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July 2018

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July 9, 2018
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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.

SmokyPlanet

Topics addressed in this month's call:

  • Dismissal of suit by Oakland and San Francisco against oil companies.
  • Thoughts on impact of Justice Kennedy's retirement on climate change cases.
  • DC Circuit decision not requiring programmatic EIS for coal leasing program.
  • Second Circuit decision on penalties for violations of CAFE standards.
  • New Mexico district decision requiring NEPA analysis of GHG impacts of coal leasing in Santa Fe National Forest.
  • The NY DEC just issued its regulations (in the works for several  years) requiring consideration of climate change in EISs under SEQRA.
  • RI joined the ranks of cities suing over climate impacts.
  • Hawaii enacted a package of legislation in June establishing a goal of achieving carbon neutrality by 2045, creating a framework for a carbon offset program, and requiring consideration of sea-level rise in environmental review processes. Hawaii is now the first state to create a carbon neutrality goal by law. HB 2182 establishes the neutrality goal and creates a new Greenhouse Gas Sequestration Task Force. HB 1986 directs the Office of Planning to work with the new GHG Sequestration Task Force to investigate and establish the carbon offset program. HB 2106 requires the Environmental Council to adopt rules requiring the consideration of sea-level rise, using best available science, in environmental assessments and environmental impact statements.
  • Colorado Gov. John Hickenlooper announced June 19 that he has directed the state to adopt the California low emissions vehicle program, joining 12 other states in adopting this component of the California clean cars program. 
  • Nine states released an update Zero Emission Vehicle action plan on June 20; a bipartisan action plan for boosting deployment of zero-emission vehicles that builds on a previous plan released in 2014.  The nine states represent approximately one-third of the United States car market.
  • Voters in the Bay Area and statewide in California approved bridge toll increases and bond measures to help adapt infrastructure to sea-level rise and flooding, and to implement other climate change preparedness efforts.
  • Boston Planning and Development Agency approved a Smart Utilities Policy, requiring new large developments to meet certain requirements that will help prepare utility infrastructure for climate change impacts like flooding and heat waves.
  • A group of 15 states launched two carbon capture initiatives on June 19, led by Govs. Matt Mead (R-Wyo.) and Steve Bullock (D-Mont.), to encourage state and federal policy to expand carbon capture deployment.
  • Implications of Pruitt resignation.
  • EPA ANPR on costs and benefits.
  • New EDF methane study.
  • ANPR on NEPA regulations.
  • Prospects for ratification of Kigali HFC treaty.
  • CPP replacement rule.
  • The ever-growing House Climate Solutions Caucus (42 Republican members and counting).
  • DOE appropriations.

Speakers:
Vicki Arroyo, Executive Director, Climate Center, Georgetown University
Michael B. Gerrard, Professor, Columbia Law School; Director, Sabin Center for Climate Change Law
Manik Roy, Senior Fellow, DEPLOY/US [formerly, ClimateWorks Foundation]
Robert Sussman, Principal, Sussman & Associates

Materials:
ELI members will have access to a recording of this session (usually posted w/in 48 hours). 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.

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July 10, 2018
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Each summer, ELI convenes a complimentary seminar series that offers an introduction to the legal and policy foundations of environmental protection in the United States.

ELI's Summer School is a series of brown-bag lunch seminars taught by experts in their fields, introducing the audience to the major environmental statutes (including NEPA, Clean Air Act, Clean Water Act, Endangered Species Act, TSCA, RCRA, and CERCLA) and land use law. Faculty will also incorporate major regulatory and judicial updates to the laws.

Who will benefit: All are welcome. Students and emerging professionals will have unique opportunities to learn, hear updates, ask questions, and network. The series is intended for:

  • undergraduates,
  • law students and graduate students, and
  • working professionals new to or looking for a refresher course in environmental law (such as interns, summer clerks, and associates, or second-career professionals).

Basics of the Clean Air Act

The Clean Air Act has a major impact on the environment,human health, and the economy. The Act and its implementing regulations are at the center of many of the most pressing controversies in environmental law.

As the Trump administration’s infrastructure plan has begun to take shape, a focus has been put on decreasing the time it takes to receive a permit. Meanwhile, the Environmental Protection Agency has put forth plans to remove certain regulations that allow specific industrial polluters to turn off their pollution controls. A move like this would allow major plants to discharge more contaminants as a proposed cost-effective decision. Environmental groups have filed lawsuits on behalf of surrounding communities affected by this move. Additionally, the EPA has proposed a plan to abolish the Obama administration’s fuel efficiency standards. Yet despite this move, California, with the support of countless environmental groups, continues to fight back and retain the stricter fuel standards.

The Clean Air course provided real world examples of air quality planning to make this complex area accessible. Our expert panelists delved into:

  • permitting programs,
  • standards for mobile sources, and
  • special programs developed to improve air quality such as the acid rain program.

Faculty:
Phil Assmus, Senior Staff Associate, National Association of Clean Air Agencies
Janet McCabe, Senior Law Fellow, Environmental Law & Policy Center (ELPC); Professor of Practice, Indiana University Robert H. McKinney School of Law, and Assistant Director for Policy and Implementation, Indiana University Environmental Resilience Institute. Formerly Acting Assistant Administrator, Office of Air and Radiation, U.S. EPA.
Peter Whitfield, Counsel, Sidley Austin LLP

Materials:
Phil Assmus presentation
Peter Whitfield/Janet McCabe combined presentation

**See the entire Summer School 2018 schedule HERE.**

July 10, 2018
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ELI is hosting a series of webinars on the policy, practice, and science of stream compensatory mitigation. Webinar topics are based on the findings and recommendations of the 2017 report Stream Mitigation: Science, Policy, and Practice and selected in coordination with an Advisory Committee of stream mitigation experts. The series will cover a range of issues from assessing stream functions and conditions to restoration approaches and long-term success of compensation projects. This ten-part series is funded by an EPA Wetland Program Development Grant.


Stream Compensatory Mitigation Webinar Series: Status of Stream Compensatory Mitigation

Stream compensation is on the rise. The Environmental Law Institute (ELI) reported that in 2005, 12 percent of all approved mitigation banks provided stream credits. By the end of 2014, 22 percent of all approved mitigation banks had stream credits (USACE, Institute for Water Resources, 2015). The science of stream restoration is also rapidly evolving, as is the development of state and Corps policies governing stream assessment and compensation requirements. Several states have formalized stream mitigation programs, the majority of which were initiated after the Corps and EPA issued regulations in 2008, and at least 32 stream mitigation guidance documents have been developed by states and Corps districts across the country. This webinar reviewed the current status of stream compensatory mitigation policy and practice throughout the United States. This is the first event in our 10-part Stream Compensatory Mitigation Webinar Series.

Speakers:
Rebecca Kihslinger, Environmental Law Institute
Steve Martin, U.S. Army Corps of Engineers, Institute for Water Resources
Brian Topping, U.S. Environmental Protection Agency
Jeanne Christie and Brenda Zollitsch, Association of State Wetland Managers

Materials:

Additional Information/Resources:
Visit ELI's resource page, The State of Stream Compensatory Mitigation: Science, Policy, and Practice

July 10, 2018
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Hunton Andrews Kurth and the Environmental Law Institute held a complimentary summer speaker series featuring key representatives from environmental regulatory agencies. The series of informal seminars provided attendees with the opportunity to directly interact with environmental regulators and professionals in the field on the latest issues and challenges in environmental law in California and throughout the western United States.


U.S. EPA Region 9

Kathleen Johnson is the Director of Enforcement for Region 9 of the U.S. Environmental Protection Agency. Ms. Kathleen Johnson oversees the Enforcement Division, which has a staff of nearly 100, including inspectors, planners and data analysts, with responsibility for compliance inspections, enforcement case development, state oversight coordination, compliance data management and analysis. Ms. Johnson spoke about the latest trends and developments on enforcement at EPA Region 9.

Kathleen Johnson, Director of Enforcement, US EPA, Region 9
Sam Brown, Partner, Hunton Andrews Kurth LLP (Moderator)

 

**See other sessions in the San Francisco Summer Speaker Series schedule HERE.**

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July 11, 2018
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ELI Public Webinar

Justice Kennedy’s announcement of his upcoming retirement at the end of this month from the Supreme Court has the potential to significantly affect the field of environmental law for years to come. The Supreme Court’s 2019 docket includes cases that cover a litany of environmental issues, and Kennedy's replacement will play an especially key role.

For the past three decades, Kennedy has become a crucial swing vote on a variety of issues, including Massachusetts v. EPA in 2007 where Kennedy’s swing vote in a 5-4 decision led the Court to find that Massachusetts had standing to sue the EPA over non-enforcement of the Clean Air Act, and further, that climate change causing greenhouse gases could be a regulated category under that act. A year before in Rapanos v. United States, Kennedy’s styling of the “significant nexus” standard for determining navigable waterways could now affect the Administration’s rulemaking regarding the Waters of the United States (WOTUS) rule. These examples illustrate the changes that could lie ahead for environmental policies. 

ELI's first Breaking News webinar featured expert panelists exploring the influence Justice Kennedy had on environmental law, and what his departure from the court could mean for the future of environmental policy and law.  Also, our panelists gave their initial take on the recent nomination of Brett M. Kavanaugh and his record of environmental rulings.

Panelists:
Caitlin McCarthy
, Director of the Associates Program, ELI
John Cruden, Principal, Beveridge & Diamond PC and President, American College of Environmental Lawyers (ACOEL). Formerly Assistant Attorney General, Environment and Natural Resources Division, Department of Justice
John Elwood, Partner, Appellate, Vinson & Elkins LLP and Lecturer, University of Virginia School of Law
Richard Lazarus, Howard and Katherine Aibel Professor of Law, Harvard University Law School

Materials:
ELI members will have access to a recording of this session (usually posted w/in 48 hours). 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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July 12, 2018
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The D.C. Bar's Environment, Energy, and Natural Resources Community presented its popular annual Summer Reception. This was an excellent opportunity for environment, energy and natural resources attorneys and law clerks from both the private and government sectors to meet and mingle and network.

The reception featured brief remarks by Jeffrey Wood, Acting Assistant Attorney General of the Department of Justice's Environment and Natural Resources Division. Mr. Wood previously served as environmental counsel for U.S. Senator Jeff Sessions and as the Republican staff director for the U.S. Senate Subcommittees on Clean Air & Nuclear Safety and Water & Wildlife. In addition to his government service, Jeff’s career has included time as a partner in the environmental and energy practice groups of a private law firm and as in-house counsel for a transportation company.

This “Off the Record” evening reception was sponsored by the D.C. Bar Environment, Energy and Natural Resources Community. Cosponsored by the American Bar Association Section of Environment, Energy, and Resources and the Environmental Law Institute. Remarks made during “Off the Record” events may not be used for publication.

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July 17, 2018
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Each summer, ELI convenes a complimentary seminar series that offers an introduction to the legal and policy foundations of environmental protection in the United States.

ELI's Summer School is a series of brown-bag lunch seminars taught by experts in their fields, introducing the audience to the major environmental statutes (including NEPA, Clean Air Act, Clean Water Act, Endangered Species Act, TSCA, RCRA, and CERCLA) and land use law. Faculty will also incorporate major regulatory and judicial updates to the laws.

Who will benefit: All are welcome. Students and emerging professionals will have unique opportunities to learn, hear updates, ask questions, and network. The series is intended for:

  • undergraduates,
  • law students and graduate students, and
  • working professionals new to or looking for a refresher course in environmental law (such as interns, summer clerks, and associates, or second-career professionals).

Hazardous Waste and Sites

Environmental law has brought about a sea change in how we manage waste. Faculty explored both the dense regulatory efforts and the simple liability efforts used to bring about this change with emphasis on:

  • the Resource Conservation and Recovery Act (RCRA), and
  • the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The speakers discussed the events that led to the enactment of CERCLA and addressed uncertainties that still exist in RCRA, such as the definition of waste and the rules for recycling.

Faculty:
Ravi Arulanantham, Ph.D., Senior Principal Consultant, Geosyntec
Toby Chun, Partner, Environmental Transactional Practice Group, Kirkland & Ellis LLP
Mary Ellen Ternes, Partner, Earth & Water Law, LLC

Materials:
Ravi Arulanantham presentation
Toby Chun presentation
Mary Ellen Ternes presentation

**See the entire Summer School 2018 schedule HERE.**

July 17, 2018
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Hunton Andrews Kurth and the Environmental Law Institute invite you to a complimentary summer speaker series featuring key representatives from environmental regulatory agencies. The series of informal seminars will provide attendees with the opportunity to directly interact with environmental regulators and professionals in the field on the latest issues and challenges in environmental law in California and throughout the western United States.


San Francisco Bay Conservation and Development Commission

The San Francisco Bay Conservation and Development Commission (BCDC) is a California state planning and regulatory agency with regional authority over the San Francisco Bay and its shoreline and the Suisun Marsh. Created in 1965, BCDC is the nation’s oldest coastal zone agency. State law requires BCDC permitting for projects that propose to fill or extract materials from the Bay and authorizes BCDC to bring enforcement actions for unauthorized projects. BCDC is also tasked with ensuring maximum feasible public access within the Bay’s 100-foot shoreline band and is at the regulatory forefront of preparing for potential sea level rise in the Bay Area. Our speaker discussed the latest issues and challenges facing the agency and developments in the Bay.

Marc Zeppetello, Chief Counsel, San Francisco Bay Conservation and Development Commission
Tom Boer, Partner, Hunton Andrews Kurth LLP (Moderator)

**See other sessions in the San Francisco Summer Speaker Series schedule HERE.**

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July 23, 2018
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An ELI Ocean Program Seminar

The Federal Government has issued a number of ocean management decisions that constitute a significant policy shift from previous administrations. Most notably, these include the development of the 2019 – 2024 Outer Continental Shelf Oil and Gas Leasing Program, which plans to open new marine spaces under U.S. jurisdiction to oil and gas exploitation, and the enactment of the “Executive Order Regarding the Ocean Policy to Advance the Economic, Security, and Environmental Interests of the United States,” which sets the Trump Administration’s ocean management priorities. The latter effectively revokes President Obama’s Executive Order 13547 “Stewardship of the Ocean, Our Coasts, and the Great Lakes,” which had initiated the development of a Coastal and Marine Spatial Planning process in the United States.

Panelists discussed these recent decisions from a variety of legal and governance perspectives.

Panelists:
Caitlin McCarthy
, Director of ELI Associates Program, ELI (moderator)
Rich Innes, Senior Fellow, Meridian Institute
Deborah Halberstadt, Ocean Protection Council Executive Director/Deputy Secretary for Oceans and Coastal Policy, California Natural Resources Agency
Michael LeVine, Senior Ocean Fellow,The Ocean Conservancy
Josh Eagle, Solomon Blatt Professor of Law, University of South Carolina School of Law

Materials:
Josh Eagle presentation
Deborah Halberstadt presentation

Rich Innes presentation
Michael LeVine presentation

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July 24, 2018
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Each summer, ELI convenes a complimentary seminar series that offers an introduction to the legal and policy foundations of environmental protection in the United States.

ELI's Summer School is a series of brown-bag lunch seminars taught by experts in their fields, introducing the audience to the major environmental statutes (including NEPA, Clean Air Act, Clean Water Act, Endangered Species Act, TSCA, RCRA, and CERCLA) and land use law. Faculty will also incorporate major regulatory and judicial updates to the laws.

Who will benefit: All are welcome. Students and emerging professionals will have unique opportunities to learn, hear updates, ask questions, and network. The series is intended for:

  • undergraduates,
  • law students and graduate students, and
  • working professionals new to or looking for a refresher course in environmental law (such as interns, summer clerks, and associates, or second-career professionals).

Law & Policy of Products Regulation

The life cycle of industrial, agricultural, and antimicrobial chemical products, especially those embedded in consumer products, has gained increasing public attention. Regulators are beginning to look at the entire product life cycle, including after the discard of a product at the end of its useful life, not just toxicity data. This course:

  • examined the regulation of chemicals that are used in industrial and consumer products, as well as pesticides, and
  • described the new governance and stewardship initiatives being considered globally by a wide variety of stakeholders to diminish the potential for adverse effects from chemicals.

Faculty:
Lynn Bergeson, Managing Partner, Bergeson & Campbell, P.C.

Materials:
Lynn Bergeson presentation

**See the entire Summer School 2018 schedule HERE.**

July 24, 2018
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Hunton Andrews Kurth and the Environmental Law Institute hosted a complimentary summer speaker series featuring key representatives from environmental regulatory agencies. The series of informal seminars provided attendees with the opportunity to directly interact with environmental regulators and professionals in the field on the latest issues and challenges in environmental law in California and throughout the western United States.


Green Energy

Renewable energy is increasingly satisfying demand for electricity and transforming energy markets throughout the United States. Over the past five years, renewable energy projects represented more than 60% of new electric generating capacity in the United States, and renewable energy projects now provide about 18% of total electricity generation (up from 9% in 2008).  Along with reductions in the cost of solar projects, federal tax law incentives and commitments from corporations to buy renewable energy, the growth of renewable energy is being driven by state-level energy and environmental policy initiatives. Ed Burgess, Director at Strategen Consulting, led our discussion on renewable energy trends and policies and how states are integrating renewables into the grid (including innovative policies that are intended to allow states to meet a larger portion of their peak energy demand through renewable energy). At Strategen, Ed advises Fortune 500 companies, government agencies, utilities, trade associations and developers on policies and programs affecting renewable energy and battery storage.

Speakers:
Edward Burgess, Director, Strategen Consulting
Michael Klaus, Partner, Hunton Andrews Kurth LLP (moderator)

**See other sessions in the San Francisco Summer Speaker Series schedule HERE.**

July 24, 2018
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This “Off the Record” luncheon program was sponsored by the Energy Committee of the D.C. Bar Environment, Energy and Natural Resources Community and co-sponsored by the Environmental Law Institute.


Innovation in unmanned aerial vehicles and satellites represents the new wave of environmental monitoring. More sophisticated and autonomous monitoring has the potential to streamline compliance monitoring for budget-strapped agencies, generate expanded emissions data, and provide another tool for both regulated entities and other groups.

This panel tackled just some of the complex issues raised by drone and satellite monitoring, including: potentially expanded capabilities for emissions monitoring, questions regarding data quality and reliability, how information may be used by various stakeholders, and the appropriate role of new technologies in compliance monitoring.

Speakers:
Philip Father, CEO, Scepter, Inc.
Miles Keogh, National Association of Clean Air Agencies
Sam Sankar, Environmental Council of the States
Andrew Stewart, Sidley Austin (Moderator)
Chet Wayland, Director, Air Quality Assessment Division, US EPA

ELI Resources:
Climate Drones: A New Tool for Oil and Gas Air Emission Monitoring
, (The Environmental Forum, Jul/Aug 2017)
Drones & Environmental Monitoring (ELI Seminar, August 30, 2016)

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July 31, 2018
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Hunton Andrews Kurth and the Environmental Law Institute held a complimentary summer speaker series featuring key representatives from environmental regulatory agencies. The series of informal seminars provided attendees with the opportunity to directly interact with environmental regulators and professionals in the field on the latest issues and challenges in environmental law in California and throughout the western United States.


Bay Area Air Qualty Management District

The Bay Area Air Quality Management District is charged with regulating air quality in the Bay Area. The California Legislature created the Air District in 1955 as the first regional air pollution control agency in the country. The Air District is tasked with regulating stationary sources of air pollution in the nine counties that surround San Francisco Bay: Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, southwestern Solano, and southern Sonoma counties. It is governed by a 24-member Board of Directors composed of locally elected officials from each of the nine Bay Area counties. As the Air District’s chief legal officer, Mr. Brian Bunger is the principal manager for the legal affairs of the agency, including litigation, legal aspects of enforcement actions pursued by the Air District, contracts review and negotiations, providing counseling on regulatory and administrative law issues, and acting as Counsel to the Air District’s Executive Officer, Board of Directors, and Advisory Council. Mr. Bunger discussed the latest challenges and priorities for the Air District.

Brian Bunger, District Counsel, Bay Area Air Quality Management District
Julie Cress, Senior Attorney, Hunton Andrews Kurth LLP (Moderator)

 

 

**See other sessions in the San Francisco Summer Speaker Series schedule HERE.**

July 31, 2018
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ELI Member Breaking News Webinar

The Department of the Interior and National Oceanic and Atmospheric Administration recently proposed comprehensive changes in how the Endangered Species Act (ESA) is implemented. These regulations and policies address the species listing process, including the definition of “foreseeable future,” critical habitat designations, and the Section 7 consultation process, which directs all Federal agencies to consult with U.S. Fish and Wildlife Service when any agency action might affect an endangered or threatened species. If approved, these rules could have a significant impact on species conservation in the United States. The proposed changes were published to the Federal Register on July 25th and will be open to public comment for 60 days. Join ELI and expert panelists for this Breaking News webinar, which will highlight initial reactions to the proposed changes, released on July 19th.

This panel provided an advanced look into potential benefits and repercussions of utilizing the ESA under this regulatory proposal.  Each panelist highlighted his/her top areas of interest in the proposals and described improvements that could be made in the process to finalize the regulations.

Panelists:
Ya-Wei Li, Director for Biodiversity, Environmental Policy Innovation Center, Moderator
Dave Owen, Professor of Law, University of California, Hastings College of the Law
Holly Pearen, Senior Attorney, Environmental Defense Fund
Steven P. Quarles, Partner, Nossaman LLP
Jonathan Wood, Adjunct Fellow, Property and Environment Research Center (PERC)

Materials:
ELI members will have access to a recording of this session (usually posted w/in 48 hours). 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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