On Wednesday, December 21, 2016, EPA issued a final rule that overhauls its Risk Management Plan (RMP) facility accident prevention program. A 2013 executive order issued by the Obama Administration following a chemical release at a Texas fertilizer facility required EPA to promulgate the rule.

In a December 19, 2016 Order, the D.C. Circuit Court of Appeals delayed oral argument in the Ozone NAAQS litigation. Originally scheduled for February 16, 2017, oral argument is now scheduled for April 19, 2017. The court did not explain its reason for the delay, but some have speculated it…

On December 14, 2016, the United States Fish and Wildlife Service (“FWS”) finalized revisions to its regulations for nonpurposeful (or incidental) take of eagles and eagles nests under the Bald and Golden Eagle Protection Act (“Eagle Act”).  According to FWS, the rule is intended to balance clean energy development and eagle conservation goals.  FWS acknowledges the Obama Administration’s efforts to expand wind energy development and how the accompanying growth has impacted eagles, but emphasizes its belief that wind energy development does not pose a disproportionate risk to eagles as compared to other activities that may incidentally take eagles.  FWS’s revisions are clearly drafted with the wind industry in mind.

On Wednesday, President-Elect Donald Trump’s transition team announced that Trump will name Oklahoma Attorney General Scott Pruitt as the next Administrator of the U.S. Environmental Protection Agency.  In a statement that same day, the transition team quoted Pruitt as stating that he “intend[s] to run th[e] agency in a way that fosters both responsible protection of the environment and freedom for American businesses.”

The U.S. Army Corps of Engineers (USACE) released the Apalachicola-Chattahoochee-Flint (ACF) River Basin Water Control Manual and draft Environmental Impact Statement (EIS) for state and agency review on December 7, 2016.  The U.S. Environmental Protection Agency will publish the final EIS on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.

On November 29, 2016, EPA announced the first ten chemicals for which the Agency will perform a risk evaluation under the Toxic Substances Control Act (“TSCA”), as reformed by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, passed earlier this year.  As part of this review, EPA will evaluate whether the chosen chemicals “present an unreasonable risk of injury to health or the environment.”

On November 29, eighteen states filed suit in the Southern District of Alabama challenging a rule recently finalized by the Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”), the two agencies charged with the implementation of the Endangered Species Act (“ESA”). The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA. The states argue the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas that are not currently occupied by threatened or endangered species as critical habitat (described in another blog post here). Specifically, the states assert that the Services must explain how unoccupied areas can be “essential” to the conservation of a species, and therefore deserve protection under the ESA. Similarly, the states take issue with the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.

Recently, the Office of Environmental Health Hazard Assessment (“OEHHA”) in California finalized revisions to the regulations implementing Prop 65 – the California law that requires business to provide a “clear and reasonable warning” to consumers on products that contain any chemicals listed by California as causing cancer or reproductive harm.