President Obama & The Environment

I know that everyone was sick and tired of the media coverage leading up to the presidential election, so I thought I’d add a bit more discussion to the mix.  Seriously though, I thought I’d take a look at what President Obama’s second term has in store for environmental policy.  Interestingly, climate change was not mentioned once in the three presidential debates—the first time that has happened since 1984.  President Obama, however, did mention climate change in his acceptance speech, in which he stated: "We want our children to live in an America that isn't burdened by debt, that isn't weakened by inequality, that isn't threatened by the destructive power of a warming planet.”

On November 7, 2012, a day after President Obama was reelected, Audubon Magazine published the president’s answers to ten questions on the environment.  In the Audubon interview, President Obama called climate change "one of the biggest issues of this generation.”  Although most of the article dealt with what the president has done in his first term to address climate change, he did address some of his future plans.  The president proposes increasing limits on new fossil-fuel-fired power plants, limiting greenhouse gas emissions from automobiles, investing in renewable energy, and reaching emission limit agreements with other countries.  

                

One area where President Obama conflicts with environmentalists is on drilling in the Arctic.  The president believes that drilling in the Arctic must be a part of America’s “all-of-the-above energy strategy.”  He would, however, prevent drilling in the Arctic National Wildlife Refuge.  Another potential source of conflict with environmentalists is the Keystone oil pipeline.  The president’s administration is conducting a thorough assessment of the pluses and minuses of the proposed pipeline, while the Audubon interviewer stated that the pipeline “would transport what some consider to be the dirtiest oil in the world and cause destruction of boreal forest.”

                

The president does not believe that we have to choose between a clean environment and a thriving economy.  He believes that clean energy investment will lead to a $2.3 trillion global market.  Industry groups, however, disagree.   Industry groups fear that increased regulation of coal and other fossil fuels will hurt the economy and raise prices for consumers.  For more energy industry perspective, please click here. 

                

If you have questions about how new proposals, regulations, or laws will impact you or your business, please contact an environmental attorney.

Soybeans and Patents: Bowman v. Monsanto

On October 5, 2012, the Supreme Court of the United States ("SCOTUS") granted an Indiana farmer's petition for transfer to hear a case regarding whether the lower court erred by (1) refusing to find patent exhaustion in patented soybean seeds even after an authorized sale and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies.  The case, Vernon Hugh Bowman v. Monsanto Company et al., 11-796 (more information on this case at the SCOTUS is available at this link), originated in the U.S. District Court of the Southern District of Indiana.  The district court granted Monsanto's motion for summary judgment (Judge Young's opinion is available here) and the Federal Circuit Court affirmed that judgment.

The Indiana farmer planted two soybean crops in 2007: the first was of Pioneer Hi-Bred beans (a Monsanto brand), and a later crop of commodity beans from his local elevator.  The farmer discovered that neither brand of seed was damaged by a particular herbicide.  He was able to save some of the second crop to plant in later years.  Monsanto sued the farmer, claiming that it had developed and patented the biotechnology that made the Pioneer Hi-Bred beans resistant to herbicide (these were called "Roundup Ready" (R) seeds).  Monsanto argued the farmer signed a licensing agreement that included a provision that meant the company's patent rights were not exhausted.  The farmer disagreed, claiming that when beans from a licensed Roundup Ready (R) are harvested and sold to a grain elevator, they are sold without restriction, mixed with all other soybean crops from the area, and therefore, when farmers purchase those beans later to use as seed, the beans are not protected by patent.

After the district court granted Monsanto's motion for summary judgment, the Federal Circuit Court affirmed and relied in part on the "conditional sale exemption" that allows patent holders to continue to assert patent rights after an authorized sale is correct.  Now in front of the SCOTUS, the farmer argues that patent exhaustion results after an authorized sale.  As explained by the farmer: "[t]his case presents an issue both of core practical important to agriculture and of vital legal interest in patent law..."  Brief in Support of Certiorari, available here.  The importance of this case, and of seed patent rights, is especially apparent in a drought year, like the one we are currently having here in the Hoosier state.  (Soybean harvest is well underway in Indiana.)

The United States has filed an amicus brief in favor of Monsanto, available here.  As of October 22, 2012, oral argument in the case was to be determined.

Indiana's Environmental Progress

In May, the Indiana Department of Environmental Management released its Criteria Pollutants Air Quality Trend Analysis Report.  This report tracked Indiana's air quality from 1980 to 2010 in twelve geographic regions.  Our firm has offices in both Indianapolis and South Bend, so I reviewed the air quality trends for the Central Indiana and North Central Indiana regions, which include Marion County and St. Joseph county, respectively.  The news for the Central Indiana region (Boone, Hamilton, Hancock, Hendricks, Johnson, Marion, Morgan, Putnam, and Shelby counties) is good. Although population and vehicles miles traveled have increased over the past thirty years, the region's emissions have also decreased.  The air quality in the North Central region (Elkhart, Fulton, Kosciusko, Marshall, and St. Joseph counties) has also improved over the past thirty years despite an increase in population and vehicle miles traveled. Hopefully Indiana's air quality will continue to improve as businesses and individuals work with environmental attorneys to help them comply with complex state and national environmental regulations.  For an in-depth look at the air quality levels across Indiana, please click here.

New EPA Guidelines: To Frack or Not to Frack?

The somewhat controversial practice of hydraulic fracking has gotten its fair share of news headlines lately, for better or for worse.  While the intricacies and scientific technicalities of fracking perhaps are better left to another day, this blog post provides a quick and dirty guide to the debate over fracking and its environmental repercussions.

Hydraulic fracking is a process which has been around since the 1940s, but has gained international attention recently due in part to the energy crisis, and in part to the enhanced science we have available today to make it an economically feasible method to release natural gas from deep within the earth.  On one hand, fracking gives us access to an energy source which otherwise was inaccessible to us.  On the other hand, opponents argue that fracking will lead to increased groundwater contamination and potential unknown other pollutants being released into the air, groundwater, and soil.

Fracking involves pumping a liquid into an existing wellbore, generally located in shale rocks or coal beds.  The fracking liquid being pumped into the rock increases the pressure and forces the rock to crack.  The liquid extends deeper into the crack, which further extends the crack until it reaches the natural gas deep beneath the earth's surface, releasing the gas upward into the well area where it can be captured and piped out as an energy source.  Different liquids can be used as fracking liquids, but the most common is a mix of water and chemical additives.  Fracking liquids are also used to inject sand and other solids to stabilize the cracks without losing the permeability that allows the gas to rise up.  These solids are called "proppants."  These wells are then "tapped" to catch the natural gas that is released.  During the tapping and fracking processes, trace amounts of natural gas, methane, volatile organic compounds ("VOCs"), and other fracking fumes may be released.

In April, 2012, the Environmental Protection Agency ("EPA") passed new rules regarding fracking under the Clean Air Act ("CAA").  See the EPA's news release here. However, the rules do not take effect until 2015. Once the new rules go into effect, they will require the industry to perform a process called "green completion" to trap the fumes that are currently being released into the air. Certain states, such as Wyoming and Colorado already require green completion.  The EPA's CAA fracking rules are a step in the right direction to control VOC and methane gas air contamination while allowing companies to develop needed cutting-edge oil and gas drilling technologies to release new stores of energy.  As an added benefit, it is believed the industry will be able to sell the gases captured during green completion to recoup some of the costs incurred in becoming compliant with the rules by 2015.

On May 4, 2012, the EPA released a draft of a new guidance to follow if diesel fuel is used as the fracking fluid.  You can read this draft here.  This draft was published in large part in response to concerns about groundwater when diesel is injected into the ground.  EPA is holding a public meeting on the proposed draft on June 29, 2012 in Washington, D.C.  The draft is open to public comment until July 9, 2012.

Common Sense Approach to Underage Drinking

This has nothing to do with environmental law, but I'd like to applaud the Indiana legislature's common sense approach to underage drinking.

On March 16, Governor Mitch Daniels signed Senate Enrolled Act 274 into law.  Today, he took part in a ceremonial signing of the act, which will go into effect July 1.  The so-called Lifeline Law prevents police officers from arresting a minor solely for public intoxication, minor possession, consumption, and/or transportation of alcohol if the minor sought medical attention for an intoxicated person and remained at the scene until emergency personnel arrived.  The law was proposed by college students at various Indiana schools.  Indiana is the twelfth state to adopt a Lifeline Law.  Hopefully, some lives will be saved if underaged drinkers are not forced to chose between saving someone's life and turning themselves in to the authorities.   

For the full text of the act, click here.  For the Indiana Lawyer's disussion, click here.

Temporary Restraining Orders in Environmental Litigation

Temporary restraining orders, known in the legal world as “TROs”, are a powerful tool in environmental litigation.  For a party that is considering a TRO, it has the power to immediately halt excavation, stop construction, or prevent the imposition of a new regulation.  For a party facing a TRO, violation of such an order can lead to steep fines, being held in contempt of court, and a multitude of other punishments.

TROs are often litigated in the environmental arena.  Recently, the Indiana Supreme Court considered a TRO in the context of an underground storage tank (“UST”) site.  In Witt v. Jay Petroleum, Inc., Cause No. 38S02-1110-CV-608 (Ind. March 21, 2012), the Supreme Court decided that the property owner, his attorney, and his environmental consultant were properly held in contempt of court for violating a TRO.  In that case, the property owner sued a prior owner, claiming the petroleum contamination he was cleaning up was from the prior owner’s use of the USTs.  The parties could not agree on a method for removing the USTs and testing the surrounding soil.  The trial court issued a TRO prohibiting any UST removal, soil excavation, or other environmental investigation and remediation activities until the court could conduct a preliminary injunction hearing.  Id., slip op. at 3.  The environmental consultant and other parties to the litigation continued excavating the UST area, and the trial court found them in contempt.  Id. at 3–4.  The Indiana Supreme Court eventually affirmed the trial court’s order.  See also Commissioner  v. RLG, Inc., 755 N.E.2d 556, 558 (Ind. 2001).  In RLG, the Indiana Department of Environmental Management (“IDEM”) sought preliminary injunctive relief against a landfill.  The defendant landfill agreed to remedy its environmental violations and to close the landfill, and IDEM agreed to drop its action for other civil penalties.  When defendant failed to comply, default judgment was entered for $3.1 million against landfill for violating the temporary restraining order.  The Indiana Supreme Court affirmed the judgment.          

This short recap of the Witt and RLG cases illustrates the applicability of the TRO in environmental litigation, and the extreme importance in abiding by a TRO.  A TRO expires within ten days after it was issued (unless the court extends it for good reason).  Ind. R. Trial P. 65(B). As soon as possible after the entry of a TRO, the trial court will conduct a preliminary injunction hearing where all parties can present their arguments regarding whether the activity that is the subject of the TRO should be enjoined pursuant to a more permanent preliminary injunction.  This powerful tool should not be overlooked—by the party filing it, or the party opposing it.

Indiana Rule of Trial Procedure 65 controls injunctions and temporary restraining orders (“TROs”).

To obtain a preliminary injunction, [the movant has] the burden of showing by a preponderance of the evidence that: (1) their remedies at law were inadequate, thus causing irreparable harm pending resolution of the substantive action; (2) they had at least a reasonable likelihood of success at trial by establishing a prima facie case; (3) the threatened injury to them outweighed the potential harm to the Appellees resulting from the granting of an injunction; and (4) the public interest would not be disserved by the granting of a preliminary injunction. If the party moving for an injunction fails to prove any of those four requirements, a. grant of an injunction to that party is an abuse of discretion. Stated another way, if, on appeal, the moving party cannot demonstrate that it proved each of those four requirements then the trial court’s denial of the movant's request for an injunction must be affirmed.

Curley v. Lake County Bd. of Elections & Registration, 896 N.E.2d 24, 32–33 (Ind. Ct. App. 2008).  While Curley was a case about elections, not the environment, the same TRO rules apply in the environmental context.

The lesson?  TROs are a powerful tool for any party—the government, property owners, defendants, plaintiffs, and anyone in between.  Parties should be aware of the usefulness of such a weapon, and if a TRO is entered against you, beware the consequences of violating that court order. 

IDEM's New Remediation Closure Guide

Yesterday, fellow Monitoring Well bloggers Brianna Schroeder, Sean Hirschten, and I attended a presentation by Keramida's Steven Sittler on using IDEM's new Remediation Closure Guide.  The Remediation Closure Guide replaces the Risk Integrated System of Closure (RISC) guide that had been used since 2001.  Some of the important characteristics of the Remediation Closure Guide are that: remediation objectives have replaced hard and fast default closure levels; the Conceptual Site Model may lead to increased up-front costs but may reduce the amount of remediation needed; and the guide is intended to be flexible to allow for alternative remediation approaches.  It is important that environmental attorneys and other environmental professionals stay on top of these and other changes at IDEM.