Historically, the U.S. Environmental Protection Agency has relied upon advisory committees comprising members from the scientific community to advise the EPA on the development and implementation of regulations. The Trump Administration has taken measures in recent years to constrain the authority and composition of these committees. But the First Circuit’s recent decision in Union of Concerned Scientists v. Wheeler signals a limit on these measures – ruling in favor of a challenge to the administration’s attempt to bar scientists who had received EPA grants from being members of advisory committees. Continue Reading First Circuit Decision Signals Vulnerability of EPA Directive Limiting Scientist Membership in Advisory Committees
In recognition of the impact the COVID-19 outbreak is having on every facet of life, the U.S. Environmental Protection Agency (EPA) issued a temporary enforcement discretion policy to excuse certain civil violations occurring during and due to the COVID-19 pandemic. While the EPA expects regulated facilities to maintain compliance, the agency does not expect to seek penalties for noncompliance for routine environmental monitoring and reporting obligations provided certain conditions are met. Other activities, such as the reporting of accidental releases of pollutants, will not be subject to discretion. Importantly, the EPA will not be seeking enforcement of violations occurring while the policy is in effect, even after the COVID-19 crisis subsides and the policy is terminated. The policy is retroactive to March 13, 2020. Continue Reading EPA to Relax Civil Enforcement for Non-Compliance Due to COVID-19 Pandemic
Under a new rule effective on Monday, March 23, 2020, owners and operators of stationary sources are required to report qualifying accidental releases to the ambient air of hazardous substances to the federal Chemical Safety and Hazard Investigation Board (CSB). While many companies are currently consumed with handling operations and logistics related to the coronavirus pandemic, compliance will still be expected going forward. Importantly, however, the CSB’s preamble to the new rule expresses a one-year grace period from the effective date of the rule, during which it will refrain from referring reporting violations for enforcement absent a knowing failure to report.
No single answer exists for how the regulated community is expected to meet their environmental obligations or address potential delays in environmental compliance, especially amidst shelter-in-place orders in several states due to the COVID-19 pandemic. However, relief from environmental obligations during this pandemic may be available under certain environmental laws and legal obligations. The nature of that relief will largely depend on the specific legal requirement, the impact on the source itself, and the evolving response by federal and state governments to the COVID-19 outbreak.
Both communities and companies will no longer benefit from the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions, following the United States Department of Justice’s (DOJ) comprehensive policy review and prohibition of the practice in all settlements. Despite 30 years of productive use backing these mutually beneficial arrangements, which began during my time at the DOJ in the 1990s, the DOJ has officially called it quits for now – at least until the next administration has a chance to reconsider this decision. For those who have not been immersed in these environmental enforcement actions, SEPs allow settling parties to mitigate a portion of a civil penalty in exchange for performance of environmentally beneficial projects. Continue Reading Everyone Loses with New DOJ Policy Ending 30-Year Practice of Supplemental Environmental Projects
Federal officials often conduct unannounced, sometimes intrusive inspections of regulated entities, which can be a major disruption to companies’ operations and has historically left them with little to do about it but wait for the interruption to pass – until now. The Office of Management and Budget (OMB) and the U.S. Environmental Protection Agency (EPA) recently issued two documents aimed at improving the efficiency and normalizing the process of conducting environmental inspections and investigations. Continue Reading Regulated Entities: It’s Time to Speak Up if You Don’t Like How Federal Agents Come Knocking
The U.S. Environmental Protection Agency (EPA) announced last week its latest step in the implementation of its Action Plan—a preliminary regulatory determination regarding two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The Action Plan was issued in February 2019 and outlined the agency’s efforts to address PFAS contamination in groundwater. This latest step comes on the heels of the EPA’s November 2019 proposal to add PFAS to the list of chemicals for which facilities must report use under the Emergency Planning and Community Right to Know Act (EPCRA).
The Trillion Trees Initiative was in focus at the January 2020 World Economic Forum in Davos. President Trump endorsed the initiative in his State of the Union address. Companies may want to consider this and other green initiatives as the trend for company sustainability continues to gain traction. Continue Reading The Trillion Trees Initiative and Sustainability
Chairman Jay Clayton provided his own view of climate disclosure criteria, and two other commission members also provided insight at the end of last month. This indicates that climate disclosure issues are top of mind for members and staff at the U.S. Securities and Exchange Commission (SEC).
The chair indicated that he would continue to rely on the principles that have guided SEC disclosures for decades. For environmental and climate-related issues, the guiding principle of materiality remains the foremost indicator of a disclosure obligation. Climate is one of several issues that the chair notes as “evolving.” Continue Reading SEC Indicates it Will Not Modify Climate Change Disclosure Criteria
Regulated entities may not be able to challenge an agency’s informal decisions if those decisions are unpublished and the entity was not a party to the decision. In a recent D.C. Circuit case, the court dismissed a plaintiff’s petition to review an agency’s informal decision for lack of jurisdiction. The plaintiff’s petition, according to the court, had failed to identify a final agency action, such as a discrete informal adjudication or decision making. Continue Reading Can a Federal Court Obtain Jurisdiction Over an Agency’s Unpublished Informal Decisions?