In this month's Pennsylvania Law Weekly / Legal Intelligencer column, I examine the recent Pennsylvania Commonwealth Court decision, Energy Conservation Council v. Public Utility Commission, No. 951 C.D. 2010 (July 11, 2011), and the Environmental Rights Amendment to the Pennsylvania Constitution.
To read the article, click here.
From Samantha Corson of GT Philadelphia:
On August 15, the New Jersey Department of Environmental Protection (NJDEP) Site Remediation Program took a big step toward completing the transition from DEP oversight to private oversight of remediation of contaminated sites by releasing a proposed final rule package ("Final Rules") for the Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS") and Technical Requirements for Site Remediation ("Tech Regs").
The privatization process began in 2009 with the adoption of the Site Remediation Reform Act ("SRRA") which called for the creation of the Licensed Site Remediation Professional ("LSRP") program that will supplant the DEP command and control model of oversight. Under SRRA, all sites must be transitioned to LSRP oversight by May 2012.
Continue Reading...In this month's Pennsylvania Law Weekly / Legal Intelligencer column, I examine Pennsylvania Act 17 of 2011. Act 17 purports to "repeal" joint and several liability. Application of the amendment will be difficult in straightforward tort cases. In cases involving releases of hazardous substances or other environmental claims, Act 17 is just a puzzle. Whether you think this sort of tort reform is a good or a bad idea, litigation puzzles almost never serve important public policy purposes. Read the column here.
From Gene Livingston of GT Sacramento:
The new Director of California's Department of Toxic Substance Control, Debbie Raphael, announced that mid-October is the new target date for new draft regulations to implement California's Green Chemistry Law. The law called for regulations to be in place by January 1, 2011. However, universal opposition last year to the previously proposed regulations rendered that date impossible. Raphael, demonstrating political acumen, has the support of the legislative authors of the law to take the time needed “to get it right.”
Continue Reading...In his monthly column in The Legal Intelligencer/Pennsylvania Law Weekly, David Mandelbaum of GT Philadelphia examines the trend of seeking an award of attorney fees under the Pennsylvania Clean Streams Law (CSL) from the Pennsylvania Department of Environmental Protection (DEP), and the implications for the DEP, public interest groups and industrial permitees.
In this month's column in The Legal Intelligencer/Pennsylvania Law Weekly, I discuss Pennsylvania's State Water Plan, which was recently amended to designate "critical water planning areas." Passed in 2002, the Water Resourcees Planning Act (Act 220) called for six regional committees and one statewide committee to develop the Plan and then to designate these "critical water planning areas." The State Water Plan attempts to avoid potential water resource conflicts created by residential land use, agriculture, and -- the most water-intensive activity -- thermo-electric power plants. While it receives a great deal of press currently, water used to support development of Marcellus Shale natural gas wells receives only cursory treatment in the current Plan because of the age of the available data. Click here to view the full article.
On November 29, the New York Assembly passed A1143B/S08129B which had previously passed the Senate. Governor Paterson is reported to be prepared to sign the bill, although the New York Times blog reports that industry groups are still pushing for a veto. The bill, if signed, would impose a moratorium on new permits for natural gas wells that use hydraulic fracturing until May 15, 2011.
Thanks to K.B. Battaglini of GT Houston for this post.
What with Interior Secretary Ken Salazar seeking to re-impose an unpopular moratorium on deep water drilling, and with New York and Pennsylvania experimenting with various moratoria to quell drilling in the Marcellus Shale, Texas State Representative Lon Burnam (Democrat, Fort Worth) has gotten into the act by calling for a moratorium on new natural gas drilling in the Barnett Shale due to allegedly high benzene levels from existing gas production. Burnam, a minority member of the Texas House Committee on Environmental Regulation, asserts in an editorial in the Fort Worth Star Telegram that "fugitive emissions" of benzene at compressor stations exceed the exposure limits recommended by the Agency for Toxic Substances and Disease Registry. However, the exposure cited by Burnam does not result from drilling but from compression, and Burnam does not address how a drilling moratorium is intended to address the compression issue.
Bryan Shaw, Chairman of the Texas Commission on Environmental Quality, who holds a Ph.D. in agricultural engineering and is an associate professor in the Biological and Agricultural Engineering Department at Texas A&M University, says the benzene levels pose no immediate health risk, because health problems would arise only after exposure for 24 hours a day for 70 years.
Burnam's proposed moratorium is an outgrowth of election-year politics in Texas, as the race for Governor pits incumbent Rick Perry (a Republican and proponent of drilling in the Barnett Shale) against Bill White (a Democrat and proponent of tough action against individual producers who violate pollution control standards).
From Heather Behnke, GT Albany.
On April 23, New York State Department of Environmental Conservation (DEC) Commissioner 
Alexander "Pete" Grannis announced that any applications for natural gas drilling permits using high-volume hydraulic fracturing (fracking) techniques that are located in the New York City or Skaneateles Lake watersheds (which includes Syracuse) will be assessed on a "case-by-case" basis instead of under the Supplemental Generic Environmental Impact Statement (SGEIS). As we discussed here, the SGEIS is in the process of being finalized by the DEC and is not expected to be completed until later this summer or this fall. The DEC claims the additional environmental review is warranted because these watersheds use an unfiltered surface water supply and drilling in these watersheds poses unique land disturbance and usage issues that will not be addressed by the SGEIS.
The president of the environmental group Riverkeeper, which has long sought to ban fracking within the NYC watershed, said this restriction amounts to a "de facto ban" on fracking. None of the 58 pending permit applications will be affected by this new restriction because they are not located in these watersheds.
From Heather Behnke, GT Albany
New York Department of Environmental Conservation Commissioner, Alexander "Pete" Grannis, told a conference in Albany on April 15 that DEC would take until late summer or early fall to complete its review of nearly 14,000 comments on the Marcellus Shale study DEC has determined to conduct before lifting a drilling moratorium. According to a DEC staffer who also spoke at the conference, no action will be taken on the 58 pending permit applications or any new permit applications until the DEC completes its review and issues a Final Supplemental Generic Environmental Impact Study. Then, those permit applications would have to be amended to meet the requirements of the SGEIS. Meanwhile, drilling and investment are going forward in Pennsylvania, so the money is all going there--instead of New York.
Robert Verchick is EPA's Deputy Associate Administrator for Policy, Economics, and Innovation (OPEI). Previously, he was a law professor and a board member of something called the “Center for Progressive Reform,” a far left “think-tank” favoring federal government control over pretty much every aspect of human existence.
EPA issues scores of rules every year for implementation by State environmental agencies. State regulators, who have found EPA’s implementation cost estimates almost always substantially underestimate costs, and who must obtain State budgetary appropriations to pay
for EPA mandates, therefore have asked EPA to come up with a “cost of rules formula” the State agencies may use to help develop accurate budgets. Verchick’s response:
Pound sand.
According to the invaluable Inside EPA, Verchick addressed a March 25 Environmental Council of the States conference and reportedly said: “I’m not sure, personally, that this cost of rules focus is serving your interest…” Furthermore, Verchick reportedly said it was not possible to isolate the cost of EPA’s rules in any event. One can only hope Verchick's statements were somehow taken out of context, for Federal bureaucratic arrogance is generally not a terribly adaptive strategy for implementing policy. In any event, given Verchick's well-documented antipathy to cost-estimating regulatory burdens, it is likely State environmental agencies and State taxpayers will continue to suffer from EPA’s irrational refusal to disclose its rules' true costs.
From Gene Livingston, GT Sacramento.
In the 19th Century, California was known for Gold. In the 21st, it aims to be known for Green. The 
State's "Green Chemistry Initiative", described here, is a massive undertaking, at least as significant and wide-ranging as California's efforts to reduce GHGs.
The California Legislature has granted unprecedented authority to the State Department of Toxic Substance Control, authorizing the agency to identify and prioritize chemicals in consumer products as "chemicals of concern" and to require manufacturers to assess alternatives to limit exposure or reduce hazard levels. DTSC's powers include product bans.
For more than a year, DTSC has worked on regulations. At one point, it circulated a draft that would have covered hundreds of thousands of consumer products and required all products containing any identified chemical to be banned in two to twenty years. While DTSC has abandoned that draft, its public disclosures leave unanswered most questions about the scope of implementation. DTSC expects to release a detailed outline by mid-April that is certain to raise enormous concerns for businesses and consumers.
Updates will follow as events unfold.
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