The Nickel Report

On November 15, 2018, the Federal Energy Regulatory Commission (Commission) held its monthly open meeting (November Meeting). This was the first meeting chaired by Chairman Chatterjee since replacing Commissioner McIntyre as chairman. Commissioner McIntyre was absent for his third consecutive open meeting due to continuing health issues and did not vote on the consent agenda.

Nobody wants to live near a designated “Superfund” site. Aside from potential exposure to hazardous chemicals, the stigma associated with proximity to a Superfund site leads to loss of property value. In addition, the Superfund process is notorious for its record of protracted and expensive cleanups. In view of these well-founded concerns, a number of states have adopted voluntary cleanup programs (VCPs) as alternatives to the federal Superfund program. A well-structured and well-run VCP can keep a contaminated property out of the Superfund program while at the same time providing a mechanism for investigation and cleanup. VCPs often work particularly well to facilitate the cleanup and re-use of “Brownfields,” former industrial or commercial sites where future use is affected by real or perceived environmental contamination.

With produced water volumes on the rise as a result of the growth in oil and natural gas production and various areas of the country experiencing water scarcity, states and stakeholders are increasingly looking for ways to reuse, recycle and beneficially use waters originating from the oil and gas industry. Two recent initiatives are likely to significantly advance policy decisions related to produced water management.

A recent US Court of Appeals decision could have broad implications for how federal wildlife agencies consider potential climate change impacts on species and their habitat. Pursuant to the Endangered Species Act (ESA), the US Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) must determine whether to list a species as endangered or threatened based on “the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A). Given the inherent uncertainties and limitations of forecasting specific population changes (or habitat changes) on the basis of climate change projections, the Services may find that potential climate change impacts on a species are too speculative to support a decision to list a species. The US Court of Appeals for the Ninth Circuit, however, recently overturned a FWS decision not to list a species on that basis. In reviewing FWS’s decision not to list the arctic grayling, a cold-water fish species found in Montana, a three-judge panel found that FWS failed to adequately explain why uncertainty regarding future impacts of climate change justified its conclusion that listing the species was not warranted.

In recent years there has been an explosion in the availability of small, low cost, hand held (or drone mounted) air quality monitoring devices or air sensors. Although the most likely near term applications may be community groups seeking information on potential industrial impacts, even individual consumers may have use for such devices to monitor the quality of indoor air. The biggest hurdle to the effectiveness, and eventual integration into the realm of regulatory compliance, of these devices is the lack accepted standards for evaluating the quality of the data they produce. What role will EPA play in that?