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On May 26, 2020, the Ninth Circuit issued two related decisions in City of Oakland and County of San Mateo brought by California cities and counties against major oil and gas companies. Exclusively citing state law relating to, among other things, nuisance, negligence, and trespass, the California municipalities allege that the companies’ fossil fuel activities have substantially contributed to climate change and, in doing so, impermissibly caused public harm. The municipalities accordingly demand the companies reimburse their costs reacting to and preparing for the effects of climate change. At issue before the Ninth Circuit was whether these claims triggered the jurisdiction of federal courts. Answering this question in the negative, the court determined that the cases must proceed at the state level.

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.

On March 31, 2020, the U.S. Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA” and, collectively, the “Agencies”) released the pre-publication version of the final part to their joint Safer Affordable Fuel-Efficient (“SAFE”) Vehicles Rule. The new rule amends EPA’s greenhouse gas emission standards for passenger vehicles, light-duty trucks, and medium-duty passenger vehicles in model years 2021 and onward, and it simultaneously amends or creates NHTSA’s corporate average fuel economy standards for similar vehicles in model years (MY) 2021-2026. Under these harmonized regulations, each new model year will bring a 1.5% increase in stringency through MY 2026. Though a significant lessening of requirements from joint standards last set in 2012, this “steady ramp rate” is a notable change from the proposed version of the SAFE Vehicles Rule, which sought to maintain requirements as they applied in MY 2020. The new rule will take effect sixty days from its publication in the Federal Register.

On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its intent to publish a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Publication will initiate a 60-day notice and comment period that represents the first step toward the adoption of Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, two of the best-understood and most common compounds under the umbrella of perfluoroalkyl substances (PFAS).

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.

For most federal rules, you don’t need a map to figure out in which states they’re the current law.  But you do for the 2015 “Clean Water Rule,” which significantly expanded the reach of the Clean Water Act by redefining the term “waters of the United States.”  That’s one reason why, on September 12, 2019, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule to repeal the Clean Water Rule and restore prior regulations.  This “repeal rule” will take formal effect 60 days after its publication in the Federal Register.

On April 12, 2019, the Fifth Circuit issued its opinion in Southwestern Elec. Power Co. v. EPA, ordering EPA to reconsider parts of its 2015 Effluents Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (“2015 ELG Rule”). The opinion resolves a challenge brought by environmental groups regarding the rule’s effluent limitation guidelines for “legacy” wastewater and for combustion residual leachate from landfills or settling ponds.

On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.

On March 8, 2019, the Environmental Protection Agency, Department of the Army, and Army Corps of Engineers petitioned the U.S. Courts of Appeals for the 4th and 9th Circuits to voluntarily dismiss their appeals of the Suspension rule. This is yet another development in the litigation surrounding the 2015 Waters of the United States Rule (WOTUS). Our previous blog posts on this topic can be accessed here.