In the Rose Garden of the White House, President Trump fulfilled a key campaign promise today by confirming that the United States will begin withdrawing from the Paris Climate Change Agreement (“Agreement”). President Trump cited the Agreement’s potential financial and economic burdens as a key reason for the withdrawal. Continue Reading U.S. to Withdraw from Paris Climate Deal
On January 12, 2017, EPA published a final rule adjusting for inflation the civil monetary penalty amounts for the statutes it administers. This most recent adjustment follows on the heels of a major adjustment finalized in July 2016. These adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act. The new law required agencies to make initial “catch-up” adjustments by July 2016, followed by annual inflation adjustments beginning January 15, 2017. In the past, EPA only adjusted penalty levels for inflation once every several years.
On Wednesday, December 21, 2016, EPA issued a final rule that overhauls its Risk Management Plan (RMP) facility accident prevention program. A 2013 executive order issued by the Obama Administration following a chemical release at a Texas fertilizer facility required EPA to promulgate the rule.
In the wake of Donald Trump’s election as the next president of the United States, questions have been raised regarding the fate of federal regulatory actions taken by the current administration. Recent Environmental Protection Agency (EPA) actions are of particular interest because EPA has adopted a number of very high profile and highly impactful regulations. Commenting on EPA during the campaign, Mr. Trump stated that “[w]e are going to get rid . . . of [EPA] in almost every form. We’re going to have little tidbits left but we’re going to take a tremendous amount out.” While Mr. Trump later softened this stance by stating that he would “refocus the EPA on its core mission of ensuring clean air, and clean, safe drinking water for all Americans,” these statements illustrate that the Trump administration will almost certainly seek to roll back at least some of President Obama’s ambitious environmental initiatives. While Mr. Trump vows to reduce EPA’s size and repeal business-burdening regulations, these changes will not occur overnight. The following sections discuss ways in which an incoming administration may halt or repeal its predecessor’s actions.
Recently, the Ninth Circuit upheld the Environmental Protection Agency’s (“EPA”) decision to issue an air permit under the Clean Air Act for the construction of a biomass cogeneration facility at a lumber mill, concluding that EPA had acted reasonably when it determined that the applicant should not be required to consider solar power or a greater use of natural gas as part of the Greenhouse Gas Best Available Control Technology (“GHG BACT”) review for the permit.
Recent comments from Assistant Attorney General John C. Cruden, head of the U.S. Department of Justice’s Environmental and Natural Resources Division (“ENRD”), regarding DOJ’s increased use of criminal prosecutions to enforce environmental laws suggest the heightened role the ENRD’s Environmental Crimes Section could play in future enforcement actions regarding violations of environmental laws. Continue Reading DOJ Shines New Light on Environmental Criminal Prosecutions
The U.S. Environmental Protection Agency (EPA) and the Federal Energy Regulatory Commission (FERC) recently teamed up to enforce air and energy laws in a case involving both civil and criminal allegations under the Clean Air Act (CAA) and Federal Power Act. This marks the first criminal prosecution under the Federal Power Act. Continue Reading Alleged Manipulation of Air Monitors Leads to Civil and Criminal Settlement Under the Clean Air Act
On March 14, 2016, EPA proposed to amend the Risk Management Program (“RMP”) under Section 112(r) of the Clean Air Act, indicating its intent to improve safety at facilities where hazardous chemicals are used and distributed. These revisions come in response to recent incidents at chemical facilities, particularly a deadly 2013 explosion that occurred at a Texas fertilizer facility, and a resulting Executive Order (“EO”) issued by President Barack Obama on August 1, 2013, requiring EPA to expand the RMP to address additional hazards. Continue Reading EPA Proposes Changes to the Clean Air Act’s Risk Management Program
In a memo directed to all federal law enforcement officials, including the Assistant Attorney General for the Environment and Natural Resources Division, the U.S. Department of Justice (DOJ) outlined a new policy that prioritizes the prosecution of individuals for corporate misconduct. Traditionally, DOJ has pursued companies — not individual corporate officials and managers — for alleged corporate wrongdoing. In its new policy, DOJ makes it clear that law enforcement officials will also target the individuals responsible for alleged company misconduct. Notably, these changes will be implemented in DOJ’s U.S. Attorneys Manual (USAM). This formal revision to the USAM reflects a concerted effort to fully implement the new policy outlined in the memo in future investigations. Because violations of environmental laws may lead to both civil and criminal enforcement by EPA and DOJ, this shift will have a direct impact on corporations and the individuals within those corporations that are responsible for environmental management decisions. Continue Reading New DOJ Policy Targets Individuals (Not Just Companies) For Alleged Violations of Environmental Law
In a recent memo issued by EPA’s Office of Enforcement & Compliance Assurance (OECA), Assistant Administrator Cynthia Giles announced that four specific “enforcement tools” should be considered “in all civil enforcement cases and incorporated in civil and administrative settlements whenever appropriate.” OECA notes that these measures can be imposed via settlement through “injunctive relief, mitigation, or Supplemental Environmental Projects.” Continue Reading EPA’s OECA Announces Enforcement Tools for Civil Enforcement Cases and Administrative Settlements