On May 3, 2022, the Railroad Commission of Texas (Railroad Commission) voted to approve three actions that represent a major step forward in facilitating the deployment of carbon capture, use and sequestration activities (CCUS) in Texas. Specifically, the Railroad Commission approved:

  • Publication of proposed amendments to its rules implementing the state program for geologic storage of anthropogenic CO2 and incorporating federal requirements;
  • Submittal to the US Environmental Protection Agency (EPA) of a pre-application to gain regulatory authority over Class VI underground injection control (UIC) wells that are used for injection of CO2 into deep subsurface formations; and
  • A request that the Governor formally ask EPA for Class VI UIC well program approval. [i]  


Continue Reading Texas Takes Much-Anticipated Steps to Streamline Permitting and Assume Regulatory Authority for Carbon Sequestration Wells

A recent federal district court decision shows how a consent decree can provide protection to responsible parties under CERCLA by precluding later-filed tort claims seeking additional relief or different remedial action.
Continue Reading Federal Court Finds Tort Claims Preempted by CERCLA Consent Decree

Last week, in Residents of Gordon Plaza, Inc. v. Cantrell, the Fifth Circuit denied a petition for rehearing en banc of a recent decision affirming the dismissal of a Resource Conservation and Recovery Act (RCRA) citizen suit. The key issue in the underlying appeal, 25 F.4th 288 (5th Cir. 2022), was whether certain maintenance activities qualify as a “removal” action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court affirmed that the maintenance activities do indeed constitute a “removal action.” Therefore, the suit was barred under 42 U.S.C. § 6972(b)(2)(B)(iv), which precludes RCRA citizen suits where a “responsible party is diligently conducting a removal action” pursuant to a CERCLA consent decree with EPA.

Continue Reading Fifth Circuit Endorses Broad Reading of “Removal” Under CERCLA To Bar RCRA Citizen Suit

Two recent actions by the Biden Administration will identify areas of focus for environmental justice and therefore influence environmental enforcement priorities, federal permitting and licensing, and federal spending, among other actions. On February 18, the White House Council on Environmental Quality released the beta (or draft) version of its Climate and Economic Justice Screening Tool (CEJST), a key component of President Biden’s Justice40 Initiative. The Justice40 Initiative set the goal of “delivering 40 percent of the overall benefits of relevant federal investments” to disadvantaged communities. The CEJST serves a specific purpose: to help agencies identify disadvantaged communities in order to direct federal benefits and help agencies measure whether 40 percent of benefits are being received by those communities.
Continue Reading Biden Administration Rolls Out New Climate, Economic, and Environmental Justice Tools

On the heels of the November 2021 Tribal Nations Summit, a flurry of memoranda was signed by the White House and many government agencies. These memoranda seek to further the Biden administration’s promises of consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking. Center stage in the ongoing discussion is Indigenous Traditional Ecological Knowledge (ITEK), and the need for including and consulting with Tribal communities on the front end of planning as part of the environmental review process under the National Environmental Policy Act (NEPA). Stakeholders from developers and investors to Tribes and regulators, among other parties, should expect increased focus and guidance from the Biden administration in 2022 on these issues.
Continue Reading 2022 Promises Greater Focus on Tribal Consultation and Incorporation of Indigenous Traditional Ecological Knowledge in the Permitting Process

Under a process known as Sunset Review, the Texas Commission on Environmental Quality (TCEQ) will be abolished in 2023 unless a bill is passed in the 88th Texas Legislative Session reauthorizing the agency. The Sunset Review process, performed by the Sunset Commission, takes approximately two years. The TCEQ review process began last year with the preparation of the Self Evaluation Report (SER), completed by TCEQ in September 2021. The general public is encouraged to participate in the process. Public input is confidential and not passed on to the agency at this stage. Public comments should be provided by February 1, 2022 to be fully considered.
Continue Reading TCEQ Will Undergo Sunset Review During 88th Texas Legislative Session

On January 11, the Bureau of Ocean Energy Management (BOEM) announced the beginning of a scoping period to prepare a draft environmental assessment (Draft EA) for the Gulf of Mexico (GOM) Call Area to assess potential impacts associated with offshore wind leasing. The area includes approximately 30 million acres of federal lands on the outer continental shelf (OCS) in the GOM, and covers areas in what is commonly known as the Western and Central Planning Areas of the GOM. This is the same area described in the Call for Information and Nominations published in the Federal Register on November 1, 2021. Comments will be received through February 9, 2022. BOEM anticipates completing the Draft EA this summer.

Continue Reading Interior Announces Environmental Review of Offshore Wind Leasing for the Gulf of Mexico

On December 15, 2021, the Texas Commission on Environmental Quality (TCEQ) approved the publication of proposed changes to its compliance history rules to allow the agency to reclassify a site’s compliance history classification if an emergency incident results in significant impacts to the public and the environment.[1] In describing the background and reasons for the rulemaking, the agency noted the occurrence of a number of emergency incidents at industrial facilities in the state and resulting scrutiny of the facilities involved in those incidents.
Continue Reading TCEQ Proposes Changes to Compliance History Rules Focused on Industrial Incidents

The American Bar Association published an article, Navigating Environmental Justice Issues in Federal Permitting, which discusses Environmental Justice in federal permitting by Hunton Andrews Kurth attorneys Kerry McGrath, Andrew Turner, John Bobka, and Mayer Brown attorney Lauren Bachtel.
Continue Reading Navigating Environmental Justice Issues in Federal Permitting

The US Fish and Wildlife Service’s (USFWS or the Service) revocation of the Trump administration’s Migratory Bird Treaty Act (MBTA) rule took effect last Friday, December 3.  On the same date, the public comment period closed on the Service’s Advanced Notice of Proposed Rulemaking (ANPR), in which USFWS announced its plan to issue a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take, and to propose a system of regulations to authorize the incidental take of migratory birds under certain conditions.
Continue Reading Revocation of Trump Administration’s Migratory Bird Treaty Act Rule Takes Effect