Among the flurry of executive actions signed by President Biden last week on inauguration day was a presidential memorandum aiming to revise the regulatory review process.  Titled “Modernizing Regulatory Review,” the memo is directed at the heads of executive departments and agencies and has dual focuses that show the Biden Administration’s commitment to strengthening key tenets of regulatory review while enhancing the focus on equitable and other considerations in the process.  Though it garnered less attention than other actions issued simultaneously, this memo signals President Biden’s ambitious regulatory agenda and may have far-reaching effects that pervade the regulatory process.
Continue Reading Presidential Memorandum Directs Evolution in Regulatory Review

A January 12, 2021 US Department of Justice (DOJ) memorandum extends and provides additional legal analysis to support the government’s increasing drumbeat against settling cases and reducing environmental penalties in recognition of Supplemental Environmental Projects or “SEPs.”  The new memo addresses the limited circumstances under which attorneys in DOJ’s Environment and Natural Resources Division (ENRD), the division of DOJ that represents EPA and other federal agencies in enforcing environmental laws, may include certain mitigation requirements in settlement agreements.  Issued last week by ENRD Assistant Attorney General Jeffrey Bossert Clark on the same day that he announced his departure from the Department, the memo bolsters the previously provided rationale for ENRD’s policy prohibiting SEPs in settlement agreements.  It also distinguishes SEPs from “equitable mitigation,” which the memo defines more narrowly and considers to be both permissible and appropriate.  The memo also lists criteria to guide ENRD attorneys evaluating whether equitable mitigation measures are appropriate in a given civil enforcement case.
Continue Reading New Memo Doubles Down and Bolsters Justice Department Positions on Limiting Supplemental Environmental Projects

The European Commission (EC)–the executive branch of the European Union (EU)–recently proposed a comprehensive regulatory framework for batteries (the proposal). The finalized proposal would replace the existing Battery Directive, which currently covers only the end-of-life stage of batteries. The proposal is the first action taken by the EC under its new Circular Economy Plan and is viewed as a necessary step towards meeting the European Green Deal’s goal of zero net greenhouse gas (GHG) emissions by 2050. The proposal will have significant implications for companies manufacturing and importing batteries (or products with batteries) in the EU and may influence the future policies of the incoming Biden administration.
Continue Reading The EU Drive toward a Sustainable Battery Framework and Seeing Around the Corner in the US

On October 8, 2020, Wyoming federal district court Judge Skavdahl struck down the Bureau of Land Management’s (BLM) “Waste Prevention Rule,” otherwise known as the “Venting and Flaring Rule,” which had been promulgated on November 18, 2016, in the closing months of President Obama’s second term (“2016 Rule”).  See Order on Pets. for Review of Final Agency Action, Wyoming v. U.S. Dep’t of Interior, No. 2:16-CV-0285-SWS (D. Wyo. Oct. 8, 2020) (Order vacating 2016 Rule).  The detailed fifty-seven-page decision concludes that in issuing the 2016 Rule, BLM exceeded its statutory authority and acted arbitrarily.  The core of the court’s holding was that the 2016 Rule was grounded in air quality motivations, which was the purview of the Environmental Protection Agency (EPA) and, therefore, beyond BLM’s statutory authority to promulgate.

Continue Reading Stay in your lane! Wyoming Federal Court Finds BLM Venting and Flaring Rule Intrudes on EPA Authority

Following a public review process, the Massachusetts Department of Energy Resources (“DOER”) recently found, among other factors, that the costs of a solicitation for independent offshore wind energy transmission outweigh the potential benefits.  Accordingly, the agency decided not to require the Massachusetts Electric Distribution Companies (“EDCs”) to pursue a joint competitive transmission only solicitation.  The DOER’s findings were presented in a letter to the state legislature’s Joint Committee on Telecommunication, Utilities and Energy, as a supplement to the DOER’s prior findings in its Offshore Wind Study, which was published just over a year ago.  This action appears to close the latest chapter in a several year effort to advance a coordinated transmission for offshore wind resources.  How this fits into the Commonwealth’s long term energy strategy remains an open question, which may need to be revisited as the Commonwealth aims to keep pace with its Global Warming Solutions Act greenhouse gas emissions limits.

Continue Reading Massachusetts Course Corrects on Offshore Wind Transmission

Determining which areas constitute habitat for listed species has important consequences under the Endangered Species Act (“ESA” or “Act”), yet “habitat” is not currently defined by the Act or its implementing regulations.  On August 5, 2020, the US Fish and Wildlife Service and the National Marine Fisheries Service (jointly, “the Services”) proposed a rule to define “habitat” for purposes of designating “critical habitat” under section 4 of the Endangered Species Act.  See 85 Fed. Reg. 47,333 (Aug. 5, 2020).  The Services’ proposal responds to the Supreme Court’s November 27, 2018, unanimous holding in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), that an area is eligible for designation as critical habitat under the ESA only if the area is actually habitat for that species.  Accordingly, a final rule defining “habitat” would determine which areas of land and water are eligible for designation as critical habitat.  Such designations can affect projects that require federal agency permits or funding, because ESA section 7 consultation requires federal agencies to ensure that their actions are not likely to adversely modify or destroy designated critical habitat.  The result for federally approved or funded projects can be increased permitting costs and risks, and longer timelines.  The proposal’s comment period ended on September 4.  Over 160,000 comments were submitted.  Stakeholders now await a final rule.

Continue Reading Services Propose Definition of Habitat for ESA Regulations

On July 16, 2020, the Council on Environmental Quality (CEQ) published its highly anticipated final rule to improve its National Environmental Policy Act (NEPA) regulations.  The update, which largely mirrors the proposed rule, is the first comprehensive amendment to the regulations since their original publication in 1978.  The final rule is designed to streamline the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. 
Continue Reading CEQ Releases Long-Awaited Final Rule to Improve NEPA Regulations

As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.
Continue Reading EPA Sets Termination Date for Temporary Enforcement Policy

On May 19, 2020, President Trump issued an Executive Order (EO) intended to combat the unprecedented effect COVID-19 has had on the American economy, by directing agencies to remove or ease regulatory barriers to spur economic growth.  In general, the EO directs agencies to ease regulatory and enforcement burdens that may inhibit economic recovery, provide guidance on what the law requires, recognize the efforts of regulated industries to comply with the law, and ensure fairness in administrative enforcement and adjudication. Perhaps most notably, the EO is written broadly enough that agencies may look beyond COVID-19-related impacts when considering how to implement the EO.
Continue Reading The President’s COVID-19 Executive Order Easing Regulatory Burdens

Massachusetts has now doubled the size of its Solar Massachusetts Renewable Target (“SMART”) incentive program, along with new performance standards for the siting of these renewable generating resources. While these changes to the SMART program were adopted as emergency regulations—making them effective immediately—the Commonwealth will go through the notice and comment rulemaking process over the next few months to provide for continued input from stakeholders on the new regulations and associated guidance.
Continue Reading Massachusetts Doubles Size of “SMART” Solar Program