Environmental Enforcement

Following the Council on Environmental Quality’s (CEQ) July 2020 overhaul of regulations implementing the National Environmental Policy Act (NEPA), environmental plaintiffs filed a series of lawsuits challenging the rule in federal courts in California, Virginia, New York, and the District of Columbia. The plaintiffs argued that CEQ violated NEPA itself in promulgating the final rule by failing to prepare an environmental assessment (EA) or environmental impact statement (EIS). They also argued that CEQ ran afoul of the Administrative Procedure Act (APA) by failing to follow notice-and-comment requirements, by issuing a final rule that is “arbitrary and capricious,” and by improperly narrowing both the scope of projects under review and the types of impacts agencies should consider.

Continue Reading NEPA Litigation Update

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.

Continue Reading Preparing for a More Aggressive Federal Environmental Enforcement Regime

On July 1, 2020, New Jersey’s Governor Phil Murphy signed the Permit Extension Act of 2020 (“PEA 2020”) into law. The PEA 2020 tolls certain state and local permit approvals, including approvals of soil erosion and sediment control plans granted by a local soil conservation district and waterfront development permits, during the pendency of the public health emergency caused by COVID-19. Additionally, the PEA 2020 extends the deadlines for those approvals that would have otherwise expired during the public health emergency for an additional six months beyond the end of the COVID-19 extension period. Importantly, the PEA 2020 does not impact those approvals that expired prior to March 9, 2020 (the beginning of the public health emergency) or apply to those that will expire after the public health emergency ends.

Continue Reading New Jersey: Permits and Approvals Must Be Registered With NJDEP By October 8, 2020 to Claim PEA 2020 COVID-19 Extension

The EPA has issued a rule requiring all significant agency guidance to undergo a public notice and comment process prior to issuance, modification or withdrawal (Rule). The new Rule was adopted pursuant to Executive Order 13891, which also required the agency to distinguish active guidance from inactive guidance, and to limit documents available through the official EPA guidance portal (Order). As of June 27, 2020 only guidance available through the official agency guidance portals qualifies as active guidance.

Continue Reading EPA Adopts Measures to Improve the Transparency of Significant Agency Guidance

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.
Continue Reading Coal Plant Demolition Triggers Illinois Air Quality Lawsuit

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

In the three weeks since the U.S. Environmental Protection Agency (EPA) issued its much-discussed coronavirus (COVID-19) enforcement discretion policy (Policy), governmental and environmental group opposition to the Policy has continued to intensify. This article outlines both the nature of the opposition as it currently stands, as well as some best practices for those businesses struggling to keep up with the environmental enforcement tug-of-war unfolding before their eyes.


Continue Reading State and Environmental Group Opposition to EPA’s COVID-19 Enforcement Discretion Policy Intensifies

Revisions to the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, go into effect on April 1, 2020. The amendments are intended to clarify methods of compliance by upstream parties, including manufacturers, producers, packagers, importers, suppliers, or distributors of products with chemicals subject to warning requirements under the Act. They also include a modified definition of the key phrase “actual knowledge,” one of the triggers that can result in retailer responsibility for warnings.

Continue Reading Proposition 65 Amendments Seek to Narrow “Actual Knowledge” and Expand Compliance Options

In response to guidance issued by EPA’s Office of Enforcement and Compliance Assurance regarding enforcement discretion in light of COVID-19, the Virginia Department of Environmental Quality (DEQ) has issued its own guidance. In its accompanying press release, DEQ takes a stern tone and makes clear that DEQ expects compliance with all environmental compliance obligations and permit limits, that the crisis does not “equal a free pass for the regulated community,” and that regulated entities should make every effort to comply.

Continue Reading Virginia Issues Enforcement and Compliance Guidance in Response to EPA Enforcement Discretion Guidance

Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.

Continue Reading EPA Issues Enforcement Discretion Guidance to Address Compliance in Wake of COVID-19

The onset of the public health crisis caused by the spread of the coronavirus (COVID-19) has led to a global shortage of hand sanitizer. Businesses attempting to cope with new challenges presented by COVID-19 may be interested in retooling current manufacturing or other processes to begin developing hand sanitizer for external distribution or even internal use. In support of these efforts, the federal Food and Drug Administration (FDA) has issued guidance for both companies that are not currently authorized by the FDA to manufacture hand sanitizer companies and pharmacists in state-licensed, federal, or registered outsourcing facilities compounders that may be interested in producing hand sanitizer. Companies that adhere to this guidance and maintain sufficient documentation should be able to manufacture hand sanitizer for external distribution or internal use without enforcement exposure from the FDA.

Continue Reading FDA Authorizes Temporary Production of Hand Sanitizer