On November 2, 2021, the U.S. Environmental Protection Agency (EPA) announced a proposed rule involving three separate actions aimed at establishing a comprehensive and more stringent regulatory regime to reduce emissions from oil and gas operations across the United States (the Proposed Rules). The Proposed Rules seek to reverse the Trump Administration’s relaxation of methane standards for new, modified, or reconstructed sources, regulate so-called midstream (transportation and storage) sectors, and impose more stringent new source rules for methane and volatile organic compounds (VOC) (more stringent even than rules under the Obama Administration). We have previously covered the various iterations of methane regulation here, here, here, and here. Under the Proposed Rules, EPA also proposes to regulate existing oil and gas for the first time. Further information on each of these points is provided below. Continue Reading EPA Proposes Sweeping Rule to Regulate Methane Emissions

The United States Environmental Protection Agency (EPA) recently made several announcements regarding its goals for investigating, regulating, and remediating Per- and Polyfluoroalkyl Substances (PFAS), a group of chemicals used in a variety of consumer and industrial products since the early 1940s. In the environment, PFAS can be found in soil, groundwater, surface water, and the air. PFAS are ubiquitous in the environment due to their widespread use, their ability to travel long distances, and the long length of time it takes for them to break down. Although they have been subject to study for some time under the Safe Drinking Water Act, PFAS, known as “emerging contaminants,” are not comprehensively regulated at the federal level. EPA’s announcements demonstrate its intent to develop regulation of this category of chemicals. Continue Reading EPA Makes PFAS Announcements, Issues PFAS Strategic Roadmap and Planned RCRA Hazardous Waste Designations

“Climate change is an emerging threat to the financial stability of the United States.” So begins a recently issued Financial Stability Oversight Council (FSOC) Report, identifying climate change as a financial risk and threat to U.S. financial stability and highlighting a need for coordinated, stable, and clearly communicated policy objectives and actions in order to avoid a disorderly transition to a net-zero economy.

Continue Reading New Report Highlights Need for Coordinated and Consistent U.S. Policy to Address Possible Impacts to Financial Stability Due to Climate Change

Environmental justice remains a top concern for the Biden Administration. The United States Environmental Protection Agency (U.S. EPA) recently highlighted in its 2022-2026 Strategic Plan (Strategic Plan) that it intends to enhance use of the Civil Rights Act of 1964 to “embed environmental justice and civil rights in the Agency’s core work” and to “strengthen civil rights enforcement in communities overburdened by pollution.”

Continue Reading EPA Places Environmental Justice Front and Center

As illustrated by our previous coverage here, here, and here, the scope of the federal government’s enforcement power under the Migratory Bird Treaty Act (MBTA) has been an ever-evolving source of litigation and confusion for industries across the country. Continue Reading Fish and Wildlife Service Seeks Input on Developing Migratory Bird Permit Program

We previously blogged here, here, and here about President Biden’s infrastructure plan, first proposed in March 2021. On August 10, 2021, the Senate passed a bipartisan infrastructure bill that included many pieces of President Biden’s plan, but also contained numerous revisions, reflective of the compromises necessary to pass this ambitious legislation in the Senate.

The Senate approved bill scaled down Biden’s infrastructure plan—from $2,600 billion to $550 billion, cutting investments in research and development, clean energy tax credits, public buildings including schools and homes, and home- and community-based care. Here’s what the Senate bill included and what it cut. Continue Reading The Senate Approved a $1.2 Trillion Infrastructure Bill: Here’s What it Funds

Courts exist to adjudicate claimed harms. However, not every court can hear every claim. A recent D.C. district court decision in Jam v. Int’l Fin. Corp. emphasizes how difficult it can be for international plaintiffs to bring U.S. lawsuits for torts occurring abroad. The key holding in Jam – similar to other recent cases – is that just because a corporation makes general decisions about financing or operations in the United States does not mean every plaintiff can sue them in this country for harms occurring abroad. These cases’ holdings indicate that U.S. courts are limiting plaintiffs’ ability to bring suits for tortious activity abroad. As a result, many tort cases focused on international harms likely can be dismissed when the case’s only nexus to the United States is general corporate decision making. Continue Reading International Plaintiffs’ Suit Jammed for Lack of Jurisdiction: District Court Precludes Plaintiffs’ Claims for Overseas Harms

As part of the Biden administration’s 100-day evaluation of U.S. supply chains, in June the Department of Defense (DoD) issued its review of certain “strategic and critical materials” that are key ingredients in electronics and green technologies. Supply chain resiliency is an increasingly important area of Environmental, Social, and Governance (ESG) focus for companies and stakeholders alike, and the DoD’s review has implications for ESG reporting. Continue Reading How Manufacturers Can Improve Supply Chain Sustainability Based on New DoD Recommendations

We often think that environmental regulation comes top-down from Congress and Washington bureaucrats. But that isn’t always the case, as the recent California federal district court decision in California Restaurant Association v. City of Berkeley illustrates. The court there rejected a preemption challenge to a California municipal ordinance banning the installation of natural gas piping in new construction. The decision demonstrates the need for the regulated community to engage on all levels — federal, state, and local. Federal law does not control every aspect of many regulatory areas. Rather, states and localities continue to have some ability to regulate areas touched by federal statutes and regulations. Continue Reading California Court Upholds Local Ordinance Precluding Installation of Natural Gas Piping in New Construction

Of course elections matter, and executive branch changes may bring real and meaningful policy change.  But the federal Administrative Procedure Act (APA) limits the executive branch’s discretion to shape policy by requiring that policy changes be accompanied by a “reasoned explanation” generally set forth in an administrative record. A recent Ninth Circuit decision in Center for Biological Diversity v. Haaland — addressing Trump Administration changes to federal Endangered Species Act (ESA) listings — illustrates the guardrails the APA imposes that apply to all executive decision-making. Continue Reading Ninth Circuit Decision on Pacific Walrus Illustrates Executive Branch Limits