Category Archives: Sustainability

Latest Episode of the Kleinman Center’s Energy Policy Now Podcast, Featuring Andrew Light

Submitted by Andy Stone, Communications Manager, Kleinman Center for Energy Policy

The new episode is a conversation with a former State Department climate negotiator who was involved in the Paris climate deal.  He discusses the current White House debate around Paris, and the implications for global climate cooperation if the U.S. backs out.

The Trump administration has offered conflicting messages on its intention to remain a party to the 2015 Paris Climate Accord.  The question of U.S. involvement reaches a climax this week as senior advisers to the President hash out the administration’s path forward, with potentially far reaching implications for the climate deal, and for the United States’ role as a steady leader in global diplomacy.

In the latest episode of the Kleinman Center for Energy Policy’s Energy Policy Now podcast, former State Department climate negotiator Andrew Light discusses the battle in the White House over Paris, and the fate of the accord without U.S. leadership.  Light, a recent visiting scholar to the Kleinman Center, examines whether it will be possible for the U.S. to meaningfully “maintain its seat at the table” of climate dialogue even as it pulls back from global climate efforts.

Light also provides insights into the negotiations leading to the Paris climate deal, and the unique political environment in the U.S. and abroad that made the agreement possible.  Light is a Distinguished Senior Fellow in the Global Climate Program at the World Resources Institute and Director of the Institute for Philosophy and Public Policy at George Mason University.

An Interview with Maddie Macks, VP of Academics for the Wharton Graduate Association

Submitted by Mary Johnston, WG’18

Mary conducted an interview with Maddie Macks, VP of Academics for the Wharton Graduate Association. Maddie is in charge of Academics as part of Wharton’s Student Government, and is one of the founding members of the Wharton Sustainability Club.

 

Q: Why is Sustainability an important topic for MBAs?

A: First, resources are finite, and many industries including agribusiness, CPG, manufacturing, and energy rely on these materials for their business. My peers, as future business leaders, will be in positions where they are making supply chain, sourcing and operations decisions and will need to steward these resources to mitigate risk.

Second, while the U.S. federal government is currently trending toward deregulation, this is not the trend globally, as evidenced by The Paris Agreement. Many of my peers will be working in international companies where these regulations will be increasingly relevant.

Further, business decisions can have a big impact on local communities. For example, public health can be heavily impacted by water and air quality, and degradation of local ecosystems can impact livelihoods.

 

Q: What are other top business schools doing in their Sustainability Curricula?

A: They are ramping up their sustainability presence, offering certificates and more specific coursework. Many are integrating sustainability more into their core curriculum to ensure all students are educated on environmental issues in business. Almost all top business schools have sustainability-focused student clubs to build a community in the space on campus. Stanford, Sloan, Ross, and Yale are a few prime examples of schools that are increasing their presence in the space, and it’s attracting top students.

 

Q: What does Wharton do well now in terms of Sustainability?

A: Wharton has partnered with IGEL to offer the Environmental & Risk Management Major, which is one of the things that attracted me to Wharton. The Energy Club, Social Impact Club, and Agribusiness Club have sustainability-related programming, and as of this year, we have a group of about thirty students starting the Wharton Sustainable Business Coalition, a new club that will be up and running by Fall 2017. This group of students has also gotten to know each other well during the Energy Club’s clean energy trek to San Francisco as well as several student-run happy hours.

 

Q: What are the biggest opportunities for Wharton to increase the presence of Sustainability in the curriculum in the short term?

A: There are two things I think Wharton can do in the short term.

First, Wharton could incorporate more Environmental Responsibility content into the Business Ethics core requirement. This would help ensure that every Wharton student gets more exposure to how decision-making can have environmental consequences.

Second, Wharton could proactively ensure all relevant graduate coursework from around Penn related to Sustainable Business topics is cross-listed with Wharton to help facilitate students taking these classes. For example, the School of Earth and Environmental Sciences has several great courses.

 

Q: And how about the long term?

A: Wharton has an opportunity to continue to develop coursework related to sustainability and look into hiring more faculty who can teach courses and do research in the area. Wharton has such a huge opportunity to influence future business leaders’ decision-making, and making sustainability more present in Wharton’s curriculum would speak volumes to the issue’s importance. For example, the Environmental Risk & Management Major does a great job covering risk management, and I would love to see innovation and the financial implications of environmental choices highlighted more prominently as well. I also think there are opportunities to offer more sustainability courses as part of the Business Economics and Public Policy, Operations, Information, and Decisions, and Management Majors to name a few. Incorporating more of a focus on sustainability, can help Wharton stay on the cutting edge of business trends.

Simple Solution, Big Impact: #UsedCups

Submitted by IGEL Corporate Advisory Board Member Rubicon Global

Rubicon

As Earth Day approaches on April 22, multinational corporations, governments, nonprofits and NGOs – as well as the United Nations’ Sustainable Development Goals – continue working fast and furiously to tackle monumental challenges. It’s clear we must establish a more circular economy for the long term well-being of not only the plant, but also business and even society as a whole.

There are big challenges ahead, and in many ways Earth Day serves as a reminder of this. But what can one individual, one organization, even one country do to make a dent in these monumental challenges? At Rubicon, we’ve learned that in order to really make a difference we need to start by doing something manageable and specific. For us, it’s keeping waste out of landfills.

Did you know reuse and recycling is currently the top action society can do today to simultaneously improve the environment, the economy, sustainable manufacturing and to prevent waste from going into oceans?

We know that Americans throw away 25 billion Styrofoam coffee cups and 58 billion paper cups annually. These cups are not recycled, most are not recyclable, and yet we keep using them over and over because many aren’t aware of the environmental impact.

What if this year in honor of Earth Day we keep it simple and simply remember to save #UsedCups?

Think about what you drink out of every day, at home, at work and on the go. Do you opt for the reusable coffee mug or a single-use disposable cup? If you must choose single-use, do you recycle or compost it afterward? These are questions very few people think about on a daily basis, but if people did, they could have a profound positive impact on the environment.

So help us change this bad habit that we’ve developed as a society. We invite you to join us in raising awareness about cup-use and get others to do the same this Earth Day.

Post about your beautiful reusable cups on Instagram, Twitter or Facebook with #UsedCups between now and April 19th and be entered to win two 3-day passes to Sweetwater 420 Fest in Atlanta or an Apple Watch Series 2.

Every reusable beverage container counts. Reusable water bottles, ceramic coffee mugs, perhaps even a sippy cup. Every cup reused or recycled is one less cup in the landfill, so go ahead, show us your #UsedCups!

 

Learn more about the #UsedCups campaign, and follow Rubicon on Instagram, Twitter and Facebook.

Interviews: Paving the Way Towards a Future of Sustainability in Business Education

By: Elena Rohner, Graduate IGEL Coordinator.  April 12th, 2017

Solutions for improving sustainability in business education often center on creating integrated, cross-disciplinary courses or concentrations; yet this requires a large investment of time and resources. It can take at least a semester to put together the syllabus, materials and teaching tools for a new course, not to mention the time dedicated to overcoming administrative bureaucracy. Therefore, one of the best solutions that business schools can employ to better prepare students for roles in sustainability is: get them talking to professionals!

I recently interviewed two leaders in sustainability for a final assignment in a course called Leading Change for Sustainability (ENVS 682) taught by Penn alum and Sustrana Sr. Associate, Kim Quick and Penn’s Sustainability Director, Dan Garofalo. One interviewee was Todd Hoff, VP of Marketing and Customer Solutions at CHEP North America. Hoff reiterated, in a more nuanced manner, strategies and take-aways commonly touted in the sustainability world. He also shared stories of achievements and challenges, highlighting the seemingly basic pathways and pitfalls of sustainability that continue to pervade industry and create unsolved barriers to sustainability.

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Here are some of my take-aways from our conversation:

  • People don’t know what sustainability is…
    • Sustainability remains an enigma—a concept widely misunderstood with a different definition according to pretty much anyone you ask. Many business executives define sustainability as a strategic force in leadership where an organization makes impactful choices that preserve economic and environmental resources.
    • Hoff shared that sustainability should not be understood as something separate from the business activities. Business can make a difference through business itself, and as a result sustainability should be embedded in the decision-making and the core operations of the company. Hoff also finds peoples’ confusion about sustainability to be the most challenging aspect of working as a sustainability proponent. He highlights the example of employees confusing a sustainability initiative with office supply recycling. And, while recycling is one facet of “sustainability,” it is only that. A single and siloed leverage point. People fail to understand the need for a multifaceted approach to sustainability. As an example, Todd shared his experience at Brambles, the parent company of CHEP, where they have a multi-faceted sustainability strategy including Better Planet, Better Business, and Better Community. http://www.brambles.com/sustainability
  • Having a growth mindset is key:
    • A lot of class time in ENVS 682 is spent identifying and leveraging strengths and mindset. Hoff, whose team just took the Gallup Strength Finder questionnaire, said his results were: relator, learner, arranger, achiever, and includer. Hoff also highlighted his growth mindset when it comes to work—he is motivated by the work itself and the constant growth and learning involved in his role. It is clear that a successful sustainability, or any business, leader has a growth mindset, strong communication skills, and a talent for seeing and making connections.
  • Adam Grant got it right.
    • In class we saw Adam Grant’s quote, “The stories we tell ourselves shape what we do. If you believe people are fundamentally selfish, you will act in ways that make it true.” This stuck with me, so I asked Hoff what he thought about the quote and whether it held relevance for his work. He agreed with Grant and without me bringing up the concept of positive psychology, Hoff gave a great example of how he lives by this concept every day. Hoff noted his learner strength and that he tries to always stay positive in his learning approach. He said that “it’s all related”—that is, successfully managing a large diverse team and achieving the results he wants to see.
  • Surprise! Money plays a critical role:
    • Hoff highlighted how financials are always a motivating factor in any sustainability conversation. He spoke about the “business sense” argument as an invaluable strategy when working with people who are not on board with a sustainability initiative. In other words, he makes sure to include the environmental benefits of the service or product, but what truly seals the deal is conveying how a client can also make or save money. His strategy is to sell the “Win-Win” concept. In this sense, money is the problem solver—it creates a common ground, a business language that everyone speaks and understands. And many, myself included, agree with this idea.

As I hope was conveyed above, interviews and coffee chats are an incredibly rewarding experience for students in any field. From the student and professional’s perspective, the benefits of an interview are a win-win, including:

  • Students learn insider tips
  • Professionals share anecdotes that highlight key, industry-specific take-aways
  • Both parties build their network

And, the best part about interviews is the minimal infrastructure and planning required—all you need is a phone and 20-30 minutes of someone’s day.

 

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U.S. Environmental Regulatory Trends: Past, Present and Future

By Larry Cahill, CPEA, Wharton IGEL Alumni Advisory Group member

“The care of human life and happiness, and not their destruction, is the first and only object of good government.”  Thomas Jefferson

 

Thomas Jefferson was a very smart man.  Perhaps though, his view of the purpose of government has been lost over time.  Recently there has been much discussion on the economic damages inflicted by the federal government related to the regulatory burden that industry faces in the United States.  Although these discussions are not solely limited to environmental regulatory burdens, many do believe that the pendulum has swung too far in controlling industrial operations and their air, water, and waste discharges.  I am not one of those individuals.  Yes, the Cuyahoga River in Cleveland no longer catches fire.  And Pittsburgh’s success as a city is no longer defined by the smoke being emitted from the stacks of its steel industry plants.  And the hidden Love Canal surprises are hopefully behind us.  Yet, there continues to be noteworthy cases of major environmental incidents and non-compliances across the nation. The 2015 Volkswagen “clean diesel” scandal is only one of many.  Did you know that every single year for the past 20 years the U.S. Department of Justice has charged some 200 to 300 individuals with committing environmental crimes?  That might not seem like many but in total these are criminal charges against over 5,000 individuals, not simply civil charges for exceeding permit limits or discharge standards.

One could logically ask the question – Where does the U.S. stand today with regard to environmental regulations and enforcement as the country experiences a new presidential administration with an uncertain regulatory philosophy and strategy?  Are we indeed better off and is it time to take the foot off the gas or is there still much work that needs to be done?  Recent regulatory and enforcement data released by the U.S. EPA help us to better understand where we are presently as a country and where we might be headed.

Environmental Laws: The Historical Setting

The First Earth Day occurred on April 22, 1970 in the midst of a nationwide college campus strike protesting the Vietnam War.  Protests in the streets all over the land.  Hmmm… Sound familiar?  That year of 1970 became a springboard for the passing of major federal environmental laws in the U.S.  As shown in Table 1, in the next two decades, some 12 critically important environmental, health and safety laws were passed.  Interestingly enough, eleven of the twelve were authorized and signed by Republican presidents; a legacy that is sometimes forgotten or ignored.  Each law, of course, required the creation of regulations to accomplish the stated goals.  And indeed that has occurred.

TABLE 1:  Major U.S. Federal Environmental Legislation (1969-1986)

No.

Year Title

Signing President

1. 1969 National Environmental Policy Act (NEPA) Nixon (R)
2. 1970 Clean Air Act (CAA) Nixon (R)
3. 1970 Occupational Safety and Health Act (OSHA) Nixon (R)
4. 1972 Federal Water Pollution Control Act (FWPCA) Nixon (R)
5. 1972 Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) Nixon (R)
6. 1972 Noise Control Act (NCA) Nixon (R)
7. 1973 Endangered Species Act (ESA) Nixon (R)
8. 1974 Safe Drinking Water Act (SDWA) Ford (R)
9. 1976 Resource Conservation and Recovery Act (RCRA) Ford (R)
10. 1976 Toxic Substances Control Act (TSCA) Ford (R)
11. 1980 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Carter (D)
12. 1986 Emergency Planning and Community Right-to-Know Act (EPCRA) Reagan (R)

 

Environmental Regulations: The Current Setting

All federal regulations, including those created by the EPA, are codified in the Code of Federal Regulations (CFR), published annually by the Government Printing Office.  That is, each year the CFR is released to the public and it contains all current and updated regulations effective on July 1st of that year.  The individual volumes for each year are usually available in January or February of the following year.  The EPA is responsible for the 37 volumes of Title 40 of that Code.  By early 2017 the EPA had released the 2016 CFRs effective July 1, 2016.  The total page count for EPA’s Title 40 regulations in 2016 was 27,074, the most on record. (See Figure 1) Combined with OSHA’s 3,096 pages in Title 29 there were, for the first time, over 30,000 pages in total, with EPA regulations accounting for 90% of that total.

In taking a closer look at the data, some interesting additional facts emerge.  For example:

  • Recent Growth.  There was an approximately 800 page, or 3%, increase in the number of pages in Title 40 in 2016.  This increase was almost twice as large as the total page count in 1972, the first year of regulatory codification.
  • Distribution by Media.  Approximately 66% of the pages in Title 40 are devoted to Clean Air Act regulations.  This represents roughly 17,750 pages, meaning that the Clean Air Act alone has almost six times as many pages of regulations than all of OSHA’s Title 29 Code.
FIGURE 1: Growth of U.S. EPA Regulations (1972-2016)

Fig1

  • Comparison with the U.S. Tax Code.  By comparison, the 30 thousand pages of EHS regulations is only about 40% of the total page count of ~75,000 pages in the federal tax code.
  • Comparison with the Dow.  Interestingly, if one does the calculations for the 1972-2016 period, there is a 95% statistical correlation between the growth of environmental regulations and the growth of the Dow Jones Industrial Average (DJIA).  Granted this is some outside-the-box thinking, but could this mean that regulatory growth is good for the economy!?

Will Environmental Regulations Continue to Grow?

Will the growth of federal environmental regulations continue or has it peaked?  One way to anticipate the answer to the regulatory growth question is to take a look at the Agency’s Semi-Annual Regulatory Agenda, which was last released on November 17, 2016 (as part of the Executive Branch’s Unified Agenda) in the Federal Register.  This is a spring and fall requirement for all regulatory agencies[i].  In November the EPA listed 203 additional regulations (not pages, but individual regulations) that either had been recently promulgated (but not yet codified) or were under development.

Eventually, all of these new regulations will be added to Title 40, continuing the growth, unless there is a concerted effort to halt the regulatory development process; more on that later in this chapter.  It is very interesting to note, as depicted in Figure 2, that each of EPA’s Semi-Annual Regulatory Agendas from 1999 to 2011 listed somewhere between 350 and 450 regulations under development, a consistency that is stunning.  This means that for over a decade, there were always around 400 regulations under development on the docket.  Interestingly, there has been a dramatic reduction in the number of regulations listed to roughly 200 from years 2012 to 2016.  Maybe the regulatory pipeline is beginning to empty.

FIGURE 2: EPA Semi-Annual Regulatory Agenda Trends

Fig2

Yes, there are still regulatory gaps

In spite of the fact that there are now over 27 thousand pages of federal environmental regulations, there remain some additional risks and vulnerabilities that have yet to be addressed appropriately at the federal level.  Three of those that have surfaced on environmental audits of industrial facilities over the past 30 years are:

  • Water Storage Tanks. For large firewater and other water supply above-ground storage tanks, there is no requirement for tank integrity testing or secondary containment protections.  These tanks are often located adjacent to electrical substations and transformers in utility areas where a tank breach could short out the entire electrical system of the site and possibly the surrounding community.  And history tells us that large volumes of unexpected water releases can do considerable damage to facility equipment.  In 2011 a tsunami disabled the backup generators at the Fukushima, Japan nuclear power plant resulting in a meltdown of three nuclear reactors.  One global consumer products company has recognized this water storage issue as an unacceptable risk and has developed a corporate standard that requires secondary containment for all above ground storage tanks worldwide.
  • Hazardous Waste Storage.  Hazardous waste stored at 90-day accumulation areas require only that drums and containers be labeled, physically intact, and inspected weekly.  Surprisingly there is no federal requirement that containers be placed on an impervious surface incorporating secondary containment protections.  Thus, a pretty much unlimited amount of containers and drums holding hazardous waste can be stored directly on the ground for up to 3 months at these locations. Several states, including Massachusetts, have recognized this as a gap and require additional protections such as secondary containment for accumulations areas.
  • Accidental Discharges of Hazardous Substances.  Spill Prevention, Control and Countermeasure (SPCC) Planning requirements promulgated under Section 112.7 of the Clean Water Act regulations are designed to prevent the accidental release of only oil-containing substances into the nation’s waters.  Facilities subject to the regulations must develop an SPCC Plan that is certified by a Professional Engineer and must provide appropriate containment and/or diversionary structures or equipment to prevent a discharge of oil. New Jersey is one state that has recognized that regulating only oil in this way is a gap and has promulgated Discharge Prevention, Containment and Countermeasure (DPCC) regulations that cover not only oil but numerous other hazardous substances.

There are certainly other gaps as well and also existing regulations that require additional clarification.  A great example of the need for clarification are the “weekly”, “monthly”, and “annual” requirements found in many environmental regulations.  Be assured that there have been many lively discussions among site staff, regulators and auditors over whether “annual” means every 12 months or once a year.  There is a big difference in the two interpretations.

U.S. EPA Enforcement Activity Remains Substantial

The EPA has had a substantial enforcement program throughout its history.  EPA’s current Enforcement budget is approximately 10% of its total $8.1 billion budget and, for comparison purposes, is 35% more than the entire budget of the Occupational Safety and Health Administration (OSHA).  On December 19th, the EPA released its enforcement results for fiscal year 2016, which ended on September 30, 2016.[ii]  Included in those results were data on administrative, civil judicial penalties, and criminal fines assessed.

As shown in Figure 3, EPA issued $5.8 billion in civil and criminal penalties in FY2016, the most ever in history.  However, the great majority of the penalties issued were due to a $5.6 billion settlement with BP Exploration & Production for Clean Water Act violations stemming from the April 20, 2010 Deepwater Horizon blowout and subsequent oil spill.  Note further that the 2013 penalty amount of approximately $2.6 billion was impacted significantly by billion dollar penalties against Transocean and BP, again for the Deepwater Horizon incident.

FIGURE 3: U.S. EPA Enforcement Penalty Trends

Fig3

Notwithstanding the two Deepwater Horizon enforcement actions in 2013 and 2016, on average, over the past ten years the EPA has issued approximately $200 million in civil and criminal monetary penalties each year.  This should be viewed together with the over 5,000 individuals that have been charged with environmental crimes by the DOJ over the past 20 years.  These numbers are not inconsequential.  And with almost a billion dollars being spent annually by EPA on enforcement, environmental noncompliance remains a serious issue, unmatched by any other country.  As EPA has stated in its FY 2013 OECA National Program Manager Guidance, we will “aggressively go after pollution problems that make a difference in communities.  EPA will use vigorous civil and criminal enforcement that targets the most serious water, air and chemical hazards, as well as advance environmental justice by protecting vulnerable communities”.[iii]

The Cautionary Tale of December 2016

So where does that leave us?  Should there be a continuing emphasis on environmental regulatory compliance and enforcement or should we indeed take the foot off the gas as some would propose.  Well, if the fortnight in the middle of December 2016 tells us anything, this is not the time to ease up.  Take note of the following headlines taken from that very short period:

  • DuPont agrees to pay $50 million in natural resource damages to resolve claims stemming from the release of mercury in the 1930’s and 1940’s from its Waynesboro, VA plant (December 16th).
  • Michigan’s Attorney General brings more criminal charges over the Flint, Michigan water crisis, including felony charges against two former state appointees and two former city officials (December 20th).
  • Volkswagen reaches $1 billion deal with the USDOJ and California in the ongoing diesel emissions scandal (December 21st).
  • A federal jury finds DuPont liable for $2 million in compensatory damages for an individual’s cancer stemming from the dumping of Teflon manufacturing chemicals (C8) into the Ohio River. An additional 3,500 cases are pending (December 21st).
  • Shell Oil will pay $22 million to the city of Clovis, California for chemical (TCP) found in drinking water supply (December 27th).

Frankly, it’s hard to believe that all five of these incidents occurred over a two-week period in the last month of 2016.  They suggest that the U.S. is nowhere near where it needs to be with respect to the environment.  Continuing oversight is needed and both public and private sector institutions need to be held accountable for meeting, if not exceeding, regulatory requirements.

What Might Change

During the 2016 presidential campaign and now with the new Trump Administration in place concern has been expressed over the regulatory burden placed on U.S. industry and the regulated community in general.    It should be noted that this concern is nothing new.  For example, on January 18, 2011 President Obama issued Executive Order 13563, “Improving Regulation and Regulatory Review”.  The Order required a government-wide review of existing rules “to remove outdated regulations that stifle job creation and make our economy less competitive.  It’s a review that will help bring order to regulations that have become a patchwork of overlapping rules…”[iv]  In response to President Obama’s Executive Order, EPA created the Regulatory Development and Retrospective Review Tracker (Reg DaRRT), which provides information on the status of EPA’s priority rulemakings, as well as information on the status of retrospective reviews of existing regulations.  One positive outcome of the Executive Order was the July 31, 2013 issuance of a final EPA rule on solvent-contaminated wipes that reduced the regulatory burden on tens of thousands of facilities using these wipes routinely.

What is different today is the approach that is being proposed by the current Administration.  President Trump has said numerous times that his goal is to eliminate as many as 75% of all existing federal regulations.  The first step in that effort was the January 30, 2017 issuance of an Executive Order: “Reducing Regulation and Controlling Regulatory Costs.”  This Order calls for every “one new regulation issued, at least two prior regulations be identified for elimination with the goal of zero incremental costs.”  As with most Executive Orders further guidance will be required and the Director of the Office of Management and Budget is required to develop that guidance.  In fact, on February 2, 2017 the White House issued guidance stating that the Order would only apply to “significant” regulations, as defined in Executive Order: “Regulatory Planning and Review”, issued by the Clinton Administration in 1993.  Significant regulations are those imposing an annual economic cost ≥$100 million.  The Director must also identify the total amount of incremental costs that will be allowed for each agency for each fiscal year.

This “one in, two out” approach, if enacted as stated, obviously will have significant impacts on federal rulemaking within all agencies including the EPA.  As stated previously, the EPA in its November 2016 Semi-Annual Regulatory Agenda listed 203 new regulations under development or review.  Will this mean that if all of these regulations are put forward that over 400 other, existing regulations must be eliminated?  As arbitrary as this sounds, the answer today is yes.

Another potential impact caused by the Executive Order would come from the new chemical requirements in the Frank R. Lautenberg Chemical Safety for the 21st Century Act signed into law on June 22, 2016.  The Act requires that the EPA evaluate and communicate the risks of existing chemicals from the current inventory of 83,000 chemicals in use in the U.S.  The first 10 chemicals were identified on November 29, 2016 and include asbestos, carbon tetrachloride, methylene chloride, and trichloroethylene.  If an assessment determines that a chemical poses an unreasonable risk the Agency must mitigate that risk within two years.  Further, for each risk evaluation completed, another must be initiated with at least 20 ongoing evaluations being conducted by the end of 2019.  Does this mean that any resultant rule addressing mitigations for a particular high-risk chemical cannot be promulgated unless two other unrelated rules are eliminated?  This seems rather arbitrary as well.  Perhaps in this and other cases the “significant regulation” threshold will have a moderating impact and the effects will not be as severe as expected.

Another regulatory reform initiative taking place but receiving considerably less attention is the use of the Congressional Review Act enacted in 1996, which allows lawmakers to take certain actions for those laws enacted during the waning days of an administration.  The Congress has already used this power to rescind EPA’s Stream Protection Rule promulgated in December 2016, which sought to protect the nation’s waterways from debris generated by coal surface mining activities.  Congress is also attempting to rescind the EPA’s revised Accidental Release Prevention Requirements contained in its Risk Management Program final rule issued on January 13, 2017.  A bill to rescind the rule has been introduced in the House as of this writing.  Historically, the Congressional Review Act has been used sparingly but this has not been the case in early 2017.

In sum, there is strong evidence that significant regulatory reform is ahead driven by a Republican Congress and Presidency.  One can only hope that logic will prevail and that protection of human health and the environment will continue as a fundamental goal for the nation.

Why the EPA’s Mission Remains Critically Important

With good reason President Nixon created the EPA in 1970.  The Agency’s basic mission is to protect human health and the environment.  This is accomplished with an $8 billion budget and 15,000 full time equivalent staff.  Although it often is not evident in our daily lives, we have all been impacted in a positive way by the Agency’s efforts and programs.  Consider if you will the scope of the Agency’s oversight and responsibilities:

  • Nationwide Facility Coverage.  Over 800,000 facilities in the U.S. generate air emissions, wastewater, and hazardous waste at a level sufficient to require regulatory oversight through mechanisms such as Title V air permits, NPDES wastewater discharge permits, and/or hazardous waste generation and disposal requirements.  That’s an average of 16,000 facilities per state where there is regulatory oversight and controls over the release of pollutants.
  • Hazardous Waste Generation.  There are over 26,000 large quantity hazardous waste generators in the U.S., generating over 33 million tons of hazardous waste annually.  These generators are required to manage the wastes properly and report to the EPA every other year on their activities.
  • Toxic Releases.  There are over 22,000 facilities in the U.S. that release listed toxic chemicals at a sufficient level to require reporting under the Toxics Release Inventory (TRI) requirements of the Emergency Planning and Community Right-to-Know Act.  Over 3.3 billion pounds of toxics were released nationally in 2015.  TRI reporting has resulted in a better understanding of pollutants in our environment and has driven a reduction over time of releases.
  • Superfund Sites.  As a result of the 1980 passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) some 1,188 “Superfund” sites have been cleaned up as of November 30, 2016.  However, there remain 1,337 National Priorities List (NPL) Superfund sites yet to be cleaned up.
  • Toxic Chemicals.  There are 85,000 chemicals inventoried and regulated under the Toxics Substances Control Act.  These include materials containing asbestos and PCB’s, which were considered “miracle” products when first produced.  Very few of the inventoried chemicals have undergone meaningful risk assessments to determine hazards posed to human health or the environment.  The Frank R. Lautenberg Chemical Safety for the 21st Century Act signed into law on June 22, 2016 contains provisions to assure that these assessments are conducted.

It is important to note that, save for the Superfund sites, all of the chemicals, wastes, releases, and discharges discussed above are being managed in compliance with existing environmental regulations.  Do we really want to eliminate 75% of these regulations resulting in fewer controls over discharges and releases?

Closure

The future of environmental regulation in the U.S. is cloudy indeed.  It is really too soon to tell exactly what might be the impact of President Trump’s Executive Order and other pending regulatory reform initiatives.  It would be prudent to keep a close watch…

 

[i] The Regulatory Flexibility Act and Executive Order 12,866 require Spring and Fall Regulatory Agendas.

[ii] U.S. Environmental Protection Agency, “Fiscal Year 2016 EPA Enforcement and Compliance Annual Results,” Office of Enforcement and Compliance Assurance, December 19, 2016.

[iii] U.S. Environmental Protection Agency, FY 2013 Office of Enforcement and Compliance Assurance (OECA), National Program Manager (NPM) Guidance, April 30, 2012, p. 6.

[iv] Obama, Barak, “Toward a 21st-Century Regulatory System”, Wall Street Journal, January 18, 2011.

Newest Knowledge@Wharton Report, Sponsored by Dow, Explores the Circular Economy

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The Circular Economy: From Concept to Business Reality

In an ideal world, everything manufactured by people would automatically be either re-purposed or reduced to its component parts and recycled for other uses, thus presenting a sustainable, closed loop that wasted no resources. But it’s not a perfect world, and the usual destination for our unwanted goods — especially in the U.S. — is the landfill. Can we turn that situation around?

After more than a century of linear thinking about the path products take from cradle to grave, excitement is growing among environmentalists and business leaders about the revolutionary potential of the circular economy — which fights waste by aiming to extract the maximum value from commercial goods. The recent Wharton conference on the subject, co-sponsored by Dow and Wharton’s Initiative for Global Environmental Leadership (IGEL), brought together pioneers from industry, academia, and non-profit organizations. This report extends the discussion begun at the conference by looking more in depth at the issue.

Turning Waste Streams into Value Streams

Recycling waste salvages just a tiny fraction of a product’s original value. Far more productive uses can be found through re-manufacturing, cascading materials through several lifecycles, and developing new business models that move us away from the concept of ownership all together.

Designing for the Circular Economy

Innovative companies are exploring strategies that address end-of-life issues upfront — when a product is being designed. Some are looking to extend the life of products through old-fashioned durable construction, modern modular design, and futuristic repair-before-failure. Others are developing new materials and new types of products tailored to the circular economy.

The Producer Pays

Germany enacted the first countrywide extended producer responsibility (EPR) law in 1991, and much of Europe (and Asia) followed, but there is no national EPR law in the United States. EPR’s profile is rising,  though, even in this country. The concept has gained a foothold at the state and local levels, and some companies are taking voluntary steps in the direction of EPR.

 

Download the entire report here.

Kleinman Cetner’s Energy Now Podcast – The Many Fronts of Trump’s Environmental Deregulation Effort

Submitted by Andy Stone, Communications Manager, Kleinman Center for Energy Policy

President Trump is moving forward with his campaign pledge to roll back environmental protections, most notably with his late March executive order instructing EPA administrator Scott Pruitt to withdraw the Clean Power Plan.  In the latest episode of the Kleinman Center for Energy Policy’s podcast series, Energy Policy Now, Penn law professor Cary Coglianese takes a look at the multiple legal and political tools the Trump administration is using to reduce protections, including executive orders, defunding of agencies with environmental oversight, and use of the previously obscure Congressional Review Act.   Coglianese lays out the challenges each strategy will face, and the potential for regulations to be rolled back or to endure.

 

Closely tied to the issue of climate change is the economic outlook of the electric utility industry, which is increasingly tasked with the role of enabling the transition to clean power, yet will face lower electricity demand as a result.  In a second new episode, former Pennsylvania Consumer Advocate Sonny Popowsky takes a look at the challenge that distributed energy presents to electric utilities’ profitability.  Popowsky, who is an advisory board member of the Kleinman Center, also explores the costs to consumers that could result from efforts to balance the growth of rooftop solar, energy efficiency and related technologies with the need to maintain a power grid that equitably serves all.

Energy Policy Now Podcast – Carbon Reduction Strategies

Submitted by Andy Stone, Communications Manager, Kleinman Center for Energy Policy

Two strategies stand out in the effort to reduce carbon emissions on an economy-wide scale. Carbon Cap and Trade, and Carbon Taxation, have been implemented with varying degrees of success in recent years, while taking very different approaches to reducing emissions.

The latest episode of the Kleinman Center for Energy Policy’s Energy Policy Now podcast takes a look at the mechanisms by which these strategies seek to reduce emissions, and the political and economic considerations that may make one or the other a best fit for a particular nation or region.

The episode features James Hines, Professor of Law and Economics at the University of Michigan, and an editorial adviser to the Kleinman Center.

Managing Transactional Risks in Contaminated Property Cleanups and Redevelopments

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By Dean Jeffert Telego, Owner & President, RTM Communications, Inc.

Managing environmental and financial risk effectively is challenging for all types of corporate and real estate deals from the portfolio to one- off commercial or industrial property transactions.  The environmental risk and liability concerns that arise, from Mergers & Acquisitions to the legacy liabilities associated with the redevelopment of brownfield sites require the use of bullet proof legal tactics, deal strategies that can bracket and or transfer the environmental risks, and the financial tools, such as environmental insurance to close the deal.  In fact, one of the recent trends in corporate transactions is the terms return of capacity and appetite for calculated risk taking by the Property and Casualty (P&C) carriers.  They are providing broader terms and creative manuscripting of environmental insurance such as Pollution Legal Liability (PLL) insurance, to leverage larger and more complex the transaction – whether the deal is a liability buyout or facilitating the closing of a brownfield transaction and its redevelopment.  The transactions are larger in financial terms and the insurance coverage capacity provided is greater.

Real estate market trends are very favorable driving contaminated property transactions toward cleanup and sustainable redevelopment.  Over the past several years, corporate surplus properties have been turning over, influenced by improved economic fundamentals.  There is a surplus of corporate cash on the sidelines along with institutional and foreign sovereign monies looking for higher yields and investing in U.S. real property.  Some focus on brownfield transactions where there are complex infill properties for affordable housing, waterfront, port terminal activity as well as big box store redevelopment.  There is also wide spread construction that is replacing shuttered malls with high end vertical development.

That said, according to a Citizen Commercial Banking report, commercial and industrial property selling activity for 2017 is ramping up. But middle-market decision makers note that valuations may not hold for much longer coupled with unquantifiable economic uncertainty centered on deregulation and tax reform among other externalities, and these phenomenon are further driving market dynamics. The commercial lending markets have seen the slowest increase in construction lending since 2014.  According to a February 8th 2017 Wall Street Journal article, some prominent real-estate investors are reducing their holdings and getting more selective about new deals due to their uncertainty about future market growth after eight years of a bull market.  Asset managers at endowments and pension funds and some private-equity firms are selling more assets and shifting to less risky strategies.  The demand for property may be starting to flag.  Commercial real estate deal volume decreased by $58.3 billion or 11% in 2016 according to Real capital Analytics.

With this mixed news, how does this all portend for contaminated property and brownfield transactional business and site cleanups and redevelopment activities?

Infrastructure is key term to winning Trump administration’s support for brownfield cleanups and redevelopments.  Couch the funding in terms of infrastructure development.  With the past administration, there had been increase cooperation from regulators especially at the state level with the focus on risk-based cleanups and cooperation with the community toward redevelopment.  With the Trump administration we are in a wait and see period relative to the impact to the brownfield cleanups and redevelopment activity that are historically supported by EPA grant monies.  Under a proposal from the Office of management and Budget, the EPA could find its grants to states cut by as much as 30%.  The impact of environmental deregulation and cutbacks in EPA appropriations and staff by 20% to 25% are proposals that would have a material effect on site investigations, cleanups and redevelopment activities leaving funding support to be sought from the private sector.

Environmental risk can impact the success of closing the transaction, valuation of the assets, and the transfer of legacy liabilities. It takes creative funding, the bracketing of environmental risk using rigorous and alternative due diligence and remedial alternatives, and deal structuring techniques grounded in  risk management strategies to assure that the redevelopment or reuse or successful disposition of the surplus or stranded asset(s) can be successfully implemented.

This RTM conference zeroes in on the effect environmental risk has on deal flow and the management of  commercial, industrial and government property types.  We will get into the business tactics and strategies for reducing the uncertainty caused by environmental risk and closing the deals employing creative environmental risk financing and management approaches.  The Conference will also delve into the enhanced value environmental insurance and liability management strategies are bringing to leveraging the M&A activity and the purchasing and disposition of corporate assets and contaminated real estate.

Key presentations will cover:

  • Environmental liability management strategies for successfully transferring corporate surplus properties and closing M&A transactions,
  • Emerging contaminants and new regulatory challenges confronting the financial services industries and property owners/developers,
  • Accelerated transfer of redevelopment and legacy sites into beneficial reuse,
  • Environmental and M&A Buyer – Side insurance leveraging private equity transactions,
  • Creative application of public/private brownfield financings,
  • Extreme weather, climate change and Green Bonds effect on commercial/industrial properties

Energy Policy Now Podcast – How U.S. LNG is Changing the Global Gas Market

Submitted by Andy Stone, Communications Manager, Kleinman Center for Energy Policy

In 2016 the first shipments of US LNG left from a terminal on the Gulf Coast, opening a new frontier of opportunity for the US natural gas industry and, on an international scale, contributing to the development of a truly global gas market. This globalizing market is eroding traditional buyer-seller relationships, including those of the U.S. and its allies, with implications for political balance.

In the latest episode of the Kleinman Center’s Energy Policy Now podcast, Kleinman Senior Fellow Dr. Anna Mikulska explores the geopolitical implications of a global natural gas market, and potential impact or U.S. foreign relations and policy.

In addition to her work with the Kleinman Center, Dr. Mikulska is a nonresident scholar in energy studies at the Baker Institute for Energy Studies at Rice University. Her research centers around European energy markets and energy policy.