Demonstrating standing can be challenging for plaintiffs in environmental cases. The issues are addressed in court decisions with some regularity – see here and here. A recent Tenth Circuit decision in UPHE v. Diesel Power Gear, LLC, involving Clean Air Act (CAA) allegations against modifications to vehicles – in CAA parlance, “mobile source” – provides interesting guidance into what plaintiffs need to allege to have standing, at least in the Tenth Circuit. The take-away is that even though the impact of individual “defeat devices” on the environment might be small, courts may permit parties to bring claims about them in federal court. Continue Reading Tenth Circuit Decision Could Pave the Way for More Frequent Clean Air Act Enforcement
On January 5, EPA added 1-bromopropane (1-BP), which is also called n-propyl bromide, to the list of Hazardous Air Pollutants (HAP) under the federal Clean Air Act. 1-BP is used as a substitute for other HAPs in dry cleaning and other industries. This marks the first addition to the list since it was established as part of the 1990 Clean Air Act Amendments. The addition was prompted by petitions to list 1-BP by the Halogenated Solvents Industry Alliance and the New York State Department of Environmental Conservation.
EPA is expected to issue additional guidance and regulation under the National Emission Standards for Hazardous Air Pollutants (NESHAP) that will further govern the emission of the 1-BP; in the interim, companies that emit 1-BP need to consider how the addition of 1-BP to the list of HAPs will affect their permitting, emissions reporting, and regulatory compliance. Continue Reading EPA Expands the List of Clean Air Act Hazardous Air Pollutants
On December 7, 2021, the Illinois Environmental Protection Agency (IEPA) filed proposed amendments to Illinois’ groundwater quality standards with the Illinois Pollution Control Board (Board). The proposal includes Class I and Class II groundwater quality standards for six per- and polyfuoroalkyl substances (PFAS), including perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), perfluorobutanesulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (HFPO-DA). Illinois follows several states that are choosing to regulate PFAS constituents while federal regulation of the constituents is pending. Ubiquitous, PFAS can be found in a variety of consumer products, industrial processes, and fire-fighting foams, and can come to be located throughout the environment.
The top U.S. Department of Justice (DOJ) Environmental official has put corporate employees on notice that DOJ is increasing its focus on prosecuting individuals for environmental crimes, including the threat of jail time. In a pre-recorded keynote address to the American Bar Association (ABA) National Environmental Enforcement Conference on December 14, 2021, Assistant Attorney General for the Environment and Natural Resources Division (ENRD) Todd Kim stated, “Only individuals can go to jail, and we have found that criminal corporate accountability starts with accountability for individuals responsible for criminal conduct.” Continue Reading DOJ Targeting Employees for Criminal Environmental Prosecution: Tips for Minimizing Exposure
On November 16, Illinois enacted the Reimagining Electric Vehicles Act (REV Act) which states that its purposes include “reduc[ing] carbon emissions, creat[ing] new good-paying jobs, and generat[ing] long-term economic investment in the Illinois business economy.”
The REV Act provides income tax credits for electric vehicle (EV) manufacturers, including EV parts suppliers such as battery and charging station manufacturers, tax credits for costs to train new or retained employees, and a suite of other tax incentives.
According to the Governor’s Office, the new law is intended to attract new manufacturers to Illinois while incentivizing existing manufacturers to invest in their Illinois facilities and employees in order to position Illinois as a national leader in EV and battery production. Continue Reading Illinois Sets Course for EV Manufacturing in Illinois
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.
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.”
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