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Earth Day at 44…. still crying?

22 Apr 2014

Earth Day brings me right back here

Earth Day brings me right back here

Happy Earth Day 44.  We have come a long way from the challenges and problems that led to the first Earth Day –  a 1969 oil spill in Santa Barbara, California; the dead zone in Lake Eriesmog in Los Angeles and burning rivers in the Midwest.

The first Earth Day led to the creation of the US Environmental Protection Agency and the passage of environmental laws like the Clean AirClean Water, and Endangered Species Acts.  As the EPA and its state counterparts have continued to regulate, there has been a backlash of business and media outcry which certainly impacts the public’s views.

The challenges we face today are more complex and likely more daunting than those of 44 years ago.  We still have oil spills, but they are from rail cars, pipelines, larger ships and deeper wells.  Lake Erie and many other bodies of water are still challenged by more diffuse and “below the radar” sources of contamination.  While reducing the impacts of asbestos, lead and NOx from our daily lives, and healing the ozone hole, we now face questions regarding greenhouse gasses, smog impacts from and in China unlike anything LA ever faced, and the challenges and benefits posed by fracking.

Once the “low hanging fruit” of easy cleanups were “picked,” what we were left with was less shocking or engaging than dead fish and burning rivers.  Consequently, there’s much more debate about the best way to address them or whether they need to be addressed at all.  The issues are just as important – maybe more so, but it’s unlikely that our polarized nation would agree on what changes would be best, if any.

Top Green Stories of 2012

31 Dec 2012

As we race toward the end of the year, we thought we’d look back at what we thought were the big stories of 2012 on, in no particular order:

Wetland Rules – EPA and the Army Corps of Engineers submitted final guidance to clarify the scope of waters regulated under the Clean Water Act to the Office of Management and Budget for federal interagency review. The EPA and the Corps have been the subject of “inquiries” from Congress, industry organizations, environmental groups, states and the public for rulemaking to further clarify the requirements of the Clean Water Act consistent with decisions of the Supreme Court. We continue to wait.

Fracking– something that was little heard of before 2011, received a lot of notoriety as dueling reports were released and a flurry of rules and guidance including: an EPA rule to require well developers to institute “green completion” procedures which phases in over the next two years; EPA guidance when diesel fuel is included as a component of the fracking fluid used to free the trapped gas; and U.S. Department of the Interior draft rules for fracking on federal and Indian lands.  The comment period closed in September and the Department recently announced that the rules would not be finalized until sometime in 2013. Finally, the petition drive to amend the State Constitution to ban the use of horizontal hydraulic fracturing fell flat and did not make the ballot.  Given the voters’ response to Constitutional amendments and in particular, how Proposal 3 relating to the clean energy renewable portfolio standard failed, it seems likely that this would’ve failed too.

MDEQ reorganization – the Director shook up the staff at the MDEQ. There was a CSI process intended to streamline the cleanup program and, in the last month, the Department’s cleanup division got a new chief, Bob Wagner, and the Governor signed legislation that was developed in part through the CSI process.

EPA Greenhouse Gas Rules vs. Congress. – a federal appellate panel approved EPA’s rules under the 1990 Clean Air Act  aimed at coal burning power plants.

• Coal Ash – Hazardous Materials – while EPA had proposed rules to more heavily regulate ash from the combustion of coal, it ran into a political buzz saw and the regulations went nowhere.  Luckily, the coal industry avoided the sorts of accidents that plagued them in 2011.

Keystone Pipeline.  As we predicted, President Obama and Congress started 2012 locked in a politically charged dispute over the Keystone XL pipeline, a proposed 1,700-mile oil pipeline from Canada to Texas.  The President deferred it, catching some election year heat, and will likely have to deal with it again in 2013.

Governor Snyder focuses on Environment/Energy – at year’s end, the Governor issued a policy statement on these two interrelated issues and we expect next year to see a focus on improvements in both.

Change at the EPA? Lisa Jackson announced on December 27, 2012, that she’d be stepping down as head of the EPA early next year.


Looking Ahead To 2012.

5 Jan 2012

Wetland Rules at the Federal Level.  The Sacketts bought a $23,000 residential lot in Idaho and filled it in with dirt and rocks in preparation for building a home. The EPA fined the Sacketts claiming that the property is a wetlands that cannot be disturbed without a permit.  Next week, the U.S. Supreme Court will take up the Sacketts’ case, not to redefine wetlands, but to decide whether landowners are entitled to a hearing before a judge when they are confronted by the EPA. The case is being closely watched by developers and environmentalists.

Further, as Arthur has blogged about a number of times, it will be interesting to continue to watch how the federal government interprets the 2006 Rapanos decision regarding federal jurisdiction over wetlands.  Since no single Rapanos opinion garnered a majority of the Justices’ votes, it is unclear which opinion sets forth the controlling test for wetlands jurisdiction and fights and court cases will continue to follow.

EPA Greenhouse Gas Rules vs. Congress.

Last month, the EPA released new rules under the 1990 Clean Air Act which were aimed at coal burning power plants.  More than a dozen electric power companies, municipal power plant operators and states had sought to delay the rules due to, among other things, the over 2 billion dollar price tag.  Last week, a federal appeals court in Washington approved their request.  Republicans claim that the rules would shutter some older, coal-fired power plants and kill jobs.  Obama and the EPA claim that the investments would be far outweighed by the hundreds of billions of dollars in health care savings from cleaner air.  The court is asking that oral arguments take place by April 2012.

Coal Ash – Hazardous Materials?

The EPA is currently considering several options on how to regulate coal ash, from giving it a special status as a hazardous waste to classifying it as a solid waste. The industry has said that even a solid waste classification would prompt the closure of some existing coal ash ponds and landfills, costing jobs and raising energy bills.  Last Halloween, a Wisconsin utility had a section of cliff the size of a football field give way, creating a mudslide that sent equipment and coal ash spilling into Lake Michigan.  I suspect a greater level of pressure on the EPA to characterize coal ash as hazardous or otherwise ramp up regulation of coal ash impoundments in 2012.

Fracking Debate Rages On.  The proliferation of hydraulic fracturing, also known as fracking, across the U.S. in 2011 sparked protests and debates over its utility and side effects.  Last May, the State of Michigan issued new requirements for the process (Michigan enters the “fracking” fray).  In November 2011, the EPA announced plans to expand federal oversight of fracking fluids after an EPA study revealed that an aquifer in Wyoming, which had seen extensive gas drilling, contained several cancer-causing compounds, and at least one chemical commonly used in fracking fluids.  The fracking debate is sure to rage on in 2012.

Keystone Pipeline.  President Obama and Congress are starting the new year locked in a politically charged dispute over the Keystone XL pipeline, a proposed 1,700-mile oil pipeline from Canada to Texas.  Republicans and some unions claim that the pipeline will create thousands of jobs. Environmentalists fear it could lead to an oil spill disaster.  The pre-Christmas agreement between Obama and Congress temporarily extending the payroll tax cut included language forcing Obama to make a speedy decision on whether to allow the building of the pipeline.  The $7 billion pipeline poses a political trap for Obama because it divides his supporters (environmentalists oppose the project while most labor unions support it).

Redevelopment Incentives in Michigan – Trying to Do More with Less.  Last year, the wildly successful MEGA, Brownfield and Historic tax credits were eliminated and replaced with two downsized programs.  This was a major disappointment as these incentives encouraged the redevelopment of blighted and polluted properties in Michigan.  So what will builders, developers and investors turn to in 2012?  Will Ann Arbor’s PACE legislation thrive and become a model for other communities?  Those seeking redevelopment in Michigan will certainly be trying to do more with less in 2012.  Hopefully, the MEDC and municipalities will assist developers and businesses to find creative ways to encourage investment, revitalization, and rehabilitation in the State.


Top Michigan Green Law Stories of 2011

27 Dec 2011

As we race toward the end of the year, we thought we’d look back at what we thought were the big stories of 2011 on, and in no particular order:

  • Solar Suffers / Wind Farms Move Forward – As we reported, due to a lack of incentives and serious foreign competition, solar companies languished this year and many will not make through 2012 – see posts regarding solar’s suffering; however, wind generated energy appears to be going strong- see posts regarding the progress of wind development.
  • Fracking – something that was little heard of before 2011, received a lot of notoriety as Michigan issued new rules for this gas extraction process, New York evaluated doing likewise, the EPA began to study its side effects in earnest and dueling reports began to be released.
  • MDEQ reorganization – in 2010, there was a lot of focus on legislation intended to move more sites toward closure and while the law passed, the MDEQ did little but thumb their collective noses at the change.  Well, the Director shuffled the staff in hopes of shaking some closures loose – Shake Up At MDEQ .  Time will tell.
  • PACE Legislation – Michigan adopted Property Assessed Clean Energy (PACE) legislation intended to help fund green energy and energy conservation investments in commercial buildings.  Ann Arbor then became the first City to adopt a PACE Ordinance.
  • New Due Diligence Requirements – As we blogged in Buyer Beware buyers may now need to do their own environmental inspections on residential properties which may chill the sales of refurbished industrial lofts. This comes on top of speculation that some due diligence was deficient as it was not well documented – what are developers and buyers to do?
  • Brownfield Credits Done – Governor Snyder, in an effort to get control over tax credits which did not appear on any government budget, decided that he would cap the amount of incentives given out and eliminate the  wildly successful brownfield credit program. While the public’s focus was on the TV and film making credits, the Governor first froze and then significantly downsized this program just when Michigan needed it most.

Ann Arbor Approves PACE Program.

4 Oct 2011

Photo by Joe Braun Photography

In the spring, I blogged about the vote by Ann Arbor’s city council to set up a $432,800 loan loss reserve fund to support the city’s planned Property Assessed Clean Energy (PACE) program under HB 5640.  The PACE law gives local governments authority to establish programs to make loans to private property owners (it only applies to businesses for now) for energy efficiency improvements or the installation of renewable energy systems.  The property owner would be required to borrow all costs associated with the project from the municipality (at the municipality’s lower rates) and the loan would be repaid over a period of several years through special assessments added to their property tax bills.

Last night, the Ann Arbor city council formally voted in favor of establishing its PACE program – thought to be the first in the State.  Here is a link to the City’s September 12, 2011 Report on Proposed Pace Program.  The report provides some details on project and property eligibility and the application process.  I think this program has the potential to be an excellent tool for apartment, office, commercial and industrial property owners who would like to make energy efficiency improvements but are hesitant about assuming long-term financing for such upgrades.