On May 27, the Environmental Protection Agency (EPA) announced its intent to reconsider the Clean Water Act (CWA) Section 401 final rule issued by the Trump administration in June 2020 (Final Rule).

Continue Reading EPA Announces Reconsideration and Potential Revision of the Clean Water Act Section 401 Final Rule

Although the Biden administration has yet to issue many new substantive air quality regulations, Biden’s EPA recently issued two rules revoking Trump-era procedural regulations that should pave the way for a more aggressive regulatory agenda. On May 13, EPA rescinded the “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process Rule” (Cost-Benefit Rule), a requirement governing cost-benefit analyses for Clean Air Act (CAA) rulemakings, and on May 18, the agency revoked the “EPA Guidance; Administrative Procedures for Issuance and Public Petitions Rule” (Guidance Document Rule), which required all “significant” EPA guidance to undergo a public notice and comment process prior to issuance, modification, or withdrawal.

Continue Reading Biden EPA Rescinds Trump’s Cost-Benefit and Guidance Document Rules

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.

Continue Reading Environmental Justice to Play Significant Role in Air Permitting Process Under Biden Administration

On March 17, the U.S. Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that puts forth 28 questions directed at manufacturers and formulators of per- and polyfluoroalkyl substances (PFAS). The agency intends to use the ANPRM and comments it receives to initiate formal rulemaking to establish effluent limitations guidelines (ELGs) for facilities that manufacture or blend PFAS with other chemicals or products, likely at least initially as an amendment to the existing guidelines governing the “Organic Chemicals, Plastics and Synthetic Fibers” (OCPSF) industrial sector.
Continue Reading EPA Publishes Advance Notice of Proposed Rulemaking in Preparation for Crafting PFAS Effluent Limitations Guidelines

Today, in U.S. Fish and Wildlife Service et al. v. Sierra Club Inc., Case No. 19-547, the United States Supreme Court struck down a Ninth Circuit Court of Appeals’ ruling that the federal government was required to turn over documents with regard to a proposed U.S. Environmental Protection Agency (EPA) regulation for power plant cooling. The Sierra Club brought a Freedom of Information Act (FOIA) suit for access to documents related to the proposed rule, including biological opinions. The EPA’s rule regulates cooling water intake structures, which draw water from lakes, rivers, and other sources to moderate the temperature of water produced during operations of power plants and other industrial facilities.

Continue Reading Supreme Court Sides with Agency on Deliberative Process Privilege

As previously reported, a coalition of environmental groups recently filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment.

Continue Reading Environmental Groups Voluntarily Dismiss Their Untimely Challenge to “Part B” CCR Rule Revisions

Climate change and environmental justice are currently dominating the conversation in the environmental legal community, but 2021 promises to be an extremely active year for one of the most challenging environmental issues of this era — the emergence of per- and polyfluoroalkyl substances (PFAS) as a significant public health concern. The U.S. Environmental Protection Agency (USEPA) demonstrated its continued commitment to implementing the national PFAS Action Plan by announcing on February 22 two important steps toward establishing federal drinking water standards for PFAS compounds under the Safe Drinking Water Act (SDWA).

Continue Reading USEPA Advances Toward Regulation of PFAS in Drinking Water

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 February 11, three environmental groups — Sierra Club, Alliance for Affordable Energy, and PennEnvironment, Inc. — filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment. Part B is the second of two rulemakings comprising EPA’s “Holistic Approach to Closure” amendments to the coal combustion residuals (CCR) rule. Environmental groups filed a similar challenge to the “Part A” rule in the D.C. Circuit in November 2020. That case, Labadie Environmental Organization v. EPA, is currently pending.

Continue Reading Environmental Groups Challenge “Part B” Revisions to CCR Rule

The EPA’s “Secret Science” rule establishing new standards for consideration of certain “pivotal” scientific studies, which was slated to go into effect on January 6, 2021, has been vacated and remanded by the U.S. District Court for the District of Montana. The decision follows one from a few days prior in which the court rejected EPA’s attempt to make the rule immediately effective. Notably, both decisions rely on the same basic principle — that the rule is not merely procedural, as EPA claimed, but substantive. That determination could be important for other rules that the Trump EPA viewed as procedural in nature, but that have been challenged as having substantive effect.
Continue Reading UPDATE: Montana District Court Vacates EPA’s “Secret Science” Rule