On October 4, 2021, the US Fish and Wildlife Service (FWS or the Service) published a final rule revoking its January 7, 2021, Migratory Bird Treaty Act (MBTA or Act) rule. 86 Fed. Reg. 54,642  (Oct. 4, 2021) (Rule or Revocation Rule). The January 7 rule was issued at the end of the Trump administration and established that the MBTA does not prohibit incidental (unintentional) take of migratory birds.  86 Fed. Reg. 1134 (Jan. 7, 2021). In the preamble to the Rule, which lists an effective date of December 3, 2021, the Service explained that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642.  On the same day it published the Revocation Rule, FWS also published an Advanced Notice of Proposed Rulemaking (ANPR), requesting public input that will be used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions, 86 Fed. Reg. 54,667 (Oct. 4, 2021), and issued a Director’s Order clarifying the Service’s current enforcement position.

Continue Reading FWS Revokes Trump Administration’s Migratory Bird Treaty Act Rule

In a dramatic announcement last week, EPA suggested that if companies import, manufacture, or process a finished good for commercial sale, and that product is not a pesticide, not a firearm, not a tobacco product, and not a food, food additive, drug, cosmetic, or device, they will need to know all chemicals contained in those products. We explain more about this below.

EPA has traditionally declined to extend most of its chemical regulations to finished goods, which are known as “articles” under the Toxic Substances Control Act (TSCA), on the grounds it would be enormously difficult for importers of complex consumer products to determine the chemical identity of each chemical substance in these products. Industry stakeholders have generally supported this approach and have long taken the position that supply chains are too complex to expect finished product manufacturers to be aware of all chemicals in those products.

Continue Reading EPA May Require Companies To Know All The Chemicals In Products They Make Or Sell

On September 22, 2021, the Division of Corporation Finance (Division) of the Securities and Exchange Commission (SEC) issued a sample comment letter to highlight its increased focus on climate change-related disclosures or the absence of such disclosures in issuer filings under the Securities Act and the Exchange Act. This sample comment letter follows a recent increase in climate-related comments the Division has issued during the disclosure review process, and many of the sample comments appear to be derived from actual comment letters issued in 2021. The sample is consistent with the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change, which does not mandate specific, line item climate change-related disclosures, but instead takes a principles-based approach.

Continue Reading SEC Issues Sample Climate Change Comment Letter

The American Bar Association published an article, You’ve Come a Long Way Baby, or Have You?, which highlights the results of a new study by Hunton Andrews Kurth LLP attorneys Shannon S. Broome, Lauren Bachtel, and Jennifer MikoLevine, and environmental litigation specialist Richard M. Pavlak, shedding light on whether the environmental bar is achieving gender equality. The authors acknowledge and appreciate the important contributions of the late Richard Pavlak (who passed away unexpectedly shortly before the online version became available) for his graphical presentation of the results of the study.

Continue Reading You’ve Come a Long Way, Baby! Or Have You?

Recent federal court decisions continue to show that Article III standing can be a formidable defense to environmental citizen suits, particularly following the Supreme Court’s decision Spokeo v. Robins, 578 U.S. 330 (2016) (vacating decision below and emphasizing that an alleged injury in fact must be “concrete and particularized”).  Just last week, for example, a North Carolina federal court dismissed on standing grounds almost all of the plaintiffs’ Clean Air Act citizen suit claims asserted against the University of North Carolina at Chapel Hill (UNC).  Center for Biological Diversity v. University of North Carolina, No. 1:19-CV-1179, 2021 U.S. Dist. LEXIS 163459 (M.D.N.C. Aug. 30, 2021).  In their complaint, the plaintiffs asserted nine claims, including seven for alleged failures to maintain records, inspect equipment, report permit deviations to government authorities, and monitor pollution controls, as required by UNC’s Title V permit.  On summary judgment, the plaintiff citizen groups offered declarations from two members who alleged “health, aesthetic, and recreational interests in air quality in Chapel Hill and the areas around UNC’s campus.”

Continue Reading Article III Standing Still Proving to be a Formidable Defense to Environmental Citizen Suits

As we have reported previously in this blog, in March 2021, the Massachusetts Governor signed historic climate legislation designed to effectuate the Commonwealth’s goal of net-zero emissions by 2050 (Chapter 8 of the Acts of 2021 or the “Act”). Some of the more controversial items in the Act were the provisions to incorporate requirements into the state’s building code to advance construction and/or retrofitting of buildings with energy systems designed to reduce emissions. In general, the efforts to facilitate a transition away from fossil-fuel energy systems in buildings continue to prove difficult as existing programs and policies are not necessarily designed to prompt the shift away from traditional energy systems at the pace that some argue is required to meet the aggressive emission targets of the state goals.

Continue Reading State Lawmakers Confront the Challenge of the Energy Transition

On August 30th, EPA granted the 2007 Petition from the Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) requesting that EPA revoke all chlorpyrifos tolerances. This followed the Ninth Circuit order earlier this year for EPA to: “(1) grant the 2007 Petition; (2) issue a final regulation within 60 days following issuance of the mandate that either (a) revokes all chlorpyrifos tolerances or (b) modifies chlorpyrifos tolerances and simultaneously certifies that, with the tolerances so modified, the EPA “has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information,” including for “infants and children”; and (3) modify or cancel related FIFRA registrations for food use in a timely fashion consistent with the requirements of 21 U.S.C. § 346a(a)(1).”

Continue Reading EPA Publishes a Final Rule Revoking All Tolerances for Chlorpyrifos, Impacting Raw Agricultural Commodities and Food Uses

8.18.2021 EPA Finalizes Hazard Assessments for Two Fuel Additives (ETBE and tert-Butanol):

On August 18th, EPA finalized the long-awaited hazard assessments for both Ethyl Tertiary Butyl Ether (ETBE) and tert-Butyl Alcohol (tert-Butanol).  ETBE was previously added to gasoline to increase its octane levels. It is still registered with EPA for use as a fuel additive, but it is not used currently in the United States.  tert-Butanol is one of the primary metabolites of ETBE and has also been used as a fuel oxygenate. It is also used for other purposes including as a solvent and as a dehydrating agent. Continue Reading ICYMI: EPA’s IRIS Program is Ramping up its Activity for chemicals, including PFAS; EPA’s TSCA Program Releases Guidance for Exemptions to CDR Reporting

In the face of accelerating EPA and state regulatory activity on per- and polyfluoroalkyl substances (“PFAS”)[i], Congress is pressing forward with measures that would address or impose limitations on these “forever chemicals.” More than thirty such legislative measures are currently pending in Congress covering a number of subjects related to PFAS including, but not limited to, those involving military uses, funding assistance, detection and research, product stewardship, site remediation, and regulatory mandates. Of these, the most comprehensive initiative, and the subject of significant public attention, is the PFAS Action Act of 2021[ii], passed by the House last month by a vote of 241-183 with twenty-three Republicans joining their Democratic colleagues in supporting the bill. The measure is now pending in the Senate before the Committee on the Environment and Public Works. While the path forward for this bill in the Senate may be uncertain, it is important to bear in mind that the PFAS provisions of this proposed legislation may be incorporated into other measures such as those addressing infrastructure[iii], spending or defense.

The PFAS Action Act of 2021 would impose new requirements on PFAS under various existing regulatory frameworks including those governing drinking water, wastewater discharges, air emissions, solid waste management and chemicals with expedited deadlines for action.  Key provisions include, but are not limited to, the following:

  • Designation by EPA of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most prevalent PFAS compounds, as “hazardous substances” under the Section 102(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). EPA would be required to be complete this designation within one year, and consider similar designations of all other PFAS within five years;[iv]
  • Promulgation by EPA of national primary drinking water regulation under Section 1412(b) of the Safe Drinking Water Act (SDWA) for PFAS within two years, to include standards for PFOA and PFOS, at a minimum, and establishment of a framework to regulate additional PFAS;
  • Listing of PFOA and PFOS by EPA as “hazardous air pollutants” under Section 112(b) of the Clean Air Act (CAA) within 180 days (which would effectively result in a more expedited designation of PFOA and PFOS as CERCLA “hazardous substances” as well);
  • Adoption of a rule by EPA imposing toxicity testing of PFAS under Section 4(a) of the Toxic Substances Control Act (TSCA) within two years;
  • Establishment by EPA of water quality criteria for PFAS under Section 304(a)(1) of the Clean Water Act (CWA) and effluent limitations guidelines under Section 502 of the CWA for PFAS discharges for priority industry categories;
  • Promulgation of regulations by EPA requiring that when materials containing PFAS or aqueous film forming foam are incinerated, PFAS emitted into the air are minimized to the extent feasible; and
  • Establishment by EPA of labeling program for products to indicate whether they are PFAS-free.

Notwithstanding its passage in the House, the bill faced vigorous debate and opposition in that chamber. Supporters of the bill include those who seek to expedite EPA regulatory action on PFAS as well as those who desire a more consistent national approach to PFAS matters in the face of a growing patchwork of state regulations. However, some have voiced opposition to various aspects of the bill. For example, concerns have been raised that designating any PFAS compounds as CERCLA “hazardous substances” could lead to far-reaching impacts at sites across the country where PFAS has been used, released or migrated, including sites that have been subject to cleanup actions and delisted from the National Priorities List. There is also concern that designation of PFAS compounds as CERCLA “hazardous substances” would result in the imposition of substantial financial liability to passive receivers of PFAS. In addition, some are concerned that the proposed aggressive timeframes for EPA regulatory action do not allow for a science-based process and are not feasible.

The PFAS Action Act of 2021, is substantially similar to the PFAS Action Act of 2019[v], which was passed by the House during the past legislative session but was ultimately not enacted. However, during the past legislative session, Congress approved a number of PFAS legislative measures in the National Defense Authorization Act (NDAA) for Fiscal Year 2020[vi], an expansive and “must pass” bill viewed by policymakers as a reliable means for a variety of initiatives. The precedent of using a “must pass” bill to impose PFAS regulatory mandates may be followed this legislative session. In any case, entities that may have come into contact with PFAS, whether through production, distribution or use, would be well-served to closely monitor these legislative developments.

[i] See e.g., ICYMI: Recent Chemical and PFAS Agency Activities (July 23, 2021) at https://www.huntonnickelreportblog.com/2021/07/icymi-recent-chemical-and-pfas-agency-activities/

[ii] See H.R. 2467, PFAS Action Act of 2021, available at https://www.congress.gov/bill/117th-congress/house-bill/2467.

[iii] See e.g., H.R. 3684, INVEST in America Act, available at https://www.congress.gov/bill/117th-congress/house-bill/3684.

[iv] Notably, EPA has never previously exercised this authority under CERCLA; instead, it has relied on listings under other statutes referenced by CERCLA’s definition of “hazardous substances.”

[v] See H.R. 535, PFAS Action Act of 2019, available at https://www.congress.gov/bill/116th-congress/house-bill/535.

[vi] See S. 1790, National Defense Authorization Act for Fiscal Year 2020 (which included, among other things, a provision adding a significant number of PFAS compounds subject to reporting under the Toxic Release Inventory program and establishment of a PFAS research initiative) available at https://www.congress.gov/bill/116th-congress/senate-bill/1790?q=%7B%22search%22%3A%5B%22National+Defense+Authorization+Act%22%5D%7D&s=2&r=4.

 

Last month, the Ninth Circuit Court of Appeals denied a petition for review brought by environmental non-governmental organizations (ENGOs) challenging EPA’s conclusion that the Phoenix-Mesa, Arizona metropolitan area, which had been designated nonattainment for a National Ambient Air Quality Standard (NAAQS) for ozone, had met that standard by the applicable deadline.  Bahr v. Regan, No. 20-70092, 2021 U.S. App. LEXIS 22333 (9th Cir. July 28, 2021).  Failure to have met the standard would have had implications in terms of additional air emission controls required in the area.

Continue Reading EPA’s Finding that Wildfires Did Not Preclude NAAQS Attainment is Upheld