California Air Resources Board “First-in-World Rule” Mandates Manufacturers to Increase Percentage of Zero-Emission Truck Sales

On June 25, 2020, the California Air Resources Board (CARB) passed the Advanced Clean Trucks (ACT) regulation, which CARB describes as a “first-in-the-world rule.” Starting in 2024, the regulation requires medium- and heavy-duty truck manufacturers to increase the sales of zero-emission models. The ACT regulation follows the state’s longstanding Zero Emission Vehicle program and 2018 mandate requiring public transit agencies to transition to 100 percent zero-emission bus fleets by 2040.



EPA Plans to Further Regulate Methylene Chloride

On June 19, 2020, the U.S. Environmental Protection Agency (EPA) released its final risk evaluation conducted under the Toxic Substances Control Act (TSCA) for methylene chloride. For its evaluation, EPA reviewed 53 conditions of use for the chemical, which is often used as a solvent. (more…)

EPA Grants Petitions to Add First Chemical to Hazardous Air Pollutants List Since 1990

On June 18, 2020, the U.S. Environmental Protection Agency (EPA) published a Federal Register notice granting petitions to add n-propyl bromide, commonly known as 1-bromopropane (1-BP), to the Clean Air Act’s (CAA) list of hazardous air pollutants (HAPs). Once EPA takes a separate regulatory action to add the chemical to the list of HAPs, the action will represent the first addition to the list since 1990, when it was created. 1-BP is found in degreasers, cleaners, spray adhesives, automotive refrigerant flushes and lubricants. In a draft risk evaluation conducted under the Toxic Substances Control Act (TSCA), EPA noted last year that the chemical could pose “an unreasonable risk of injury to health” under certain conditions of use but did not find any unreasonable risk of injury to the environment. The risk evaluation is ongoing and is expected to be finalized this year.


Infrastructure EO May Lead to Policy Reversals, Litigation

*Article first appeared in Bloomberg Law on June 18, 2020.

A new executive order seeks to accelerate federal approvals of infrastructure and development projects, relying on various emergency authorities in environmental statutes. The authors of this article say the scope of these provisions, as well as their interaction with other laws, is uncertain, and investors and developers should be cautious of potential judicial challenges.



Texas State Implementation Plan Suit Stayed in the Fifth Circuit

The U.S. Court of Appeals for the Fifth Circuit has stayed a lawsuit, Sierra Club v. EPA, brought by a coalition of environmental groups concerning the U.S. Environmental Protection Agency’s (EPA) approval of two revisions to the Texas State Implementation Plan (SIP). This stay is to allow the U.S. Court of Appeals for the D.C. Circuit to decide whether to hear an identical petition for review. (more…)

Fights over EPA’s Enforcement Discretion Policy Continue and May Expand

On June 10, 2020, three environmental groups sent a notice of intent to sue multiple federal agencies, including the U.S. Environmental Protection Agency (EPA). The notice claims that EPA failed to take necessary and reasonable actions to address impacts on endangered and threatened species as allegedly required by the Endangered Species Act, before EPA issued its March 26 COVID-19 enforcement discretion guidance, discussed in further detail here. (more…)

U.S. Supreme Court Reverses the 4th Circuit on Appalachian Trail Access for Atlantic Coast Pipeline

On June 15, 2020, the Supreme Court of the United States decided United States Forest Service et al. v. Cowpasture River Preservation Association et al. (Cowpasture). In a 7-2 decision, the court authorized the U.S. Forest Service (Forest Service) to reinstate a special use permit under the Mineral Leasing Act of 1920 (Leasing Act) to allow the Atlantic Coast Pipeline (ACP) to cross a portion of the Appalachian National Scenic Trail (the Trail) that traverses the George Washington National Forest in West Virginia (GW Forest). The decision removes a significant obstacle to the ACP, but other legal roadblocks remain.


What’s Next for EPA’s Review of Toxic Substances

Companies have started reporting their manufacture or imports of newly designated high-priority substances under the Toxic Substances Control Act—and paying EPA costs for evaluating the substances’ risk. Sidley lawyers explain the risk evaluation process and how companies can strategically engage with EPA on the scope of risk evaluations.



New FERC Rule May Delay U.S. Pipeline Construction Activities

On June 9, 2020, the U.S. Federal Energy Regulatory Commission (FERC) issued Order No. 871, a Final Rule Limiting Authorizations to Proceed with Construction Activities Pending Rehearing (Final Rule). The Final Rule is likely to increase project costs for natural gas infrastructure by delaying their regulatory approvals. It prevents FERC from issuing notices to proceed with construction once a developer has received a certificate under sections 3 and 7 of the Natural Gas Act (NGA) until (1) the time for filing of a request for rehearing has expired with no such request or (2) FERC has acted on the merits of a timely filed request for rehearing. NGA sections 3 and 7 are the statutory provisions that empower FERC to authorize natural gas import and export facilities, such as liquefied natural gas (LNG) export terminals and natural gas pipelines, respectively.


EPA Releases New Proposed Rule on Clean Air Act Cost-Benefit Analysis

On June 4, 2020, the U.S. Environmental Protection Agency (EPA) released a proposed rule for calculating costs and benefits from Clean Air Act rulemakings. The proposal would require EPA to undertake a cost-benefit analysis for all significant Clean Air Act rulemakings — that is, those estimated to have at least a $100 million impact on the economy or are otherwise deemed significant — using the “best available scientific information” and instituting other procedural requirements. (more…)