MANDATORY LABELING OF FOODS PRODUCED USING GENETIC ENGINEERING IS ON THE HORIZON

Posted on May 29, 2012 by Robert Uram

Labeling of food produced using genetic engineering is on the horizon either as a result of a petition that is pending before the Food and Drug Administration or as a result of a ballot initiative in California.  Labeling of genetically engineered food appears to have widespread popular support.

The presence of foods produced with the assistance of genetically modified organisms, or GMOs, is widespread in the United States, especially for crops like corn and soybeans.  The most common genetic modification to date is an introduced trait to make a plant resistant to a specific herbicide, allowing farmers to use the herbicide without killing the crop.  Today, most of the crops produced using GMOs can used without having to comply with any significant regulatory requirements. 

Concern over use of genetically modified organisms covers a broad range of issues, including increased use of pesticides, the presence of genetically engineered foods in products that are not intended to be produced with such methodologies, and health concerns that may arise from consuming genetically engineered foods.  One way to address those concerns is to ensure that consumers know which products are produced using genetic modification so that those with concerns can avoid them.  However, unlike many other developed countries, the United States has no laws requiring labeling of food produced with genetically modified organisms.

Recently, more than one million individuals, more than 500 partner organizations representing the healthcare community, consumer advocates, farmers, concerned parents, environmentalists, food and farming organizations, businesses, and 55 members of Congress joined in support of a petition to the Food and Drug Administration for mandatory labeling of genetically engineered foods.  The petition, among other things, calls for the FDA to issue regulations requiring labeling of all foods produced using genetic engineering.

In addition to the FDA petition, an initiative has been filed in California seeking to require the labeling of genetically modified foods in California. On May 2, 2012, more than 970,000 signatures were filed supporting a referendum to impose a California right-to-know requirement for GMOs.  The California law is known as the California Right-To-Know Genetically Engineered Food Act.  If adopted by the voters this November, commencing on July 1, 2014, retail sale of food offered in California would be banned if it is or may have been entirely or partially produced with genetic engineering, unless the production method is disclosed in clear and conspicuous words.  The labeling requirements would not apply to foods which inadvertently contain genetically engineered food products and has other limited exceptions.

These labeling requirements, if adopted, will give consumers a greater opportunity to decide whether or a not to purchase genetically engineered food and may have a far reaching effect on the markets for genetically engineered food.

SHALE GAS FRACKING: PREVENTING THE NEXT DEEPWATER HORIZON

Posted on May 23, 2012 by David Ullrich

There has been a dramatic increase in shale gas and oil extraction over the past several years that is presenting an interesting mix of technical, legal, policy, and environmental issues.  These appear to be playing out differently in each state, and with additional twists in Canada relative to the oil sands in Alberta and shale gas in Quebec.  Although the flow of gas and oil has increased dramatically during this time, there appear to be continuing questions about the impacts on groundwater, the relationship to earthquakes, the nature of the chemicals used in the water injected, how the residual water should be treated, and many more.  The matter of the Keystone pipeline has generated significant controversy between the United States and Canada, and the role of non-government organizations in this process has drawn the attention and concern of the Government of Canada.  If this practice is not managed and regulated effectively, we are likely asking for serious environmental consequences like those we have experienced in the past when we have not thought through carefully what could happen as a result of our actions.

With the many issues to address, one in particular is the focus of this discussion, and that is the appropriate roles of federal, state, local, provincial, tribal, and first nation governments in the process of approving the siting, construction, and operation of the wells, in addition to the handling of the residues and the product.  It appears a bulk of the responsibility is in the hands of state and provincial governments, but that may not be the best allocation of jurisdiction.  Local governments have the primary responsibility of providing safe drinking water to their populations, and may be adversely affected by the fracking operations.  Also, local wastewater management facilities are being looked to for treatment of the residual water from the process, which includes unknown chemicals and contaminants from the product.  In some instances, local governments are being excluded from the approval process.  It does not appear that tribal and first nation governments have been consulted to any great extent.  On the federal level, U.S. EPA is not regulating the activity, although it is doing an extensive study of the potential impacts of fracking and related activities.  Environment Canada has been engaged in the oil sands matter primarily through the evaluation of the environmental monitoring program undertaken by Alberta and the companies involved.

The very successful model used in the U.S. for air, water, toxics, and hazardous waste since 1970 that has a strong Federal presence that establishes a legal framework and minimum protective standards across the county, with the option for states to receive delegation and implement programs with more stringent requirements if they wish, should be used for shale gas and oil extraction.  In addition, there need to be specific opportunities for local and tribal governments to participate in the process in a way that protects their interests.  Also, there must be ample opportunity for public participation.  This is the best way to reduce the likelihood of another very costly disaster down the road.

Resource extraction has always presented significant challenges to finding the right economic, social, and environmental balance in managing an activity for the broader good of the country.  In the context of the continuing concern about serving the energy needs of the United States, Canada, and the rest of the world, the question is what makes sense and is good public policy?  Perhaps we are still early enough in the history of this issue to make  changes to help prevent  serious and expensive  problems in the future.

STILL ROADLESS AFTER ALL THESE YEARS

Posted on May 22, 2012 by Todd D. True

In the waning days of the Clinton administration, the U.S. Forest Service adopted a regulation to protect more than 50 million acres of national forest roadless lands, i.e., public lands still undeveloped and largely untouched. Called the Roadless Area Conservation Rule [36 C.F.R. § 294] or Roadless Rule (and sometimes called the RACR), it was soon off to the races with no fewer than nine lawsuits by development interests and western states seeking to invalidate it.

First, at the request of the State of Idaho and others, a district court in Idaho issued a preliminary injunction against the Roadless Rule  – without opposition from the Forest Service, by then under different management. Conservation interests appealed and the Ninth Circuit reversed and vacated the injunction, allowing the Roadless Rule to take effect.

A district judge in Wyoming then invalidated the Roadless Rule and enjoined its implementation nationwide in a case filed by the State of Wyoming. An appeal by conservation interests to the Tenth Circuit, again with the Forest Service firmly on the sidelines, ensued. In 2005, before the appeal was resolved, the Forest Service itself repealed the Roadless Rule and replaced it with a state petition process, leading the Tenth Circuit to vacate the district court decision and dismiss the pending appeal as moot.

Conservation groups and the states of California, Oregon, Washington and New Mexico challenged the repeal.  In 2006, a district court in California overturned the repeal and reinstated the Roadless Rule.  The Ninth Circuit subsequently affirmed.

Back to Wyoming, where the State of Wyoming renewed its complaint and in 2008 the district court duly re-issued its earlier decision enjoining the Roadless Rule. Conservation groups again appealed to the Tenth Circuit, and in 2011 the Circuit reversed the district court’s decision and vacated the injunction. The RACR ruled again.

Last week, after the Tenth Circuit denied rehearing en banc, Wyoming petitioned the Supreme Court to review the Tenth Circuit’s decision.  The decision is a unanimous, one hundred-plus page review of Wyoming’s claims under NEPA, the National Forest Management Act, and the Wilderness Act -- worth a read just as a primer on the current state of these laws.  In the meantime, the Forest Service is now off the sideline and, along with conservation interests, expected to oppose Wyoming’s cert. petition.  The Supreme Court should act on the petition by next Fall.

Unless you live in Hawaii, you’re probably no more than a few hours’ drive from the nearest national forest roadless area (yes, there are roadless areas in the White Mountains, Appalachians and Ozarks as well as the western states).  Visit one and see what the controversy is all about.  Or maybe you already know because you live in one of the hundreds of communities around the country that gets its drinking water from a nearby roadless area – so you enjoy these lands every time you turn on your tap.  Any way you use and enjoy them, the more than 50 million acres of federal public land the Roadless Rule protects are still roadless after all these years. 

(Full disclosure – Earthjustice represented the conservation interests in the cases discussed above.)

The 11th Circuit Weighs in on the CERCLA §107 vs. §113 Debate

Posted on May 14, 2012 by Jarred Taylor

The ACOEL blog has devoted several entries over the last two years to the question whether and how a plaintiff could recover, under CERCLA, costs it incurred for a cleanup performed under a consent decree or administrative settlement.  One of the more intriguing developments for CERCLA practitioners has been the tension between and radical differences to cost recovery or contribution claims under Sections 107 and 113 of CERCLA.  One of the more recent developments is the 11th Circuit decision in Solutia v. McWane (Full disclosure: I am counsel to several defendants in this case). 

"Boots" Gale previously blogged about the District Court decision. The District Court dismissed Plaintiffs’ Section 113 claim on the basis that these Defendants had the benefit of CERCLA’s contribution protection obtained via their own administrative settlement with EPA.  Initially, the District Court denied summary judgment on Plaintiffs’ Section 107 claim, but then reconsidered and reversed that decision. 

The 11th Circuit noted that the Supreme Court's Atlantic Research decision declined to decide the issue of whether a party may bring a 107(a) claim for direct cleanup costs incurred via a consent decree entered as past of CERCLA Section 106/107  litigation.  The 11th Circuit confirmed, however, the conclusion of the District Court that numerous federal Circuit Courts had reached that issue since that time, each one concluding Section 113 to be the party’s exclusive remedy, and denying the Section 107 claim.  Relying in part on the conclusions reached by these other Circuit Courts, the 11th Circuit rejected Plaintiffs’ statutory interpretation arguments, and concluded that a party who has a CERCLA Section 113(f) claim cannot also maintain a CERCLA Section 107 claim.  To find otherwise, the 11th Circuit concluded, would “thwart the contribution protection afforded to parties that settle their liability with the EPA…”, “destroy CERCLA’s statutorily-created settlement initiative…”, would allow a plaintiff to impose joint and several liability on defendants, and would prevent those defendants from asserting any Section 113(f) counterclaim since the plaintiffs would have their own CERCLA contribution protection via their consent decree. 

The time has not run yet for the Plaintiffs in this case to seek certiorari from the Supreme Court.  In light of the unanimity of the federal Circuit Courts on this issue, it seems unlikely that the Court would accept the case for decision, despite the importance of the issue and the Court’s decision not to reach the issue in its 2007 decision in Atlantic Research.

Here's a Suprise -- A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay

Posted on May 8, 2012 by Seth Jaffe

Yesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay. Pardon me if I seem to be posting a lot of dog bites man stories recently.

Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively, the scope of the benefit is worth noting. If trading were allowed basin-wide, and among both point and agricultural non-point sources, costs are projected to decrease by about 50% of the non-trading compliance costs.

Since I have faced this issue in Massachusetts, I found it even more noteworthy that, if trading were expanded to include regulated urban stormwater sources, compliance costs are expected to be reduced by about 80% over the non-trading scenario. The report’s explanation is both simple and cogent:

Implementing urban stormwater BMPs tends to be a much less cost-effective way of reducing nutrient loads than agricultural BMPs.

To which I say, you could have knocked me over with a feather. I just hope that EPA does not limit its review of this report to the Chesapeake Bay itself, but considers its implications more broadly in the context of stormwater regulation in other areas.

Connecticut Adopts Revised Stream Flow Regulations and Standards

Posted on May 2, 2012 by Gregory Sharp

The fish versus faucet debate that has been percolating in Connecticut for the past decade has produced a comprehensive stream flow regulation with release rules applicable to all dam owners.  The new regulations will bring each segment of every river and stream in the state under the regulatory umbrella when fully implemented.

Previous regulations adopted in 1979 applied only to streams stocked with fish by the State and imposed a flat minimum release requirement on owners of dams on those streams.

The new regulations require the Department of Energy and Environmental Protection to first assign each stream segment one of four classifications.  Once the classifications are adopted, the regulations will require owners of dams to release water to maintain flows downstream of the dam according to the classification of the segment.

Class 1 will apply to segments which are free flowing and will require that any dam owner on these segments not manipulate storage or withdraw water from the impoundment.  Class 2 will apply to segments with minimally altered flow and will require dam owners to provide for a continuous release of 75% of the natural inflow to the impoundment.

Class 3 will apply to segments with moderately altered flow and will require dam owners to comply with a variable minimum release regime calculated for the segment based upon one of six bioperiods.  Class 4 applies to segments with substantially altered flows due to human needs for water supply, flood control, industry, agriculture and other lawful uses.

Connecticut’s five major river basins will be classified one basin at a time.  The Department estimates that classification of all five basins will take five years.  The regulations require that the release requirements applicable to regulated dam owners become effective not later than 10 years after a segment is classified.  The lead time was deemed necessary to enable dam owners to make modifications to their structures to be able to comply with the release requirements.

The new regulations represent a compromise package between what the Department originally wanted and the regulated community would accept.  Before the current package was approved, three previous proposed regulations had been rejected by the General Assembly’s Legislative Regulation Review Committee.  To win legislative approval, the Department eliminated groundwater withdrawals from the scope of the regulations and provided exemptions for agricultural and golf course irrigators.

In addition, to provide certainty to water utilities, the regulations specify that segments downstream of a public water supply reservoir shall not be classified as Class 1 or Class 2.  Finally, the regulations do not apply to government flood control dams or hydropower dams regulated by the Federal Energy Regulatory Commission.

The regulations became effective on December 12, 2011.

LIFE JUST KEEPS GETTING TOUGHER FOR CERCLA CONTRIBUTION SEEKERS

Posted on May 1, 2012 by William Session

One of the more recent and interesting decisions in the world of CERCLA litigation practice was rendered just a few days ago by a federal district court in Pakootas v. Teck Cominco Metals Ltd. The judge in that case articulated the legal underpinnings of the often confused notions of CERCLA-based divisibility of harm and apportionment of liability determinations. 

The judge explained that divisibility of harm does not defeat CERCLA liability itself but, instead, is a defense to joint and several liability citing with approval language from U.S. v. Monsanto Co. to the effect that “ . . . While it appears “divisibility” and “apportionment” are terms used interchangeably, what is potentially divisible is the harm, and if the harm is divisible, what is potentially apportioned is liability, assuming there is a reasonable factual basis for apportionment.”

Against this legal backdrop, the facts in Pakootas brought into sharp focus a commonly encountered situation for CERCLA litigants where multiple parties find themselves attempting to apportion response cost liability for different contaminants, released from different facilities that have become commingled, and are encompassed within what the EPA or state regulatory agency has deemed to be a single “site”.

In addressing an apportionment claim Judge Suko, sitting in the Eastern District of Washington, articulated the importance of the distinction between apportionment of liability in such situations and divisibility of harm.  Judge Suko stated that the first inquiry in the apportionment battle must always be to fix responsibility for the harm for which a party might seek to apportion liability.  The court appropriately held that a CERCLA liability determination is based upon the liability- imposing language of the statute itself:

. . . [L]iability attaches when three conditions are satisfied: (1) the site at which there is an actual or threatened release of hazardous substances is a “facility” under 42 U.S.C. Section 9601(9); (2) a “release” or “threatened release” of a hazardous substance from the facility has occurred, 42 U.S.C. Section 9607(a)(4); and (3) the party is within one of the four classes of persons subject to liability under §9607(a). Pakootas I, 452 F.3d at 1073-74.

In Pakootas the party seeking apportionment (Teck) was clearly a liable person under CERCLA and was undeniably associated with the release of contaminants that could be traced only to the facility it operated.  Teck argued as an affirmative defense to a liability claim that the “harm” at the site should be “apportioned” since the contaminants released by Teck could be discretely indentified even though they had become “commingled” with those released by many others. Teck reasoned that it could defend itself against a joint and several liability claim by way of such “apportionment”.  In so many words, Teck sought to apportion liability based upon divisibility of the contaminants associated with its releases.

Judge Suko observed that:

The fact for liability purposes the . . .  Plaintiffs need to, and intend to, establish that Teck’s slag and/or liquid effluent released or threatens to release hazardous substances (certain metals) from the UCR Site does not, however, limit the scope of the releases or threatened releases from the Site for which Teck can be held liable and, in turn, does not limit the scope of the relevant harm for divisibility/apportionment purposes.

After a thorough examination of many of the more recent contribution/apportionment appellate decisions from around the country, Judge Suko ultimately determined that Teck failed to prove that contamination at the site involved was divisible and, as a result, would be subject to CERCLA 107 joint and several liability with other potentially responsible parties at the site. 

If you find yourself representing a party in an apportionment dispute, this case seems to stand for the proposition that if you cannot determine everything that everyone may have done to create a contaminated site; you may be in trouble in pursuing an apportionment or contribution action.  Additionally, and it is just my personal opinion, the decision represents one of the better anthologies of apportionment/divisibility jurisprudence I have seen in recent cases (and that includes some of the work of the Supreme Court). 

Nevertheless, the high burden of technical or scientific proof Judge Suko would impose upon a party seeking apportionment/contribution could well hearken back to the days before post-BNSF days of “reason based” rules for apportioned liability. (See, e.g. J. Barkett, The Burlington Northern Decision, American College of Environmental Lawyers Blog (May 19, 2009).