Batteries play a fundamental role in energy storage, and currently nearly 99 million lead acid batteries are manufactured each year. This past Wednesday, U.S. Environmental Protection Agency (EPA) issued a proposed rule in the Federal Register relating to air emissions controls for lead acid battery manufacturers. Highlights of the proposed rule are more stringent lead emission limits for grid casting, paste mixing, and lead reclamation operations under both the National Emissions Standards for Hazardous Air Pollutants (NESHAP) (for new and existing sources) and new New Source Performance Standards (NSPS) for lead acid battery facilities that begin construction, reconstruction, or modification after February 23, 2022.

Continue Reading EPA Issues Proposed Rule Imposing More Stringent Air Emissions Controls for Lead Acid Battery Manufacturing

The “major questions” doctrine is likely to substantially affect environmental law. The “major questions” doctrine provides that for “major policy question[s] of great economic or political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority to both decide the major policy question and to regulate and enforce.” As we noted in our last post touching on the “major questions” doctrine, we expect that the “major questions” doctrine may be a focus of other cases on the docket this year including a pending case involving U.S. Environmental Protection Agency greenhouse gas regulations.

Continue Reading Court Cites “Major Questions” Doctrine when Striking Down Biden “Social Cost of Carbon” Efforts

The Biden Administration has indicated that the U.S Environmental Protection Agency (EPA) will include environmental justice issues among its priorities. EPA defines “environmental justice” as meaning fair treatment and meaningful involvement of people regardless of their race, color, national origin, or income regarding the development, implementation, and enforcement of environmental laws. EPA’s new emphasis on environmental justice means the regulated community should be on alert to identify how their operations potentially affect environmental justice issues.
Continue Reading Ninth Circuit Decision Illustrates the Extent to Which “Justice” Issues Have Entered the Regulation Conversation

As our colleagues have noted, the U.S. Supreme Court’s two vaccine-mandate-related decisions impact employers and have significant public health implications.

Outside of the public health context, both decisions ― in cases styled National Fed. of Independent Businesses v. Occupational Safety and Health Administration (OSHA) and Biden v. Missouri ― provide significant guidance related to principles of administrative law, with which the regulated community will have to grapple in future policy challenges in federal court.
Continue Reading Key Takeaways for the Regulated Community from the Supreme Court’s Vaccine Mandate Decisions

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

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 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