U.S. Army Corps Proposes to Reissue and Modify Nationwide Permits
On August 3, 2020, the U.S. Army Corps of Engineers (Corps) released a prepublication version of a proposal to reissue and modify its existing 52 nationwide permits (NWPs) and issue five new NWPs. The Corps issues NWPs to authorize categories of activities in jurisdictional waters and wetlands under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act that will result in no more than minimal individual and cumulative adverse environmental effects. The Corps typically updates NWPs every five years, and the current NWPs are scheduled to expire on March 18, 2022. However, in response to President Donald Trump’s March 18, 2017, Executive Order 13783, which directed the heads of federal agencies to review regulations that potentially burden domestic energy production, the Corps identified nine NWPs that could be modified. In addition to revising those nine NWPs, the Corps is proposing to reissue the remaining NWPs so that all NWPs are on the same five-year cycle.
Environmental Groups Sue White House Over NEPA Rule
On July 29, a number of environmental groups, including Earth Justice, Center for Biological Diversity, Environmental Defense Fund, and the National Wildlife Federation, filed suit in the U.S. District Court for the Northern District of California challenging the White House Council on Environmental Quality’s (CEQ) July 15 final rule revising its National Environmental Policy Act (NEPA) implementing regulations. A similar suit followed on June 30 by a different collection of environmental groups in the U.S. District Court for the Western District of Virginia. The CEQ’s final rule sets forth a significant shift in how the White House views the government’s duties and obligations under NEPA and is the first change its NEPA implementation regulations since 1978. Notably, the final rule expands projects categorically excluded from NEPA review, limits most Environmental Impact Statement reviews to two years, and removes an obligation for an agency to consider impacts that are not reasonably foreseeable or those that are “are remote in time, geographically remote, or the product of a lengthy causal chain.”
District Court Imposes Deadline on EPA to Issue “Good Neighbor” Plans for Ozone Compliance
On July 28, Judge John Koeltl of the U.S. District Court for the Southern District of New York ordered the U.S. Environmental Protection Agency (EPA) to issue Federal Implementation Plans for the 2008 ozone National Ambient Air Quality Standards (NAAQS) that fully address the “good neighbor” obligations under the Clean Air Act by March 2021. The plans will force upwind Northeastern states (Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia) to curb air emissions that otherwise impede the ability of neighboring downwind states (New York, Connecticut, New Jersey, and Massachusetts) from meeting the statutory July 20, 2021 attainment deadline set forth in the 2008 ozone NAAQS.
EPA Issues Proposed Rule Addressing Greenhouse Gas Emissions From U.S. Aircraft
On July 22, U.S. Environmental Protection Agency (EPA or the Agency) Administrator Andrew Wheeler signed an advance notice of proposed rulemaking (ANPR) to promulgate regulations governing carbon dioxide and nitrous oxide (collectively, GHGs) emissions from American aircraft under the Agency’s Clean Air Act (CAA) section 231 authority. This is the first such rule from the Agency covering aircraft GHG emissions. The ANPR proposes GHG standards for U.S. aircraft that are consistent with those adopted by the International Civil Aviation Organization (ICAO) in 2017, which EPA and the Federal Aviation Administration helped to develop. EPA does not anticipate that the proposed standards will reduce fuel burn or GHG emissions beyond the current baseline because existing or expected aircraft fuel efficiency technologies that formed the basis of the 2017 ICAO standards already demonstrate technological feasibility.
EPA Approves First Surface Disinfectants for On-Label Efficacy Claims Against the Novel Coronavirus
Updated July 31, 2020
As of July 31, the U.S. Environmental Protection Agency (EPA or the Agency) has approved 15 surface disinfectant products to make on-label claims of efficacy directly against the SARS-CoV-2 virus, the novel coronavirus that causes COVID-19. This marks the first time since the novel coronavirus pandemic began that EPA has reviewed and approved testing data on the SARS-CoV-2 virus itself. The registrants of these products, which include dilutable, ready-to-use, and wipe formulation types, can now update the product labeling registered with EPA to include directions for use and claims directly against SARS-CoV-2. The registrants will also be permitted to market and advertise their efficacy against the SARS-CoV-2 virus, consistent with all applicable EPA regulations. EPA has indicated that it is planning to review and approve on a rolling basis additional products for on-label claims against the SARS-CoV-2 virus. It has been processing these on an expedited basis since May.
Washington State Identifies Products Subject to Safer Chemicals Law
Washington state’s Department of Ecology has identified 11 categories of products that are subject to the Safer Products for Washington program under Chapter 70.365 RCW, passed in 2019. Washington state has been among the most active states in the field of “green chemistry laws,” whereby state agencies seek to promote the transition to safer alternatives of toxic substances. The law potentially applies to any consumer product, defined as “any item, including any component parts and packaging, sold for residential or commercial use.” Exemptions are provided for inaccessible electronic components, motorized vehicles, food, drugs, chemicals used to produce agricultural commodities, and certain other goods.
New Restrictions on Certain PFAS May Affect U.S. Imports
As part of the increased of per- and polyfluoroalkyl substances (PFAS), the Environmental Protection Agency (EPA) has proposed new use restrictions that may limit imports of certain products into the United States.
EPA Proposes Amendments to Industrial, Commercial, and Institutional Boiler and Process Heater Standards
On July 8, 2020, the U.S. Environmental Protection Agency (EPA) published proposed amendments to the 2013 National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters. The proposed amendments, the result of three remands issued by the U.S. Court of Appeals for the D.C. Circuit, revise certain maximum achievable control technology (MACT) limits and provide more explanation about other aspects of the rule.
Tenth Circuit Rejects EPA’s Position on Renewal of Clean Air Act Permits
On July 2, 2020, in Sierra Club v. United States Environmental Protection Agency, the U.S. Court of Appeals for the Tenth Circuit rejected the Environmental Protection Agency’s (EPA) interpretation of the scope of its obligations to review permits under Title V of the Clean Air Act (CAA). The court found that the plain language of EPA’s regulations requires EPA to review whether a state-issued Title V permit complies with all applicable CAA requirements, not only the requirements the state included in the permit. The issue may end up in the U.S. Supreme Court, as it diverges from a recent ruling by the Fifth Circuit.
Fourth Circuit Rejects NEPA Challenge as Untimely
On July 1, 2020, the U.S. Court of Appeals for the Fourth Circuit dismissed Howard County, Maryland’s, petition to review the Federal Aviation Administration’s approval (FAA) of construction at Baltimore-Washington International (BWI) Airport as inconsistent with the National Environmental Policy Act (NEPA). NEPA requires the federal agencies to conduct environmental assessments of federally licensed projects to determine whether the project will have significant environmental effects. In 1994, Congress provided for a 60-day limitations period covering challenges to certain projects. This limitations period includes challenges to the adequacy of the NEPA review (NEPA does not contain a statute of limitations provision). 49 U.S.C. § 46110(a).