Renee Cipriano, Schiff Hardin, NGO and Community Influence--Regulatory and Policy Change through...

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NGO and Community Influence – Regulatory and Policy Change through Litigation and Activism Renee Cipriano

Partner

Schiff Hardin LLP

312.258.5720

[email protected]

Midwest Environmental

Compliance Conference

October 29-30, 2015

Overview of The Trends We Are Seeing

• Increase in litigation/enforcement

• Challenges to every aspect of plant construction and operations

• Force regulator paralysis and decisions not entirely based in science or

the regulatory requirements

• More active involvement in the rulemaking process both at hearings

and through public comment

• Use of media (and social media) to influence-objective is to shape

public opinion of YOU

• With the increased availability of reported data/information by

regulators, increased use of that data/information to influence

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The Trend: Increased Litigation and Enforcement

• The actions have become very targeted – to complement the campaigns

du jour

• Many cases are brought under federal citizen suit provisions for

visibility/fees

• Seeing novel cases not traditionally brought by regulators

– Opacity

– Proposing to construct without the “right” permit

– Enforcement action based on violating the NAAQS before SIP process

– Diesel particulates regulated as RCRA waste

– Utility poles as point sources regulated under CWA

• Cases involving permit and recordkeeping violations to get the foot in

the door to negotiate something larger


NGO Litigation is Different from Government Litigation--How?

• Different stakes and different agenda

– The drive to bring the action is typically different – not just looking for compliance or

a penalty to deter future violations

– The agenda is usually tied to a campaign or local cause

• Not tied to legal precedent

– Government enforcement is typically concerned with precedent – how will resolution

impact programs/future cases?

– NGOs want to push for new precedent that fits its ultimate objectives and will file in

several jurisdictions to get there

• Tactics

– Government less reliant on using the media or social media as tools to influence the

case or force resolution

– Courthouse steps press conferences are the norm and continue through case

conclusion – stack the media coverage against you

– Language in complaints/press releases intended to elicit media, elected official and

court reaction


Typical Language in NGO Complaints

NGO v. Company A

• Each [of defendant’s] boiler emits thousands of tons of carbon dioxide,

nitrogen oxides, and sulfur oxides every year as well as significant amounts

of particulate matter, carbon monoxide, mercury, and other hazardous air

pollutants. Those pollutants contribute to climate change, respiratory

distress, cardiovascular disease, and premature mortality. Nitrogen

oxides and sulfur oxides in the air also contribute to add rain, which

sterilizes lakes and damages property. The presence of those pollutants in

the atmosphere is associated with increased hospital admissions and

emergency room visits.

NGO v. Company B

• The Company B plant, alone, accounted for more than half of [the State’s]

stationary source SO2 emissions and more than five times the amount of

SO2 emitted from the next highest emitting stationary source in [the State].

SO2 pollution is “a medically recognized threat to human health”; “high

levels of pollution sustained for periods of days can kill.”


The Trend: Challenges to Every Aspect of Plant Construction and Operations

• There is no regulatory decision that is off limits

– Air, Water, Waste: “Classic” permit appeals

• Even when no direct appeal right exists (Example: FutureGen)

– CWA 401 Certifications/404 permits

– NEPA

• Use of designation process to target specific plants (e.g., 1 Hour SO2

NAAQS)

• Intervention in local and other federal/state commission proceedings

– Attack zoning, rate setting, project approval and infrastructure projects

• Attacking the fuel from several angles (e.g., extraction, transportation,

LNG exports, petcoke terminals)


The Trend: Force Regulator Paralysis and Decisions Not Based on Science or Regulations

• Use of political pressure and “tactics” to delay decisions

– Regulators try to address concerns through lengthy pre-issuance NGO negotiations

– Threats of public criticism push on the “political buttons”

– Forcing regulators into a constant state of responding to activist comments and

complaints before a decision is made

• Regulated entity urged to accept conditional regulatory decisions that

may not be technically rational but provide “cover” for the decision

• Conversion of an isolated regulatory issue into the “poster child” (e.g.,

Chicago petcoke terminals)


The Trend: Increased Involvement in the Rulemaking Process

• NGOs and Community Groups are actively shaping the rules that

govern the regulated

• They meet frequently with the regulators to share their vision and are drafting

rulemaking proposals

• Rulemaking hearings are well attended by both the NGOs and Community

Activists

– Testimony, with experts, is more the norm than not

• Public comments are well drafted with strength in numbers

– Comments are on behalf of “X Thousand Members…”

– Stack the Administrative Record for appeal/challenge of decision

• They do not treat rulemaking process differently than other aspects of the

campaign

– Media and social media used to promote the desired result


The Trend: Use of Media to Influence and to Define the “Threat” Their Way

• Media, media, media – the core of activism

– Name of the game is to define YOU or your industry

– The more they can push on the “Public Health Threat” button, the more:

• Scrutiny you will face

• Difficult it is for a regulator, decision maker, legislator or judge to “side with you”

• Simple reality: Facts do not stand in the way of a good story

– Easier to write about what is wrong with your project/company/industry instead of

what is right

• Local community issues provide both “built-in” support and a local

“face” (more difficult to side with you if the “injured” lives in the

community)

• Social media is in full play, allowing easier organizing and wider reach

for the message



– Huffington Post (April 8, 2015)

– The Washington Times (August 11, 2015)

What The Industry Must Know and Do

• NGOs are well represented and well funded

• Cannot assume the science alone will carry the day

– The record for every decision you seek must be complete – do not assume anything

will go your way

– The regulator being “on your side” is simply not enough

• Be an active participant in all hearings/meetings involving your facility

– Very rarely is just being an observer sensible

• Be an active participant in all rulemaking proposals

– Industry Association participation is great, but the industry’s position is strengthened

by numbers

• Know what regulators are seeing and hearing – FOIA is your friend

(sorry regulators!)


Things the Industry Must Know and Do (cont.)

• Assume everything you submit to the regulator will become public

– Be vigilant in your email communications, correspondence, recordkeeping and

reports

– Assume what you submit will be used against you (i.e., opacity, TRI, DMRs,

Groundwater Monitoring)

• Review ALL government databases – know what is being shared and

how it is characterized

– EPA’s EJScreen, ECHO, Envirofacts, to name a few

• Be present and known to the regulators/public officials

• Do not let timing box you into an unacceptable decision

– A realistic execution timeline for outreach and decision-making is key to not getting

boxed, time-wise

– A good timeline will help you avoid just accepting approvals with conditions that will

impose a burden that you cannot meet or will set an unachievable precedent


Things the Industry Must Know and Do (cont.)

• The “No Comment” approach to the media just does not work anymore

– YOU are responsible for educating the media, elected officials and public on the

facts

– YOU are responsible for defining who you are

– YOU must get out in front of the issue—it is not just the regulators responsibility to

inform the public

– YOU must know what is being said on social media and on activist websites

– YOU must create publicly understandable themes and fact sheets that convey the

truth and company position



Thank you.

Renee Cipriano, Schiff Hardin, NGO and Community Influence--Regulatory and Policy Change through...

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