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

A flurry of asbestos-related activity in the last weeks of 2020 will require the United States Environmental Protection Agency (EPA) to devote significant regulatory attention to asbestos in 2021.  The incoming Biden Administration will need to address these Toxic Substances Control Act (TSCA) developments, and the scope of that response will determine whether regulatory implications extend beyond asbestos to other chemical substances.

Continue Reading Asbestos Reporting and Regulation to be a TSCA Focal Point for EPA in 2021

On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity).  86 Fed. Reg. 1134 (January 7, 2021).  The rule, which lists an effective date of February 8, 2021, represents the latest in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA.  If it stands under the incoming administration, this rule will have important implications for the wind energy industry, among other sectors.
Continue Reading USFWS Issues Rule Excluding Incidental Take from the Migratory Bird Treaty Act: Implications for the Wind Energy Industry

A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not likely to adversely modify or destroy designated critical habitat.

On December 16, 2020, the Services adopted, for the first time, a regulatory definition of habitat, as follows:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.
Continue Reading Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”

On November 27, 2020, the US Environmental Protection Agency (“EPA”) published notice that the Texas Commission on Environmental Quality (“TCEQ”) has applied to the US EPA for National Pollutant Discharge Elimination System (“NPDES”) program authorization for discharges of produced water, hydrostatic test water and gas plant effluent. [1] TCEQ’s application (“Application”) was filed in response to a bill passed during the last Texas legislative session that required TCEQ to submit to EPA no later than September 1, 2021, a request for NPDES permitting authority for discharges of produced water, hydrostatic test water and gas plant effluent associated with oil and gas activities currently under the jurisdiction of the Railroad Commission of Texas (RRC). [2] Under this legislation, state authority to regulate these discharges will transfer from the RRC to TCEQ upon EPA’s grant of NPDES permitting authority to TCEQ. Should EPA grant NPDES permitting authority to TCEQ for these discharges, a prospective permittee would generally only need to obtain a single TCEQ authorization (rather than an authorization from both the RRC and EPA). [3]
Continue Reading TCEQ’s Request for NPDES Program Authorization for Oil and Gas Discharges Under Review

The Commonwealth of Massachusetts is poised to outline its planned steps to achieve the goals of its climate change-focused policies.  On December 7, 2020, the Massachusetts Executive Office for Energy and  Environmental Affairs (“EOEEA”) hosted a webinar to discuss the development and pending release of the Massachusetts Decarbonization Roadmap to 2050 (the “Roadmap”), which EOEEA indicates it will publish this month. The Roadmap constitutes the plan of the Commonwealth to identify cost-effective and equitable pathways and strategies for Massachusetts to reach Net Zero emissions by 2050, and the priorities to achieve an on-pace interim goal by 2030. In addition to the development of the Roadmap, the Commonwealth is in the process of preparing the 2020 update to the Clean Energy and Climate Plan (“CECP”), which is mandated to receive updates every five years under the Global Warming Solutions Act (“GWSA”).

Continue Reading Pulling on the same oar? Federal, State, and Local Measures Need Alignment to Achieve Climate Goals

On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple statutory programs. EPA will accept comments on the draft handbook and charge questions until March 1, 2021.

Continue Reading EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

Last month, the Texas Commission on Environmental Quality (“TCEQ”) launched a temporary “Find It and Fix It” program effective through January 31, 2021 to facilitate air quality compliance for companies with oil and gas operations in the Permian Basin.  Regulated entities that comply with the requirements of the temporary program may be eligible for enforcement discretion. 
Continue Reading TCEQ’s Permian Basin “Find It and Fix It” Program Underway

One of the most frequent terms heard in conjunction with President-Elect Biden’s energy and environmental agenda is “environmental justice,” which is often described as an overarching objective as well as a key component of the incoming administration’s climate agenda.  This post looks at how the Biden Administration may translate environmental justice principles into concrete executive actions, and how project proponents can prepare for increased focus on environmental justice in their permitting.

Continue Reading Preparing for Increased Focus on Environmental Justice Issues in a Biden Administration

On November 29, Voters in Switzerland narrowly rejected the “Responsible Business Initiative” (RBI), which would have extended liability to multinational corporations and their subsidiaries and suppliers for noncompliance with international environmental and human rights standards, not just in Switzerland but also when doing business abroad. The majority of Swiss voted in favor of the RBI, but the referendum failed due to unique requirements associated with Switzerland’s direct democracy.

Continue Reading Switzerland Narrowly Rejects Novel ‘Responsible Business Initiative’ on Multinational Corporation Environmental- and Human Rights-Based Liability