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The Environmental Protection Agency (EPA) issued a new guidance memorandum on Thursday, January 25, 2018 that addresses the question of when – and whether – a major source of hazardous air pollutants (HAPs, such as lead, mercury, and benzene) can be reclassified as an “area source” under Section 112 of the Clean Air Act, and thereafter avoid major source permitting requirements. The new guidance allows major sources to become area sources at any time, by agreeing to federally enforceable limits on their potential to emit HAPs. This replaces the EPA’s previous “once in, always in” policy, whereby any major source of HAPs remained a major source regardless of later reductions in its potential to emit HAPs.

Continue Reading EPA Revises Guidance Allowing Reclassification of Major Sources of Hazardous Air Pollutants as Area Sources Under the Clean Air Act

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Several departments have released the regulatory reform reports requested by the Trump Administration’s Executive Order 13783, which is intended to speed the progress of and lower the costs of infrastructure and energy projects.

Reports are in from the Environmental Protection Agency (EPA), Department of the Interior (DOI), Department of Energy (DOE), and Department of Commerce, and several themes are clear: Long project approval and lengthy permitting timelines must end. The executive branch must coordinate efforts among agencies. Departments must consider how their regulatory role impacts the national and local economies. Continue Reading Regulatory Reform: Where Are We Now?

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Following the one year anniversary of significant amendments to the Toxic Substance Control Act (TSCA), there has been a flurry of activity related to the Act—from new rules issued by the Environmental Protection Agency (EPA) to lawsuits filed across the country. Here are some of the major highlights:

Continue Reading Four Milestones Since the Birth of a Significantly Revised TSCA

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On the one year anniversary of major amendments to the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) issued three new “framework” rules on how it plans to prioritize and evaluate risks from new chemicals or new uses of chemicals — offering clearer guidance to manufacturers on how chemicals will be evaluated and regulated. Continue Reading TSCA Framework Rules Offer Manufacturers Regulatory Clarity

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In a break with long-standing policy, Environmental Protection Agency (EPA) Administrator Scott Pruitt has taken back authority to approve remedies costing $50 million or more at Superfund sites effective immediately. According to the delegation of authority memo issued on May 9, 2017, the purpose of these revisions is to promote accountability and consistency in the remedy selection process and encourage speedier remediation and revitalization of contaminated sites. Continue Reading EPA Takes Back Decision-Making Authority for the Most Costly Superfund Cleanups

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As the Trump-era Environmental Protection Agency (EPA) continues the process of reconsidering Obama-era decisions, we have seen a flurry of EPA-requested stays on ongoing litigation related to rules and decisions from the prior administration. The courts have generally been willing to grant these motions, issuing 60, 90, or 120-day stays for most cases. Continue Reading EPA Litigation Snapshot: Pivotal Cases See Continued Delays

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President Trump recently issued two executive orders that aim to reform administrative regulations and improve domestic energy production. On January 30, 2017, President Trump issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” which, among other things, introduced a regulatory impact cost cap for 2017. On March 28, 2017, President Trump issued Executive Order 13783, “Promoting Energy Independence and Economic Growth,” which instructed an agency review of regulations that hinder domestic energy production.

Continue Reading Trump EPA Delays Ongoing Obama-Era Litigation

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On April 12, 2017, the EPA announced that it will reconsider and administratively stay future deadlines of the 2015 final rule that set new, technology-based effluent limitations guidelines (ELGs) and standards for steam electric power plants under the Clean Water Act. The final rule places significant burden on affected segments of the steam electric power generating industry. While certain requirements of the new ELGs were generally set to become effective as soon as November 1, 2018 through incorporation into NPDES permits, the compliance timetable and future of the final rule is now unclear. Continue Reading EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants

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In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months,  see here and here. Continue Reading Are We Facing the Decline of Chevron Deference and an Article III Renaissance?

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Monsanto officially lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup. As we previously reported, Monsanto argued that the State of California’s reliance on an unelected, European organization to decide that glyphosate poses a cancer risk was improper. Last month, a California superior court rejected Monsanto’s arguments. Continue Reading California Prop 65 Decision Raises New Potential Conflict with Federal Pesticide Product Registration and Labeling Requirements