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Mandi Moroz

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On February 20, 2020, Earthjustice, on behalf of a variety of nonprofit organizations, including the Sierra Club, brought suit against the United States Department of Defense (“DOD”), alleging that the DOD violated the National Environmental Policy Act (“NEPA”) and the National Defense Authorization Act (“NDAA”) in its decision to enter into contracts for the incineration of its unused stockpiles of firefighting foam. Save Our County, et al. v. United States Department of Defense, et al., 3:20-cv-01267 (N.D. Cal. Feb. 20, 2020). According to the complaint, the incineration of firefighting foam poses a threat to communities as the burning of the foam releases per– and polyfluoroalkyl substances (“PFAS”), a group of chemicals found in firefighting foam that may be linked to certain adverse health effects. In the complaint, the plaintiffs allege that the DOD’s contracts violate NEPA because the DOD did not prepare an environmental impact statement prior to consenting to the incineration of the firefighting foam. Additionally, the plaintiffs allege that the incineration of the firefighting foam does not comply with certain regulations created by the NDAA that govern the incineration of PFAS-containing materials.

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.

Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers have been slow to implement rules and regulations that provide those who have been exposed to these chemicals with a clear path for recovery. While regulators grapple with these emerging contaminants, courts are weighing in on whether those injured by exposure to PFAS are entitled to relief under the existing regulatory landscape.

On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an industrial or sewage treatment facility, is created by land runoff that results from rainfall or snowmelt. As the water moves over and through the ground, it picks up sediment and other pollutants that are eventually deposited into nearby waterways. According to the Environmental Protection Agency, NPS “pollutants have harmful effects on drinking water supplies, recreation, fisheries, and wildlife.”

On October 10, 2019, the Environmental Protection Agency (EPA) announced long-awaited proposed revisions to its Lead and Copper Rule (LCR) under the Safe Drinking Water Act. The proposed LCR revisions come nearly 30 years after the federal government last updated its lead and copper testing procedures. Originally promulgated in 1991, the LCR has long been criticized for its imprecise language and has come under fire in recent years in the wake of the water crisis in Flint, Michigan.