For federal agencies seeking to complete rulemaking before the end of the Biden Administration, the clock is ticking, and a number of important deadlines are fast approaching. One of the most important deadlines could be the Congressional Review Act’s (CRA’s) so-called “look-back” provision.

The CRA mandates agencies provide Congress an opportunity to review and possibly overturn rules. To overturn a rule, both houses of Congress must pass a joint resolution of disapproval, and it must be signed by the President. If a CRA resolution is enacted, it invalidates the rule in question and bars the agency from issuing another rule in “substantially the same form” as the disapproved rule. 5 U.S.C. § 801(b)(2). If a rule has already taken effect by the time it is set aside via the CRA, it will no longer be in effect and “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f).Continue Reading Federal Agencies Face Looming Congressional Review Act Deadline

On September 8, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a final rule in the Federal Register to amend the Agencies’ January 2023 “waters of the United States” (WOTUS) definition. 88 Fed. Reg. 61,964 (Sep. 8, 2023). According to the Agencies, these amendments conform that definition to the Supreme Court’s Sackett decision.
Continue Reading Agencies Issue Final Rule to Amend the 2023 “Waters of the United States” Definition

On August 14, EPA published its proposed modifications to regulations establishing the requirements for a state or tribe to assume the Clean Water Act (CWA) section 404 permit program, including necessary state program elements, EPA responsibilities (e.g., approval and oversight of assumed programs), and requirements for review, modification, and withdrawal of state programs.  88 Fed. Reg. 55,276 (Aug. 14, 2023).  The proposal provides helpful clarifications but does not resolve a number of key issues faced by states considering assumption and by permittees in those States. Continue Reading EPA Proposes to Modify Regulations to Facilitate State Assumption of CWA Section 404 Permitting

On July 10, 2023, California Governor Gavin Newsom signed into law a suite of bills intended to facilitate the permitting and approval processes for clean energy and other infrastructure projects in California.

Enactment of these measures in conjunction with the state’s budget bill marked the culmination of negotiations between the governor and state legislators that began on May 19, 2023, when the governor’s office announced a number of legislative proposals to streamline approval and permitting processes for clean infrastructure projects in California. On the same day, Governor Newsom issued Executive Order N-8-23, creating an Infrastructure Strike Team to work across state agencies to maximize federal and state funding opportunities for California innovation and infrastructure projects. The governor’s legislative proposals and executive order reflect the administration’s commitment to infrastructure development in California.Continue Reading California Governor Newsom Signs Legislation Intended To Facilitate Clean Energy and Infrastructure Development

On June 5, 2023, the US Department of Energy (DOE) published its US National Clean Hydrogen Strategy and Roadmap. This report addresses the Infrastructure Investment and Jobs Act (IIJA) requirement that the DOE “develop a technologically and economically feasible national strategy and roadmap to facilitate widespread production, processing, delivery, storage, and use of clean hydrogen.” Notably, in developing this strategy, Congress instructed the DOE to focus on clean hydrogen production and use from a variety of sources—including natural gas, coal, renewable energy, nuclear energy, and biomass.Continue Reading Department of Energy Establishes Clean Hydrogen Roadmap

In May 2023, Minnesota’s Governor Walz signed into law HF 2310, which bans the sale of certain products containing “intentionally added” per- and- polyfluoroalkyl substances (PFAS) in 2025 and then all products in 2032, and also establishes reporting requirements for products containing PFAS starting in 2026. Minnesota has become the second state in the country to pass a broad ban on PFAS-containing products sold in the state. While reporting requirements apply to product manufacturers, the bans on sale, offer for sale, or distribution in the state apply to “persons,” including retailers. Companies who manufacture products for sale (and who sell) products in the state of Minnesota will need to prepare to assess the presence of PFAS in their supply chains in order to comply with these new requirements.
Continue Reading Minnesota Becomes Second State To Pass Sweeping PFAS Ban and Reporting Law Targeting All Products

On June 3, 2023, President Biden signed the Fiscal Responsibility Act to temporarily suspend the United States’ debt limit. The legislation also amends the National Environmental Policy Act with the intent of streamlining the federal permitting process for infrastructure projects.
Continue Reading Amendments to NEPA Following Debt-Ceiling Deal Would Improve Permitting for Major Infrastructure Projects

On May 17, 2023, the US District Court for the District of Massachusetts granted summary judgment to federal government defendants and intervenor Vineyard Wind in the first of four lawsuits pending in that court challenging the development of Vineyard Wind, a 62-turbine offshore wind project being built off the coast of Massachusetts.
Continue Reading Federal Judge Rules for Vineyard Wind in First of Four Pending Actions

On April 6, 2023, President Biden issued Executive Order 14094, Modernizing Regulatory Review. This Executive Order (EO) makes several important changes to the Office of Management and Budget’s (OMB) regulatory review process for federal agency regulations. The EO significantly affects which regulations qualify for interagency review, modifies the OMB gatekeeping function by which meetings are granted on proposed rules, and requires the Office of Information and Regulatory Affairs’ (OIRA) to amend policies underlying how the federal government conducts cost-benefit analysis. In addition, OIRA has released a suite of new draft guidance documents that serve to implement the EO that, if finalized, will impact the review process for regulations. These guidance documents are open for comment as described below.Continue Reading Biden Administration Changes White House Regulatory Review

President Biden signed a new Executive Order (E.O.) to advance environmental justice (EJ) late last week, just in time for Earth Day. E.O. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, aims to carry out its title through a bevy of actions, including requiring agencies to create EJ strategic plans, directing research on EJ issues, expanding notifications for toxic chemical releases, and increasing coordination on EJ by establishing a new EJ Interagency Council and White House Office of Environmental Justice. The new E.O. builds on the Biden Administration’s “whole-of-government” approach to EJ, making clear that the obligation to consider and address EJ applies across federal agencies. The E.O.’s directives are likely to guide federal agency permitting, funding grants, and other authorizations for projects or activities that may have implications for EJ communities. On the same day as the E.O. was signed, the administration also announced a handful of other steps to further its EJ priorities.Continue Reading New Environmental Justice Executive Order Includes Additional Requirements and Accountability Measures for Federal Agency Environmental Justice Efforts