Upcoming Decision From U.S. Supreme Court Could Further Restrain Authority of Administrative Law Judges

Two cases recently argued before the U.S. Supreme Court address the question of whether federal agencies have authority to mandate proceedings before administrative law judges (ALJs). The plaintiffs in these cases have challenged the constitutionality of ALJ proceedings and, depending on how broadly the resulting opinion is written, the Court’s decision could limit the authority of ALJs across the federal government including within the Environmental Protection Agency (EPA).

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U.S. EPA Proposes to More Than Double Toxic Substances and Control Act Fees

On November 16, 2022, the U.S. Environmental Protection Agency (EPA) proposed to raise its current Toxic Substances and Control Act (TSCA) fees, some of which would be more than doubled. This supplemental notice of proposed rulemaking modifies EPA’s proposal from January 11, 2021, which then aimed to increase the TSCA fees largely for inflation adjustment. TSCA allows EPA to collect fees from manufacturers, including importers, for the agency’s activities under TSCA Sections 4, 5, 6, and 14. Under the TSCA, EPA is required to adjust the fees “as necessary” every three years. In 2018, EPA promulgated a fee rule in 40 CFR part 700, subpart C, and set the current fees pursuant to that rule.

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U.S. EPA Office of Land and Emergency Management Publishes Environmental Justice Action Plan

On September 30, 2022, the Office of Land and Emergency Management within the U.S. Environmental Protection Agency (EPA or the Agency) published an action plan, “EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs” (EJ Action Plan). EPA describes the EJ Action Plan as “a key component” of its implementation of President Joe Biden’s Executive Orders 13985 and 14008 to promote environmental justice (EJ).

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U.S. EPA Establishes New Office of Environmental Justice and External Civil Rights

On September 24, 2022, the U.S. Environmental Protection Agency (EPA) announced the establishment of a new national program office, the Office of Environmental Justice and External Civil Rights, which will span all 10 EPA regions and be supported by more than 200 staff. The new office will be led by a U.S. Senate-confirmed Assistant Administrator, who will be announced at a later date. According to the EPA, the new office will address environmental justice matters by providing grants and technical assistance, enforcing federal civil rights laws, developing and implementing environmental laws, regulations, and policies, and providing support in alternative dispute resolution.

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United States Ratifies the Montreal Protocol’s Kigali Amendment Six Years After Amendment’s Introduction

On September 21, 2022, the U.S. Senate voted to ratify the Kigali Amendment, an amendment to the Montreal Protocol that addresses hydrofluorocarbons (HFCs), six years after the Kigali Amendment was officially adopted at the 28th Meeting of the Parties to the Montreal Protocol on October 15, 2016, in Kigali, Rwanda. While the Montreal Protocol originally sought only to phase out the consumption and production of ozone-depleting substances chlorofluorocarbons and hydrochlorofluorocarbons, the Kigali Amendment established plans to reduce the production and consumption of HFCs — greenhouse gases with high global warming potential — by more than 80% over the next few decades. (more…)

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U.S. EPA Takes Additional Steps to Evaluate and Restrict PFAS in Pesticides

On September 13, the U.S. Environmental Protection Agency (EPA) published a notice proposing to remove 12 per- and polyfluoroalkyl substances (PFAS) from its list of inert ingredients approved for use in regulated pesticide products. The 12 PFAS are listed below. According to EPA’s review, none of the 12 PFAS are being used as inert ingredients in any registered pesticide products; however, removing chemicals from EPA’s list of approved inert ingredients ensures that any future proposed use of these PFAS as inert ingredients would require substantiation with data (including, among other things, studies evaluating potential carcinogenicity, genotoxicity, adverse reproductive effects) and approval by EPA.

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U.S. EPA Identifies Five PFAS Added to Toxic Release Inventory List, Four of Them Newly Required for Reporting by July 1, 2023

On July 18, 2022, the U.S. Environmental Protection Agency (EPA) issued a final rule updating the Toxics Release Inventory (TRI) to identify five per- and polyfluoroalkyl substances (PFAS) added to the TRI pursuant to the framework set by the National Defense Authorization Act for Fiscal Year 2020 (NDAA). (more…)

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Quarterly Review: Biden Administration’s Advancement of Environmental Justice

In the second quarter of 2022, the Biden administration took steps to implement the President’s whole-of-government environmental justice (EJ) strategy. Specifically, the U.S. Department of Justice (DOJ or the Department), U.S. Environmental Protection Agency (EPA or the Agency), and U.S. Department of Health & Human Services (DHHS) each announced initiatives to address EJ in a variety of agency functions. Additionally, the White House provided an update on funding available to disadvantaged communities. (more…)

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Supreme Court Upends EPA’s Broad Claims of Climate Regulatory Authority

On Thursday, June 30, the U.S. Supreme Court released its decision in West Virginia v. EPA, holding that the Environmental Protection Agency (EPA) exceeded its statutory authority in adopting the Obama-era Clean Power Plan (CPP). The 6–3 decision may limit EPA’s ability to address greenhouse gas (GHG) emissions comprehensively. A summary of the Court’s reasoning is set out below, followed by four “key takeaways.” (more…)

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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…)

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