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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.

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.

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).

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 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.

On January 28, the Illinois Environmental Protection Agency (Illinois EPA) announced the issuance of health advisories for four (4) per- and polyfluoroalkyl substances (PFAS) compounds in accordance with the Illinois Part 620 groundwater regulations (35 Ill. Adm. Code Part 620). Health advisories are issued when a chemical substance that is harmful to human health, and for which no numeric groundwater standard exists, is detected and confirmed in a community water supply well (35 Ill. Adm. Code 620.605). The four (4) PFAS compounds for which Illinois health advisories were issued are PFBS, PFHxS, PFHxA, and PFOA.

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.

On January 20, newly inaugurated President Joe Biden signed an executive order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” initiating review of nearly 50 environmental rules and regulations, including 20 air-related regulations that the new administration views as insufficient or unsupported by the data.

Just before the inauguration of President Biden, the Trump administration surprised many by failing to revise the stringent CO2 standard for new coal-fired power plants. That standard, adopted by the Obama administration, is based on the use of carbon capture and sequestration — a technology only installed once in the U.S. at a facility that has now been mothballed. When the Trump administration proposed to repeal and replace that standard in 2018, the chance of it surviving in its current form seemed slim. However, as the clock ran out, the Trump EPA failed to finalize its 2018 proposal and instead issued a “significant contribution finding” that attempts to limit regulation of greenhouse gases from new sources to electric utilities alone. While likely to be reversed quickly by the Biden EPA, that determination erects one more barrier to broad regulation of greenhouse gas emissions under the Clean Air Act (Act).