As reported in last week’s blog post, climate change is one of President-elect Joe Biden’s top four priorities post-inauguration. Implementing policies to accomplish Biden’s climate change goals, however, is unlikely to be an easy process. First, climate change has generally not been a bipartisan issue in the Congress. Hence, unless the Democrats prevail in both runoff races in Georgia, Biden may struggle just to get his nominee for EPA Administrator approved by a Republican-led Senate, let alone to advance legislation. Even a 50-50 split in the Senate would present significant challenges. Additionally, new environmental regulations may face increased hostility in the courts, as nearly a third of all federal appellate judges were appointed by President Donald Trump. If those judges interpret federal law narrowly, they could limit EPA’s authority to act by striking down new regulations as not specifically addressed by existing statutes.
On November 9, 2020, the U.S. Environmental Protection Agency (EPA) published proposed amendments to the 2012 National Emission Standards for Hazardous Air Pollutants (NESHAP) for Polyvinyl Chloride and Copolymers Production (PVC MACT). The proposed amendments, which are the result of industry and environmental group requests for reconsideration of the rule, propose to tighten certain maximum achievable control technology (MACT) limits, provide additional clarification about certain aspects of the rule, and eliminate waivers for excess emissions during a malfunction.
On September 8, 2020, in New Jersey Department of Environmental Protection (NJDEP), et al. v. American Thermoplastics Corp., et al., the U.S. Court of Appeals for the Third Circuit limited the liability shield a potentially responsible party (PRP) receives when it settles a cost recovery action with a state under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court held that “a settling-PRP is protected only insofar as a consent decree and a contribution action address the same matters. In effect, our decision encourages a PRP to settle with both the relevant State and Federal Governments.”