In a final rule published in the Federal Register on November 24, the Environmental Protection Agency (EPA) quietly finalized a hotly contested proposed rule, adding natural gas processing facilities to the list of industry sectors required to report their releases of certain chemicals under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as the Toxic Release Inventory (TRI). Facilities must report releases and waste management of specifically listed chemicals to the TRI if they: (1) have 10 or more full-time employees, (2) have a primary Standard Industrial Classification (SIC) or North American Industry Classification System (NAICS) code listed in the regulations, and (3) manufacture, process, or otherwise use certain listed chemicals in the course of a calendar year in quantities exceeding identified thresholds.

Today, the U.S. Environmental Protection Agency (EPA) announced a new “Strategic Roadmap (Roadmap),” describing a suite of ongoing and future agency actions to address per- and polyfluoroalkyl substances (PFAS). While many of these actions were previously presented in EPA’s 2019 PFAS Action Plan, or in more recent announcements, the Roadmap provides additional updates and clarity into the expected timing of some regulatory actions. The new projected dates for some key regulatory initiatives include the following:

At the end of September, the Environmental Protection Agency (EPA) issued yet another memorandum regarding emissions resulting from startup, shutdown, and malfunctions (SSM) at stationary sources of air pollutants, such as refineries, manufacturing facilities, and power plants. This newest memo announces a return to the policy EPA announced in 2015, when it asked 45 states and local jurisdictions to change their locally written and previously EPA-approved rules. EPA’s goal in 2015 was to eliminate state rules that allow relief from penalties for “SSM” emissions. In 2020, the Trump EPA issued a memo allowing such rules under certain circumstances, but the newest EPA memo puts those rules back on the chopping block. This post provides a brief recap of the long-running debate over SSM emissions and a look forward into what is to come under EPA’s latest policy shift.

The Third Circuit Court of Appeals issued a ruling June 21 that certain releases of air pollutants “subject to” Clean Air Act (CAA) requirements, even if not in compliance or specifically named in a permit, are exempt from release reporting requirements under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Clean Air Council v. United States Steel Corporation, No. 20-221 (3rd Cir. filed June 21, 2021). This ruling undercuts a longstanding EPA interpretation of the CERCLA reporting requirement that limited the exemption to only those releases actually in compliance with a federal CAA permit.

Although environmental justice (EJ) is not a new concept in the context of air permitting, the Biden administration’s increased focus on identifying and addressing disproportionate environmental impacts on low-income neighborhoods and communities of color is likely to spur an increase in EJ claims being raised as part of the public review process for both new air permits and permit renewals. Many, if not most, states do not have statutory or regulatory requirements dictating how EJ concerns must be considered in the air permitting context. Similarly, while there is a patchwork of EJ requirements applicable to federal agency actions, most are imposed by executive order and are not prescriptive in nature, meaning that there is no robust legal framework for considering EJ concerns in the air permitting context at the federal level either. Accordingly, while potential permittees and current permit holders seeking to renew or modify their air permits should be aware that there is an increased likelihood that EJ concerns may be raised by third parties or permitting agencies, there is little certainty about how these concerns will be implemented in the course of permit issuance.

On the heels of multiple recent indications that it plans to increase its focus on environmental, social, and governance-related (ESG) corporate disclosures, the Securities and Exchange Commission (SEC or Commission) has solicited help from the public on developing a framework for climate change disclosures. Acting Chair Allison Herren Lee released a statement on March 15, calling for input from investors, registrants, and other market participants “in light of demand for climate change information and questions about whether current disclosures accurately inform investors.”

The Securities and Exchange Commission (SEC) announced the creation of a new task force on March 4 to address violations of environmental, social, and governance-related (ESG) disclosure requirements. The Climate and ESG Task Force will be located in the SEC’s Division of Enforcement and led by Acting Deputy Director of Enforcement Kelly Gibson, who will oversee a 22-member team drawn from across the SEC. The task force will focus initially on material gaps or misstatements in disclosure of climate risk under existing rules. The task force will use “sophisticated data analysis to mine and assess information … to identify potential violations” and will also pursue tips, referrals, and whistleblower complaints on ESG-related issues.

The Biden administration has already taken several actions that signal its intention to shift to a more federally focused environmental enforcement approach. Although the Trump administration generally adopted a “hands off” approach that afforded states broad deference in deciding when to initiate and prosecute environmental enforcement actions, the new administration appears to be moving toward a more robust federal role in environmental enforcement.

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.

Authors
Mitchell Guc, Associate, Pepper Hamilton
Todd Fracassi, Partner, Pepper Hamilton
Randy Brogdon, Partner, Troutman Sanders

On May 13, nine state attorneys general filed a complaint against the U.S. Environmental Protection Agency (EPA) challenging EPA’s COVID-19 enforcement discretion policy, which we discussed in previous articles here and here. The plaintiff states are New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia.