Today, the U.S. Environmental Protection Agency (EPA) announced that Administrator Regan signed a proposed rule to designate two of the most widely studied per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposed designation for PFOA and PFOS, if and when finalized, would provide EPA with powerful new tools to clean up existing contamination in hot spots across the country, while seeking to hold those responsible for the releases financially accountable. The designation would also increase EPA’s reporting and information gathering authorities as the agency continues to build its database of PFAS contamination.

Continue Reading First Major CERCLA Move for PFAS

On June 24, the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (together, the Services) issued a final rule that removes the definition of “habitat” from the Code of Federal Regulations, 50 C.F.R. § 424.02. The final rule follows the FWS’ proposal issued on October 27, 2021; the definition the agencies are now removing was adopted during the last months of the Trump administration.

Continue Reading Services Issue Final Rules Rescinding Trump-Era Habitat Definition and Critical Habitat Exclusion Rules

EPA’s standards for hazardous air pollutant (HAP) emissions from industrial boilers have been controversial for nearly two decades. Ever since EPA first proposed “maximum achievable control technology” (MACT) standards for boilers in 2003, which were then entirely vacated by the D.C. Circuit, each new iteration of the rule has raised new legal issues and often foundered in court.

Continue Reading EPA’s Final Industrial Boiler Rule Raises Controversial Topics

On June 28, a coalition of 11 environmental groups petitioned the U.S. Environmental Protection Agency (EPA) under the Administrative Procedure Act and the Clean Air Act to address the alleged failure of Texas Commission for Environmental Quality (TCEQ) to comply with and properly implement public participation and environmental justice requirements in its air permitting program. Specifically, the petition alleges that TCEQ violates the Clean Air Act and Title VI of the Civil Rights Act by: (1) restricting public participation in air permitting by limiting judicial review of permits; (2) allowing applicants to withhold public information during the permitting process; and (3) allowing facilities to operate under the state’s permits by rule (PBR) program, which provides no meaningful opportunity for public participation.

Continue Reading Environmental Groups Target Texas Air Permitting Program on Environmental Justice Grounds

On the last day of what was already an historic term, the Supreme Court issued another significant decision impacting EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions and address climate change. As EPA embarks on a third attempt at a rule targeting CO2 emissions from existing power plants that will pass legal muster, the question now is how the Court’s decision will affect that new rule.

Continue Reading West Virginia v. EPA: The Supreme Court Speaks Again on Climate

The Endangered Species Act (ESA) regulations promulgated by the Trump administration (Trump ESA Rules) were challenged by environmental groups. While that challenge was pending, the Biden administration announced that those regulations would be revised. On July 5, the U.S. District Court for the Northern District of California vacated the Trump ESA regulations, not on the merits of the regulations but because they are in the process of being rewritten. This decision disregards the Biden administration’s request that the regulations remain in effect to preserve consistency and order during the revision process. Instead, the pre-Trump regulations (which were issued in the mid-1980s) have been reinstated and are now in effect until the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) finalize new regulations.

Continue Reading Trump ESA Rules Vacated

On March 31, the U.S. District Court for the District of Columbia denied an appeal filed by the Natural Resources Defense Council (NRDC) and other conservation groups seeking to overturn a National Marine Fisheries Service (NMFS) decision not to protect two types of river herring, alewife, and blueback herring under the Endangered Species Act (ESA). The appeal sought to have NMFS list both species as threatened. A listing of river herring would have a significant impact on hydropower projects, as dams were identified as one of the primary threats to river herring populations. Continue Reading Conservation Group Efforts Seeking Greater Protection of River Herring Denied

On June 7, the U.S. Fish and Wildlife Service (FWS) issued a proposed rule titled, “Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations.” In issuing the proposed rule, FWS re-affirms its authority to designate and introduce experimental populations of protected species into areas of habitat outside of their historical range when climate change, invasive species, or other threats have affected or will affect that range. Importantly, this proposal only applies to species managed by FWS. Species managed by NMFS are governed by separate regulations, which NMFS updated back in 2016. These changes will make the FWS regulations more similar to those of NMFS. Pursuant to NMFS’ existing regulations, experimental populations of salmon have been re-introduced in certain waterways in the Western United States. FWS’s proposal could result in similar re-introduction of experimental populations of terrestrial and freshwater species. Continue Reading FWS Proposes to Account for Climate Change When Designating Experimental Populations

On April 20, the Council on Environmental Quality (CEQ) issued a Final Rule, revising certain sections of its regulations implementing the National Environmental Policy Act (NEPA). The Final Rule represents “Phase 1” of the Biden administration’s plan to reverse the Trump-era rulemaking, which significantly revised the NEPA regulations for the first time since 1978.

NEPA, sometimes referred to as a “paper tiger,” requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects but does not mandate any particular outcome. In July 2020, the Trump administration issued its Final Rule, which represented the first update to the NEPA regulations in over 40 years. The 2020 rule contained numerous revisions, many of which were intended to speed up infrastructure projects by reducing delays and paperwork during NEPA reviews. It also revised the definition of “effects,” which traditionally included “direct, indirect, and cumulative effects,” by reducing it to one short paragraph and eliminating references to these three categories, and instead providing that “effects” should not be analyzed “if they are remote in time, geographically remote, or the product of a lengthy causal change.” Continue Reading Biden Administration Releases “Phase 1” of NEPA Revisions

This article was republished in Pratt’s Energy Law Report (Vol. 22-10, November-December 2022).

On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.

Continue Reading EPA’s Clean Water Act Certification Proposal to Significantly Impact Hydropower Licensing