Last week, the U.S. Environmental Protection Agency (EPA) issued new guidance related to its policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (the Audit Policy), 65 Fed. Reg. 19618 (April 11, 2000). The new guidance, titled EPA’s Audit Policy Program: Frequently Asked Questions (the 2021 FAQ), provides an update to interpretive guidance from 1997, 2007, and 2015 for self-disclosure of potential noncompliance.
Earlier this month, the Acting Assistant Attorney General supervising the Environment and Natural Resources Division (ENRD) at the U.S. Department of Justice (DOJ) has issued a memorandum rescinding nine policy or guidance documents issued for ENRD over the past three years. The documents generally concerned enforcement priorities and discretion and payments to third parties as part of settlements. The memorandum cites Executive Order 13,990, signed by President Joe Biden on January 20, 2021, which directs agencies to review agency agencies that may conflict with a range of environmental goals.
On Monday, February 1, the U.S. District Court for the District of Montana vacated the Trump administration’s Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information rule. Published on January 5 and effective immediately, the rule established procedures for how the Environmental Protection Agency (EPA) would consider dose-response data underlying science used in its significant regulatory actions and influential scientific information. Opponents challenged the rule, arguing it would “cripple the Environmental Protection Agency’s ability to protect public health and the environment by fundamentally transforming the ways in which the agency may consider and rely on scientific evidence.” The vacatur follows a January 27 order suspending the rule because the court found EPA failed to justify why it made the rule effective immediately and questioned “whether EPA retains any legal basis to promulgate the Final Rule.” Following the order, EPA moved to vacate the rule, arguing that the previous administration lacked authority to issue it.
As Sidley previously reported, President Joe Biden issued an executive order (EO) on January 27 stating that “climate considerations shall be an essential element of United States foreign policy and national security.” The EO places environmental justice at the center of the wide-reaching climate plan, which creates a number of new positions and task forces intended to ensure climate change is being addressed by all parts of the federal government.
On January 8, 2021, the U.S. Supreme Court took up a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) dispute involving the territory of Guam and the United States. At issue in Guam v. United States is who must pay for cleanup costs associated with a landfill formerly operated by the U.S. Navy, into which the Navy deposited spent munitions, chemicals, and other waste. Although Guam asked EPA to address the landfill under CERCLA, the agency proceeded under the Clean Water Act (CWA) instead, and in 2004, Guam entered into a consent decree under the CWA under which the territory agreed to close and remediate the landfill.
On January 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Affordable Clean Energy Rule (ACE), which the Environmental Protection Agency (EPA) promulgated in 2019 to replace the Obama-era Clean Power Plan (CPP). The CPP had sought to reduce greenhouse gas (GHG) emissions from existing power plants, in part, by authorizing states to increase renewable generation. As explained in a previous post, EPA had reasoned that it had the discretion to define the best system of emission reduction (BSER) at a plant under Section 111 of the Clean Air Act (Act) to include measures employed outside the facility (such as new renewable resources) that were located “beyond the fenceline.” Stayed by the Supreme Court in 2016, the CPP never went into effect. Instead, the Trump administration repealed the CPP and replaced it with ACE. In ACE, EPA reasoned that Section 111 of the Act required EPA to only find BSER to be a technology that could be applied “inside the fenceline” on the facility.
On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.
On January 6, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) published a final rule, “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.” EPA published the proposed rule in April 2018 and followed it with a supplemental notice in March 2020. The final rule establishes how EPA will consider the availability of dose-response data, and it is narrower in scope than both the proposed rule and the supplemental notice, as it is restricted to “those studies that describe the quantitative relationship between the dose or exposure of a pollutant, contaminant, or substance and an effect.” (more…)
On January 5, 2021, the U.S. Army Corps of Engineers (Corps) released a prepublication version of its final rule reissuing and modifying 12 existing Nationwide Permits (NWPs) and issuing four new NWPs. NWPs authorize activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 when those activities will result in “minimal individual and cumulative adverse environmental effects.” In addition to finalizing 16 NWPs, the rule also changed general conditions and definitions associated with those NWPs. Through this action, the Corps did not reissue or modify the remaining 40 existing NWPs, which will remain in effect until March 18, 2022.