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

Recently, the U.S. Environmental Protection Agency (EPA) took a preliminary step toward requiring limits on some National Pollutant Discharge Elimination System (NPDES) discharges of per- and polyfluoroalkyl substances (PFAS) into surface water. On March 17, EPA issued an advance notice of proposed rulemaking pursuant to the Clean Water Act (CWA), which seeks public comment on data EPA has collected about certain PFAS discharges to surface water and requests additional information about businesses that make or use these substances (the ANPRM). The public has until May 17, 2021, to submit comments.
Continue Reading EPA Considering Revised Effluent Limitations Guideline Relating to PFAS

The U.S. Environmental Protection Agency (EPA) recently progressed its effort to stymie the aftermarket tuning of vehicles used for racing and competition in a complaint alleging that Gear Box Z violated the Clean Air Act by selling certain types of aftermarket software that modifies the engine control module (ECM), among other practices. EPA’s action is part of its national mobile source enforcement initiative to prevent the manufacturing, sale, and installation of aftermarket tuning and emission control defeat devices, in which EPA has pursued enforcement against both large and small suppliers.
Continue Reading EPA Reinforces Position that Certain Types of ECM Changes in Road-Certified Vehicles Constitute “Tampering” Under the Clean Air Act

On January 19, the D.C. Circuit vacated the Affordable Clean Energy Rule (ACE), a rule intended to reduce greenhouse gas (GHG) emissions emitted from power plants. Am. Lung Ass’n et al. v. EPA, No. 19-1140. The lengthy opinion touches on numerous issues raised over the last 10 years as EPA has bumped toward the goal of regulating greenhouse gases. The opinion appears to be grounded in EPA’s own assertions, made in this and other rulemakings, that climate change is a grave threat to society and power plants are a significant source of GHGs.
Continue Reading Affordable Clean Energy Rule Vacated

Regulated industries pay close attention to how regulators use scientific data, because the stakes are high. While scientific knowledge may evolve rapidly, regulatory processes — and the business decisions that rely on them — tend to proceed more deliberately. As a result, the regulated community has long pushed the U.S. Environmental Protection Agency (EPA) to base its decisions only on scientific information that is present in the public domain and thus subject to greater scrutiny.
Continue Reading EPA Releases Late-Term “Secret Science” Rule