California Agency Proposes Listing PFOA as a Carcinogen under Proposition 65

Earlier this month, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed listing perfluorooctanoic acid (PFOA) as a carcinogen under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65. Under Proposition 65, OEHHA maintains a list of carcinogens and reproductive toxins, and businesses must generally provide “clear and reasonable” warnings prior to exposing anyone in California to a listed chemical, including through consumer, worker, or environmental exposures.

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Congress Moves to Repeal First Trump-Era Rule

Yesterday, the U.S. Congress started a process that could repeal its first Trump-era regulation pursuant to the Congressional Review Act (CRA). Enacted in 1996, the CRA provides Congress an important oversight tool over federal agencies to rescind certain rules. Majority members in both the House of Representatives and the Senate introduced resolutions disapproving the Environmental Protection Agency’s September 2020 final rule on policy amendments to new source performance standards for the oil and natural gas sector. The 2020 rule, which amended 2012 and 2016 standards, rescinded methane-specific emissions limits and removed two segments (natural gas transmission and storage) that were subject to the prior standards. While EPA was directed by President Biden’s Executive Order 13990 to review the 2020 rule and propose a new rule by September 2021, members of Congress are seeking to accelerate this effort by using the CRA.

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EPA Seeks Additional PFAS Data

On March 17, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) issued a notice of proposed rulemaking (ANPRM) seeking information related to per- and polyfluoroalkyl substances (PFAS) to support a potential Clean Water Act rulemaking. With respect to PFAS from manufacturers and formulators, EPA requests public comment on the Agency’s current information and data and solicits additional information and data from stakeholders. (more…)

FERC Makes First Significance Determination on Greenhouse Gas Emissions

On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.

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EPA Finalizes Cross-State Air Pollution Rule

On March 15, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) published a final rule, pursuant to the good-neighbor provision of the Clean Air Act, which directs EPA and states to address interstate transport of air pollution that affects downwind states’ ability to attain and maintain compliance with the 2008 National Ambient Air Quality Standard (NAAQS) for ozone. As we explained previously, the Revised Cross-State Air Pollution Rule (CSAPR) Update is EPA’s rulemaking in response to the U.S. Court of Appeals for the D.C. Circuit’s decision in Wisconsin v. EPA, in which the court remanded an earlier EPA CSAPR update rule. (more…)

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House Majority Flagship Climate Bill Gets a Hearing

March 18 marked the U.S. House Energy and Commerce Committee’s first legislative hearing on the majority’s flagship climate bill, the Climate Leadership and Environmental Action for our Nation’s Future Act (CLEAN Future Act). The 981-page bill aims to reach net-zero greenhouse gas emissions across the U.S. economy by 2050. (more…)

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Ninth Circuit Affirms Special Power Rate for Cryptocurrency Miners

On March 11, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed a decision approving of Grant County, Washington’s, special power rate for cryptocurrency miners. In Cytline, LLC, et al. v. Public Utility District No. 2 of Grant County Washington, a group of cryptocurrency companies sued after a Grant County utility district created a special energy rate applicable only to cryptocurrency miners. The companies had moved to Grant County because the county had some of the lowest rates for electricity in the country. (more…)

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Fifth Circuit Rejects Challenge to Texas LNG Project

On March 10, 2021, the U.S. Court of Appeals for the Fifth Circuit rejected a challenge to an opinion by the Fish and Wildlife Service (FWS) allowing a South Texas liquified natural gas (LNG) pipeline project to proceed. Sierra Club, et al. v. U.S. Department of Interior, et al. involved a proposed LNG pipeline that would pass through Cameron, Willacy, Kenedy, and Kleburg counties in south Texas. (more…)

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Environmental Justice Funding in COVID-19 Relief Bill

On March 11, 2021, U.S. President Joe Biden signed into law the American Rescue Plan Act of 2021, which allocates more than $1.9 trillion to aid COVID-19 relief. Title VI of the law specifically provides $100 million to the Environmental Protection Agency (EPA) to address health disparities resulting from pollution and COVID-19. (more…)

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EU Emissions Compliance Regulation Gaining Traction

Historically, the emissions standards for mobile sources promulgated by the U.S. Environmental Protection Agency (EPA) have been viewed as more ambitious than European Union (EU) standards. The United States’ stringent enforcement of mobile source emission standards may result in significant financial penalties; extensive injunctive relief, such as recalls and high-cost mitigation projects; corporate compliance requirements; and in some cases, criminal indictment.

On the other side of the Atlantic, in the EU, mobile emissions compliance regulations are becoming more robust. In particular, the EU appears to be adopting a stricter approach on emissions through a growing body of case law on the interpretation and application of existing emissions compliance regulations. In a judgment on 17 December 2020, in CLCV and Others, the Court of Justice of the European Union (Court) adopted a potentially broad interpretation on the definition of defeat devices and appeared to limit the scope of exceptions for their use in vehicles sold, registered, or put into service in the EU.1 This judgment is likely to set the benchmark for other proceedings on the admissibility of defeat devices in the EU.

Notably, there are at least six cases pending before the Court on mobile source emissions and the concept of defeat devices for light-duty passenger and commercial vehicles under Regulation (EC) No 715/2007 (Regulation).2

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