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.

Winter Draws Mixed Opinions Regarding Fracking

Fracking received much attention and debate in the fourth quarter. Fracking is the process of injecting large amounts of water, sand and chemicals into the ground at high pressures in order to release oil and natural gas into underground rock formations.

On December 17, 2014, New York Governor Andrew Cuomo announced his administration’s plan to ban fracking due to health concerns. His decision follows a presentation by New York state health commissioner finding “significant public health risks” linked to fracking. See Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, The New York Times (Dec. 17, 2014).

Contrasting New York’s decision, North Carolina’s Oil and Gas Rules and Review Commission approved new fracking rules and the state legislature is expected to lift North Carolina’s fracking moratorium. See John Murawski, NC Rules Review Commission approves fracking standards, News & Observer (Dec. 17, 2014).

A long awaited study on the risks posed by fracking is estimated to be released by the EPA in early 2015. See Letter from United States Environmental Protection Agency, Region 8, Philip S. Strobel, Acting Director, NEPA Compliance and Review, Office of Ecosystems Protection and Remediation, Ref. No. 8EPR-N (Oct. 17, 2014) (on file with EPA).

EPA Updates Rule for Site Assessments to Address the Innocent Landowner Defense

On October 6, 2014, the Environmental Protection Agency (“EPA”) adopted a final rule which will eventually eliminate one of the two recognized ASTM International standards to conduct environmental site assessments, which were designed  to comply with EPA’s “All Appropriate Inquires Rule” (“AAI”). Complying with the AAI rule is required to claim protection from CERCLA (Superfund) liability as a bona fide prospective purchaser, contiguous property owner, or innocent landowner.  Effective October 6, 2015, ASTM International’s Standard E1527-05 will not be recognized as complying with the AAI rule. The ASTM standard updated in 2013 (ASTM E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) will be the recognized ASTM standard that will comply with the AAI Rule. Although the change does not become effective until October 6, 2015, it is advisable to follow the E1527-13 standard now.

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.

Georgia Department of Revenue Proposes Conservation Tax Credit Rule Changes

The Georgia Department of Revenue Income is proposing a change to the Tax Division Rule on conservation tax credits. Interested parties seeking to comment on the proposed Rule should review the notice for further guidance. The notice and an exact copy and synopsis of the proposed Rule may be found on the Department’s website at:



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.