U.S. Environmental Protection Agency and Centers for Disease Control Update Surface Cleaning Guidance Amid the COVID-19 Pandemic
In a recent science brief regarding surface transmission of SARS-CoV-2, the novel coronavirus that causes COVID-19, the U.S. Centers of Disease Control and Prevention (CDC) concluded that while it is possible for people to be infected through contact with contaminated surfaces or objects, “the risk is generally considered to be low.” The principal mode by which people are infected by SARS-CoV-2 is through exposure to respiratory droplets in the air that contain the virus.
Administrator Regan Reaffirms Environmental Justice as a Top Priority of the U.S. Environmental Protection Agency
In an April 7 Agencywide memorandum, U.S. Environmental Protection Agency (EPA or Agency) Administrator Michael Regan recommitted EPA to advancing environmental justice initiatives. Administrator Regan stated that it would be one of his “top priorities” to address environmental effects on communities whose residents are predominately of color, Indigenous, or low-income.
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…)
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…)
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
EPA TSCA PFAS Reporting Rule Sent for White House Review
On March 1, 2021, the U.S. Environmental Protection Agency (EPA) sent for White House Office of Management and Budget (OMB) prepublication review a proposed rule that would require reporting and recordkeeping for the production of per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). (more…)
Trump Navigable Waters Protection Rule Revived in Colorado by the Tenth Circuit
The U.S. Court of Appeals for the 10th Circuit has vacated a stay of the Navigable Waters Protection Rule (NWPR) in Colorado, reversing the one court that had stayed the Trump administration’s rule redefining the meaning of “waters of the United States” under the Clean Water Act. (more…)
Supreme Court Agrees to Take Up CERCLA Suit Against U.S. 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.
D.C. Circuit Strikes Down ACE Rule
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.