This article follows up on two prior articles published by Hunton Andrews Kurth LLP attorneys focusing on the Department of the Interior’s (“DOI”) funding of state orphaned well programs[1] and the Biden Administration’s promise of a greater emphasis on 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.[2]Continue Reading Biden Administration Makes $50 Million in Funding Available for Orphaned Well Clean Up on Tribal Lands
Environmental Justice in Focus: Why EPA’s New EJ Office and EJ FAQs Guidance Are Important
The Biden-Harris administration is taking new steps to put some teeth into its emphasis on addressing environmental justice. Two recent developments are worth noting given the potential impact on projects and communities. One, EPA announced on September 24, 2022 that it is launching its new Office of Environmental Justice and External Civil Rights (OEJECR or EJ Office). Two, in August 2022, EPA’s Office of General Counsel issued a guidance document entitled Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions that outlines EPA’s current views as to how federal, state, and local permitting agencies can meet the requirements of civil rights laws when they are administering environmental permitting requirements.
Continue Reading Environmental Justice in Focus: Why EPA’s New EJ Office and EJ FAQs Guidance Are Important
TCEQ Requests Public Input on Draft Wastewater Regionalization Guidance
The Texas Commission on Environmental Quality is inviting informal public comment on the draft Regulatory Guidance Document for Evaluation of Regionalization for Potential New Wastewater Systems. TCEQ is required to implement a policy to “encourage and promote the development and use of regional and area-wide waste collection, treatment and disposal systems to serve the waste disposal needs of the citizens of the state and to prevent pollution and maintain and enhance the quality of the water in the state.”
Continue Reading TCEQ Requests Public Input on Draft Wastewater Regionalization Guidance
USFWS Tries Again to Make Eagle Take Permitting Process Work for Stakeholders and Wildlife
On September 30, the US Fish and Wildlife Service (USFWS or Service) published proposed rule that would revise the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act. 87 Fed. Reg. 59,598 (September 30, 2022). In the preamble to the proposed rule, the Service acknowledges that its current ETP regulatory process, first established in 2009 and revised in 2016, is not working as intended. In particular, the Service notes that “[w]hile there are more than 1,000 wind-energy projects on the landscape, the Service has received fewer than 100 applications from those projects and has currently issued only 26 permits since the promulgation of the 2016 Eagle Rule.” 87 Fed. Reg. at 59,602.Continue Reading USFWS Tries Again to Make Eagle Take Permitting Process Work for Stakeholders and Wildlife
Humane Society v. U.S. Department of Agriculture: Has the D.C. Circuit Done More Than Protect Midnight Rules?
Beginning with the inauguration of Ronald Reagan in 1983, each newly inaugurated president from a different political party than his predecessor has ordered the withdrawal from the Office of the Federal Register (OFR) of all pending regulations that have not yet been published. 86 Fed. Reg. 7425 (Jan. 28, 2021) (Biden); 82 Fed. Reg. 8346 (Jan. 24, 2017) (Trump); 74 Fed. Reg. 4435 (Jan. 26, 2009) (Obama); 66 Fed. Reg. 7702 (Jan. 24, 2001) (Bush); 58 Fed. Reg. 6074) (Jan. 25, 1993) (Clinton); 46 Fed. Reg. 11,227 (Feb. 16, 1981) (Reagan). The incoming presidents have used this approach to advance their policies as opposed to being constrained by the policies of their predecessors reflected in such “midnight rules.” The D.C. Circuit, in Humane Society v. U.S. Dept. of Agric., No. 20-5291 (D.C. Cir. July 22, 2022), has limited the rules that can be withdrawn under this long-standing approach. Continue Reading Humane Society v. U.S. Department of Agriculture: Has the D.C. Circuit Done More Than Protect Midnight Rules?
EPA Publishes 2021 TRI Preliminary Dataset and Plans to Remove De Minimis TRI Reporting Exemption for PFAS
On July 28, 2022, the US Environmental Protection Agency (EPA) published the 2021 Toxics Release Inventory (TRI) preliminary dataset that provides public access to data about chemical releases, waste management, and pollution prevention activities that took place in calendar year 2021 at more than 20,000 federal and industrial facilities across the country. The 2021 preliminary dataset, which for the second year includes reporting on per- and polyfluoroalkyl substances (PFAS) added to the TRI by the 2020 National Defense Authorization Act (NDAA), has not yet undergone the complete TRI data quality process. EPA plans to publish the quality-checked dataset in October 2022, at which time it will be the basis for the 2021 TRI National Analysis interpreting the information and examining trends that is expected to be published in early 2023. Companies should bear in mind that information collected under the TRI program can be used not only to inform regulatory action, but also as a basis for enforcement by EPA and citizen suits.Continue Reading EPA Publishes 2021 TRI Preliminary Dataset and Plans to Remove De Minimis TRI Reporting Exemption for PFAS
Fourth Circuit Ruling Narrowly Construes Administrative Enforcement Bar to Clean Water Act Citizen Suit
A recent Fourth Circuit decision narrowly construed the state administrative enforcement bar to the Clean Water Act citizen suit, allowing a citizen suit seeking civil penalties to proceed despite the fact the state had already issued a notice of violation for the same alleged conduct.
Continue Reading Fourth Circuit Ruling Narrowly Construes Administrative Enforcement Bar to Clean Water Act Citizen Suit
Power to Launch: Creation of Federal-State Offshore Wind Implementation Partnership
Yesterday, June 23, 2022, The Biden Administration announced the launch of a Federal-State Offshore Wind Implementation Partnership (“Partnership”) to expedite and foster the growth of wind energy, tackle the climate crisis, strengthen American energy security, and achieve the goal of deploying 30 gigawatts (GW) of offshore wind by 2030. Continue Reading Power to Launch: Creation of Federal-State Offshore Wind Implementation Partnership
Texas Takes Much-Anticipated Steps to Streamline Permitting and Assume Regulatory Authority for Carbon Sequestration Wells
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]
Federal Court Finds Tort Claims Preempted by CERCLA Consent Decree
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