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.”
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.
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).”
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.
After a disappointing showing in Mexico’s recent mid-term elections, President Andrés Manuel López Obrador (commonly referred to as AMLO) and his party (i.e., Movimiento Regeneratión National or MORENA, commonly referred to as Morena) will face greater hurdles to unwinding “la Reforma Energética” (2013 Energy Reforms), the energy policy reforms adopted by the then-ruling party, the Partido Revolucionario Institucional (PRI).
In January, EPA obtained data that some mosquito control pesticides contained detectable levels of certain PFAS. In a joint investigation with the State of Massachusetts, EPA found that fluorinated high-density polyethylene (HDPE) containers containing a mosquito control pesticide were leaching PFAS into the product. Now, EPA is testing different brands of fluorinated containers to determine whether they contain and/or leach PFAS and has asked the states with existing stocks of these pesticides to discontinue use as EPA evaluates the issue. Information on the EPA activities can be found here. EPA also began working with USDA and FDA to get a better understanding of the use of fluorinated polyethylene containers for pesticides and other products.
Environmental justice (“EJ”) is a central focus of the Biden administration’s environmental agenda. On Day One in January, the administration emphasized the importance of EJ in the federal government’s efforts to tackle climate change and to address the disparate impact of decisions affecting natural resources. In addition, many states are implementing their own EJ requirements. In the wake of issuance of new and enhanced EJ policies by both the federal government and states, it behooves lawyers in multiple disciplines to account for EJ issues in their legal practice. The focus of most commentary on EJ issues has been on facility siting and the impacts of “polluting” activities on minority and economically disadvantaged communities. This article, in contrast, addresses EJ in transactional practices. Specifically, we identify some of the EJ issues practitioners may confront and seek to manage in merger and acquisition, asset purchase and sale, real estate purchase and sale, facility siting and/or construction, Brownfields development, financing and underwriting contexts. Continue Reading Environmental Justice Considerations in Business Transactions
The Railroad Commission of Texas (RRC) has made known its commitment to expedited filings and approvals for the regulated community as well as public access to information and improved transparency for all parties. This effort is exemplified by the recently announced Pipeline Inspection, Permitting and Evaluation System (PIPES) program. Organizations can now file reports, inspections, and other documents as well as pay fees online. Organizations can also upload documents for RRC review. In addition, PIPES provides public users access to publicly available RRC documents. As the online availability of reports and other documents expands, it becomes even more important for organizations to focus on timely accurate filings as well as an organization’s online public profile. Continue Reading RRC Announces PIPES which Allows Online Pipeline Safety Filings and Public Access