Lawyers Addressing Climate Change

Great article in the American Bar Association magazine (ABA Journal) on what lawyers are doing on the issue of climate change. It gives a really good overview of how lawyers are attacking climate change and the different roles they can play in the debate. Read the article here.            

Criminal Sentencing in Clean Air Act Case

The former project manager at an oil processing plant that exploded in Montana in 2012 injuring three employees was sentenced today to two years of probation and fined $5,000. Mark Hurst pleaded guilty on February 27th to negligent endangerment under the federal Clean Air Act.

On September 27th, a jury convicted co-defendant Peter Margiotta of all three counts against him related to the plant explosion. The jury found Margiotta guilty of conspiracy and two violations of the Clean Air Act (general duty and knowing endangerment). Margiotta was president and director of Custom Carbon Processing, Inc., a Wyoming company that constructed the Michels Disposal Well and Oil Processing facility in Wibaux in 2012. Hurst testified against Margiotta at trial.

Although Hurst had notified his superiors of serious problems at the plant, he continued to operate the plant and kept it open. Simply notifying management of problems is not sufficient to avoid criminal liability under federal environmental laws.

Legislation Seeks to Designate PFAS as Hazardous Substances

On January 14, 2019, Rep. Debbie Dingell (D-Michigan) introduced H.R. 535, known as the "PFAS Action Act of 2019." If passed, the act would require the Environmental Protection Agency to designate per- and polyfluoroalkyl substances (PFAS, including PFOA, PFOS and GenX) as "hazardous substances" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or the Superfund law).

Manufactured and used around the world since the 1940s, PFAS can be found nearly everywhere. These substances don't break down and accumulate over time -- both in the environment and in our bodies. According to the EPA, there is evidence indicating that exposure to PFAS can lead to adverse human health effects.

PFAS can be found in

• food packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water;
• commercial household products, including stain- and water-repellent fabrics and treatments (such as Scotchgard), nonstick products and cookware (such as Teflon), polishes, waxes, paints, cleaning products, and fire-fighting foams;
• workplaces that use PFAS (such as chrome plating, electronics manufacturing, or oil recovery);
• drinking water near facilities that manufacture or use PFAS; and
• living organisms, including fish, animals, and humans, where PFAS have the ability to build up and persist over time.

While certain PFAS chemicals are no longer manufactured in the United States as a result of phase-outs, they are still produced internationally and can be imported into the country in consumer goods such as carpet, leather and apparel, textiles, paper and packaging, coatings, rubber and plastics. Some U.S. manufacturers stopped producing PFOA and PFOS -- which received the bulk of attention from scientists -- only to replace them with other PFAS. There are hundreds of other PFAS compounds which are still in production, many of which are direct replacements for PFOA and PFOS and have similar chemical makeups. All PFAS would be designated as hazardous substances under the proposed legislation.

According to a 2016 Harvard University study, Alabama has the fourth highest concentration of PFAS in its water supply behind California, New Jersey and North Carolina. Drinking water contamination in North Alabama has been linked to the 3M plan on the Tennessee River. The BASF chemical plant in McIntosh was also identified as a point of origin for PFAS contamination.

A draft toxicological profile for PFAS issued in June 2018 by a branch of the Centers for Disease Control was put on hold by the Trump Administration and EPA. The draft report suggested risk levels of 7 parts per trillion for PFOS and 11 parts per trillion for PFOA, as opposed to the 70 parts per trillion contained in a 2016 EPA health advisory. There are currently no legal limits on the amount of PFAS that can be discharged into the environment or contained in drinking water. According to a story in POLITICO on January 28, current EPA Acting Administrator Andrew Wheeler just recently signed off on a still-unpublished decision not to regulate PFOS and PFOA under the Safe Drinking Water Act. The issue promises to be a hot topic at Wheeler's upcoming confirmation hearing.

The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

EPA announces grants to universities, NGOs to help clean up Gulf ecosystem

In December, EPA announced plans to award nearly $6 million to 15 universities and charitable organizations for projects in the Gulf of Mexico focusing on improving the health, productivity and restoration of the Gulf watershed and the communities that rely on it. The EPA says it plans to measure program success by acres restored, water clarity, recreational use improvement, and species rehabilitation. EPA and the funded organizations will work together with federal and state agencies to ensure each funding project successfully restores critical Gulf ecosystems.

Federal Judge Returns Yellowstone Grizzlies to Endangered Species List

Earlier today, a federal judge in Montana restored federal Endangered Species Act protection to grizzly bears in the Northern Rocky Mountains, blocking the first U.S. hunts planned for the animals outside of Alaska since 1991.

U.S. District Court Judge Dana Christensen had delayed the hunts twice already, and his latest order blocking them was due to expire later this week. Had the court's previous order expired, Idaho and Wyoming were poised to allow up to 23 bears to be killed by hunters.

Wildlife groups and Native American tribes had sued when the Department of the Interior revoked federal protections for more than 700 grizzly bears living in and around Yellowstone National Park last year. Wildlife advocates argued that the animals face continued threats from climate change and loss of habitat. Government biologists claimed that Yellowstone's grizzlies have adapted to changes in their diet, are among the best-managed bears in the world, and are thriving.

Shortly after passage of the Endangered Species Act of 1973, the grizzlies in Yellowstone were listed as a threatened species in 1975, when the population numbered just 136 animals after most bears were killed off early last century.

After more than 30 years of protection, the U.S. Fish & Wildlife Service initially declared that the Yellowstone population had successfully recovered in 2007, but a federal judge ordered the protections to remain in place while wildlife officials studied whether the decline of whitebark pine seeds (a major food source) could threaten the bears' survival. The agency concluded last year that it had addressed that and all other threats to the grizzlies and removed them from the list, thus removing federal protections for the bears and their habitat.

That decision allowed management of the bears to revert back to the states, which agreed on a plan that set hunting quotas designed to ensure that the population would stay above 600 animals.

Judge Christensen ruled today that the fedeal agency had not adequately considered threats to the species' long-term recovery. He specifically opined that the case was "not about the ethics of hunting," but instead about whether threats to the long-term survival of the species had been evaluated.

The Fish & Wildlife Service had been planning to lift federal protections for another group of approximately 1,000 bears living in Montana's Glacier National Park and the Bob Marshall Wilderness, but was waiting to see how Christensen ruled in the Yellowstone case.

Criminal Prosecution Awaiting Killer of Pregnant Dolphin in Mississippi

Someone shot and killed a pregnant bottlenose dolphin in Mississippi -- and there's a big reward for anyone who helps find her killer.

According to the National Oceanic and Atmospheric Administration (NOAA), the pregnant dolphin was found dead on a beach in Waveland, Mississippi, in April of this year. A necropsy revealed that the mother dolphin died of a gunshot wound from a small caliber bullet. Her unborn calf then died as a result of the mother's death.

Dolphins are protected under the federal Marine Mammal Protection Act of 1972. The Act prohibits harassing, harming, killing, and feeding wild dolphins. Violations are punishable by up to $100,000 in fines and one year in prison per violation. It was not clear whether the killing of a pregnant dolphin and her unborn calf would constitute one violation or two.

According to NOAA, several wildlife organizations are offering a combined reward of $11,500 for information leading to the identification and/or prosecution of those responsible. Anyone with information is asked to call either the NOAA Enforcement Hotline at (800) 853-1964 or NOAA's Slidell (Louisiana) Enforcement Field Office at (985) 643-6232. Tips can be left anonymously, but contact information must be provided in order to claim the reward.

NOAA reports that violence against dolphins in the Northern Gulf of Mexico region has been on the rise in recent years. Since 2002, at least 24 dolphins have been found stranded showing evidence of being shot with guns or arrows or being impaled with other objects. Sixty-eight percent of those strandings have occurred since 2010.

NOAA is also asking for the public's help in preventing future harm to dolphins by not feeding or attempting to feed them from boats or the shore. Dolphins who are fed by people learn to associate humans with food and put themselves in dangerous situations when they approach people, boats, and fishing gear looking for food. They can learn to approach fishing gear and teach this behavior to their young. Such behavior has, in some cases, resulted in violence toward dolphins by fishermen frustrated by the loss of their catch.

False Certifications Lead to Criminal Convictions

A pallet recycling company and its former owner were sentenced for criminal violations related to the falsification of certificate stamps in violation of the Plant Protection Act by the U.S. District Court for the Eastern District of New York, according to a Justice Department press release.  American Pallet Recycling LLC (APR) will pay a fine of $100,000, and its former president and owner, Raymond Viola, will pay $1,000 and serve three years of probation, after relinquishing the business to his son.  APR plead guilty to one felony count of falsifying stamps that certified wood pallets were heat treated to prevent pest infestation, and were suitable for use in international transportation.  Viola plead guilty to a similar misdemeanor count.

Heat treatment is required in order to prevent parasites and plant diseases from entering the United States in wood packaging materials.  Wood pallets that carry products transported within the United States are not required to be heat treated.  From March 2007 through January 2011, Viola created copies of stamp certifications used by legitimate wood pallet treating companies, which he and his employees applied to pallets APR sold.  Those pallets were then used to carry products from the United States to foreign countries in violation of the Plant Protection Act.  The charges against APR and Viola involved the fraudulent stamp certification of hundreds of untreated wood pallets that were sold to other companies for use in product export.