What are we to do when we find PFAS in private water supply wells? (And we will...)

Posted on February 19, 2021 by Robert D. Cox, Jr.

Here in Massachusetts, public water suppliers (PWS) have begun sampling for the presence of PFAS in their water supplies in accordance with new rules set by our regulatory agency, Massachusetts Department of Environmental Protection (MassDEP). In October 2020, MassDEP issued a PFAS public drinking water standard at a Maximum Contamination Level (MassMCL) of 20 nanograms per liter (ng/L) (or parts per trillion (ppt)) – individually or for the sum of the concentrations of six specific PFAS or the “PFAS6.”[1] The regulations detail the sampling requirements and corrective actions that PWS must take when the MassMCL is exceeded, as well as the provisions for public education and notice of exceedances so that communities may be proactive in protecting their drinking water quality.

Roll-Out Schedule: 

January 1, 2021: Large PWS, serving more than 50,000 people, began compliance monitoring.

April 1, 2021: PWS serving between 10,000 and 50,000 people are to begin monitoring.

October 1, 2021: Smaller systems, serving 10,000 or fewer people begin compliance monitoring,

September 30, 2022: Transient Non-community PWS (e.g., hotels and restaurants) must collect, analyze and report sampling results.

The big concern, of course, is that many PWS will find PFAS and need to install costly treatment at the expense of other necessary system upgrades. Based on experiences in other states, widespread PFAS contamination is not expected, but the cost to an individual PWS will depend upon the extent of PFAS contamination at that PWS.  To its credit, the state has made funding available for limited sampling as well as reimbursement for the design of PFAS treatment, along with low interest loans. Clearly, if PFAS detections are widespread and at elevated levels, public funding to support PWS capital infrastructure and other financial and technical assistance associated with PFAS testing, monitoring, and remediation will be necessary.

What about private drinking water wells?  While PWS are regulated by the Safe Drinking Water Act (Massachusetts took delegation of SDWA authority in 1977) and thereby are obligated to provide safe drinking water, it’s a different story with private wells. Private wells provide drinking water to more than 500,000 Massachusetts residents, and more than 13 million US households rely on private wells for drinking water. The SDWA does not protect private wells.  Unlike PWS, the 20 ppt PFAS6 MassMCL standard does not apply to private drinking water wells.

Massachusetts does have other laws that indirectly protect the quality of the water obtained from a private water system. The owner of a private well is generally responsible for ensuring the quality of their drinking water.

MassDEP is encouraging PFAS sampling of residential wells. For 81 Massachusetts towns where 60% or more of residents are served by private wells, MassDEP is offering free PFAS sampling. Sampling is suggested if a private well is located within one to two miles of a known source of PFAS or of other water supplies where PFAS has been detected. Known PFAS sources include airfields and firefighting training areas, where Aqueous Film Forming Foam (“AFFF”) containing PFAS was in use, and certain manufacturing facilities. Because PFAS have been widely used in consumer products such as food packaging and non-stick surfaces, septic systems and landfills may also be a source of PFAS in groundwater.

Here Is The Kicker:  Although the 20 ppt PFAS6 MassMCL standard does not apply to private drinking water wells, un-permitted releases of oil and hazardous materials, including PFAS6, into the environment are regulated under our state “superfund” law, Chapter 21E and MassDEP’s regulations, known as the Massachusetts Contingency Plan (MCP).  The MCP has a “Reportable Concentration” of 20 ppt for PFAS6 in groundwater used as drinking water. As a result, homeowners who test their private well and find that PFAS6 exists in groundwater in concentrations equal to or above 20 ppt are required to notify MassDEP, undertake MCP response actions, and may find themselves subject to significant legal and financial responsibilities under Chapter 21E.

If the source of PFAS6 in the drinking water well is known, MassDEP will require the parties responsible for the contamination to take necessary action. But, if the source of PFAS6 is unknown when the homeowner receives the data results, the owner is likely to be left holding bag. Under Chapter 21E and the MCP, the homeowner has responsibility to address the contamination. MassDEP will to provide technical information on actions needed - such as installation of Point of Use (POU) or Point of Entry (POE) water treatment devices - to ensure that “safe” water is available. But these systems are generally designed to meet the USEPA’s Health Advisory of 70 ng/L (or ppt) for the sum of PFOS and PFOA, and not specifically designed to meet Massachusetts’ drinking water standard for PFAS6.

Under Chapter 21E and the MCP, MassDEP has the authority to deem the homeowner a “Potentially Responsible Party” or “PRP” and require assessment and cleanup actions to address the contamination, including actions beyond the resident’s property, in pursuit of achieving a 20 ppt PFAS6 MCP cleanup standard.

End Game:  But is that how MassDEP or any state agency should use it powers to address PFAS found in private residential water well? Of course not. Let’s hope that does not happen here. There has got to be better way to address the risk to public health when we find PFAS in private water supply wells. 


[1] The six PFAS are: perfluorooctane sulfonic acid (PFOS); perfluorooctanoic acid (PFOA); perfluorohexane sulfonic acid (PFHxS); perfluorononanoic acid (PFNA); perfluoroheptanoic acid (PFHpA); and perfluorodecanoic acid (PFDA). MassDEP abbreviates this set of six PFAS as “PFAS6.”

AN INVITATION TO ACOEL MEMBERS: A TOOL TO SUGGEST TO YOUR CLIENTS AND FRIENDS TOWARD IMPLEMENTING NET ZERO GHGs

Posted on February 18, 2021 by Jeffrey C. Fort

 

Climate is clearly an early priority of the Biden Administration.  The array and breadth of executive orders surely demonstrates the vast power of  the Federal  bureaucracy to achieve reductions in GHG emissions and climate impact.  While those measures would have been gladly received 4 years ago, the prior administrations retreat from climate leadership to climate denial has evoked a groundswell of actions by cities and states, and private citizens.  “We’ re still in” and the Climate leadership states have stepped up their commitments.  Indeed, even before the Clean Power Plan was replaced in 2019 by the American Clean Energy Rule, it was evident the private sector investment incentives from federal tax credits had substantially increased the use of solar and wind-powered electric generation,  reducing US dependence on coal for power generation.

Other actions, including renewable portfolio requirements from almost 30 states,  enhanced the results from the federal investment tax and production credits.  To keep nuclear power as part of the solution, some states [e.g. Illinois and New York] crafted “zero-emission” incentives to keep nuclear, base-load power plants running.

But the largest potential reduction in carbon emissions is the geologic sequestration tax credit, which earns a tax credit of $50 per ton of CO2 stored in appropriate geologic formations. Even when used for enhanced oil recovery or Direct Air Capture, the credit is $35 per ton.  Not only is this perhaps the largest emission reduction tax credit, but when implemented is a huge CO2 reduction strategy.  Sources in the mid-South and mid-west may boast excellent geologic formations for such.

The federal tax credit [known as 45Q for its position in the tax code] has captured much attention, as it should.  Getting the results expected of that tax credit will be difficult, but would go far beyond anything EPA assumed in the Clean Power Plan when adopted in 2015.

The 45Q tax credits for geologic sequestration and direct air capture have already stimulated as many as 30 projects announced to use geologic sequestration principles to remove CO2 from the troposphere.  Credits from these kinds of projects also may be used as credits in the low carbon fuel standard credits, which is part of California’s suite of climate policies.

As important as these tax incentives are for geologic sequestration, and for climate benefit if implemented, there are other actions which private citizens and states can take. One of those is to incentive changes in industrial processes by chemical fixation of CO2 exhaust gases. The reaction processes are well known and established; but the cost of making existing products using this approach is more expensive than existing in-place technologies.  

A potential incentive is to monetize the environmental attributes of such an approach by use of a carbon offset credit methodology. We have crafted such a methodology to quantify the saved emissions when certain conditions are met, and then create carbon offset credits to use elsewhere. A dozen or more end-use durable products in existing markets could be formulated using exhaust CO2 gas.[1]

Developed in consultataion with the American Carbon Registry and waiting to be put to public notice and peer review, this carbon offset methodology would do just that -- earn carbon credits for the re-use of CO2 exhaust if used in beneficial products.[2]

This is an open invitation to ACOEL members to investigate this opportunity -- to develop   a peer-reviewed carbon offset methodology, and apply it to a particular client or business segment.  Dentons and a client have done the heavy and creative initial lifting -- the opportunity is too special not to share. See americancarbonregistry.org/carbon-accounting/standards-methodologies

This is an opportunity to recover waste gases and convert into a wide range of commercial products, regardless of the extra market value from potential offset sales.


[1] A wide number of intermediate products could be created, which would then  be used in appropriate products. End use products which we have found likely to be eligible under this draft Methodology include: Plastics, Polymers, Coatings, Paints, Adhesives, Rubber & leather, Textiles, Paper, Glass, Metals, Wood and Concrete.

[2] Fuels would likely not qualify, since the focus of such is to again combust and release the CO2 into the environment.

 

It’s a Bird, It’s a Plane….It’s a Drone!

Posted on February 12, 2021 by Gail Port

As previously reported, the New York State Department of Environmental Conservation (NYSDEC) and New York State Energy Research and Development Authority (NYSERDA) are focused on meeting their ambitious goals to address climate change set out in the Climate Leadership and Community Protection Act (CLCPA). To do so, they have undertaken a number of innovative initiatives, including, as recently announced, that they will deploy drones to help reduce climate-altering greenhouse gas emissions from aging and abandoned oil and gas infrastructure in the State.

In New York, there are a number of orphan oil and gas wells that have been abandoned for more than a century, in some cases. Leaving these wells unplugged allows methane gas to leak into the environment.  Insofar as methane is, at least in its first two decades after its release, 84 times more potent than carbon dioxide as a greenhouse gas, this can have a significantly negative impact on the environment. The importance of plugging these orphan leaking wells is well-known.  Indeed, we are likely to see federal government also pushing this initiative, as the Biden-Harris transition plan included a proposal to create “250,000 jobs plugging abandoned oil and natural gas wells and reclaiming abandoned coal, hard rock and uranium mines.”  Plugging abandoned wells is only one step that NY is undertaking to reduce methane emissions from, among others, landfills, new and existing oil and gas infrastructure, and agricultural sources.

Until now the process to locate and plug these leaking methane emitting sources was very costly because it is difficult to spot them from the ground during land-based field surveys. It is expected that employing the use of drones to identify these wells will speed up the process and save taxpayer dollars. As noted in the NYSERDA/NYSDEC press release “[t]he specialized drones will fly over the landscape with equipment that reveals magnetic signals produced by the wells at specific GPS coordinates. Signal anomalies and other data will be used to create maps that DEC will use to identify locations for on-site visits to verify the presence of orphan wells.”

This is not the first time New York has used drones to improve its environmental efforts. In 2017, NYSDEC deployed a fleet of 22 drones to enhance the state’s environmental management, conservation and emergency response efforts. Such drones have been used for search and rescue missions, forest fire suppression, wildlife management and surveys, invasive species detection, and forest health evaluations.‎ Specifically, in New York state alone, drones have been used to locate an oil spill in a Staten Island wetland, to map an invasive plant across 200 acres of wetlands in St. Lawrence County, to detect underground bat hibernation sites in Mineville and even to control traffic at the New York State Fair.

Saving taxpayer money is certainly a laudable goal, but doing so while taking steps to improve the environment is even better! New York should be applauded for its initiative to leverage drone technology to make leaks “drone” dry.

ACOEL Co-Sponsoring February 22, 2021 Webinar on US-Cuba Environmental Cooperation

Posted on February 10, 2021 by David B. Farer

On Monday, February 22, ACOEL is co-sponsoring and participating in a joint webinar with Columbia University, the Environmental Defense Fund, and the Foundation Antonio Nunez Jimenez of Nature and Humanity (FANJ, a Cuban NGO) on the prospects and means of revitalizing the environmental MOUs that had been entered between the US and Cuban governments and other organizations during the Obama administration openings.

The program is titled “Cuba-US Working Together Again:  Lessons from Environmental Cooperation.”  The morning session will provide history and context.  The afternoon session will explore opportunities and strategies, including opportunities for College Fellows to provide pro bono services pursuant to the 2019 MOU between ACOEL and FANJ.

The webinar is open to all to attend, free of charge.  Here are links to the webinar flyer – which includes the registration link – and the announcement of the program.

ACOEL will be well represented in the event.  Dan Whittle will be moderating the morning panel on history and context.  Pam Giblin and Lee DeHihns will be on the afternoon panel that David Farer will be co-moderating on opportunities and strategies.

Registration link:  http://bit.ly/3oBDca2

CHESAPEAKE RESTORATION UPDATE

Posted on February 5, 2021 by Ridgway Hall

At ACOEL’s 2019 annual meeting in Williamsburg I chaired a panel on the ongoing restoration of the Chesapeake Bay Watershed, which I described as the biggest, and arguably the best, example of cooperative federalism in the country. The Chesapeake Bay is the biggest estuary in North America.  Its watershed covers 64,000 square miles in 6 states and the District of Columbia. It is home to 18 million people and over 3600 varieties of fish, shellfish, plants and animals, and is a multi-billion dollar driver of the mid-Atlantic economy.

However several centuries of commercial development and deforestation have resulted in severe pollution, with nitrogen, phosphorus and sediment posing the most serious problems, reflected in widespread violation of water quality standards. The biggest sources of these are farming and stormwater runoff. These sources involve almost entirely nonpoint source pollution which is not subject to regulation under the Clean Water Act.  After decades of unsuccessful efforts by the states to reduce this pollution, EPA in 2010 issued a multistate total maximum daily load (TMDL) under the CWA – the largest ever – which assigned to each state its share of the necessary load reductions of nitrogen, phosphorus and sediment. These reductions are designed to achieve water quality standards by 2025. EPA committed to oversee state compliance. For a detailed discussion of this TMDL and its implementation, see R. Hall, “Restore The Chesapeake”, The Environmental Forum (Jan/Feb 2016).

In 2009 President Obama issued an Executive Order declaring the Bay “a national treasure” and directing 7 federal agencies, under EPA’s leadership, to work with the states to restore the health of the Bay watershed and its habitat. To achieve the TMDL goals each Bay State developed its own “Watershed Implementation Plan” (WIP) laying out the regulatory measures, pollution reduction strategies, personnel and funding resources, and responsibilities for state and local agencies. The restoration effort has also generated an outpouring of participation from private sector organizations, NGOs and individual citizens.

In 2014 the Bay States and EPA entered into a “Chesapeake Watershed Agreement” identifying specific measures and responsibilities to achieve the water quality and habitat restoration goals. EPA reiterated its commitment to be the referee, making sure that each state does its fair share, and imposing sanctions for failures. This responsibility is based on language in the TMDL and CWA Section 117(g), specific to the Chesapeake, which requires EPA to “ensure that management plans are developed and implementation is begun [by the states] … to achieve and maintain … the [applicable] water quality requirements”.

At the Williamsburg meeting our panel described both the tremendous success of this program and the significant challenges it was facing, including funding shortfalls at the federal and state levels, compliance verification, climate change impacts (like heavier rainfall), the fact that Pennsylvania is far behind the other states, and the fear that the Trump EPA would not exercise effective oversight to make sure each state did its share. All of these challenges have proven to be significant, especially EPA’s failure to ensure performance. Then came Covid, forcing cutbacks in state funding, technical support and enforcement, and complicating performance in the field.

So what’s happening? Improvement in water quality, fish and shellfish populations and habitat has slowed or stalled, as documented in a recent “2020 State of the Bay Report” issued by the Chesapeake Bay Foundation. Because EPA approved WIPs from Pennsylvania and New York which on their face fail to achieve their TMDL requirements, suits were filed against EPA by the Attorneys General of Maryland, Virginia, Delaware and the District of Columbia and by the Chesapeake Bay Foundation under CWA 117(g) and the APA, raising issues of first impression.  Pennsylvania’s failure to commit the necessary resources to restoring the health of its degraded rivers and tributaries has placed achievement of the 2025 goals in serious jeopardy.

Meanwhile the Bay states continue working hard with diminished resources, and support from the private sector is as strong as ever. The arrival of the Biden administration promises fresh and much stronger leadership at EPA, which will be essential to renewed progress. While it will take months before a new Region 3 Administrator is installed and up to speed, just the prospect has energized the spirits of all involved in the restoration. Nevertheless, even if a reinvigorated EPA and an economic recovery provide twin shots of adrenaline to the restoration, achieving the TMDL goals by 2025 will still be a heavy lift.  Stay tuned.

Environmental Justice: Operationalizing TSCA to Fulfill Its Destiny

Posted on February 4, 2021 by Lynn L. Bergeson

The Biden Administration has embraced environmental justice with unprecedented gusto.  In its July 2020 Plan to Secure Environmental Justice and Equitable Economic Opportunity (Plan), the Biden Administration sets out in broad terms how it intends to use an “All-of-Government” approach to “rooting out systemic racism in our laws, policies, institutions, and hearts.”

The Toxic Substances Control Act (TSCA) is not explicitly mentioned in the Plan, but its potential utility to help achieve environmental justice is significant.  Congress amended TSCA in many ways in 2016, but two provisions are especially relevant to this discussion.  Congress added a requirement that, in prioritizing chemicals for risk evaluation and in conducting chemical risk evaluations, the U.S. Environmental Protection Agency (EPA) must consider whether a chemical substance presents an unreasonable risk to a “potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation” by EPA.

TSCA defines “potentially exposed or susceptible subpopulation” as follows:

The term “potentially exposed or susceptible subpopulation” means a group of individuals within the general population identified by [EPA] who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly.

This enumeration of subpopulations is illustrative only, and TSCA authorizes EPA to identify other subpopulations, as appropriate.

The second provision relates to risk evaluation.  EPA is required under TSCA to review existing chemical substances and to conduct risk evaluations for chemicals identified as high priority.  To date, EPA has selected an initial 10 chemicals for risk evaluation and an additional 20 as high-priority chemical substances for risk evaluation.  EPA is in various phases of the risk evaluation and risk mitigation process for these 30 chemicals.  With approximately 41,000 substances active in commerce, EPA has a long, long way to go.

Importantly, and as noted, the 2016 TSCA amendments require EPA to determine risks to subpopulations with greater susceptibility to the health effects of chemical exposures.  Many would agree that the risk evaluations conducted to date, and the 2020 scoping documents for the next tranche of existing chemicals slated for evaluation, focus little on how potentially exposed or susceptible subpopulations are at increased risk from chemical exposure due to life stage, genetic polymorphisms, sex, race and ethnicity, lifestyle considerations, preexisting health conditions, nutrition, and other factors.  In a few evaluations, EPA has accounted for enhanced susceptibility by applying a default interspecies uncertainty factor of 10.  Detractors have noted that a 10-fold uncertainty factor can be presumed to be too small because EPA customarily uses it to account for normal expected variations in sensitivity within the healthy population.  EPA has applied an uncertainty factor above 10 to susceptible subgroups in other regulatory contexts, such as to infants and children under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) risk assessments.

No one is questioning the complexity of the risk evaluation task under TSCA.  Chemical risk evaluations are demanding under the best of circumstances, and the sheer number of them required under TSCA is daunting.  Importantly, however, Congress explicitly directed EPA to consider potentially exposed or susceptible subpopulations, which necessarily includes populations with unique and/or disproportionate exposure pathways, whose risk from combined exposures is likely to be underestimated, and perhaps greatly so, by more conventional risk assessment practices and assumptions.  These populations include environmental justice communities, generally defined by EPA to include urban and rural poor, fence-line communities, minorities, Native Americans, and others.

Many would agree that now, as amended, TSCA offers unprecedented opportunities to help achieve environmental justice.  To date, EPA has worked hard to implement the 2016 amendments, under sometimes-difficult circumstances.  With the Biden Administration squarely committed to the goals of environmental justice, TSCA stakeholders all have a role to play in optimizing TSCA.  Here are a few suggestions:

  • Build upon the competencies of the National Health and Nutrition Examination Survey (NHANES) model to support and include community-based research on environmental justice communities that may be at higher risk;
  • Task EPA’s Office of Research and Development with developing specific risk evaluation practices that more accurately reflect sensitive subpopulations, such as developing default uncertainty factors that better eliminate bias;
  • Ensure that TSCA Section 6 scoping documents routinely identify fence-line exposures and related susceptible subpopulations expected to be disproportionally impacted by chemical exposures;
  • Ensure that TSCA Section 6 scoping documents evaluate dietary exposure in native populations due to bioaccumulation in fish and hunted prey;
  • Consider convening a “national conversation,” not unlike (but perhaps more focused than) the National Conversation on Public Health and Chemical Exposures the Centers for Disease Control and Prevention (CDC) convened in 2009-2011 identifying how TSCA and other laws can be optimized to tackle environmental health disparities;
  • Utilize TSCA’s expanded Section 4 testing and Section 8 information-gathering authorities to compel testing and information reporting to inform prioritization of chemicals and the scope of risk evaluation, including testing and information relating specifically to environmental justice communities;
  • Create blue-ribbon committees to prioritize the hardest questions to answer in assessing chemical exposures and risks to environmental justice communities and then answer them; and
  • Utilize Risk-Screening Environmental Indicators to identify geographic areas with a high proportion of environmental justice communities that have high cumulative risk scores to identify chemical releases that might warrant review under TSCA Section 6.

A bipartisan Congress amended TSCA in 2016 and directed EPA explicitly to assess risk from chemical exposures with a view toward identifying and protecting subpopulations that may be at greater risk due to susceptibility or enhanced chemical exposure.  TSCA is a powerful weapon in the fight to help in “rooting out systemic racism in our laws, policies, institutions, and hearts.”  We can do better to operationalize it and eliminate fundamental inequities in chemical exposures and their assessment under TSCA.

Environmental Law Clinics Not Only Persevere But Flourish in 2020

Posted on February 3, 2021 by Seema Kakade

As 2020 came to a close, more than forty Directors of environmental law clinics, from law schools across the country, came together to reflect and share with each other.   The environmental law clinic directors meeting has become an annual gathering since 2017.   Yet, what was so striking about the meeting in December 2020, was the clear role that clinics have played in environmental law and policy during times of a global pandemic, political upheaval, and widespread concern over racial justice. 

In general, environmental law clinics take on pro bono legal and policy matters with law students as the primary staff.  Thus, the goals of most environmental law clinics are two-fold.  First, to provide pro bono legal services, typically for non-profit organizations and community groups.  Second, to teach law students how to practice environmental law.  The success of the clinics in these two goals, particularly in 2020, is frankly, astounding.

It was clear from the 2020 Directors meeting that the clinics are working in a variety of environmental law spaces.  Clinics are working in traditional environmental law areas like water and air permitting, public lands protection, zoning, and environmental impact statements.  A growing number of clinics are also focusing efforts on new areas of environmental law, particularly in the area of environmental justice on topics like energy justice, food access, and cultural competency.  Further, there is a growing diversity in the kinds of clients the clinics are supporting from advocacy groups to homeowners associations to individuals.   Many clinics too are working directly with minority populations, particularly African-American communities, and Native-American communities. 

It was also clear from the 2020 Directors meeting that the clinics are working in a variety of legal and policy arenas.  Several have active litigation dockets in areas such as zoning, electricity rate cases, and in amicus brief filings.   Several are commenting on environmental impact statements, rulemakings, and permitting.   Several are working on state legislative issues, supporting new bills through white papers and testimony.  Almost all clinics are deeply involved in client counseling and community legal education, providing much needed services and connections to real people.  

The 2020 Directors meeting also demonstrated that a growing number of clinics are working together.  Clinics are referring matters and pro bono technical experts to each other.  Clinics working on similar matters are sharing materials, technical knowledge, and lesson plans.  Clinics are taking on the same client together as co-counsel.   The relationship building between clinics has undoubtedly been a significant growth area. 

Moreover, all the work that the clinics were able to accomplish in 2020 happened virtually.  The Clinics were successfully able to provide online education to law students in oral and written advocacy, organization, critical thinking, and complex research.  The Clinics were able to meet with clients, attend hearings, and figure out electronic submittals with local government agencies.   Perhaps most importantly though, the clinics were able to provide a safe space for students to learn, discuss, and feel productive, in a time where many felt out of control and anxious. 

The hope for 2021 is that the Directors can once again meet in person.  The meeting has been hosted in the past by several schools including the University of Maryland, Columbia University, and the law schools in San Francisco (Golden Gate University/Stanford University/UC-Berkeley).   The goal is to meet in 2021 in Detroit, with Detroit Mercy Law as the host.   High on the list of topics for the 2021 Directors meeting is how clinics can support a goal of increasing diversity within the environmental legal profession as a whole.   Regardless of the ability to meet in person, however, it is clear that the Directors annual meeting will continue, as will the amazing environmental legal work of the clinics. 

Seema Kakade is the Director of the Environmental Law Clinic at the University of Maryland Francis King Carey School of Law

Note: This Blog post is in memory of Wendy Jacobs, the Environmental Law Clinic Director at the Harvard Law School.  Wendy was an active participant in several clinic directors annual meetings.  She will be sorely missed in the clinic community.   

Looking for an outlet? The EVs are Coming, the EVs are Coming!

Posted on February 2, 2021 by Samuel I. Gutter

On January 29, General Motors stunned the vehicle world by announcing that by 2035, its goal is to phase out all vehicles powered by internal combustion engines, selling only zero-emission cars and trucks.  Given the long lead time to develop new vehicles and bring them to market, that is a stunningly short timeframe.

Why would GM make this bold move?  Is it to stay a step ahead of California and federal regulators who, in the Biden administration, will continue to push emission reductions?  Perhaps in part, but the core reason is simple:  competition.  Governments around the globe are legislating future bans on fossil fuel cars, most notably China, which has mandated that most vehicles be powered by electricity in 15 years. And China plans to make many of those vehicles itself.  At least six Chinese manufacturers are introducing EVs in Europe, with eyes on the U.S.  German manufacturers like Porsche are selling electric vehicles, and Toyota and other Asian-based manufacturers have cars in development.  Here at home, Ford is pushing its new all-electric Mustang.  In simple terms, GM doesn’t want to miss out.

That’s not the only force driving the electrification of the fleet.  Consumer demand is leading to more sales.  To disclose, when my family gathers it looks like a Tesla showroom.  My wife was an early adopter, still driving her 2015 Model S.  One daughter owns a Model X and the other drives a Model 3.  As we and other owners will tell you, electric vehicles are a hoot to drive:  they’re absurdly fast off the line or accelerating onto the highway, and they’re quiet and loaded with technology.  Ranges of close to 500 miles are coming to the market, and fewer moving parts (including no transmissions) means less maintenance.

The Biden administration is leaning into the EV market, as well.  Among other initiatives, President Biden has ordered that all vehicles purchased for the large federal fleet will soon be U.S.-made electric vehicles.

Other impediments are falling.  The argument that electric vehicles just shift pollution to coal-fired power plants wanes as renewable energy generation expands.  And while Tesla has its own network of proprietary charging stations, companies like Electrify America – funded by the VW defeat device settlement – are launching thousands of universal chargers nationwide.

Is the coming EV boom bad for Tesla?  Perhaps, but recall that in 2014 Tesla took the extraordinary step of opening its patents to other manufacturers.  Elon Musk might be one weird dude, but his vision of a world-wide fleet of commercially viable cars and trucks is becoming real within his lifetime.