transportation planning. 
  • HB 3039 promotes solar energy and provides a 2:1 RPS credit for each kWh produced from a qualifying facility operational before January 1, 2016 and that generates at least 500 kW. The bill sets a limit of 20 MW of capacity for the RPS credit. 

 

  • HB 2940 allows RPS credits for biomass facilities in place before 1995, capped at 100 MW. There are 8 biomass plants and one garbage burner in the state. This controversial bill was not proposed by the utilities, rather it was driven by the Oregon forest products industry in the interest of maintaining jobs and to provide a source of income for declining mills. Thought the bill had broad bi-partisan support among legislators, many observers see it as inappropriate to give RPS credits to old generating plants, predicting that existing hydropower will be right behind. The concept behind RPS for many is to offer an incentive for new development of renewable resources, not to reward existing ones. As of this writing the Governor has not acted on the bill but is known to be considering a veto.

 

  • HB 2472 modifies the BETC to include manufacture of electric vehicles among the industries eligible for the credit, along with renewable energy facilities and manufacturers of equipment for renewable energy production. The BETC was reduced to match budget concerns, and the Governor is also considering a veto of this bill in the interest of keeping Oregon competitive to attract clean tech business.

All eyes now shift to the U. S. Senate to see if there will be federal GHG controls enacted. It may take a while, these things take time.

MIXED RESULTS FOR OREGON CLIMATE CHANGE LEGISLATION

Posted on August 3, 2009 by Rick Glick

In my February 23, 2009 posting, I described Oregon Governor Ted Kulongoski’s ambitious agenda for state action to reduce green house gases (GHG). But then the tumbling economy got in the way and GHG lost its position at center stage. Still, some things did get done in the session that ended last month.

 

Oregon had already adopted renewable energy portfolio standards (RPS) for its electric utilities, adopted California automotive emissions standards and had the nation’s most generous business energy tax credit (BETC). This year the plan was to add a GHG cap and trade program and establish fuel standards, among other things.   Some of it passed, some didn’t, and the Governor has said little as to which he will sign into law.

 

SB 80 would have established the cap and trade program, in line with the Western Climate Initiative, but failed. The principle reason seems to be that a federal bill may be imminent. That legislation, the Waxman-Markey bill (HR 2454) passed the House on June 26 by a razor thin vote along party lines (219-212). The bill includes a provision pre-empting state legislation. Its fate is in the Senate, where it will need at least 60 votes to survive a filibuster, and the final shape of the bill is anyone’s guess. If it appears a federal cap and trade bill is not achievable or indefinitely delayed, SB 80 is likely to be reintroduced in Oregon in some form.

Other climate bills did pass. 

 

  • SB 38 authorizes a rulemaking to require registration and reporting for import to the state of electricity or fossil fuels. 
  • SB 101 establishes a GHG standard for electricity generation and prohibits utilities from long-term financial commitments for resources that do not meet the standard, effectively banning import of coal fired plant output. 
  • HB 2186 calls for development of a standard to reduce GHG emissions from transportation fuel 10% by 2020 and to conduct a study on retrofitting of trucks to make them more efficient; this element was proposed as mandatory, but a compromise calling for the study was adopted. This provision is intended to piggy-back on a California study of improving existing truck efficiency. HB 2186 also established a task force to look at reducing GHG emissions through integrated land use and transportation planning. 
  • HB 3039 promotes solar energy and provides a 2:1 RPS credit for each kWh produced from a qualifying facility operational before January 1, 2016 and that generates at least 500 kW. The bill sets a limit of 20 MW of capacity for the RPS credit. 

 

  • HB 2940 allows RPS credits for biomass facilities in place before 1995, capped at 100 MW. There are 8 biomass plants and one garbage burner in the state. This controversial bill was not proposed by the utilities, rather it was driven by the Oregon forest products industry in the interest of maintaining jobs and to provide a source of income for declining mills. Thought the bill had broad bi-partisan support among legislators, many observers see it as inappropriate to give RPS credits to old generating plants, predicting that existing hydropower will be right behind. The concept behind RPS for many is to offer an incentive for new development of renewable resources, not to reward existing ones. As of this writing the Governor has not acted on the bill but is known to be considering a veto.

 

  • HB 2472 modifies the BETC to include manufacture of electric vehicles among the industries eligible for the credit, along with renewable energy facilities and manufacturers of equipment for renewable energy production. The BETC was reduced to match budget concerns, and the Governor is also considering a veto of this bill in the interest of keeping Oregon competitive to attract clean tech business.

All eyes now shift to the U. S. Senate to see if there will be federal GHG controls enacted. It may take a while, these things take time.

GLOBAL WARMING: PROBABLY AN INCREMENTAL SUCCESS STORY

Posted on July 31, 2009 by Stephen E. Herrmann

On July 8, 2009, at the meeting of G8 world leaders, the United States agreed to a benchmark to limit climate change. It joined some other industrialized countries by agreeing that the globe should not warm up more than 2º Celsius (that is 3.6º Fahrenheit). A limit of 2º Celsius arose out of a scientific consensus. Scientists assembled by the United Nations in 2007 said that the world could face significant dangers if we warmed it up more than 2º Celsius. But David Archer at the University of Chicago said that it’s not a hard and fast danger point, more of a judgment call.

 

The results left some Western leaders cheering. British Prime Minister Gordon Brown called the group’s statement a “historic agreement.” Germany Chancellor Angela Merkel said it was “a clear step forward.” However, White House Press Secretary Robert Gibbs was a little less definite, saying: “I think in many ways success for us is going to be getting something through Congress and to [the President’s] desk. It puts in place a system, a market-base system, that lessens the amount of greenhouse gases in the air. Look, that’s going to be the true measure of things.” 

So what was agreed to on July 8? Michael Forman, Obama’s chief negotiator at the Summit said: [The G8 countries] pledged to confront the challenges of climate change and committed to seek an ambitious global agreement. They agreed to join with other countries to achieve a 50% reduction in global emission by 2050 and a goal of 80% reduction by developed countries by 2050.” 

 

But, we should realize that there is a hitch. The 50%and 80% reductions do not refer to the same starting number. The language in the G8 declaration is that there will be an 80% reduction from 1990 or later years. In other words, nations could pick their own starting point. In the United States, emissions have increased nearly 16% since 1990 so there is quite a bite of room in deciding where to start. Also, much of the world’s population is in non-G8 countries. China, India, Mexico and Brazil feel the better-established nations are not doing enough in the short term. They also worry that major reduction commitments on their parts, even if below the 80% target of rich nations, would hamper their economic growth.

 

But, it would certainly appear that the G8 accord is probably an incremental success. Until now, the United States has resisted embracing a target because it implied a commitment to dramatically change the way the world generates electricity, fuels its cars and builds its houses. The long range goals over the coming decades may be easier to agree upon when what the short-term action should be to start moving in the right direction. We all need to hope for the best.

 

DC CIRCUIT UPHOLDS US EPA'S PM 2.5 NON-ATTAINMENT DESIGNATIONS

Posted on July 17, 2009 by David Flannery

On July 7, 2009, the United States Court of Appeals for the D.C. Circuit rendered its decisions in the PM2.5 Designations Litigation, Catawba County, NC v. EPA, No. 05-1064 and consolidated cases (D.C. Cir. July 7, 2009). Applying the standard of review set forth in Section 307(d)(9) of the Clean Air Act, which “requires the Court to set aside EPA’s final actions when they are excess of the agency’s statutory authority or otherwise arbitrary and capricious,” the Court denied all of the petitions for review except Rockland County, New York and remanded the designation of Rockland County to EPA for a “coherent explanation of its designation”. Slip op. at 3, 9, 53-56. 

 

Overall, the Court complimented EPA on its handling of “the complex task of identifying those geographic areas that contribute to fine particulate matter pollution”. Id. The Court concluded “EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied – indeed, quite often surpassed – its basic obligation of reasoned decisionmaking.” Id. (emphasis added).

 

The Court rendered two decisions: a published per curiam opinion and an unpublished memorandum attached to the judgment. In the per curiam opinion, the Court explains its holdings rejecting the following general challenges to the designations: (1) EPA violated the Administrative Procedure Act (APA) by failing to publish both the Designations Rule and the Holmstead Memo for notice and comment; (2) EPA violated the section of the Clean Air Act governing designations, § 107(d), by applying the C/MSA presumption and nine-factor test to identify areas that contribute to nearby PM2.5 violations; (3) EPA’s analysis contained such serious “methodological deficiencies and inconsistencies,” including the carbon error, as to render the entire Designations Rule arbitrary and capricious; and (4) EPA acted arbitrarily and capriciously in making particular designations.  Id. at 10. The court in its opinion discusses in detail the New York county designations, rejects the petition as to all of the New York counties except Rockland County, and dismisses all of the other county-specific challenges in one paragraph concluding that “none of them has merit” Id. at 55. The memorandum, which will not be published pursuant to D.C. Circuit Rule 36, sets forth the Court’s rationale for rejecting the other county-specific challenges: Oakland County, Michigan; Anderson, Greenville, and Spartanburg Counties, South Carolina; Catawba County, North Carolina; Guilford County, North Carolina; Catoosa County, Georgia; Porter County, Indiana; Randolph County, Illinois; and the Ohio Townships.

 

On its own motion, the Court ordered the Clerk to withhold issuance of the mandate until after issuance of any timely petition for rehearing or petition for rehearing en banc. However, “any party may move for expedited issuance of the mandate for good cause shown.” Under Rule 40 of the Federal Rules of Civil Procedure, any petition for panel rehearing is due within 14 days after entry of judgment. The judgment was filed July 7, 2009. 

 

Among the highlights of the decision are the following:

 

  1. Speciation data is useful for the area designation process. It reveals the kinds of particles (carbon, sulfate, nitrate, crustal particles, etc.) that account for an area’s PM2.5 problem and suggests, by extrapolation, the kinds of sources most responsible for the problem. Id. at 11. 
  1. No petitioner challenged EPA’s decision that a county boundary would determine the extent of an area reflected by a violating PM2.5 monitor. Id. at 13. 
  1. The Court upheld the C/MSA presumption to identify those areas that, although deemed to be meeting the standard themselves, are contributing to nearby violations.
  1. Weighted emissions scores (WESs) only provide a measure for comparing counties within the same C/MSA. “Importantly, because these scores scale a county’s raw emissions based on attributes specific to individual C/MSA – i.e., the urban excess number and total level of metropolitan emissions – [WESs] only provide a measure for comparing counties within the same C/MSA.”   Id. at 15.
  1. PM2.5 designations are exempt from notice-and-comment rulemaking. Id. at 15-18.
  1. The mandate in § 107(d)(4) that EPA apply the C/MSA presumption in ozone and carbon monoxide designations, while the section pertaining to PM2.5 designations says nothing about the C/MSA presumption and instead provides that PM2.5 designations must be “based on air quality monitoring data,” does not prove that Congress intended to preclude EPA from using the C/MSA presumption in PM2.5 designations. Id. at 22-24.
  1. The word “contribute” in § 107(d)(1)(A)(i) is ambiguous. “Contribute” does not necessarily connote a significant causal relationship. EPA may not designate a county as contributing to nonattainment even if “corrective measures in [the county] will do nothing to address the problem or help achieve compliance in the nonattainment area.” Id. at 29. A contribution may simply exacerbate a problem rather than cause it. Id. 
  1. EPA “is free to adopt a totality-of-the-circumstances test to implement a statute that confers broad discretionary authority, even if that test lacks a definite ‘threshold’ or ‘clear line of demarcation to define an open-ended term’.” Id. (citations omitted). To be reasonable such an “all-things-considered standard” must simply define and explain the criteria the agency is applying. The Holmstead Memo and the Technical Support Document satisfied this test “in spades”.  Id. at 30-31.
  1. EPA does not owe to the states “substantive deference”. EPA has “no obligation to give any quantum of deference to a designation that ‘it deems necessary’ to change.” Id. at 32. 
  1. EPA did not err in refusing to consider emissions reductions from CAIR and the NOx SIP Call. With respect to CAIR, there was no “assurance” when EPA promulgated its PM2.5 designations in December 2004 as to “which power plants would reduce SO2 and NOx emissions and how they would do so,” i.e., installation of controls or trading, “near term,” and the NOx SIP Call “has nothing to do with reducing SO2”. Id. at 37-39. EPA may account for future emissions reductions in contribution designations only when “it is evident that federally enforceable pollution controls will yield significant near-term reductions in emissions.”  Id. at 37.
  1. The carbon error did not render the designations arbitrary and capricious because EPA “used the best available information”. Id. at 39. “EPA was not obligated to upend the designation process when it discovered a mistake in its speciation profile for certain power plants. EPA used the best information available in making its designations, and that is all our precedent requires.” Id. at 41.

MORE CLEAN WATER ACT SUITS ON THE WAY?

Posted on July 14, 2009 by Fournier J. Gale, III

Part II

And now for the rest of the story…

As reported in this blog in January, the Eleventh Circuit’s recent decision in Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986 (11th Cir. 2008), left an opening for Clean Water Act citizen suits to proceed despite an enforcement action being filed by the state environmental agency on the heels of the issuance of a plaintiffs’ 60-day notice letter. However, the recent dismissal of the Cherokee Mining case upon its return to District Court may give some pause to those who file citizen suits in the future.

As reported in more detail in January, the defendant in Cherokee Mining originally filed a Motion to Dismiss plaintiff’s Clean Water Act citizen suit for lack of subject matter jurisdiction arguing that the suit was barred under Section 309 because the state environmental agency had commenced enforcement subsequent to the plaintiff’s issuance of a 60-day notice letter. The plaintiff successfully defeated the Motion to Dismiss in the District Court by relying on what was a largely overlooked provision of Section 309 stating that the bar to citizen suits does not apply to actions filed “before the 120th day after the date on which…notice is given.” 33 U.S.C. § 1319(6)(B)(ii). The Eleventh Circuit, which is still the only Court of Appeals to address this issue, affirmed the District Court’s decision. See also Black Warrior Riverkeeper v. Birmingham Airport Authority, 561 F. Supp. 1250 (N.D. Ala. 2008) (applying the 120th-day exception to the citizen suit bar and allowing the same plaintiff to go forward in a separate case filed against other defendants).

 

However, upon Cherokee Mining’s return to District Court, the plaintiff’s case was dismissed on mootness grounds—arguably the same grounds on which Congress based the statutory bar to citizen suits filed after a state enforcement action. Specifically, the United States District Court for the Northern District of Alabama dismissed plaintiff’s claims for injunctive relief and civil penalties as moot because the issuance of a consent order by the state environmental agency adequately addressed the plaintiffs’ alleged violations. Indeed, despite allegations of additional violations subsequent to the issuance of the consent order, the District Court concluded that the plaintiff had failed to demonstrate that there was a serious prospect that the alleged violations would continue to occur. The District Court further held that because the consent order required Cherokee Mining to pay a penalty of $15,000, the Court was reluctant to second guess the state agency enforcement action. Thus, the Court dismissed plaintiff’s claims as moot. Black Warrior Riverkeeper v. Cherokee Mining, No. 07-AR-1392-S (N.D. Ala. Jun. 5, 2009).

Notwithstanding the ultimate outcome of Cherokee Mining, the back door to citizen suits opened by the Eleventh Circuit’s opinion is still available. In other words, at least in Alabama, Florida, and Georgia, a plaintiff can proceed with a Clean Water Act citizen suit despite enforcement action taken by the state environmental agency as long as the plaintiff files suit within 120 days of its 60-day notice letter. However, the entry of an administrative order by the state may quickly make the citizen suit moot. As aptly noted by the District Court, “[i]f there is a lesson to be learned from this case, it is that a citizen who admittedly has a right to file a citizen suit seeking to remedy a perceived water violation, although knowing, as a matter of law, that ADEM has concurrent jurisdiction over the issue, is taking the risk that he will be headed off at the pass by subsequent appropriate ADEM enforcement action.” Cherokee Mining, No. 07-AR-1392-S at 14-15.

New Jersey Follows Massachusetts into the World of Licensed Environmental Consultants and Privatized Cleanup Oversight

Posted on July 9, 2009 by David Farer

On May 7, 2009, New Jersey enacted the Site Remediation Reform Act (S.1897/A.2962). SRRA, with its new Licensed Site Remediation Professional (“LSRP”) Program, is having a far-reaching impact on the way transactions and redevelopment projects are being planned and handled in New Jersey.

 

Following the Massachusetts Licensed Site Professional program, SRRA establishes a licensing procedure for consultants and contractors to be certified as LSRPs and overseen by a licensing board. 

 

In most cases New Jersey DEP will no longer be required or authorized to review and approve investigation and cleanup plans in advance, or to issue No Further Action letters and Covenants Not To Sue when cleanups have been wrapped up. Instead, LSRPs will determine the propriety and conclusion of investigations and cleanups, and will issue the final sign-off document, which is now to be known as a "Response Action Outcome" ("RAO"). LSRPs – rather than DEP – will determine the required amount of any financial assurance, and will determine when and to what extent the financial assurance can be reduced as a cleanup progresses. 

 

Once the LSRP issues the RAO, the party conducting the cleanup will be deemed to have received a Covenant Not to Sue by operation of law. Following an LSRP’s issuance of an RAO, DEP will have three years to audit the LSRP’s work, though the bases for DEP to invalidate an RAO are limited.

 

By August 7, 2009, a temporary licensing program must be operational, and by November 7, DEP must issue interim rules for implementing the new law. Once the interim rules and temporary licensing program are in place, all new projects subject to the state's cleanup laws – including transaction-triggered investigations and cleanups under the state's Industrial Site Recovery Act – will be overseen by LSRPs rather than DEP, unless they fall into specific exceptions such as sites ranked most highly on a new ranking system to be established by DEP under the reform law.

Parties currently under DEP oversight for existing cases will have up to three years to switch over to the LSRP program.

 

Pursuant to the reform law, DEP is directed to establish a permitting program for institutional and engineering controls, with specific financial assurance requirements. (New Jersey has not adopted the Uniform Environmental Covenants Act.)

 

The state's innocent purchaser protections are modified so that LSRP-certified work is deemed equivalent to that overseen and approved by DEP.

 

DEP is directed to establish, within a year, "presumptive remedies" for cleanups of residential properties, schools and day care facilities. Such projects are to be cleaned up to unrestricted use standards, or pursuant to a presumptive remedy, with certain exceptions available on a case-by-case basis.

 

The reform law also alters reporting obligations in situations where spills and discharges are discovered. Until now, it has been the responsibility of a property owner or operator – not a third party such as a consultant or potential purchaser – to report discovery of contamination to DEP, except as to spills or discharges from regulated underground storage tank systems. Under SRRA, however, LSRPs will now have specific affirmative obligations to report knowledge of contamination directly to DEP in a variety of settings. 

DEP has been gearing up for the new program. Aside from its current efforts in development of the interim rules and temporary licensing procedures, DEP is also in the process of developing standard operating procedures, applications, fees and forms, and guidance documents covering subjects such as mandatory timeframes and presumptive remedies.

KANSAS RENEWABLE ENERGY ACT: UNUSUAL COMPROMISE RESURRECTS COAL PLANT CONSTRUCTION; LIMITS AUTHORITY OF STATE ENVIRONMENTAL AGENCY

Posted on July 9, 2009 by Charles Efflandt

With the May 2009 enactment of comprehensive energy legislation, Kansas joined a majority of states establishing renewable and clean energy requirements. Although a significant step in the development of renewable energy, the story receiving the most attention was that the new law, ironically, resurrected a presumed-dead coal-fired power plant project. That project, which involved two proposed 700 megawatt coal-fired generating units, had previously been denied a construction permit solely due to concerns over the climate change impact of perceived excessive emissions of carbon dioxide. The legislature further enacted limitations on the broad regulatory authority relied on by the state environmental agency to deny the coal plant project a permit. The question now being asked is whether the complex political compromise that enabled the passage of the legislation was a “win-win” or a “no-win” result.

KANSAS RENEWABLE ENERGY ACT: UNUSUAL COMPROMISE RESURRECTS COAL PLANT CONSTRUCTION; LIMITS AUTHORITY OF STATE ENVIRONMENTAL AGENCY

Posted on July 9, 2009 by Charles Efflandt

With the May 2009 enactment of comprehensive energy legislation, Kansas joined a majority of states establishing renewable and clean energy requirements. Although a significant step in the development of renewable energy, the story receiving the most attention was that the new law, ironically, resurrected a presumed-dead coal-fired power plant project. That project, which involved two proposed 700 megawatt coal-fired generating units, had previously been denied a construction permit solely due to concerns over the climate change impact of perceived excessive emissions of carbon dioxide. The legislature further enacted limitations on the broad regulatory authority relied on by the state environmental agency to deny the coal plant project a permit. The question now being asked is whether the complex political compromise that enabled the passage of the legislation was a “win-win” or a “no-win” result.

Tenth Circuit Holds Collateral Source Rule Inapplicable to CERCLA 113 Actions

Posted on July 8, 2009 by Delmar Ehrich

Friedland v. Indus. Co, No. 08-1042, 2009 U.S. App. LEXIS 11660 (10th Cir. May 29, 2009). 

 

The United States Court of Appeals for the Tenth Circuit has held that the collateral source rule is inapplicable in CERCLA actions, affirming the district court’s grant of summary judgment to defendants on the ground that Mr. Friedland already recouped all of his recoverable costs from other persons and therefore had no damages to recover. 

 

The plaintiff, Mr. Friedland, is the former director and president of the Summitville Consolidated Mining Company, Inc. (“SCMCI”). SCMCI operated a gold mine from 1984 to 1992. Defendants-appellees helped construct the mine and provided quality assurance regarding the heap leaching system – where cyanide solution was sprayed on gold-bearing ore to remove the gold. 

 

SCMCI declared bankruptcy and abandoned the mine in 1992. EPA thereafter undertook actions to address acid mine drainage and other conditions at the facility. In 1996, the United States and the State of Colorado sued Mr. Friedland under CERCLA § 107 to recover the costs of these measures. Mr. Friedland settled the governments’ claims against him for approximately $20 million, after incurring legal fees in excess of $28 million. 

 

Mr. Friedland brought several actions against contractors that had built the mining facility. He entered into a series of settlement agreements with these parties or their insurance companies pursuant to which he recovered in excess of the $20 million he agreed to pay to settle the cost-recovery claims by the State of Colorado and the United States. In the latest action, Friedland sued The Industrial Company and another defendant. The defendants moved for summary judgment on the ground that Mr. Friedland had no damages or right to contribution under CERCLA § 113(f) because he had recovered in an amount exceeding the payment made to the United States and State of Colorado. The district court granted summary judgment and Mr. Friedland appealed, arguing that: (1) the collateral source rule prohibits crediting the defendants in the amount of the settlement money he received from the insurance companies; and (2) the settlement money should be credited toward the $28 million in legal fees as opposed to the $20 million settlement amount. 

 

The Tenth Circuit upheld the district court’s ruling, holding that the collateral source rule does not apply to CERCLA contribution actions. The Tenth Circuit differentiated CERCLA contribution action which involves “two or more culpable tortfeasors” from personal injury actions where innocent plaintiffs seek to be made whole. The Tenth Circuit held that allowing a CERCLA contribution plaintiff to recover more than the response costs he paid out of pocket “flies in the face of CERCLA’s mandate to apportion those costs equitably among the parties” and would create a windfall for those responsible for the pollution. CERCLA § 9613(f)(1).

 

The Tenth Circuit also held that under Hess Oil Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197 (10th Cir. 1988) and Burlington Northern Railroad, 200 F.3d 679 (10th Cir. 1999), the defendant-appellees were entitled to a full credit in the amount of the settlements Mr. Friedland received if the damages he alleged against defendant-appellees were the same as those addressed the settlements. The settlements did not expressly allocate the settlement money between settling the underlying litigation or to legal defense. The Tenth Circuit held that Mr. Friedland’s failure to allocate the settlement monies between legal fees and response costs was fatal to his contention that the defendants-appellees were not entitled to a credit in the settlement amount. Therefore, the Tenth Circuit upheld the district court’s finding that there was no basis to allocate the settlement money between the clean-up costs and legal fees, and defendants-appellees were entitled to a full credit in the amount of the settlements.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council et al

Posted on June 24, 2009 by Theodore garrett

On June 22, 2009, the Supreme Court held 6-3 that the Corps, rather than EPA, has authority to permit the discharge of a rock and water mixture called “slurry” from a mine froth flotation process to a nearby lake, reversing the Ninth Circuit’s decision that the proposed discharge would violate the EPA’s performance standard and §306(e) of the Clean Water Act.  Coeur Alaska, Inc. v.. Southeast Alaska Conservation Council et al., __U.S.__ (No.  No. 07–984, June 22, 2009).  Section §402(a) of the Clean Water Act forbids the EPA to issue permits for fill materials falling under the Corps’ §404 authority. Because §404(a) empowers the Corps to “issue permits . . . for the discharge of . . . fill material,” and the agencies’ joint regulation defines “fill material” to include “slurry . . . or similar mining-related materials” having the “effect of . . . [c]hanging the bottom elevation” of water, 40 C.F.R. §232.2, Justice Kennedy's opinion for Court states, the slurry Coeur Alaska wishes to discharge into the lake falls within the Corps’ §404 permitting authority.  The Clean Water Act is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404, however EPA’s internal “Regas Memorandum” states that the performance standard applies only to the discharge of water from the lake into the downstream creek, and not to the initial discharge of slurry into the lake.  The dissent , written by Justice Ginsburg, takes the view that a discharge covered by a performance standard must be authorized, if at all, by EPA.

BIOFUELS AND CLIMATE CHANGE

Posted on June 23, 2009 by Christopher Davis

Biofuels are the subject of much recent interest and investment, as indicated by a recent Wall Street Journal article on biomass fueled power plants. Given the increasing scrutiny that is being given to “green” marketing claims by the Federal Trade Commission and various citizen groups (and the potential for SEC scrutiny of similar claims in public offering prospectuses), care should be taken to analyze and document the basis for any claims of carbon neutrality or other environmental benefits associated with particular biofuels.  

 Advantages cited by biofuel proponents include reduction of greenhouse gas (GHG) emissions as compared to fossil fuels, energy security, benefits from domestic production and green job creation. Downsides of biofuels production can include displacement of food crops and increased food prices, deforestation and conversion of grasslands to crop lands, GHG emissions associated with growing and converting biofuels, and other environmental impacts such as nutrient runoff and water consumption.
 

 

While all biofuels are renewable energy sources, this category includes a variety of liquid and solid fuels with a variety of sources and uses. For example, power plants can utilize biomass, generally in the form of wood or municipal solid waste. In the transportation arena, fuel can be made from corn and cellulose-based ethanol, or oils from soybeans, palm oil or animal wastes that can be used directly or chemically processed into biodiesel. Additional types of biofuels include syngas and algae-derived fuels. 

Numerous “clean tech” companies as well as established energy multinationals have invested in biofuels production. Examples include Mascoma Corporation and Verenium Corporation (cellulosic ethanol), Changing World Technologies (biodiesel from animal waste), GreenFuel Technologies (algae-based fuel) and Biogas Energy and Harvest Power (methane from agricultural wastes). Large energy and waste management companies are also investing heavily in biofuels, including Covanta (biomass-fired power plants), BP, Chevron, and Shell Oil (bio-ethanol and biodiesel), and Waste Management (landfill gas). The market for biofuels is sensitive to oil prices and demand for transportation fuels, as evidenced by recent bankruptcies and economic distress in the corn-based ethanol industry.

Biofuels are supported by a variety of federal and state mandates, subsidies and tax credits. For example, the Energy Policy Act of 2005 established a renewable fuel standard, and this standard was increased by the Energy Independence and Security Act of 2007. Further, the Food, Conservation, and Energy Act of 2008 provides financial assistance to biorefineries, funding for advanced biofuels and biomass research, biomass crop assistance, and tax credits for cellulosic ethanol production, among other measures. In addition, the American Recovery and Reinvestment Act of 2009 provides for loan guarantees, tax credits, and Department of Energy research related to biofuels and biomass energy.   Ethanol proponents are pressing Congress to further increase the mandate for ethanol use in transportation fuels, but many groups are simultaneously opposing such an increase.

Biofuels are often claimed to be “carbon neutral” (i.e., producing no net GHG emissions), because the plants from which they are derived only emit the same amount of carbon they would have released if they naturally died and decomposed, as compared to fossil fuels that release carbon stored in the earth’s crust that would not have been emitted. But not all biofuels are equal and generic claims of carbon neutrality need further scrutiny. 

Recently, a number of studies have attempted to assess the lifecycle GHG emissions of various biofuels. For example, several studies, including a leading study by the University of Minnesota and a California study performed in association with its low-carbon fuel standard, have concluded that corn-based ethanol may result in minimal net GHG emission reductions or even net GHG increases. This conclusion has been supported by scientists from The Nature Conservancy in a study published in Science that examines the GHG emissions and other environmental impacts of land use changes involved in the production of various biofuels. They conclude that there are significant differences in the “carbon footprint” of different biofuels based on how and where the underlying crops are grown.    In its recent proposed regulations for the National Renewable Fuel Standard, EPA has proposed to require evaluation of GHG emissions over the full lifecycle of various biofuels and to establish life cycle GHG emission reduction thresholds as compared to a lifecycle emissions analysis of baseline petroleum fuels – a requirement that is opposed by corn-based ethanol proponents.

It is clear that advanced biofuels, such as cellulosic ethanol and some types of biodiesel, hold great promise to reduce GHG emissions from transportation and other fuel uses. Such biofuels are clearly part of the solution in mitigating climate change and developing a sustainable energy economy, but careful scrutiny is needed to ensure that the full life cycle GHG emissions and other environmental impacts of biofuels are considered by policymakers and investors.

Posted by Christopher P. Davis, Goodwin Procter LLP

BIOFUELS AND CLIMATE CHANGE

Posted on June 23, 2009 by Christopher Davis

Biofuels are the subject of much recent interest and investment, as indicated by a recent Wall Street Journal article on biomass fueled power plants. Given the increasing scrutiny that is being given to “green” marketing claims by the Federal Trade Commission and various citizen groups (and the potential for SEC scrutiny of similar claims in public offering prospectuses), care should be taken to analyze and document the basis for any claims of carbon neutrality or other environmental benefits associated with particular biofuels.  

 Advantages cited by biofuel proponents include reduction of greenhouse gas (GHG) emissions as compared to fossil fuels, energy security, benefits from domestic production and green job creation. Downsides of biofuels production can include displacement of food crops and increased food prices, deforestation and conversion of grasslands to crop lands, GHG emissions associated with growing and converting biofuels, and other environmental impacts such as nutrient runoff and water consumption.
 

 

While all biofuels are renewable energy sources, this category includes a variety of liquid and solid fuels with a variety of sources and uses. For example, power plants can utilize biomass, generally in the form of wood or municipal solid waste. In the transportation arena, fuel can be made from corn and cellulose-based ethanol, or oils from soybeans, palm oil or animal wastes that can be used directly or chemically processed into biodiesel. Additional types of biofuels include syngas and algae-derived fuels. 

Numerous “clean tech” companies as well as established energy multinationals have invested in biofuels production. Examples include Mascoma Corporation and Verenium Corporation (cellulosic ethanol), Changing World Technologies (biodiesel from animal waste), GreenFuel Technologies (algae-based fuel) and Biogas Energy and Harvest Power (methane from agricultural wastes). Large energy and waste management companies are also investing heavily in biofuels, including Covanta (biomass-fired power plants), BP, Chevron, and Shell Oil (bio-ethanol and biodiesel), and Waste Management (landfill gas). The market for biofuels is sensitive to oil prices and demand for transportation fuels, as evidenced by recent bankruptcies and economic distress in the corn-based ethanol industry.

Biofuels are supported by a variety of federal and state mandates, subsidies and tax credits. For example, the Energy Policy Act of 2005 established a renewable fuel standard, and this standard was increased by the Energy Independence and Security Act of 2007. Further, the Food, Conservation, and Energy Act of 2008 provides financial assistance to biorefineries, funding for advanced biofuels and biomass research, biomass crop assistance, and tax credits for cellulosic ethanol production, among other measures. In addition, the American Recovery and Reinvestment Act of 2009 provides for loan guarantees, tax credits, and Department of Energy research related to biofuels and biomass energy.   Ethanol proponents are pressing Congress to further increase the mandate for ethanol use in transportation fuels, but many groups are simultaneously opposing such an increase.

Biofuels are often claimed to be “carbon neutral” (i.e., producing no net GHG emissions), because the plants from which they are derived only emit the same amount of carbon they would have released if they naturally died and decomposed, as compared to fossil fuels that release carbon stored in the earth’s crust that would not have been emitted. But not all biofuels are equal and generic claims of carbon neutrality need further scrutiny. 

Recently, a number of studies have attempted to assess the lifecycle GHG emissions of various biofuels. For example, several studies, including a leading study by the University of Minnesota and a California study performed in association with its low-carbon fuel standard, have concluded that corn-based ethanol may result in minimal net GHG emission reductions or even net GHG increases. This conclusion has been supported by scientists from The Nature Conservancy in a study published in Science that examines the GHG emissions and other environmental impacts of land use changes involved in the production of various biofuels. They conclude that there are significant differences in the “carbon footprint” of different biofuels based on how and where the underlying crops are grown.    In its recent proposed regulations for the National Renewable Fuel Standard, EPA has proposed to require evaluation of GHG emissions over the full lifecycle of various biofuels and to establish life cycle GHG emission reduction thresholds as compared to a lifecycle emissions analysis of baseline petroleum fuels – a requirement that is opposed by corn-based ethanol proponents.

It is clear that advanced biofuels, such as cellulosic ethanol and some types of biodiesel, hold great promise to reduce GHG emissions from transportation and other fuel uses. Such biofuels are clearly part of the solution in mitigating climate change and developing a sustainable energy economy, but careful scrutiny is needed to ensure that the full life cycle GHG emissions and other environmental impacts of biofuels are considered by policymakers and investors.

Posted by Christopher P. Davis, Goodwin Procter LLP

Interior Secretary Salazar Demonstrates True Commitment to Renewable Energy

Posted on June 15, 2009 by Linda Bullen

On May 2, 2009, Secretary of the Department of the Interior, Ken Salazar held a public meeting just outside Las Vegas, in the Red Rock Canyon National Recreation Area, to announce the opening of four new BLM offices to handle renewable energy permitting. The offices will be located in Nevada, Arizona, California and Wyoming, and have been designed to address the backlog of pending renewable energy project applications. The DOI estimates that 200 solar applications and over 25 wind projects are pending with the BLM in the western states.

 

            I was one of the 25 or so attendees lucky enough to have the honor and privilege to be invited to a meeting with Secretary Salazar prior to the public meeting where this announcement was made. This earlier meeting was attended by developers of solar, wind and geothermal projects and others in the renewable energy industry. I was impressed by Secretary Salazar’s level of knowledge about both renewable projects and the BLM permitting process, as demonstrated by his comments and questions. Secretary Salazar also announced that $305 million in American Recovery and Reinvestment Act(ARRA) monies will be used for BLM projects to restore landscapes, spur renewable energy development on public lands, and create jobs. I left the meeting with confidence in the Secretary’s commitment to renewable energy and to the implementation of changes, policies and programs that will convert renewable energy from a noble goal to a reality.

 

Linda M. Bullen

Interior Secretary Salazar Demonstrates True Commitment to Renewable Energy

Posted on June 15, 2009 by Linda Bullen

On May 2, 2009, Secretary of the Department of the Interior, Ken Salazar held a public meeting just outside Las Vegas, in the Red Rock Canyon National Recreation Area, to announce the opening of four new BLM offices to handle renewable energy permitting. The offices will be located in Nevada, Arizona, California and Wyoming, and have been designed to address the backlog of pending renewable energy project applications. The DOI estimates that 200 solar applications and over 25 wind projects are pending with the BLM in the western states.

 

            I was one of the 25 or so attendees lucky enough to have the honor and privilege to be invited to a meeting with Secretary Salazar prior to the public meeting where this announcement was made. This earlier meeting was attended by developers of solar, wind and geothermal projects and others in the renewable energy industry. I was impressed by Secretary Salazar’s level of knowledge about both renewable projects and the BLM permitting process, as demonstrated by his comments and questions. Secretary Salazar also announced that $305 million in American Recovery and Reinvestment Act(ARRA) monies will be used for BLM projects to restore landscapes, spur renewable energy development on public lands, and create jobs. I left the meeting with confidence in the Secretary’s commitment to renewable energy and to the implementation of changes, policies and programs that will convert renewable energy from a noble goal to a reality.

 

Linda M. Bullen