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October 2017

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October 5, 2017

This program was sponsored by the D.C. Bar Environment, Energy and Natural Resources Community. Cosponsored by the Administrative Law and Agency Practice Community, the American Bar Association Section of Environment, Energy, and Resources, and the Environmental Law Institute.

Since the presidential transition, EPA and other agencies have used a variety of tools to change policies and regulations. Three common tools they have used are stays, remands, and reconsideration. Agencies administratively stay the effective date of rules preventing them from going into effect, seek voluntary remand of rules in litigation to revisit rules administratively while avoiding a judicial decision, and administratively reconsider rules. Some of these actions have been the subject of the heated litigation, and the courts have acted to constrain agency discretion, including in an important D.C. Circuit decision rejecting EPA's stay of the oil and gas methane rule (Clean Air Council v. Pruitt, no. 17-1145). Our expert panelists discussed the use of these legal tools in changing agency policy, and offered cutting-edge perspectives from the government, the private sector, and the environmental advocacy community.

Megan Berge
, Baker Botts LLP
Ethan Shenkman, Arnold & Porter
Susannah Weaver, Donahue & Goldberg
Prof. William Buzbee, Georgetown University Law Center (Moderator)


October 10, 2017

An ELI Professional Practice Workshop

Are you ready for the major regulatory change taking effect in California on October 1, 2017? In the Summer of 2017, California adopted significant revisions to its Process Safety Management (PSM) and Accidental Release Program (ARP) regulations, specifically targeting oil refineries and creating precedent for other industries, and for other states considering their own rules. These new extensive requirements created significant controversy, with some stakeholders believing the regulations will improve safety and others questioning both their effectiveness and wisdom in light of the significant costs they will impose. Certainly, there will be new burdens – the scope, costs, and actual benefits remain to be seen.  At the same time, during the final weeks of the Obama Administration, EPA issued massive amendments to its federal Risk Management Plan (RMP) regulations and federal OSHA continues to implement its PSM program. The intersection of the federal and state programs and the interpretations of the new RMP regulations, which EPA is currently reconsidering, are evolving and will be critical to companies in California as they implement the CalPSM and CalARP rules. 

This "master class" went beyond a comprehensive overview of the regulations; it provided insights from key regulators and knowledgeable attorneys on implementation concerns in light of ambiguous regulatory language. Topics included definitions of major incident and major change, requirements for involvement of employees and unions, the team for inherent safety technology reviews, and more.  As these new regulations kick in, it is imperative to understand:

  • what exactly is required;
  • how those requirements may be enforced;
  • how the state, federal EPA, and federal OSHA plan to integrate their respective programs or resolve inconsistencies; and
  • how compliance can be managed.

Participants heard directly from regulators and had their questions answered by attending this half-day conference.

Please go HERE to see the full agenda.

Vanessa Sutherland, Chairperson of the U.S. Chemical Safety Board
Clyde Trombettas
, Statewide Manager & Policy Advisor, Cal/OSHA Process Safety Management Unit
Gina M. Solomon
, M.D., M.P.H., Deputy Secretary for Science & Health, California EPA
Randy Sawyer
, Chief Environmental Health & Hazardous Materials Officer, Contra Costa Health Services
Kathryn Lawrence
, Chief, Emergency Prevention and Preparedness Section, U.S. EPA Region 9
Kumani Armstrong
, Special Counsel, California Department of Industrial Relations
Shannon S. Broome
, Managing Partner, San Francisco Office, Hunton & Williams LLP
J. Tom Boer
, Partner, Hunton & Williams, Former DOJ Prosecutor
Daniel Grucza, Senior Attorney, Hunton & Williams LLP, Former Environmental, Health & Safety Manager for complex plastics manufacturing facility


If you are an ELI member and are logged onto the Members site, you will see links below to available materials/recordings from this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.


October 12, 2017

An ELI Public Seminar

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, requires responsible parties to clean-up and remediate contaminated sites. Many states have similar local requirements. In the 35 years since the law was passed, there have been major advances in the technology used for assessments of damages, determination of risks, and remedial activities. This half-day conference looked ahead to emerging trends in technology and regulation. Topics included:

  • Risk assessment strategies designed to streamline and economize due diligence
  • Approaches to working with regulatory agencies
  • Cutting-edge technologies at remediation sites  including a discussion of the application of the STAR and ISTD technologies
  • Solar optimization at contaminated and remediated sites

Panel  1:  Regulatory Challenges and Changes – What to Expect in 2018

Scott Fulton, President, Environmental Law Institute (moderator)
William H. Hyatt, Jr., Partner, K&L Gates LLP
Irene Kropp, Senior Environmental Consultant, Langan Engineering & Environmental Services (former Deputy Commissioner at NJ DEP)

Panel 2: Advances in Risk Assessment and Cutting-Edge Technology

Lisa Bromberg, Principal, Porzio, Bromberg & Newman,  P.C (moderator)
W. Chip D’Angelo, Founder & CEO, WCD Group
Marlaina Auger, Senior Engineer, Geosyntec Consultants
Chad Farrell, CEO, Encore Renewable Energy
Gorm Heron, Chief Technology Officer, TerraTherm, Inc.

If you are an ELI member and are logged onto the Members site, you will see links below to available materials/recordings from this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

October 16, 2017

Staying on top of the legal and policy developments in the climate change arena is no small task. As a special service to our members, the Environmental Law Institute provides a series of monthly conference calls with national experts on climate law and policy to keep you up to date and to answer your questions.


Topics addressed in this month's call:

  • Proposal to repeal the Clean Power Plan.
  • Wildearth Guardians v. BLM (10th Cir.) -- BLM issuance of coal leases must consider downstream GHG.
  • Conservation Law Foundation v. Exxon (D.Mass.) -- Allowed suit to proceed regarding tank farm's preparedness for major weather events, but not preparations for conditions in 2050 or 2100.
  • Foster v. Washington Dept. of Ecology (Wash.Ct.App.) -- Reversal of trial court order requiring state agency to set GHG standards.
  • People of State of California v. BP (Cal.Super.Ct.) -- Common law nuisance claims filed against several oil companies by San Francisco and Oakland, seeking funds to sea wall, etc. construction.
  • California Gov. Brown announced the official linkage of Ontario with the state’s cap-and-trade system. Ontario joins fellow Canadian province Quebec in linking to the California system.
  • The U.S. Climate Alliance released a report that participating states are on track to meeting their portion of the U.S. NDC to the Paris Agreement.
  • At the first meeting of National Governor Association Chair Nevada Gov. Sandoval’s Ahead of the Curve: Innovation Governors initiative, Colorado Gov. Hickenlooper announced that seven states will work together to create a Regional Electric Vehicle Plan for the West. The states, CO, ID, MT, NV, NM, UT, and WY, will work together to build an electric vehicle corridor.
  • Rhode Island took actions to enhance climate preparedness in the state, with legislation passed that will require local planning board and commission members receive climate impacts training, and an executive order that requires the creation of a new climate action plan.
  • The California legislature passed several bills relating to financing and new programs for more resilient infrastructure and natural systems, and improved flood risk reduction.
  • Alaska's Governor Walker in September appointed a state senior climate change adviser, a new executive position, and in early October Lt. Governor Mallott hosted a roundtable of leaders from local government, Native villages, industry, and others to discuss next steps for developing a climate change plan.

Vicki Arroyo, Executive Director, Climate Center, Georgetown University
Michael B. Gerrard, Professor, Columbia Law School; Director, Sabin Center for Climate Change Law
Robert Sussman, Principal, Sussman & Associates

If you are an ELI member and are logged onto the Members site, you will see links below to available materials/recordings from this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

ELI Monthly Climate Briefings are made possible by the
generous support of our institutional members.

NOTE: This call/recording is for ELI members only. No comments may be quoted
or used without the express written permission of ELI and the panelist.

October 18, 2017

The 2017 ELI-Miriam Hamilton Keare Policy Forum

Since its establishment 46 years ago, the US EPA has had overarching enforcement responsibility for most of the nation’s federal environmental laws. But over the decades, states have developed the expertise and capacity for ensuring environmental protection. With the Trump Administration’s proposed downsizing of EPA budget and staffing and renewed focus on states, decision-makers and stakeholders have a timely opportunity to rethink the paradigm of cooperative federalism and environmental protection in the US.

For decades, EPA has played the role of the “gorilla in the closet,” the looming threat of federal enforcement if regulated entities did not cooperate with state enforcement efforts.  But if less federal enforcement is on the horizon, how can environmental compliance be assured? In considering this question, The Environmental Council of States (ECOS) has proposed that a periodic audit system take the place of federal intervention in delegated states.  How would an audit system of this kind work in practice, and what are the implications of this kind of change?

Meanwhile, environmental data is being generated at an exponential rate, and other actors, namely local governments and international governing regimes, are increasingly asserting their roles in environmental governance. How will information technology and interconnectivity change environmental enforcement and accountability? How can governments, advocates, and businesses evaluate this information and use it to ensure compliance? What do forces outside the federalism dichotomy mean for the future of environmental governance in a global economy and society unconstrained by state or national borders?

ELI’s expert panel discussed the opportunities and challenges of a new take on cooperative federalism for environmental governance. The conversation considered trends in politics, economics, technology, and other factors influencing environmental protection. Experts participated in a moderated discussion and fielded questions from the audience.

Stan Meiburg,
Director of Graduate Programs in Sustainability, Wake Forest University (Moderator)
Barry E. Hill, Visiting Scholar, Environmental Law Institute, and formerly Senior Counsel for Environmental Governance of the Office of International and Tribal Affairs at EPA
Neal Kemkar, Director of Environmental Policy, General Electric
Becky Keogh, Director, Arkansas Department of Environmental Quality
Bob Martineau, Commissioner, Tennessee Department of Environment and Conservation
Vickie Patton, General Counsel, Environmental Defense Fund

Materials of Interest:
ECOS Cooperative Federalism 2.0
Collaborative Federalism (The Environmental Forum, May/June 2016)
View the 2014 ELI-Keare Forum: The Role of State Leadership in Cooperative Federalism

October 18, 2017

ELI 2017 Corporate Forum

Since the 1970s, government and industry have evolved significantly, but has the environmental regulatory system kept pace? With real-time diagnostics, cutting edge compliance management systems, and an underlying focus on sustainability as good economic practice in many industry sectors, compliance is increasingly self-policed and self-corrected. Increasingly, companies are regulating their supply chains in ways that drive environmental performance.

There is much discussion about “cooperative federalism” and the need to ensure that environmental program administration reflects the significant expertise and experience state environmental agencies now have after decades of administrating environmental protection laws. This is the subject of The Macbeth Dialogues, a cooperative effort of ELI,  the Environmental Council of States (ECOS), and the American College of Environmental Lawyers (ACOEL), undertaken in memory and honor of a pillar of the environmental law community, the late Angus Macbeth.

But what would changes to the cooperative federalism model mean for the business community?  How do corporations look at the tension between national consistency and local flexibility?  More fundamentally, with private governance systems increasingly finding and solving compliance problems without the intervening hand of government, how might the government role be re-envisioned in a way that aligns with, reflects, and harnesses this phenomenon?

Should environmental governance move away from a top-down, law enforcement model to an “environmental protection enterprise” in which the states and federal government, the private sector, and the public all play key roles?  These are among the questions that were considered at ELI’s 2017 Corporate Forum.

Alexandra Dapolito Dunn, Executive Director and General Counsel, Environmental Council of the States (ECOS)— Moderator
Richard DeSanti, Chief Environmental & Safety Counsel, Chevron Corporation
John Lovenburg, Vice President, Environmental, BNSF Railway
Todd Parfitt, Director, Wyoming Department of Environmental Quality
Janet Peace, Senior Vice President, Policy and Business Strategy, Center for Climate and Energy Solutions
Martha Rudolph, Director of Environmental Programs, Colorado Department of Public Health and Environment

Of Related Interest:
View a recording of the 2015 ELI Corporate Forum: Is Private Governance Changing the Practice of Corporate Environmental Law?
Exercising Responsibility for the Supply Chain and Human Rights, Ann Klee (The Environmental Forum, Jan/Feb 2016)
It All Starts With the Supply Chain, Ann Klee (The Environmental Forum, Sep/Oct 2014)

October 26, 2017

An ELI Public Seminar

In an ideal world, environmental information would be easy to find and use. But the current state of environmental information access requires additional knowledge and expertise—the kind provided by Sarah Lamdan’s recent book, “Environmental Information: Research, Access, and Environmental Decisionmaking” (ELI Press, 2017).

Designed for legal practitioners, librarians, journalists, advocates, students, and researchers, the book helps environmental information seekers locate, obtain, and make sense of environmental records, documents, and data. The book discusses environmental research tactics and resources and it also covers methods for obtaining information from nontraditional sources, like government offices and open meetings.

Sarah Lamdan led a workshop on the various tools and strategies discussed in the book. The workshop included the opportunity to have questions answered by the author, provided deeper insight into environmental research and information access laws, and discussed how to apply various concepts from the book.

Sarah Lamdan, Associate Law Library Professor, The City University of New York School of Law (CUNY)

If you are an ELI member and are logged onto the Members site, you will see links below to available materials/recordings from this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

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