On May 22, 2020, the Environmental Protection Agency (EPA) Administrator signed a proposed rule entitled EPA Guidance; Administrative Procedures for Issuance and Public Petitions” that provides guidance and procedures for regulatory documents issued by the agency. The proposed rule purports to address concerns from the regulatory community that guidance documents were sometimes used to modify legal obligations which should only be imposed by statute or formal regulations.
Continue Reading EPA Issues Proposed Rule Intended to Increase Transparency and Public Participation Related to Agency Guidance Documents

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.

Continue Reading Environmental Compliance Relief and Requirements During Shelter-in-Place Mandate

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 the latest step in implementing its February 2019 “Action Plan” for regulating a group of synthetic chemicals called per- and polyflouroalkyl substances (PFAS) last week. While PFAS have long been used in a wide array of consumer and industrial products, they have recently become an emerging area of focus for environmental law and policy at both the state and federal level. The EPA’s latest Notice of Proposed Rulemaking (Notice) proposes adding PFAS to the list of chemicals for which facilities must report their annual manufacturing, processing, or use under the Emergency Planning and Community Right to Know Act (EPCRA).

Continue Reading EPA Announced Latest Step in PFAS Action Plan

Informal guidance memos can be a powerful tool — allowing agencies to quickly pivot following a change in administration, avoiding the time and expense associated with the notice and comment process. But whether new guidance memos benefit or harm industry, they can often raise as many questions as they answer, with businesses left to wonder what legal effect an agency policy statement has and whether it can be challenged in court. These questions can hamper long-range planning by increasing regulatory uncertainty. Two recent cases help clarify when agency guidance should be considered a “final agency action” and how and when guidance can be challenged in court.
Continue Reading Don’t Miss the Memo: Recent Cases Clarify When Agency Guidance Documents Can be Challenged

On August 9, 2019, the EPA plans to publish a proposed rule to codify the current interpretation of New Source Review (NSR) Project Emissions Accounting. The rule would explicitly allow consideration of emissions decreases from a project, alongside any emissions increases, when determining whether the project causes a significant emissions increase from the source. Historically, many state regulators, and even certain EPA applicability determinations, have suggested that only emissions increases (and not decreases) should be considered. Considering emissions decreases in this analysis allows more projects to avoid triggering NSR.

Continue Reading Emission Decreases Count: EPA Proposes Rule to Codify Approach to NSR Project Emissions Accounting

Regulated companies need to understand what material courts can consider when they review administrative decisions. The Administrative Procedure Act generally allows courts to consider only the existing administrative record when reviewing agency decision-making to determine whether agency decisions are arbitrary and capricious. But the Supreme Court recently reminded us that this rule is not absolute by looking beyond the record in Dep’t of Commerce v. New York to block an agency decision that it found to be based on a “contrived,” pretextual rationale.

Regulated companies may be able to ask courts to consider information beyond the administrative record if they can show that the agency acted in bad faith or exhibited improper behavior. A company’s ability to present the court with information beyond a record carefully constructed by an agency can be a powerful tool.
Continue Reading Going Beyond: When Can Courts Look Past the Record in an APA Review?

A key building block of U.S. government is how administrative agencies interpret their own regulations. Because this question is so fundamental to the entire regulated community, we have blogged about administrative deference generally and the Kisor case specifically. The Supreme Court affirmed the long-standing judicial tenet of administrative deference to agencies’ interpretation of their own regulations this week. In doing so, however, the majority cautioned against a laissez faire application of deference, emphasizing that courts must carefully and explicitly consider the specific criteria established under Auer v. Robbins before deferring to an agency’s interpretation of its own regulation.
Continue Reading Supreme Court Punts Larger Key Administrative Deference Issues Until Later

Everyone knows that environmental cleanups are complicated. Sites can be geographically vast and varied, involve operations that have released chemicals over decades, and goal posts for how and what should be investigated, characterized, and – if necessary – remediated can change over time. The U.S. Supreme Court recently granted certiorari in a case that could potentially throw remediation efforts at Superfund sites around the country – as Atlantic Richfield (the petitioner) put it – into “chaos.”
Continue Reading SCOTUS Will Review EPA’s Authority to Control Superfund Cleanups at Company’s Request

The EPA announced its final rule for power plant greenhouse gas (GHG) emissions, culminating often rancorous discussion and litigation over the EPA’s authority to regulate GHG emissions from existing coal-fired electricity generating sources. Under the new Affordable Clean Energy (ACE) rule, the states, not the federal government, are now responsible for driving down GHG emissions from power plants. Specifically, the EPA now requires unit-specific standards of performance to be developed by the states using its new emission guideline that details the “best system of emission reduction.”
Continue Reading EPA’s Final Power Plant Greenhouse Gas Rule Shifts Emissions Regulation to States