Sidley Environmental Trends

Topics discussed this week include:

  • Environmental Protection Agency set to reinstitute 2009 definition of “project aggregation” for New Source Review permitting program
  • Federal appeals court stays climate change litigation trial
  • Environmental Protection Agency renews dicamba registration for two years
  • Environmental Protection Agency issues new guidance outlining deference to states and tribes
  • Mott’s sued over trace amounts of synthetic pesticide found in “natural” applesauce

Environmental Protection Agency set to reinstitute 2009 definition of “project aggregation” for New Source Review permitting program. The U.S. Environmental Protection Agency (EPA or the Agency) is poised to revive a 2009 EPA interpretation of “project aggregation” for New Source Review (NSR) Clean Air Act (CAA) permitting. The 2009 interpretation clarified that changes at a source should be considered a single project for NSR consideration when they are “substantially related.” EPA makes clear that determining whether changes are “substantially related” is case sensitive and fact-specific; however, the Agency emphasizes that technical or economic relationships between changes signal a substantial relationship. EPA also clarifies that timing alone is not a dispositive factor in determining a “substantial relationship,” although it is a reasonable presumption that activities occurring close in time are more likely to be substantially related than those separated in time. EPA also reiterates the rebuttable presumption that projects occurring three or more years apart in time are not to be aggregated. EPA also clarifies that changes need not be aggregated only because they support a source’s “overall basic purpose.” Ultimately, the test for substantial relationship “centers around the interrelationship and interdependence of the activities, such that substantially related activities are likely to be jointly planned (i.e., part of the same capital improvement project or engineering study), and occur close in time and at components that are functionally interconnected.” In 2009 the EPA stayed implementation of this “project aggregation” interpretation pending reconsideration of the policy. In the end, the previous administration took no action to revise the 2009 “project aggregation” interpretation. This current action lifts that stay. EPA plans to publish this notice in the Federal Register on Thursday, November 15.

Federal appeals court stays climate change litigation trial. The U.S. Court of Appeals for the Ninth Circuit has issued a temporary stay in Juliana v. United States pending the court’s consideration of the federal government’s petition for writ of mandamus seeking dismissal of the case. The Ninth Circuit has given plaintiffs and Judge Anne Aiken of the District of Oregon 15 days to respond to the petition. This Ninth Circuit stay comes one week after the United States Supreme Court lifted its own temporary stay of the trial, finding that “the government’s petition for a writ of mandamus does not have a ‘fair prospect’ of success in this court because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.” Judge Aiken had originally set a trial date for October 29, but she withdrew it after the Supreme Court entered a temporary stay earlier in October. Judge Aiken said in a status conference after the Ninth Circuit’s stay decision that she would not set a new trial date until after the court has considered the petition for mandamus. Responses to the petition for mandamus are expected by Monday, November 26. The underlying suit involves allegations by children that the federal government has violated their constitutional rights and those of future generations by failing to address the effects of climate change through federal policy.

EPA renews dicamba registration for two years. The EPA has renewed the pesticide registration of the herbicide dicamba, and products containing dicamba, for two years following a registration review period governed by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s registration is for dicamba application to weeds in fields with cotton and soybean plants genetically engineered to be dicamba-resistant. EPA did modify some aspects of dicamba application in this re-registration, including a new restriction that only certified applicators may apply dicamba products (previously, noncertified applicators could apply the product under supervision of a certified applicator), a restriction on dicamba application on soybeans 45 days after planting and on cotton 60 days after planting, a reduction from four to two applications for cotton and limited application to one hour after sunrise to two hours before sunset, among others. Many of these new restrictions appear to target recent reports and litigation over dicamba drift. This re-registration, and the associated application restrictions, is set to expire on December 20, 2020.

EPA issues new guidance outlining deference to states and tribes. EPA Acting Administrator Andrew Wheeler has released new guidance to EPA regional officials outlining Agency policy regarding oversight and deference to state and tribal officials implementing federal environmental plans. The guidance document, titled “Principles and Best Practices for Oversight of Federal Environmental Programs Implemented by States and Tribes,” emphasizes that EPA should “generally defer to states and tribes in their day-to-day activities.” As part of EPA’s federal oversight duties, the Agency will “identify clear standards of review against which state and tribal programs and activities will be evaluated,” and EPA’s withdrawal of program implementation authority is only to be used as a “last option … after all other options have been exhausted or when human health or the environment are at risk.” Acting Administrator Wheeler cites the 2018-22 EPA Strategic Plan’s goal of “cooperative federalism” as a fundamental priority of the Agency and emphasizes that deference to “co-regulators” implementing federal policy at the state and tribal levels is a way to “help states maintain strong performance and ensure a level playing field.”

Mott’s sued over trace amounts of synthetic pesticide found in “natural” applesauce. Dr Pepper Snapple Group, the parent company of Mott’s Applesauce, has been sued in the Northern District of California alleging California statutory and common law consumer protection violations arising from trace amounts of a neurotoxin detected in the “natural” applesauce product. The Mott’s brand represents that it contains “all natural ingredients,” and the suit claims that discovery of the synthetic insecticide acetamiprid in the applesauce is deceptive. While acetamiprid is a registered insecticide, and trace amounts of it are allowable in food products, the suit alleges that Mott’s label information and marketing of its products are false and misleading. This suit follows on the heels of other consumer protection suits files against other food products companies following the alleged discovery of trace amounts of conventional pesticides in their products.