In the wake of Donald Trump’s election as the next president of the United States, questions have been raised regarding the fate of federal regulatory actions taken by the current administration. Recent Environmental Protection Agency (EPA) actions are of particular interest because EPA has adopted a number of very high profile and highly impactful regulations. Commenting on EPA during the campaign, Mr. Trump stated that “[w]e are going to get rid . . . of [EPA] in almost every form. We’re going to have little tidbits left but we’re going to take a tremendous amount out.” While Mr. Trump later softened this stance by stating that he would “refocus the EPA on its core mission of ensuring clean air, and clean, safe drinking water for all Americans,” these statements illustrate that the Trump administration will almost certainly seek to roll back at least some of President Obama’s ambitious environmental initiatives. While Mr. Trump vows to reduce EPA’s size and repeal business-burdening regulations, these changes will not occur overnight. The following sections discuss ways in which an incoming administration may halt or repeal its predecessor’s actions.

Troutman Sanders attorneys Greg Blount and Karlie Webb are the authors of the Law360 article, “How New EPA Hazardous Waste Rule Impacts Retail Pharmacies” which examines the effect of the Hazardous Waste Generator Improvements Rule on retail pharmacies. See the full article here. The two will host a webinar…

You are invited to

A Webinar: The Hazardous Waste Generator Improvements Final Rule

Friday, November 18, 2016 12:00 – 1:00 p.m.

The final Hazardous Waste Generator Improvements Rule is Here!

Are you a hazardous waste generator? How will the EPA’s updates to the Hazardous Waste Generator Improvements Rule affect your business? Could your company be at risk for noncompliance?

On October 28, 2016, the EPA signed the final Hazardous Waste Generator Improvements Rule. This Rule has been long in the making and addresses various issues applicable to all hazardous waste generators, regardless of the amount of hazardous waste generated or industry sector. Other changes significantly alter requirements applicable to Large Quantity Generators and Small Quantity Generators.

The United States Army Corps of Engineers has issued its first Regulatory Guidance Letter (“RGL”) in 8 years. The new RGL supersedes two previous guidance letters (RGL 07-01 “Practices for Documenting Jurisdiction under Sections 9 & 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act” and RGL 08-02 “Jurisdictional Determinations.”) and describe differences between “approved” jurisdictional determinations (“AJDs”) and “preliminary” jurisdictional determinations (“PJDs”).  Issuance of RGL 16-01 appears to be motivated by a recent US Supreme Court decision holding that “approved” jurisdictional determinations are subject to judicial review (US Army Corps of Engineers v Hawkes Co., 136 S.Ct. 1807 (2016)) and questions on that decision’s impact on the Corps’ willingness to issue JDs.

Yesterday, November 2, 2016, EPA released a pre-publication version of proposed regulations that spell out how the Agency’s 2015 ozone National Ambient Air Quality Standard (NAAQS) will be implemented. The proposed regulations apply to states with areas that are classified as nonattainment for the 2015 standard of 70 parts per billion (ppb), as well as to states in an Ozone Transport Region.

Yesterday, October 31, 2016, U.S. EPA posted the pre-publication version of its final Hazardous Waste Generator Improvements Rule (“Final Generator Rule”).  The Final Generator Rule was signed by EPA Administrator Gina McCarthy on October 28, 2016.  This rule has been long in the making and addresses various issues applicable to all hazardous waste generators, regardless of the amount of hazardous waste generated or industry sector.  Other changes significantly alter requirements applicable to Large Quantity Generators and Small Quantity Generators.

One of the storied college football rivalries is the annual gridiron battle of teams of the University of Georgia and University of Florida.  Last weekend’s football battle, held at the Jacksonville site where the Tri-State Water Wars between Florida, Alabama, and Georgia were heard in Multi-District Litigation five years ago, ironically tipped off the Supreme Court litigation between Florida and Georgia that commenced on October 31.  Special Master Ralph Lancaster, sitting by designation of the Supreme Court of the United States, heard opening remarks in the three year old case of Florida v. Georgia, Supreme Court Docket No. 142, which is proceeding under the original jurisdiction of the Court.  At issue is Florida’s assertion that it should be granted a consumption cap for its upstream neighbor in the Apalachicola-Chattahoochee-Flint (“ACF”) basin based upon a claim of a substantial injury predicated on a variety of theories.  Florida ceded away any claim of delivery of a specific amount of water at the state line earlier in the litigation.  To prevail, Florida must demonstrate by clear and convincing evidence a substantial injury that is redressable by the Court.

EPA has released “EJ 2020 Action Agenda,” its action plan for addressing environmental justice (“EJ”) for 2016 through 2020.  The Agenda builds on the foundation established in its last EJ strategic plan, Plan EJ 2014, which laid the groundwork of EJ practices with guidance and tools to integrate EJ in EPA’s programs and policies. The Agenda is framed by three overarching goals with priority areas and examples of key actions for each goal, as well as measures to evaluate progress.

Recently, the Ninth Circuit upheld the Environmental Protection Agency’s (“EPA”) decision to issue an air permit under the Clean Air Act for the construction of a biomass cogeneration facility at a lumber mill, concluding that EPA had acted reasonably when it determined that the applicant should not be required to consider solar power or a greater use of natural gas as part of the Greenhouse Gas Best Available Control Technology (“GHG BACT”) review for the permit.  

On October 24, 2016, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (“NMFS”) decision to list certain subspecies of the Pacific bearded seal as threatened under the Endangered Species Act (“ESA”), concluding that NMFS had not acted arbitrarily by relying on climate change projections to determine that the seal is likely to become endangered in the foreseeable future.  After being petitioned by the Center for Biological Diversity (“CBD”), NMFS had concluded in 2012 that the species were likely to become endangered by 2095.  The Alaska Oil and Gas Association, the State of Alaska and North Slope Borough (collectively, “Plaintiffs”) challenged the listing in federal district court in Alaska, arguing that NMFS improperly relied on speculative climate change projections beyond 2050 to make its determination.  The District Court had ruled for the Plaintiffs, concluding that NMFS’s reliance on long-term climate projections was inappropriate due to their volatility.