Environment, Land & Resources

New JRC Report Reviews Progress in Tackling Soil Contamination

Posted in Contaminated Properties & Waste, Environmental Regulation, European Environmental and Public Law, Project Siting and Approval

The report supports the efforts of the EU’s Seventh Environment Action Programme.

By Alexander Wilhelm

According to a report prepared by the Joint Research Centre (JRC) — the European Commission’s science and knowledge service — countries across Europe are making progress on tackling soil contamination. The report[i] states that the management of contaminated sites in Europe has improved substantially. The survey prepared by the JCR scientists included 39 countries, of which 25 are EU Member States. Within the EU there are an estimated 2.8 million sites where artificial surface indicates that polluting activities have occurred in the past. According to national and regional inventories of countries that replied to the report’s questionnaire, more than 650,000 sites are registered where polluting activities took or are taking place. The number of remediated sites or sites under aftercare measures has increased from 57,000 to 65,500 in the last five years. Although these inventories are more accurate than ever before, investigations of more than 170,000 sites are still pending.

Soil contamination means reduced soil quality because harmful substances resulting from human activity are present. In general, such contamination violates private or public interests, and can even harm human health or the environment. According to the report, mineral oils and heavy metals are the most frequent contaminants. The excavation and the off-site disposal of contaminated plots are the most frequently used remediation techniques — also known as “dig-and-dump.” With the help of the provided data, JCR scientists have revealed that an average of €4.3 billion is spent to tackle soil contamination in the surveyed countries, of which more than 42% is taken from public funds. According to the report, this is due to the divergent application of the “polluter-pays” principle, which is applicable to historical contamination only in a few countries. Those differences in the legal treatment of historical contamination should be assessed carefully not only by the current owner, but also by any prospective buyer. Continue Reading

California Court of Appeal Upholds CEQA Exemption for Alterations to Archery Range

Posted in California, CEQA

By James L. Arnone, Benjamin J. Hanelin, Lucas I. Quass, and Christopher Adam Martinez

CEQA Case Report: Understanding the Judicial Landscape for Development[I]

In an unpublished opinion issued August 30, 2018, Stewards of Public Land v. City of Pasadena, et al., Case No. B277996, the California Court of Appeal affirmed the trial court’s denial of a writ of mandate challenging two Notices of Exemption (NOE) issued by the City of Pasadena (City) for minor physical and programmatic changes to the operation of an archery range in a City park (the Project). The court held that the City properly relied upon the Category 1 Exemption for minor alteration to existing structures or facilities, and that neither the historical resources or unusual circumstances exception to the exemption applied.

Petitioner Stewards of Public Land (Stewards) argued that the City failed to comply with its historical preservation ordinance, failed to comply with state planning and land use laws, and wrongly determined the Project was categorically exempt from CEQA. Stewards also argued several municipal law claims, which the court found to be without merit. As to the Stewards’ CEQA claims, the court unanimously determined:

  • The general effects of the longstanding operation of an archery range on subsequently developed residences did not constitute unusual circumstances and that no exception to a CEQA exemption applied.

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China Announces Establishment of Hazardous Chemicals Department

Posted in Chemical Regulation, China

The new department will assume broad oversight responsibilities as part of a broader government restructuring.

By Paul A. Davies and R. Andrew Westgate

China’s Ministry of Emergency Management (MEM) has announced the establishment of a new department responsible for the safety, supervision, and management of hazardous chemicals. The MEM replaced the former State Administration of Work Safety (SAWS), and took over responsibility for product safety relating to fireworks, pharmaceuticals, and the chemical industry.

The creation of the new department reflects increasing focus on chemical safety after the 2015 explosion at the Port of Tianjin, which killed 173 people and injured 797. More recently, an explosion at a chemical factory in the city of Yibin, Sichuan province in July killed 19 people. These incidents highlight that hazardous material storage remains a challenge in China.

Zhang Xingkai, the president of the China Academy of Safety Science and Technology noted that in the four years between 2011 and 2015, approximately US$89.4 billion was lost due to workplace accidents. The MEM was established in March 2018 in order to respond more effectively to crises like the Tianjin and Yibin explosions. With overall responsibility for safe chemical production and work environments, the MEM will provide a unified system focused on disaster prevention. Continue Reading

Courts Block Coal Ash Suits, Setting Up US Supreme Court Showdown

Posted in Environmental Regulation, Water Quality and Supply

Fourth and Sixth Circuit decisions give power plant operators additional defenses to citizen suits pending potential Supreme Court review of “groundwater conduit” theory.

By Joel C. Beauvais and Stacey L. VanBelleghem

Over the past month, two US Courts of Appeals have rejected Clean Water Act (CWA) citizen suits seeking to hold power companies liable for discharges of pollutants from coal ash disposal facilities “through” groundwater to waters of the US. Although the Fourth Circuit accepted that discharges through groundwater could be the basis for liability, it held that the relevant ash piles and impoundments were not “point sources” for purposes of the CWA. The Sixth Circuit likewise held that the ash disposal facilities at issue were not point sources, but — contrary to the Fourth Circuit — also held that discharges through groundwater were not actionable under the Act. Collectively, these recent decisions stand as a significant new obstacle to citizen suits against owner/operators of coal ash impoundments. At the same time, the decisions deepen a circuit split on the so-called “groundwater conduit” theory of CWA liability, helping to tee the issue up for possible Supreme Court resolution. If the Court does take this question up, the outcome will be critically important for many industry sectors, including electric power, oil and gas, manufacturing, and mining companies, among others. The CWA imposes strict liability, and citizen suits based on groundwater conduit claims can result in extremely costly remedies — including large civil penalties and injunctive relief. Continue Reading

China’s Global Supergrid to Enable Free Flow of Electricity Internationally

Posted in Air Quality and Climate Change, China, Power, Oil, Gas and Minerals, Project Siting and Approval

The proposed initiative will allow the provision of clean energy on a global scale by 2050.

By Paul A. Davies and R. Andrew Westgate

The Global Energy Interconnection (GEI) initiative, originally developed by Liu Zhenya, the chairman of the Chinese State Grid Corporation, is dedicated to promoting global energy interconnections in a sustainable manner.

The GEI is proposed to take the form of a backbone grid, first throughout Asia and then expanding globally. The first phase would consist of six ultra-high voltage grids that span the Asian continent, which GEI estimates will require a US$38 trillion investment.[1]

The GEI is part of the broader Belt and Road Initiative (BRI). The BRI is a Chinese state-backed program that intends to boost trade and economic growth across Asia through the development of infrastructure projects. China Development Bank, China’s primary policy-based lending institution, has already granted US$160 billion in loans to countries involved in the BRI process. Continue Reading

California Court of Appeal Overturns Specific Plan EIR for Inadequate Air Quality Impact Mitigation

Posted in Air Quality and Climate Change, California, CEQA

By Christopher H. Norton, Lucas I. Quass, and Derek Galey

CEQA Case Report: Understanding the Judicial Landscape for Development[I]

In an unpublished opinion issued July 10, 2018, Sierra Club v. County of Kern, Case No. F071133, the California Court of Appeal reversed the trial court’s decision and remanded for the issuance of a new writ of mandate directing the County of Kern (County) to address the improper deferral of mitigation measures for air quality impacts in the Kern River Valley Specific Plan’s (Specific Plan) Environmental Impact Report (EIR). In summary, the court determined:

  • The EIR’s analysis of the long-term significance of the Specific Plan’s greenhouse gas emissions was adequate at its time of release in 2011.
  • The EIR’s approach to mitigating greenhouse gas emissions was not a prejudicial abuse of discretion.
  • CEQA does not require greater than a 1:1 mitigation ratio for the amount of farmland to be placed under an agricultural conservation easement or similar program.
  • County violated CEQA by deferring the formulation of air quality mitigation measures without firmly committing to specific performance standards.

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China Reinforces Renewable Energy Commitment With Significant European Wind Investments

Posted in Air Quality and Climate Change, Power, Oil, Gas and Minerals, Project Siting and Approval

Chinese investors continue to build knowledge of the wind sector through European investment.

By Paul A. Davies and R. Andrew Westgate

China has traditionally focused more on developing coal and hydroelectric power, which provide relatively constant output, instead of wind and solar, which depend on whether conditions. However, recently, government-owned power producers have begun making significant investments in large wind projects in Europe, indicating a potential shift in the breadth of China’s commitment to an energy policy that is both global and renewable.

In fact, a recent Institute for Energy Economics and Financial Analysis (IEFA) report has shown that China now invests more in European wind projects than in Australian projects, which in recent years had received substantial amounts of money from China. Notably, Chinese private and state sectors invested US$6.8 billion in European wind projects from 2011 to 2017 compared with US$5 billion in Australia. Continue Reading