On March 26, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) gave notice of its selection of several per- and polyfluoroalkyl substances (PFAS) for review and possible listing under California’s Proposition 65 (Prop 65). OEHHA published two separate notices for public comment: one notice for perfluorooctane sulfonate (PFOS) and its salts and transformation and degradation precursors, and another notice for perfluorodecanoic acid (PFDA), perfluorohexanesulfonic acid (PFHxS), perfluorononanoic acid (PFNA), and perfluoroundecanoic acid (PFUnDA), as well as each of their salts. The public comment period for both notices closes on May 10, 2021.

The Biden administration has highlighted Tribal sovereignty and the federal trust responsibility to Tribal Nations as the cornerstones of its federal Indian policy. The involvement of Native American tribes is also a component of the Biden administration’s environmental justice initiatives. Accordingly, on January 26, the Biden administration issued a “Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships” (Presidential Memorandum), which seeks to prioritize regular, meaningful, and robust federal consultation with Tribal Nations. According to the Presidential Memorandum, “History demonstrated that we best serve Native American people when Tribal governments are empowered to lead their communities, and when federal officials speak with and listen to Tribal leaders in formulating federal policy that affects Tribal Nations.”

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.

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 topic of environmental justice garnered more attention as the Biden-Harris administration took office. On February 11, HB 432 was introduced by six Democrats in Georgia’s House of Representatives. The proposed bill is titled “Georgia Environmental Justice Act of 2021” and is the first proposed legislation in Georgia that directly addresses environmental justice. Below are the highlights of the contents of the proposed bill.

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.