EPA Releases Final Health Assessment for Tetrachloroethylene (PERC)

On February 10, 2012, the U.S. Environmental Protection Agency (EPA) posted the agency’s final toxicological review of tetrachloroethylene. Tetrachloroethylene – also known as PERC, or PCE – is a solvent widely used in the dry cleaning industry. The review characterizes PERC as a “likely human carcinogen” and provides estimates for both cancer and non-cancer effects of exposure to the chemical. EPA's new calculated cancer risks for PCE are lower than the current values used by EPA, while non-cancer risks are higher by an order of magnitude or more.  Thus, risk-based screening levels based on EPA's newly-calculated cancer risks may increase, resulting in less stringent cleanup standards at PCE-contaminated sites. 

Many states, including California, already have stricter risk-based cleanup standards for PCE, and will not be immediately affected by the new federal standards.  The new standard will be used to develop a revised Maximum Contaminant Level (MCL, the federal drinking water standard) for PCE, but it is too early to predict whether that standard will be lower than the current MCL.

-Chris Jensen and Morgan Gilhuly

Ninth Circuit Invalidates State Implementation Plan

California's Central Valley is once again without an approved State Implementation Plan for ozone. On Friday, January 20, the Ninth Circuit held, in Sierra Club v. US EPA, that EPA had acted arbitrarily and capriciously in approving the 2004 plan.

The Valley is an extreme non-attainment area for ozone, and has been a non-attainment area since 1991. California proposed a SIP for the Valley in 2004, but amendments to the plan and EPA's review took so long that by the time EPA approved the plan, which was based on 2004 data, in 2010 there was more current data that EPA chose not to consider in approving the SIP. The Ninth Circuit held that the SIP was required to be based on "current" and "accurate" data, and although that standard doesn't require constant updating, EPA could not ignore data that was collected in 2007 and in EPA's possession when it approved the SIP.

US Supreme Court decides AEP

On Monday, June 20, 2011, the US Supreme Court issued its decision in American Electric Power Co., Inc. v. Connecticut. The Supreme Court reversed the Second Circuit Court of Appeals and held that the Clean Air Act displaces any potential claim under federal common law to restrain emissions of greenhouse gases. The Supreme Court remanded the case back to the lower courts to decide whether the plaintiffs (a group of states and private land trusts) could sue for the same relief -- a cap on GHG emissions by large power companies -- under state nuisance law. The opinion did not take any position on that issue, but it was clear that at least some members, and perhaps all, of the Court would be skeptical of any claim that judges should determine GHG emissions. The decision was unanimous, with Justice Sotomayor recusing herself because she had participated in the Second Circuit decision below.

The upshot of this opinion is that it will increase the impetus for EPA to pursue comprehensive GHG regulation, even in the absence of further federal legislation. The Court made it clear that EPA is the agency charged under current federal law with regulation of GHGs, and that "[i]t is altogether fitting that Congress designated an expert agency . . . as best suited to serve as primary regulator" of GHG emissions. The Court explained that any EPA decision not to regulate GHG emissions would be subject to judicial review, and ultimately would end up back in the Supreme Court.

--Morgan

More on Judge Goldsmith's ruling and its impact

As the New York Times notes in this article, Judge Goldsmith's ruling is just part of a national retreat from a cap-and-trade approach.

--Morgan

GHG Regs

The most effective enemy of the California Cap-and-Trade regulations is turning out to be the environmental community. First, environmental groups sued to stop the California Air Resources Board from promulgating the cap-and-trade regulation without a further CEQA analysis -- and won. Now, the Sierra Club has asked Governor Brown to re-assess cap-and-trade. So many cliches come to mind, it's hard to know where to start: with friends like these, who needs enemies, don't let the perfect be the enemy of the good, don't throw the baby out with the bath water, etc., etc. Whatever one's view of cap-and-trade, it seems obvious that without a successful AB 32 program in California, national action on climate change is far less likely. Thus, it's strange to see environmentalists lining up in opposition.

Green Chemistry

There are two mammoth environmental programs wending their way through the rule-making process in California now, CARB's proposed cap-and-trade regulations and DTSC's green chemistry initiative. The latter promises to have a far larger effect on products sold in California even than Proposition 65, which has generated its own litigation specialty. DTSC's acting director has reportedly said that DTSC will release a new draft of its green chemistry regulations within the next few days with very short 15-day public comment period.

-Morgan

Declaratory Relief in CERCLA Actions

The Ninth Circuit today held that a CERCLA plaintiff that fails to prove liability for recoverable response costs may not obtain declaratory relief for future response costs that it may incur. In City of Colton v. American Promotional Events, Inc., the Ninth Circuit first affirmed summary judgment for defendants on plaintiff's claims for responses costs because plaintiff had admittedly not complied with the National Contingency Plan. The court then held, in a case of first impression in the Ninth Circuit, that plaintiff was not entitled to declaratory relief for future costs.

-Morgan

Ninth Circuit Decides CERCLA Current Owner Issue

In State of California Department of Toxic Substances Control v. Hearthside Residential Corp., the Ninth Circuit answers one of the unanswered questions of CERCLA liability -- is the "current owner" of a CERCLA facility, one of the four categories of responsible parties, the owner at the time a lawsuit is filed, or at some other time? The Ninth Circuit holds that the "current owner" is the owner at the time that response costs are incurred. The decision also provides a very handy statement of the various purposes of CERCLA, and will probably be cited far more for those purposes than for its holding. The decision makes sense, because costs are usually incurred from the time of discovery of a release, and any other rule would create a game of hot potato in which parties have an incentive to transfer the property after discovery of contamination but before a lawsuit is filed. One interesting ramification is that because costs may be incurred over a long period of time, there may be more than one "current owner," and perhaps many.

-Morgan

Draft Cap-and-Trade Regulations

CARB's new very preliminary draft cap-and-trade regulations are now available on CARB's website. The draft regulations have placeholders for many of the most important provisions, such as how allowances will be distributed, how many will be auctioned and how many will be freely distributed. And CARB has not yet made a decision whether to include industrial emitters of less than 25,000 MTCO2e in the initial cap-and-trade phase from 2012 to 2015. CARB's overview summary provides a schedule for the promulgation of the regulations, which are scheduled to go into effect January 1, 2012.

-Morgan

Final GHG Reporting Regulations Published

On October 30, 2009, EPA published its final greenhouse gas reporting regulations in the Federal Register. The regulations are described below in my September 28 post.

-Morgan

District Court Allows Katrina Victims to Pursue Climate Change Lawsuit

In Comer v. Murphy Oil USA, residents along the Gulf Coast filed suit against numerous energy companies claiming defendants' business activities contributed to global warming that contributed to the destruction of their properties during Hurricane Katrina. J. Dennis rules that plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims presents nonjusticiable political questions. But plaintiffs' unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons.

-Morgan Gilhuly and Chris Jensen

New GHG Reporting Requirements

On September 22, 2009, EPA issued final greenhouse gas reporting regulations. The text of the regulations, and some explanatory materials are available here.

In general, the regulations apply to certain industry categories and to generators of more than 25,000 metric tons of CO2 equivalent GHGs. Reporting is, for the most part, based on emissions from a specific facility (not an entire company) but there are exceptions, for example for automobile manufacturers. Certain industry categories (petroleum refineries, cement manufacturing) are required to report regardless of the threshold; other industries that were proposed for inclusion in draft regulations have been exempted (e.g., electronics manufacturing), and agricultural emissions are mostly exempt. Most building owners will not be required to report emissions from boilers and facility equipment because those sources, even for a large building, are unlikely to meet the 25,000 metric ton threshhold. Similarly, virtually all state and local government facilities are likely to fall below the reporting threshhold. EPA estimates that the reporting regulations will cover 85 percent of greenhouse gas emissions from the United States.

Reporting will be required starting January 1, 2010, with the first report due March 31, 2011.

EPA's website has a list of frequently asked questions that help to answer some of the questions about applicability of the regulations, but this rule is just the beginning in what will likely be a more comprehensive set of reporting regulations.

-Morgan

Second Circuit Reinstates States' Nuisance Suits

The Second Circuit has reversed a district court decision and reinstated a nuisance suit, under the federal common law, against electric power providers brought by several states and environmental organizations. A copy of the decision is available here. The Second Circuit panel originally included Justice Sotomayor, but because of her elevation to the Supreme Court the two judges remaining on the panel decided the matter themselves.

-Morgan

New Pew Update to IPCC

And here's a new Pew Center report, updating the IPCC's Fourth Assessment Report on the effects of climate change. There's no good news here.

-Morgan

White House Report on Climate Change

Thirteen federal agencies have published a new report on the impacts from global climate change. The key findings from the report, in very general form, can be found here. This report does not provide a prescription for legislative action, but its factual findings will support proponents of Waxman-Markey and other legislative action.

-Morgan

Scoping Plan

The California Air Resource Board's Climate Change Scoping Plan is available here.

EPA Endangerment Finding

EPA signed proposed endangerment and cause or contribute findings today.  The proposed findings and the technical backup are available here.  A sixty day comment period will begin when the proposed findings are published in the Federal Register.  EPA is also holding two public meetings on the proposed findings.  The west coast meeting will be held in Seattle on May 21.  

--Morgan

More Rumors About An Endangerment Finding

There are more rumors that an endangerment finding for greenhouse gases is imminent. Here's the latest from one of the New York Times' blogs.

-Morgan

Warming costs for California

Here's a summary of the Climate Action Team's latest estimates of the cost of climate change for California: http://www.chicagotribune.com/news/nationworld/sns-ap-climate-change-california,0,4184482.story The final report is due out at the end of March.

New Federal GHG Reporting Rules Announced

Its only March and the new administration is already laying the groundwork to address climate change. EPA proposed a rule today that requires mandatory reporting of greenhouse gas (GHG) emissions from large sources.

The rule would require that suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions submit annual reports to EPA. The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).

The preamble to the Rule, which hasn't yet been published in the Federal Register, is at: http://www.epa.gov/climatechange/emissions/downloads/MRRPreamble.pdf

The press release, announcing the rule is at: http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/4bd0e6c514ec1075852575750053e7c0!OpenDocument

-Morgan