Some Things Upcoming in 2016

As the New Year begins, a number of issues will compete for attention from Congress and the courts, and we may even get some final determinations about matters that have been long simmering. Much of the substantive work of the Obama Administration has been put into place and is currently subject to various challenges. Many of these will either be decided or will progress substantially during the coming year. Nonetheless, EPA has proposed a full agenda of rulemaking activities for 2016, including both projected notices of proposed rulemaking and publication of final rules for a wide variety of areas that it regulates. (OMB Fall 2015 EPA Rule List see also EPA Regulatory Development Tracker). Among these will include proposals for final rules for things such as standards for management of hazardous waste pharmaceuticals, changes to the hazardous waste generator rules, and a NESHAP for certain industrial commercial institutional boilers.

From an enforcement standpoint, EPA has indicated in its Biennial National Program Manager Guidance and its National Enforcement Initiatives that it will be focusing on several specific areas in the various media that it regulates. Within its national enforcement agenda we apparently will see some focus on areas including: large air emission sources, energy extraction, minerals processing, and animal waste management.

Much will also be going on in the courts as various EPA final regulations have been challenged and we will see those challenges progress. This involves a long list of regulations, but perhaps some of the most significant will be challenges to the Administration’s Clean Power Rule, the Waters of the United States Rule, and the Mercury and Air Toxics Rule. Regarding the Clean Power or Carbon Rule addressing carbon emissions from power plants, this is pending and is subject to a briefing schedule initially on the issue of whether to grant a stay of the rule pending further litigation. The D.C. Circuit set a briefing agenda and apparently oral arguments will be scheduled during the first few weeks of the new year. (Washington Examiner). A stay has been granted by the Sixth Circuit with respect to the Waters of the U.S. Rule (WOTUS) and EPA has issued a statement indicating that it will comply with the stay and, in the interim, will administer the wetlands protection programs along with the Corps of Engineers using its previous approach interpreting existing regulations in accordance with its view of the relevant case law. (EPA Clean Water Rule litigation statement).

The status of the Mercury and Air Toxics Rule appears to be that the rule can be implemented even though EPA must propose certain changes or provide additional substantiation for the rule. The Supreme Court overturned the rule on the basis that the agency had not taken into account economic factors that might tend to make the rule untenable as a result of excess cost of compliance. (Michigan v. EPA). Despite this ruling, the D.C. Circuit refused to grant a stay of the rule while EPA seeks to evaluate the economic issues identified by the Supreme Court. (Utility Dive). The EPA has issued some updated information more recently intended to address the Supreme Court’s concerns. (EPA Mercury Air Toxics Site).

Congress will continue in its collective efforts to undo much of the regulatory agenda put in place by the Administration. Apparently this includes efforts with respect to the carbon (clean power) rule, efforts to defund implementation of the Clean Water or Waters of the U.S. rule and various efforts intended to limit or untrack the Administration’s implementation of the Global Warming Summit held recently in Paris. There will also be an effort to enact legislation to change the method of regulation of coal combustion residuals. That rule, which became effective in the fall, has also been challenged in court.

To conclude on what may be considered a more positive note, Congress did agree to extend tax credits for alternative energy sources. As a result, the development of alternative domestic sources, primarily wind and solar, is now assured for the next five years. (Wall Street Journal) These credits have had some significant impact on the development of this type of power generation (The Hill and National Renewable Energy Laboratory) and would now appear that those sources will continue to develop and expand play an increasingly greater role in power production in the United States.


Obama Administration Anticipates Movement in Doomsday Clock

Last week the Bulletin of the Atomic Scientists (BAS) moved the minute hand on the Doomsday Clock two minutes closer to midnight. Advancement of the clock hand symbolizes experts’ concerns on the threat of global catastrophe. Kennette Benedict, executive director of the BAS warned that countries emitting carbon dioxide and other gases are transforming the Earth’s climate in a dangerous way, leaving millions vulnerable to rising sea levels, famines and killer storms. The executive director, however, emphasized that BAS’ message was not one of hopelessness, indicating that it is not too late to take action but that real steps need to be taken in order to avert abysmal catastrophe. See Rachel Reilly, Victoria Woollaston, and Jonathan O’Callaghan, Doomsday Clock reads 11.57: Atomic scientists move minute hand two minutes forward – and say we are at closest point to disaster in decades, Daily Mail (Jan. 23, 2015), available here.

In anticipation of this update, the Obama Administration announced on January 14, 2015, its renewed commitment to the reduction of methane emissions affecting global climate change. The announcement comes as oil production reaches its highest level in nearly 30 years and the U.S. advances in the world market to become the world’s largest natural gas producer.

In its press release, the Administration announced a new goal to cut methane emissions in the oil and gas sectors by 2025 to 40-50% below those recorded in 2012. To accomplish this mission: (1) the EPA will develop new guidelines to assist states in the reduction of ozone-forming pollutants from oil and gas systems in states along the Ozone Transport Region; (2) the EPA plans to continue promotion of transparency and accountability in the Greenhouse Gas Reporting Program; (3) the Department of Interior’s Bureau of Land Management (BLM) will update standards relating to oil and gas associated methane; (4) the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) will propose natural gas pipeline safety standards; and (5) the President’s budget for Fiscal Year 2016 will propose $15 million in funding for the Department of Energy (DOE) towards the development of reduction focused technology and another $10 million to a DOE program enhancing the quantification of emissions from natural gas infrastructure for inclusion in the national Greenhouse Gas Inventory. Additionally, the DOE will focus on modernizing natural gas transmission and distribution.

Experts now await release of the Quadrennial Energy Review (QER) expected to be unveiled in the upcoming weeks. The much anticipated QER will shed light on policy recommendations and proposals relating to the modernization of energy transmission, storage, and distribution infrastructure. See Press Release here.

Environmental Issues and The Republican Majority

Expectations are running high among some that the incoming Republican majority in both Houses of Congress will act to change or eliminate various environmental regulations and statutory provisions that they claim harm the economy. Interest groups are extending these efforts to enlist State officials in opposing these regulations at that level and, for his part, President Obama has indicated an intent to use his veto authority in an effort to prevent major changes in regulation and policy.

One of the foremost issues of concern on the part of many Republicans is the proposal to limit carbon pollution from coal-fired power plants. In mid-December, 99 House members sent a letter to the President asking that he direct EPA to withdraw its proposed Clean Power Plan rule. (House letter). Similarly, various conservative groups have contacted State legislators and other elected officials calling on them to resist the Plan in any way possible. (The Hill). The States have substantial authorities for the implementation of air pollution control regulations under the federal Clean Air Act, just as they do with the implementation of other major federal environmental statute.

However, there are some indications that these position may not be quite as unified across the Republican leadership as first thought. For example, a recent interview given by Senator James Inhofe of Oklahoma to the Tulsa World indicates that initial efforts may focus elsewhere. Senator Inhofe, a leading denier of climate change science, will become the Chairman of the Environment and Public Works Committee the Senate’s key environmental committee. Yet, he indicated in the interview that initial focus of his chairmanship of would be on transportation and infrastructure. (Tulsa World). Also of interest, a recent poll conducted jointly by the Associated Press-NOR Center for Public Affairs Research and Yale University indicates that, while 6 in 10 Americans support regulation of carbon dioxide pollution, fully half of persons identifying themselves as Republicans hold the same position. (StarTribune). Even if the Republican majority eventually pushes substantial legislation through both Houses to affect environmental issues, including climate change, President Obama has promised a veto. (ABC Report).

While it seems clear that environmental issues will be at the forefront of Congressional debate in the upcoming Congress, it is not so clear how far this may go, or in exactly what direction. As we have seen before, exercising the powers of leadership often imposes restraints that are not in place when campaigning for leadership positions.

EPA Re-Defines “Solid Waste”

On December 10, 2014, the EPA administrator published its latest version on a rule revising recycling related provisions under the definition of solid waste rule (DSW rule). See 40 CFR Parts 260 and 261, Docket No. EPA-HQ-RCRA-2010-0742 (Dec. 10, 2014). The revisions were made to help alleviate concerns regarding disproportionate health and environmental risks suffered by low income communities buttressing local recycling facilities.

These new revisions are predicted to make it increasingly difficult for facilities who purport to be recycling to illegally dispose of hazardous materials. See Mike McLaughlin, Fact Sheet: 2014 DSW Final Rule, American Bar Association (Dec. 18, 2014).

EPA Releases Annual Environmental Enforcement Results

December 18, 2014, marked the release of the U.S. Environmental Protection Agency’s (EPA) annual environmental enforcement and compliance results. See News Release, U.S. Environmental Protection Agency, EPA Announces 2014 Annual Environmental Enforcement Results (Dec. 18, 2014). According to the EPA, its enforcement actions in 2014 required businesses across the country to invest more than $9.7 billion in regulatory compliance and equipment. Additionally, EPA collected a total of $163 million in combined federal administrative, civil judicial penalties, and criminal fines. Annual results showed a reduction of 141 million pounds of air pollutants, including 6.7 million pounds of air toxins, 337 million pounds of water pollutants, and 856 million cubic yards of contaminated water clean-up.

The release highlights EPA’s growing focus on enforcement of larger cases with greater impact. In the first of three notably large cases this year, EPA obtained a large settlement with the number one metallurgical coal supplier in the United States. Pursuant to the settlement agreement the company will invest $200 million to install and operate wastewater treatment facilities near coal mining operations in five states. Additionally, the company agreed to provide system-wide upgrades to assist in the reduction of coal mine pollution.

In November, the EPA reached a settlement agreement with two major auto manufacturers for an estimated $100 million for violations of the Clean Air Act based on the sale of more than 1 million vehicles with emissions collectively totaling 4.75 million metric tons of greenhouse gases.

On November 10, 2014, EPA obtained a settlement whereby the company agreed to pay more than $5.15 billion into a litigation trust (with $4.475 billion going to the trust’s environmental beneficiaries and $605 million going to its torts beneficiaries). According to the EPA, this case allowed EPA to close the year with its largest recovery for the cleanup of environmental contamination in history and the largest bankruptcy award the EPA has ever received for environmental claims and liabilities.

Dealing With NIMBYs in Local Land Use and Environmental Approval

A developer or property owner may have a permit application for a project that meets the criteria for the applicable regulations, and might receive approval from local government or environmental staff. At that point, the applicant thinks he or she is in good shape going into the public hearing with the city or county commissioners, only to walk in to commission chambers and discover a small army of citizens with identical t-shirts or “Save our Neighborhood” buttons protesting the application because they don’t want the development in their backyard — the dreaded NIMBYs (Not In My Back Yard). Developers need to be aware of potential conflict with a NIMBY group—and how an attorney can help.

Sometimes developers and property owners may not realize that despite careful work to meet all of the applicable requirements of local ordinances, they still may not get their permit approved if they are met with a groundswell of opposition from neighboring residents. The best way to deal with NIMBY opposition is to be prepared for it well in advance of the public hearing.

Early in the process, someone from the developer’s team (usually the attorney) should contact the district commissioner/council member to find out if he or she is in favor of the development. If so, and if the district commissioner/council member feels that he or she has been fully informed about the project, the process will run much more smoothly. If the commissioner/council member is not in favor of the development and in fact is strongly opposed, then the developer will know what sort of battle waits in the public hearing, and will need to make an informed decision about whether to proceed with the application.

From the beginning of a permit application, the applicant needs to find out if there is a possibility that the development could be controversial. The local government staff will often be aware of that potential. Questions need to be asked in the beginning of and throughout the application process. The city or county staff should be familiar with the local neighborhoods and grassroots organizations, and should know which organizations are most likely to have an issue with the development in question.

If it appears that an organization or neighborhood potentially may be opposed to the development application, the best course of action is probably to have a conversation with the group before the public hearing. Setting up a community meeting early in the process will allow the developer to become aware of and deal with possible objections on the front end. Some jurisdictions require one or more community meetings before a public hearing on certain development applications. Even if community meetings are not required, it is a good idea to be proactive and schedule a meeting, especially if the development is of significant size or impact.

At the meeting, it is best to be transparent about the proposed development plan. Neighbors want to know how the proposed project is going to impact their neighborhood. Allow the group to ask questions and answer them as candidly as possible. This dialog can be useful in meeting objections on the front end, and can lead to forging compromises in the beginning that can smooth the way for the future of the project. Transparency at these meetings can also help the elected officials. The district commissioner/council member should be invited to the community meeting, and should be kept informed of the substance of ongoing discussions with neighboring residents. If the commissioner/council member knows the developer is working on the process with the neighborhood or organization before the hearing, he or she will appreciate the proactive planning. Plus, it keeps the elected official well informed, and can smooth the way for the future public hearing.

These community meetings make the development’s approval much more process-oriented than legal-oriented. The meetings may seem time-consuming and expensive, but appellate litigation following a denial is much more expensive, as is an extensive delay to the project.

If a developer does get blindsided by an interest group in a hearing, the city or county officials may also have been blindsided. The first step might be to request a short recess to discuss options with the neighbors or the district commissioner/council member, which may or may not be granted. Alternatively, or as a next step while the meeting is going on, the attorney or the developer may identify 1-2 leaders of the protesting group, and try to work with them to define issues and discover common ground. The issue might be something as easy as a simple fix in the architecture of the development, or a resolution of potential traffic issues. The attorney may request that the application be postponed to another meeting.

A developer wants to have the best-case scenario to present in a hearing, but he or she should also have a fallback position for the bottom line necessary to make the project work. For example, how much density can the development give up and still make the numbers work? Are there architectural concerns that can be satisfied with permit conditions? In this case, it helps to know the elected officials. If there is a commissioner that is known for always wanting additional parkland, will your project be able to offer that and still make budget? If traffic-calming is another commissioner’s hot-button issue, can you change a traditional intersection to a traffic circle and still make your development plan work?

So what is the best defense against NIMBYs? The best defense is realizing that NIMBYs can pop up in almost any development application. Preparation from pre-application through the public hearing with an experienced professional will greatly improve your chances for success.

Federal Court of Appeals Strikes Down A Portion of the EPA’s Rule Limiting a Court’s Authority for Imposing Civil Fines for Equipment Failures

Federal Court of Appeals strikes down a portion of the EPA’s rule limiting a Court’s authority for imposing civil fines for equipment failures.  While upholding portions of EPA’s new  rules for air toxic emissions for cement kilns, in a ruling dated April 16th the District of Columbia Court of Appeals struck down the provision that limited the Federal Courts from imposing civil penalties involving citizen suits for violations of the Clean Air Act for unavoidable equipment malfunctions. The Federal Courts previous 2008 decision  finding unlawful  EPA’s earlier  attempt to “exempt” compliance with emissions standards during equipment startups, shutdowns and malfunctions,  is now joined with this recent decision to strip the new EPA rule of providing the opportunity to claim an affirmative defense for malfunctions.  Commentators have opined that this ruling will cause EPA to consider removing similar affirmative defenses from other rules which may apply to power plants and boilers. The obvious ramification of this ruling is that the applicable industries may face citizen suits for unavoidable and unintended  violations of emission standards with no particular guidance given to the Federal Courts on how to deal with those equipment malfunctions.

EPA Issues Carbon Capture and Injection Regulations

In mid-December, the U.S. Environmental Protection Agency issued final rules that the Agency said are intended to facilitate the management of carbon dioxide gas that is required to be captured from electric power plants.  Summaries of the regulations and links to them can be found here and here.  The rules are intended to support rules on carbon pollution standards for new power plants, which were published earlier this year in draft form and have not yet become final.  Those draft regulations have been criticized for a number of reasons, including an assertion by industry that they cannot be implemented without the use of underground carbon sequestration, a technology which it is argued has not yet been proven to be effective.  Carbon injection has been used to rejuvenate oil fields once the natural pressure in those fields has diminished as a result of the removal of large volumes of oil, but the process has not been fully implemented simply for the purpose of sequestering CO2 beneath the ground’s surface.  Moreover, there are arguments that existing regulations governing hazardous waste management and ground water contamination might otherwise thwart the process or at least make it too cumbersome.

The recent EPA regulations seek to remove some of these obstacles by exempting the  gas from regulation as a hazardous waste when it is injected into Class VI wells approved for geological sequestration.  EPA had earlier issued rules using its authority under the Safe Drinking Water Act to facilitate such deep injection.  The recent rule clarifies that the carbon-dioxide-containing materials are exempt from regulation as a hazardous waste intended for disposal.  Finally, the rule was accompanied by draft guidance from EPA suggesting a regulatory method to transition Class II wells currently used for oil and gas development into Class VI wells for carbon sequestration.

While these new rules may remove some objections to the Agency’s overall approach to CO2 regulation, they are not likely to resolve underlying concerns about the cost of carbon sequestration and the uncertainties associated with the process itself.  And it appears that it is those issues which must be resolved before carbon capture can become viable.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Questionning Environmental Law And Regulatory Policy

A significant issue in the recent federal government shut down was the fundamental question over the scope of government authority and its role in a wide range of activities.  In short, should there be any government involvement with respect to particular issues?  While the shut down focused most directly on the federal healthcare program, similar questions have been raised both about Congressional enactments over things such as environmental protection, and the scope of those enactments as reflected by regulation.  These policy and practical issues are playing out now with respect to the regulation of air emissions.

Recently, the U.S. Supreme Court has agreed to consider some issues presented by a case styled: Utility Air Regulatory Group v. EPA, but in doing so, it appears that the Court will not revisit its decision confirming that Congress granted EPA has the general authority to regulate global warming greenhouse gases (see, Massachusetts v. EPA, 549 U.S. 497 (2007)).  The Court did not take up the Petitioners’ challenge to the basis for regulation, but will apparently focus on the question of whether the scope of federal power under the Clean Air Act to regulate mobile emissions sources (cars and trucks) also allows EPA to regulate stationary sources of these gases.  The Supreme Court seems to have reiterated that Congress has the fundamental authority to legislate about conditions such as global warming and will focus on how the EPA may do so.

Recent reports from emerging economies tend to lend credence to concern over the fundamental effects of air emissions and support at least basic regulation.  From a human health perspective, the Reuters News Service recently noted a report from the International Agency for Research on Cancer, which indicated that in 2010, approximately 223,000 deaths occurred from lung cancer world wide as a result of air pollution, and that there was also increasing evidence that such pollution results in bladder cancers as well as respiratory and heard diseases.  Regulation may also have practical, non-health benefits. At least one high tech company has begun to notice the impacts of certain air pollutants on electronic equipment.  A recent report noted that Intel has begun to link sulfur-containing air emissions to problems with the life span and performance of electronics.  This same article also notes that human life spans in northern China have been shortened by five years of more as a direct result of air emissions.  While these issues are occurring in nations with emerging industrial economies (China and India in these examples), it seems fair to say that they are less a problem in the United States as a result of regulatory programs initiated at the federal level in the 1970s.  Thus, while some may continue to argue that the government has neither the authority to regulate environmental conditions, or the practical capability to make those conditions less harmful, the law and the evidence appear to be to the contrary.

The Environmental Group at Burr & Forman continually monitors emerging issues and changes to law and regulation in this area of practice.  Court actions and articles such as those referenced above are examples of an apparent trend towards additional or expanded regulation that will have direct impact on our clients and their activities.  We are always available to advise and assist clients with regard to environmental regulation that may have direct or indirect impact on them.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Bureau of Land Management Extends Public Comment Period on Fracking Rule

The federal Bureau of Land Management announced today that it will extend by 60 days the public comment period on its revised proposed rule on hydraulic fracturing on federal lands.

The comment period was set to expire June 24, and the additional 60 days will begin thereafter.

To view the proposed rule, please visit

For BLM’s synopsis of the draft rule, please visit


For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.