Environmental Legal Issues - AZ Business Magazine November/December 2011

Arizona Faces Environmental Legal Issues To Grow ‘Green’ Movement

Though Arizona may be working to reach a higher standard of sustainability, a myriad of environmental legal issues will be seen as these changes are implemented. Arizona Business Magazine spoke with the state’s top law firms and industry experts to find out the most important environmental legal issues the state can expect to face in the next decade.

Particulate Matter-10

Attorney Megan Lennox of Bryan Cave LLP says, “The single biggest environmental legal issue Arizona will be facing for the foreseeable future is the regulation, implementation and enforcement of regulations concerning Particulate Matter-10, also referred to as PM-10, which is essentially “dust.”’

According to an Aug. 25, 2011, press release by the Arizona Department of Environmental Quality stressing a high pollution advisory: “State and county agencies measure PM-10 and PM-2.5 which are extremely small solid particles and liquid droplets found circulating in the air. PM, or particulate matter, comes from either combustion (cars, industry, woodburning) or dust stirred up into the air. High levels of PM are typically created when the air is especially stagnant or especially windy. PM-10 stands for particulate matter measuring 10 microns or less. PM-2.5 stands for particulate matter measuring 2.5 microns or less. To put this in perspective, one strand of human hair is 70-100 microns in size.”

“Over the summer, we saw a number of High Pollution Advisory (HPA) warnings issued by the Arizona Department of Environmental Quality (ADEQ) relating to PM-10, particularly in connection with the haboobs (dust storms) we’ve been having in the Valley this summer,” Lennox says. “But what is not as commonly known is that, even without a haboob, Arizonans face real health threats caused by common everyday dust generating activities.

“Indeed, the EPA has not been satisfied with what the Arizona has done in the way of dust control thus far, and because Arizona continues to exceed federal air quality standards for PM-10, we are now facing a very real possibility that the EPA will push the Arizona regulators aside and step in with their own plan to reduce PM-10.

“The real issue of concern is that, if the EPA is required to step in, Arizona will stand to lose over a billion dollars in federal highway funds,” Lennox says. “This translates to further loss of jobs, no new transportation projects, and likely intense regulation and economic impact to the construction industry — all of which will be decidedly detrimental to Arizona’s economy overall.”

Lennox says that Arizonans must prepare and prevent this from happening by doing their part, which includes refraining from leaf blowers, no fires in the fireplace, driving down dusty roads and joining forces with regulators “toward the common goal of reduction of PM-10 and maintenance of federal funding – both of which, everyone should be able to agree, are critical for the long-term health and prosperity of the Valley.”

Michelle De Blasi, partner at Quarles & Brady agrees: “Serious nonattainment areas must demonstrate PM-10 emission reductions of five percent per year until the standard is attained.  The state and local governments have instituted many measures to make these reductions.  To reach attainment, three years of clean data are needed at all PM-10 monitors… The state and local governments have instituted many proactive control measures to try to limit excesses at the monitors caused by dust.”

Utility Deregulation

As the state continues to develop renewable energy, several legal issues can arise. Court Rich, an attorney at Rose Law Group states that: “As renewable energy prices come down its implementation will grow quicker.  At some point the technology involved in distributed roof top solar energy is going to allow people not only to produce energy during the day but to store energy for power at night.”

If people are able to produce the energy they need, should they pay a utility company for its electricity service? These are the types of questions Arizona may face as renewable energy production grows.

“The State has previously looked into forms of utility deregulation…(and) could review forms of deregulation that may set up a better environment for future competition among energy providers ultimately providing lower cost electricity to all Arizonans and providing greater choices to the consumer,” Rich adds.

Balancing environmental protections with economic impacts

“Implementing more protective environmental regulations must be balanced with their economic impacts,” says Matt Bingham, attorney at Lewis and Roca.

Sometimes, small improvements that can be made come at a significant cost and may not be worthwhile for the state to pursue.

“(Government) agencies have accomplished A LOT since environmental laws were first enacted,” says Bingham, “but at some point, the costs of making further improvement are going to outweigh the benefits.  Agencies need to adequately consider industry’s concerns when developing stricter environmental standards to ensure that the benefits outweigh the costs.  Failing to do so will prolong Arizona’s economic recovery.”

Growth of renewable energy

“In Arizona, regulated utilities are expected to get 15 percent of their electricity from renewable sources by 2025 (in 2011, the goal is 3 percent),” says Bingham, attorney at Lewis and Roca. “This will require a massive expansion of our renewable energy capabilities over the next 10-15 years.”

As Arizona tries to catch up on renewable energy growth compared with some of its sustainability-driven neighboring states, many environmental impacts will need to be addressed. These include land use, water use, and effects on wildlife, endangered species and several others.

“The growth of renewable energy in the state also involves policy choices by the legislature and the Arizona Corporation Commission,” says Bingham.

Some examples:
➢    Requiring utilities to procure renewable energy.
➢    Increasing demand for solar by providing incentives.
➢    Providing tax incentives for companies who locate manufacturing and other facilities in the state and create jobs.

Arizona has essentially decided that it wants to be a hub of the growing solar industry and has made some good moves in that direction but it needs to continue pursuing an effective, comprehensively designed strategy while assuring companies that this support will not fade,” Bingham adds.

Enforcement of regulatory policies:

Since 61 percent of land in Arizona is either managed or controlled by federal agencies, many policies involving land use have a disproportionate impact upon our state, says Jeff Littell, principal geologist at Brown & Caldwell.

“By far, the greatest environmental issues facing Arizona will arise from federal agencies and their imbalanced enforcement of existing regulatory policies or the increased promulgation of new rules and regulations,” Littell says.

The state should apply balanced and measured responses to difficult environmental issues while empowering state agencies and the Legislature to defend Arizona against misapplied federal actions, Littell adds. “The results of their interaction with county and state agencies will have a profound impact on the long term success of Arizona, the diversity of our economy, and our ability to emerge from the current economic situation.”

For more information about environmental legal issues and other environmental issues, visit www.valleyforward.org.

 

Arizona Business Magazine November/December 2011