Climate Change and Creative Problem Solving

A story in the New York Times recently portrays the ice cap in Greenland as rapidly disappearing. (NYT). Indeed, the pictures are dramatic. The story is based on experiences and observations from scientists working in the area, and it tends to support similar claims made by researchers in recent years about changing conditions in Greenland. At the same time, those who deny that global warming is occurring, or at least that it is not significantly caused by human activity, have pointed to other reasons for the reduction in the ice cap there. (Junk Science) Thus, observations are made that this may be part of a recurring trend of expansion and contraction of the ice cap or the result of geothermal activity or, perhaps, for some other reason not caused by human activity. And, indeed, there are some legitimate points and for both sides as explained in a recent BBC summary of the global warming issues. (Guide to Climate Change)

Can both positions be embraced, more or less? It seems so, at least to the Governor of Alaska. Recently he was quoted in a BCC interview as noting that climate changes are significantly affecting living conditions for native Alaskans in remote villages, particularly in the arctic region where villages are being threatened by rising sea levels. This means that the State may be obliged to assist those villages including through relocation. How would he pay for this apparent result of global warming? Through additional drilling for oil and natural gas in Alaska. (BBC Interview)

An ironic circle of reasoning? You be the judge.

Sixth Circuit Issues Nationwide Stay of Clean Water Rule

The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the controversial EPA/Corps of Engineers Clean Water Rule which was effective August 28, 2015. A copy of the decision is HERE. Some 30 states, industry and environmental groups had petitions pending in a number of circuit courts and all were consolidated in the Sixth Circuit. In what appears to be an interesting ruling, the three judge panel essentially expressed a desire to have the rule fully litigated before enforcing it. According to the Court:

A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters. See 33 U.S.C. § 1251(b) (“It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution.”).

However, the Court did not answer the question as to whether it had subject matter jurisdiction to stay the rule in the first place, but stated it still had authority to stay the rules pending resolution of the jurisdictional question. Briefing on that aspect is to begin shortly.


Flint Water System Troubles May Signal Numerous, Potentially Broad-Ranging Problems

For the City of Flint, Michigan, the immediate problem is that the water it provides its citizens is not safe to drink. For many other communities across the nation, the problem may be whether they can do the things necessary to avoid a similar fate.

On Thursday, October 1, local health officials in Flint declared a public health emergency warning that the City’s public water supply is causing elevated lead levels in children (Water Crisis in Flint). Residents were warned not to drink the water unless it has been filtered at the tap, and the State’s governor promised to provide $1 million for filters and for water testing in public schools. Even before the discovery of lead concentrations, the City’s water was found to contain high levels of E. coli and other harmful bacteria. The City’s efforts to control the bacteria using large amount of chlorine created dangerously high levels of trihalomethanes, a carcinogenic by-product of chlorine (NPR).

Some of Flint’s drinking water problems are the result of things that are specific to its situation, including the judgments and diligence of local and State governments. Other factors seem to be more broadbased and likely to present problems in varying degrees in other communities.

Certainly Flint has experienced the types of financial problems increasingly common in the aging factory communities of the Midwest. Unlike Detroit, Flint did not declare bankruptcy, but for almost three-and-one-half years it was under the control of an emergency financial manager appointed by Michigan’s Governor, with that arrangement ending only last April. Among other things, the manager balked at paying increasingly higher prices for water being provided by Detroit, Flint’s historic source of drinking water. Construction of a water line from Lake Huron offered the prospect of a less expensive source, but that line won’t be completed until mid-2016. Yet Flint decided to sever ties with the Detroit system in April, 2014, and replace it for the interim with water from the Flint River. We now know that the river water not only contains high levels of harmful bacteria, it is corrosive, causing lead to leach from joints in the piping system. Although the use of river water was approved by State officials, the many problems leading to the declaration of a health emergency force the conclusion that the idea was not thoroughly considered nor was it adequately monitored in the early days of implementation. This pattern seems to have continued with efforts to solve initial problems, such as the E. coli concentration, causing additional public health risks.

More generally, Flint’s situation may reflect problems that will soon face many other communities around the nation. While the financial problems experienced by both Flint and Detroit have a number of causes, an issue for both cities is the increasing expense of maintaining and operating aging water systems. These issues are not isolated or unique as many communities are facing similar problems with infrastructure and operating costs. A 2011 report by the American Water Works Association estimates that restoring existing water systems as they reach the end of their useful lives and expanding them to serve a growing population will cost at least $1 trillion over the next 25 years (Buried No Longer).

Providing funding for these costs will be a difficult task, but that is only a part of the problem. To avoid the problems facing the residents of Flint, governments, and private operators where they are involved, must do a better job of assessing the potential risks from particular sources of water and diligently monitoring the quality of the water provided to assure that public health is protected.

Update: Late Thursday, October 8, Michigan’s Governor Snyder announced his support for an interim solution that would reconnect Flint to the Detroit water system. The Governor will ask the legislature to provide most of the money needed to renew the connection and provide water through the middle of next year (Star Tribune).

Clean Power Rule Challenges Will Proceed Sooner or Later, But Its Goal May Already Be Close at Hand

Legal challenges filed almost immediately after President Obama announced the Clean Power Rule may be premature. That is what attorneys for EPA told the U.S. Court of Appeals for the District of Columbia Circuit recently in response to an action brought by West Virginia and several other states. The fundamental issue according to EPA attorneys is that a challenge is not ripe until the regulation is published in the Federal Register, and that may not occur for several weeks. (The Hill).

The particular issue raised by the petitioners is an effort to stay the effect of the Rule while the challenge is proceeding. As we have noticed previously, a failure to obtain a stay associated with a challenge to EPA’s Mercury and Air Toxics Standard (“MATS”) effectively resulted in substantial compliance with that rule during the COURSE OF lengthy litigation and before the Supreme Court invalidated MATS earlier this summer. As a practical matter, many power companies proceeded with actions necessary to comply with MATS, including the shutdown of some older power plants and a conversion from coal to natural gas for others. Indeed, the Governor of Michigan, the State that lead the challenge to MATS, announced earlier this week that the State will comply with the Clean Power Plan even though Michigan’s Attorney General is participating in the challenge led by West Virginia. (Michigan Stance Highlights Clean Power Plan Fray) EPA has indicated that publication of the Clean Power Rule in the Federal Register will occur in less than two months.

While challenges to the Clean Power Rule will certainly be pursued, the Rule’s goal of a substantial reduction in carbon emissions seems to be well along the way. This has apparently occurred primarily due to a substantial increase in the availability and use of natural gas resulting from the boom in hydraulic fracturing, particularly with respect to shale gas. Recent articles in Forbes (Fracking is Our Clean Power Plan) and (Greenhouse Gas Emissions Plunge) note the dramatic increase in the availability of fracked natural gas and that this has been a key to reducing carbon emissions in the U.S. to their lowest levels since 1988. Indeed, the argument is made that the goal set out in the Clean Power Plan for a 32% reduction in carbon emissions from 2005 levels by 2030, is substantially at hand. The indications are that there has already been approximately 25% reduction since 2007, deemed attributable to fracking specifically and the greater availability of natural gas generally. Viewed from a somewhat different prospective, by 2012, the United States had achieved approximately 70% of the CO2 emissions reductions targeted under the Kyoto Agreement.

While the coal industry has focused on what it refers as to as a regulatory “war on coal,” the dramatic shift in the source of energy for power plants appears, at least to this point, to be primarily due to the availability of relatively cheap natural gas. For example, electricity generated from coal-fired plants declined approximately 25% from 2007 to 2012 while generation from natural gas-fired plants increased by approximately 35%. While it is true that power generation from renewable sources has also increased, to date, the real shift appears to be to natural gas.

With this in mind, it bears noting that the Clean Power Plan will likely have an adverse impact on the use of natural gas for power generation. The Plan places a significant emphasis on renewable sources and away from those which generate CO2, including natural gas. Thus, and assuming that the Rule is substantially upheld in its present form, the question may become one of the significance of the individual state emissions budgets and how they might impact total CO2 emissions regardless of whether the source is coal or natural gas.


Georgia EPD Proposing New Requirements on New Inert Waste Landfill Operations

Georgia EPD is proposing to require any new inert waste landfill operations to obtain an inert waste landfill solid waste handling permit. It also provides a transition period to allow existing inert waste landfill operations to comply with these new requirements or close under the existing inert waste landfill permit by rule closure criteria.

EPD will be requiring specific design and operational criteria, and will impose a solid waste handling permit process to replace the existing notification of permit by rule (PBR) operations.


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.

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.

Land Protection Brand of Georgia EPD Organizational Changes

The Land Protection Branch of Georgia EPD recently announced several organizational changes. The reorganization became effective on August 1, 2012.

Included among the Branch reorganization are:

• The position of Assistant Branch Chief has been established and is held by Jeff Cown

• A new Special Projects role for data management and work process improvements is held by Renee Hudson Goodley

• Response and Remediation Program now includes the Brownfields Unit. Derrick Williams has assumed the role of Program Manager, moving from the Underground Storage Tank Program

• The new Program Manager for the Underground Storage Tank Program is Lon Revall

• Acting Manager of the Solid Waste Program, pending selection of a permanent program manager, is Melanie Henry

• Jan Simmons heads the Hazardous Waste Management Program, under which the Hazardous Waste Compliance Program and the Lead and Asbestos Unit have been consolidated

• Jim Brown leads the Hazardous Waste Corrective Action Program, and part of the Hazardous Waste Management remediation projects and associated staff now fall under that Program

• The Waste Reduction and Scrap Tire Units are being consolidated into the Solid Waste



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.


Approaching Compliance Dates: Stationary Engines

Compliance dates for the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE), 40 CFR 63 Subpart ZZZZ, for existing sources are soon approaching. In 2010, EPA expanded the applicability of this rule to control hazardous air emissions not only from new engines but also existing engines, regardless of whether those engines are located at major source or area (minor) sources of HAPs.

Types of engines covered include non-emergency engines used for power generation (including peak shaving), emergency backup power generators, and emergency fire pumps.  Many of these engines are exempt from air quality permitting but are still subject to the RICE NESHAP.

Diesel fueled engines have a compliance date of May 3, 2013, and natural gas and gasoline fueled engines have a compliance date of October 19, 2013.

Key requirements of the RICE NESHAP include:

• Emissions control requirements for certain types of non-emergency engines.

• Operation and maintenance (O&M) and work practice requirements for emergency engines and certain types of non-emergency engines.

• Limits on non-emergency running hours for emergency engines.

• Record keeping requirements.

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.

D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule

On August 21, the D.C. Circuit Court of Appeals, in EME Homer City Generation, L.P v. EPA, F.3d (D. C. Cir. 2012), vacated the Cross-State Air Pollution Rule (CSAPR, also known as the “Transport Rule”) and remanded the rulemaking proceeding to EPA. The D.C. Circuit directed EPA to continue to administer the Clean Air Interstate Rule (CAIR) “pending implementation of a valid replacement”.

Judge Brett Kavanagh wrote for the Court:

Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

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.

5th Circuit SIP Decision May Have Broader Applicability

On August 13, the Fifth Circuit Court of Appeals issued its decision in State of Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012), affirming Texas’s State Implementation Plan (SIP) allowing for “flexible permits.” Under Texas’s Flexible Permit Program, a facility may make modifications without agency review so long as aggregate emissions do not exceed an emissions cap for the facility. The case could have broader implications across the country, if other courts adopt the Fifth Circuit’s reasoning to allow increased flexibility in state air permitting programs. In this case, the Court determined that if a SIP meets the statutory criteria of the Clean Air Act, then the EPA must approve the SIP.  Rejection based on non-statutory preferences is not allowed.

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.