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What will 2017 Bring? Dramatic Change?

20 Dec 2016

edit_calendar_ssk_47433454In prior years, we knew that regulatory and environmental change was coming but we expected it to be slow and incremental.  With an unknown quantity like President Elect Trump, one thing is clear – no one really knows what may happen.  Here are a few possibilities:

1.  Coal/Cleaner Energy Generation – revitalizing the coal industry was part of Mr. Trump’s midwest stump speeches.  Will Mr. Trump be able to reverse Barack Obama’s Clean Power Plan? What about the Paris Climate Accord?  Certainly, his team is looking at both of those right now. The dispute in Michigan v. EPA, decided in June 2015, continues to rage.  In 2015, the US Supreme Court ruled that the EPA didn’t properly justify its rule governing mercury and toxic pollution (MATS) from power plants because it did not specifically address costs at the initial stage of the rulemaking process. In April, the EPA announced it was standing by its MATS rule and concluded that the benefits far outweighed the costs.  Petitioners continue to litigate whether the EPA properly evaluated costs.  Here in Michigan, new legislation has been passed (and is awaiting the Governor’s signature) intended to encourage additional investment in energy generation and transmission while balancing consumer choice and a greater percentage of renewable energy generation.  Will it work? At a reasonable cost?

2. Power Generation Subsidies/Oil/Gas Generation – Mr. Trump’s attacks on “crony capitalism” would seem to mean that he will stop financial incentives for solar and wind generation.  Will he also attack oil and natural gas supports in the tax code?  Will he open up ANWAR to oil/gas exploration?  Will he scale back attempts to regulate fracking?  This will be difficult in light of the December EPA Report  which concluded that fracking posed problems such as:  fracking water withdrawals compete with other water needs; spills of hydraulic fracturing fluids and chemicals or produced water may impair groundwater resources; injection of hydraulic fracturing fluids into wells may allow gases or liquids to move to groundwater resources; discharge of inadequately treated hydraulic fracturing wastewater to surface water resources; and contamination of groundwater due to disposal or storage of fracturing wastewater.

3. Pipelines – will Mr. Trump reverse the Obama administration’s dim view of oil and gas pipelines such as the Keystone XL and Dakota Access Pipelines?  How will this affect Michigan where public awareness of two 60+ year-old pipelines under the Mackinac Straits has galvanized both sides of the political spectrum into action.  In 2014, Michigan convened a pipeline task force which issued a report in 2015.  In September, 2015, the State entered into a written agreement with Enbridge to prevent the transport of heavy crude oil through the Straits Pipelines.  The task force also recommended that the pipelines be independently evaluated and that additional financial assurance be provided.  The State solicited Requests for Information and Proposals (RFPs) and Enbridge agreed to pay $3.6 Million for the evaluation of the Straits Pipelines.  An independent evaluation of alternatives to the Line 5 pipelines is also underway.  When those will be completed is not known.

4. Infrastructure – Mr. Trump campaigned on infrastructure (although to hear him tell it, that only encompasses airport quality), and Governor Snyder appointed a 21st Century Infrastructure Task Force which concluded that the State needed to be investing $4 Billion more than it was in infrastructure to address roads, bridges, internet, water, sewer and other infrastructure needs.  Given the recent nationally publicized Flint Water debacle, will Michigan find the intestinal fortitude to fully invest in infrastructure or will we continue to patch and delay?  Given the State’s recent fight against a federal judge’s order to deliver clean water, and Michigan legislators “default anti-tax setting,” the future does not bode well.

5. Brownfields – as previously reported, Michigan adopted legislation streamlining its brownfield funding laws and deferred action on Dan Gilbert’s “transformational” brownfield funding legislation.  Will that resurface in early 2017?  I expect it will.

6. Other issues – there are a number of other issues on the horizon including cleanup standards, the maturing of the Great Lakes Water Authority and its ability to deliver clean water and septic services at a reasonable price, Michigan’s effort to reimagine its solid waste program, water withdrawals and protection of the Great Lakes from invasive species and nutrients leading to algal blooms.

Green Roofs — Coming to a Building Near You.

3 Aug 2010

One of the largest in the world - the 10.4 acre green roof of the Dearborn Truck Plant. Photo credit: Scott_Monty @ Flickr

An aerial view of a typical urban area reveals a sea of rooftops covered in asphalt, black tar and gravel.  Water rushes over the hard (and hopefully impermeable) surface and heat radiates off of the dark material.  Aside from housing HVAC units and an occasional satellite dish or telecommunications tower, rooftops do not serve much of a function other than keeping out the elements.  Green roofs are different. 

Although they have been utilized for centuries, green roofs are popping up more and more as the green building movement has accelerated the trend and properties are attempting to obtain LEED certification.  Green roofs are typically covered by a waterproof base layer, followed by a layer of soil or vegetated matting, and finally native plants.  Green roofs serve a number of beneficial purposes, including keeping the building cool in the summer and warm in the winter, absorbing rainwater, combating the heat island effect, creating wildlife habitat, and creating an aesthetically pleasing green space. 

According to the 2009 Green Roof Market Industry Survey  (“GRMIS”), more than 3.1 million square feet of green roofs were installed in the U.S. in 2008.  Michigan, like other states, has seen a significant increase in the number of green roofs.  In fact, according to the GRMIS, Grand Rapids was 8th in the number of newly installed green roof square footage in metro areas in North America in 2008 with 74,787 (Chicago was 1st with 534,507). 

There is no doubt that green roofs offer many benefits; however, green roofs can also result in increased liability if one is not careful.  Errors in design, installation or maintenance can trigger problems, and repairing a leaking green roof can be difficult and expensive.  Most green roofs are heavy and require extra structural support.  Further, there are a number of different types of green roof systems out there and a building owner should get comfortable with the anticipated watering, fertilizing and weeding requirements.  Finally, severe weather can damage green roofs and not all insurance companies are willing to cover them.  

As with any construction project, engage experienced professionals when constructing a green roof.  Second, have an attorney review the contracts in an attempt to limit unnecessary liability. Finally, check with your insurance company to make sure you are covered in the event the roof needs to be repaired if a casualty should occur.  I have no doubt that green roofs will continue to explode in numbers and I’m as big of a proponent as any.  That said, the legal risks and liabilities must be carefully evaluated before making the leap.

Read your insurance policies and your contracts!

14 Jul 2010

In all the furor over the BP Deepwater Horizon spill, one point has received little notice in the popular press.  It’s well known that the rig was owned by Transocean, Ltd. and was being operated under a contract with BP. What has not received much press is that Transocean agreed in the contracts to obtain insurance for BP.

Lloyds of London – with $700 Million in excess coverage exposure filed suit in Texas federal court arguing that it was not obligated to BP at all because, it claims, the drilling contract only obligated Transocean to insure BP  for pollution related losses due to contamination originating “above the surface of land or water.”  Lloyds argues that because the pollution originates below the ocean floor,  there is no coverage.

While this is yet to be resolved, the lesson here is – read your contracts and your insurance policies. Don’t just assume that you’re covered.