E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

From Samantha Corson of GT Philadelphia:

Seventeen years after President Clinton issued an Executive Order on the issue, The United State Environmental Protection Agency ("EPA") has returned to the issue of environmental justice with the adoption of Plan EJ 2014.  Environmental justice is the moniker used to describe efforts to consider whether exposure to environmental risks are distributed evenly throughout society (and in particular, to ensure the fair treatment of low income, minority and indigenous populations).  Through Plan EJ 2014, EPA intends to take community characteristics and demographics into account in its regulatory decision-making.

EPA takes pains to underscore that Plan EJ 2014 is not a rule or guidance document, but instead is a "strategy" to integrate environmental justice into EPA's activities.  The vast majority of Plan EJ 2014 summarizes implementation plans for five "Cross-Agency Focus Areas" and four "Tools Development Areas."  The Cross-Agency Focus Areas include strategies to incorporate environmental justice concerns into rulemaking, permitting, compliance and enforcement, support for community-based action groups and fostering administration-wide action on environmental justice.  Plan EJ 2014 also explores scientific, legal, information management and financial "tools" that can be developed or refined to support EPA's efforts to evaluate and address environmental and health inequities among overburdened communities.  Plan EJ 2014 concludes with a discussion of EPA's intention to support existing EPA programs that pursue environmental justice goals and the EPA's intention to improve its civil rights program.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From Julie Kendig of GT Orlando:

On Friday, September 2, 2011, Cass Sunstein, of the Executive Office of the President, Office of Management and Budget, returned the draft final rule, "Reconsideration of the 2008 Ozone Primary and Secondary National Ambient Air Quality Standards," to EPA with the statement that the President does not support finalizing the rule at this time.  In his transmittal letter to EPA, Mr. Sunstein stated that the draft rule warrants reconsideration and emphasized three points.  First, EPA is required to revisit the national ambient air quality standards in 2013 and the issuance of a new rule late in 2011 would be problematic because the standards are required to be revisited shortly thereafter.   Second, the transmittal letter expressed concern that the currently proposed standards are based upon a review of scientific literature from 2006.  Updated research is being performed which could better meet the requirements of Executive Order 13563 which states that our regulatory system "must be based on the best available science."  Finally, the transmittal letter noted other recent rules promulgated by EPA to address air quality issues and quoted various executive orders regarding the regulatory system.  Mr. Sunstein also described his general directive from the President to work with agencies to minimize regulatory costs and burdens. 

Reaction to the decision to return the draft rule has been mixed.  The U.S. Chamber of Commerce's CEO Thomas Donahue issued a statement including the following: “This an enormous victory for America’s job creators, the right decision by the President, and one that will help reduce the uncertainty facing businesses. It’s also a big first step in what needs to be a broader regulatory reform effort."   The Sierra Club Executive Director and the Natural Resources Defense Counsel President, among other environmental group leaders,  have issued statements critical of the decision. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From K.B. Battaglini of GT Houston:

The Texas Supreme Court, in resolving a conflict among Texas Courts of Appeal over whether state-issued permits immunize permit holders from civil liability, has held in FPL Farming Ltd. v. Environmental Processing Systems LC, No. 09-1010 (Tex. Sup. Ct. Aug. 26, 2011), that wastewater injection well permits issued by the Texas Commission on Environmental Quality (TCEQ) do not shield holders from civil liability.

Environmental Processing Systems (EPS) obtained a permit to drill and operate a wastewater injection well.  FPL Farming sued EPS for trespass and negligence and seeking a permanent injunction, alleging that a waste plume was projected to migrate into the deep subsurface of the formation underlying FPL's property.  A jury failed to find that a trespass had occurred, and a trial judge entered a take-nothing judgment against FPL.  A Texas Court of Appeals considered the threshold question of whether FPL may pursue a trespass claim when TCEQ approved a permit allowing EPS to inject wastewater and the information before the TCEQ showed that EPS's waste plume was projected to migrate into the deep subsurface of the formation underlying FPL's property.  The Court of Appeals concluded that EPS was shielded from civil tort liability, reasoning that no trespass occurs when fluids that were injected at deep levels are then alleged to have later migrated at those deep levels into the deep subsurface of nearby tracts.  The Texas Supreme Court disagreed, finding the reasoning of the Court of Appeals to be inconsistent with the common law rule of the legal effect of an agency's permitting process, because a permit is a "negative pronouncement that grants no affirmative rights to a permittee" and that the Texas Injection Well Act (the policy and purpose of which it to maintain the quality of fresh water in the state) does not preempt civil actions.  However, the Texas Supreme Court cautioned that "we do not decide today whether subsurface wastewater migration can constitute a trespass or whether it did so in this case."

• Email This
• Print
• Comments
• Trackbacks
• Share Link