Facing criticism that they impede sustainable development, traditional cross-border investor protections are eroding. More balanced stabilization and equitable treatment provisions allow greater discretion to regulate environmental and social impacts. Enhanced due diligence, focused on project impacts, international standards, CSR obligations and regulatory discretion in applicable treaties or investment contracts, can help offset this increased risk.
Continue Reading Eroding Investor Protections: Managing CSR and Political Risk in the Sustainable Brave New World

Commentary regarding the US Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) memorandum articulating a temporary policy applying enforcement discretion in light of the COVID-19 pandemic has been significant this week. Proponents and critics alike have misinterpreted the scope of the policy as reaching far beyond what OECA’s memorandum actually stated. As we stated in Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19 and as the EPA has now confirmed, the “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic” is not a free pass to pollute, despite opponent’s musings to the contrary.

Continue Reading Misconceptions About EPA’s Temporary Enforcement Discretion Policy for COVID-19

Regulated industry has been expressing significant concern about disruption as a result of the COVID-19 pandemic and seeking assurance from the US Environmental Protection Agency (EPA) that the extraordinary circumstances across the United States would be taken into account in the event of any unanticipated noncompliance. Yesterday, March 26, 2020, EPA’s (EPA) Office of Enforcement and Compliance Assurance (OECA) Assistant Administrator Susan Parker Bodine responded to these concerns with the issuance of a memorandum addressing the impact of the current global COVID-19 pandemic on EPA’s enforcement program. In it, OECA commits EPA to a “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic,” provided that regulated entities follow the steps required in the policy.

Continue Reading Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19

As the country responds and adapts to unprecedented change as a result of the COVID-19 pandemic, companies are, understandably, attempting to sort out what these shifts mean for operations now and in the near future. One operational aspect that companies must address is management of environmental compliance programs and responsibilities. Although it can be challenging to maintain compliance with environmental requirements during periods of uncertain or disrupted operations, doing so remains necessary as environmental regulatory requirements remain in force, despite disruptions to government functions. The current operational and regulatory climate is fluid and changing daily (at least), making it incumbent upon companies to remain vigilant in monitoring for updates and understanding the status of rules and requirements at any given moment. The keys to successfully navigating compliance challenges during the pandemic are preparedness, situational awareness, and early and frequent communication with regulatory agencies as appropriate, with the assistance of counsel as needed.

Continue Reading Maintaining Environmental Compliance During the Coronavirus Pandemic

Regulatory staff continue to advance the Administration’s regulatory agenda, including issuing proposed and final rules. This blog post highlights the status of key natural resource regulatory actions.
Continue Reading COVID-19 and the CRA Deadline: Status of the Natural Resources Regulatory Agenda

Following Governor Abbott’s recent proclamation of a state of disaster in Texas due to the COVID-19 pandemic, both the Texas Commission on Environmental Quality (TCEQ) and the Railroad Commission of Texas (RRC) have issued guidance for regulated entities relating to environmental compliance concerns as well as other useful information relative to agency operations during these uncertain times.

Continue Reading TCEQ and RRC Issue COVID-19 Regulatory Guidance

A previous post, EPA Makes Room for State Flexibility in Addressing “Interstate Transport” Under the Clean Air Act, discussed the evolving policy of the US Environmental Protection Agency (EPA) regarding approval of state plans—required under the “Good Neighbor Provision” of the federal Clean Air Act—addressing “interstate transport” of air pollution. That article reviewed a series of guidance documents EPA issued in 2018 to allow states flexibility in addressing wind-borne emissions that can contribute to ground-level ozone pollution in other states located downwind. At stake are not only downwind states’ air quality objectives but the prospect of expensive additional emission controls on upwind states’ manufacturing facilities and power plants.

One of EPA’s 2018 guidance documents addresses the seemingly technical question of what “contribution threshold” to apply. That term refers to the quantity—measured in parts per billion (ppb) of ozone in the air at ground level—below which an upwind state’s impact on a downwind state’s ozone concentrations is small enough that any contribution would be considered essentially de minimis. Generally, a state will want its emission contributions to be deemed low enough that it would be clear that its emission sources would not need new control requirements.
Continue Reading EPA Acts on Clean Air Act “Interstate Transport” Plans

The Novel Coronavirus Disease (COVID-19) outbreak is affecting virtually every sector of society and the economy. The healthcare sector and government agencies are on the front lines of the response. Providing support to these critical response activities as well as striving to maintain the strength of the overall economy by continuing regular business operations is vitally important. The private sector has important roles to play. The purpose of this blog post is to briefly outline some practical and legal tools available to help provide both direct support and maintain broader economic activities while ensuring environmental protection and compliance with natural resource laws.

This blog post will be updated as new or relevant information becomes available.


Continue Reading Tools for Navigating Natural Resource Laws During a National Emergency

On March 2, 2020, the Environmental Protection Agency proposed an updated Multi-Sector General Permit, which authorizes the discharge of stormwater industrial activities and is the model for most states’ industrial stormwater NPDES permits. The proposal makes numerous updates to the MSGP and, notably, incorporates recommendations from the National Academy of Sciences report on improving permitting of industrial stormwater. EPA will be accepting public comments on the proposal until May 1, 2020.
Continue Reading EPA Proposes New Multi-Sector General Permit for Industrial Stormwater