U.S. Fish and Wildlife Service Proposes Framework for Endangered Species Act Critical Habitat Exclusion Analysis

On September 8, 2020, the U.S. Fish and Wildlife Service (FWS) issued a proposal under the Endangered Species Act (ESA) addressing how FWS will conduct discretionary analyses to determine whether to exclude land that otherwise would be constrained from use due to a critical habitat designation. (more…)

Third Circuit Limits CERCLA Liability Shield

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.”


EPA Issues Final Power Plant Wastewater Rule

On August 31, 2020, the U.S. Environmental Protection Agency (EPA) announced a final rule addressing effluent concentration limits for certain metals in power plant wastewater under the Clean Water Act. The Steam Electric Reconsideration Rule (SERR) changes several aspects of the coal-fired power plant effluent limitations included in the 2015 Effluent Limitations Guidelines and Standards rule, including the limits for two waste streams: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water. (more…)

EPA Publishes Toxic Substances Control Act Risk Evaluation Scope Documents and List of Businesses Subject to Fees

On September 4, 2020, the U.S. Environmental Protection Agency (EPA) published scope documents for 20 high-priority chemicals that will undergo risk evaluation under the Toxic Substances Control Act (TSCA). The scope documents set frameworks for evaluating these 20 chemicals in light of their conditions of use, hazards, exposures, and potentially exposed or susceptible subpopulations. TSCA directs EPA to complete risk evaluations for these 20 chemicals over the next three years.


California NOx Omnibus Regulation Requires 90 Percent NOx Reduction by 2027

On August 27, 2020, the California Air Resources Board (CARB) approved the Heavy-Duty Low NOx Omnibus Regulation (Omnibus Regulation), which requires heavy-duty truck manufacturers to achieve stringent nitrogen oxide (NOx) emission standards. The Omnibus Regulation follows the board’s June 2020 approval of the Advanced Clean Trucks regulation, which requires medium- and heavy-duty truck manufacturers to increase the sales of zero-emission models. Both rules require that certain compliance milestones be met by 2024.


SEC Updates Disclosures Required by Regulation S-K — Impact on Environmental Disclosure

On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) adopted amendments to “modernize” its rules requiring disclosure about a company’s business description, legal proceedings, and risk factors. The SEC amended these items to make them more clearly principles-based as well as to enhance the readability of disclosures, discourage repetitive and immaterial disclosures, and reduce the compliance burden on companies. The amendments were adopted substantially as proposed by the SEC in August 2019 with certain modifications. With regard to environmental matters, one of the amendments broadens disclosure about the material effects of environmental compliance to encompass the material effects of compliance with all laws, while the other changes the threshold for disclosure of environmental legal proceedings involving the government.


U.S. Nuclear Regulatory Commission Approves First Small Modular Reactor Design

On August 28, 2020, the U.S. Nuclear Regulatory Commission (NRC) approved the first-ever design certification application for a small modular reactor (SMR) through its issuance of a final safety evaluation report that outlines the agency’s multiyear, six-phased technical review. The agency approval represents a milestone for the U.S. nuclear sector and advanced nuclear technologies.


Senate Democrats Release “Climate Roadmap”

On August 25, 2020, U.S. Senate Democrats released a “climate roadmap” detailing their legislative goals if the November elections give the party a majority in the Senate. The report, provided by the Senate Democrats’ Special Committee on the Climate Crisis, sets out goals to achieve net-zero carbon emissions, globally, by 2050, such as promoting the use of renewable generation, electrified vehicles, and low-emission cement and steel. (more…)

Judge Defers to Bureau of Land Management on National Environmental Policy Act Analysis of Cumulative Impacts on Climate Change

On August 18, 2020, a U.S. district court judge for the District of New Mexico upheld the Bureau of Land Management’s (BLM) analysis of climate impacts under the National Environmental Policy Act (NEPA). The case concerned BLM’s decision to authorize the lease of 68,000 acres of land in New Mexico for oil and gas development. (more…)

EPA’s Proposal to Freeze Ozone National Ambient Air Quality Standards Issued in Anticipation of Criticism

On August 14, the U.S. Environmental Protection Agency (EPA) published its proposal to retain the existing ozone national ambient air quality standards (NAAQS). The proposal sets an October 1 deadline for public comment and schedules two virtual hearings, for August 31 and September 1, 2020. The current ozone NAAQS were established in 2015 and set 70 parts per billion for both primary and secondary standards.