Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA
On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.
Federal Court Upholds U.S. Department of Labor ESG Rule
On September 21, 2023, Judge Matthew J. Kacsmaryk of the U.S. District Court of the Northern District of Texas rejected a challenge by 26 states and upheld the U.S. Department of Labor (DOL) rule that permits fiduciaries of plans subject to the Employee Retirement Income Security Act of 1974 (ERISA) to consider environmental, social, or governance (ESG) considerations under certain circumstances when making investment decisions. By upholding the rule, the court rejected the states’ contention that by allowing ESG considerations, financial interests would be subordinate to nonpecuniary interests. Stakeholders interested in ESG should continue to track this ruling, which may be appealed.
U.S. Supreme Court Upholds Federal District Courts’ Federal-Question Jurisdiction Over Federal Agencies’ Actions
On April 13, 2023, the U.S. Supreme Court in Axon Enterprise, Inc. v. Federal Trade Commission et al. unanimously held that federal district courts can hear constitutional challenges to an agency’s administrative enforcement powers without waiting for the outcome of administrative appeals to that action.
Southern District of Texas Enjoins New Waters of the United States Rule
On March 19, 2023, in Texas et al. v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
White House Solicits Comments on Recommendations for Increased Public Engagement in Federal Rulemaking
On Tuesday, February 7, 2023, the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget issued a set of recommendations for broadening public engagement in the federal regulatory process and invited public input on the recommendations through March 10, 2023. The recommendations were developed in response to a commitment to support greater public engagement in the rulemaking process included in the Fifth U.S. Open Government National Action Plan released December 2022. OIRA stated that the recommendations were informed by written submissions and a public engagement session held in November 2022. Thus, OIRA’s solicitation for public input on the recommendations provides a unique opportunity for stakeholders to potentially shape future federal regulatory reform actions.
EPA Defends Hydrofluorocarbons Cap-and-Trade Rule
In a June 2, 2022, brief addressing the U.S. Court of Appeals for the D.C. Circuit’s review of the final rule regarding the hydrofluorocarbons (HFCs) cap-and-trade program (Final Rule or Framework Rule), the Environmental Protection Agency (EPA or Agency) argued that the challenged measures of the Final Rule are within its statutory authority under the American Innovation and Manufacturing Act of 2020 (AIM or the Act). The Framework Rule is a part of the Agency’s efforts to achieve AIM’s objective of reducing manufacturing and consumption of 18 saturated HFC chemicals by 85% by 2036. (more…)
California Appeals Court Rules That State Endangered Species Act Protects All Invertebrates
On May 31, 2022, the California State Court of Appeals for the Third Appellate District ruled that the California Endangered Species Act (State ESA or the Act) protects all invertebrates. Expanding on the 2007 decision in California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1552, the court opined that the Act bestows the California Fish & Game Commission (Commission) with the authority to protect not just aquatic invertebrates but any invertebrates as endangered or threatened species. (more…)