The Eleventh Circuit appears to be poised to be one of the first, if not the first, appellate courts in the country to address the impact of the Supreme Court’s decision in Kisor v. Wilkie, which addresses how courts should evaluate an agency’s interpretation of its own regulations.
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The EU’s Approach to Product Stewardship
While the European Union (EU) does not have any legal principle specific to product stewardship, it has applied the full range of EU environmental law principles to create a comprehensive framework for product stewardship. These principles include the prevention and precautionary principles, sustainability, extended producer responsibility, supply chain responsibility, and corporate social responsibility. In addition, product stewardship is a key instrument in the EU’s latest strategic environmental focus areas: the circular economy and the toxic-free environment, two main themes of current EU environmental policy making.
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On May 15, EPA released its draft Study of Oil and Gas Extraction Wastewater Management under the Clean Water Act. The Draft Study addresses the results of an extensive review initiated last year to evaluate the management of oil and gas wastewaters generated at onshore facilities and to assess the need for additional discharge options for onshore oil and gas wastewater under the Clean Water Act. Although EPA has not yet adopted any recommendations for regulatory action, it is evident that EPA is continuing to take a hard look at the merits of authorizing broader discharges of produced water to surface waters than those currently allowed for onshore discharges under the CWA effluent guidelines (and generally referred to as the zero discharge standard).
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State environmental regulators are beginning to develop plans designed to meet more stringent air quality standards under the Clean Air Act (CAA), including standards to protect against unhealthful levels of ground-level ozone. In doing so, many states are looking more closely at a factor that contributes to their air quality problems but that they lack any authority to address: the phenomenon of air pollution carried by prevailing winds into their jurisdictions from emission sources located not only outside their own state borders but outside the US itself. The issue of international contributions to air quality concerns has gained currency in part due to the many challenges states face in meeting the stringent nationwide air quality standards for ground-level ozone that the US Environmental Protection Agency (EPA) adopted in 2015.
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EPA has shown a little love for states wanting action on per- and polyfluoroalkyl substances (PFAS). On February 14, 2019, EPA announced its PFAS Action Plan, calling it “the most comprehensive, cross- agency action plan for a chemical of concern ever undertaken by the Agency.” The Action Plan consists of 23 priority action items with the majority identified as short-term or generally taking place or expected to be completed in the next two years.
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2018 was a banner year for M&A activity in the energy space, with numerous high dollar value transactions in the upstream, midstream, downstream and oil field services (OFS) segments. As investors in the public securities markets have shown a significantly decreased appetite for new issuances of equity by energy companies, the preferred exit or growth strategy for 2018 has been through strategic mergers, acquisitions or divestitures. These transactions have manifested themselves in various forms: asset acquisitions and divestitures, private equity investment into “drillcos” with strategic oil and gas companies, public-public mergers between OFS companies and upstream shale drillers, and simplification transactions by master limited partnerships (MLPs) in the midstream space. In addition to all this M&A activity, one element has become significantly more prevalent in the oil and gas industry throughout 2018 and shows no signs of letting down for 2019: water.
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With the Texas Legislature having now convened for the 2019 session, various key environmental issues are anticipated to be the subject of debate and legislative action. The article describes environmental topics that will likely be addressed by the recently convened Texas legislature.
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The US National Ambient Air Quality Standards (NAAQS) are the centerpiece of the US Clean Air Act (CAA) and establish allowable concentration levels for six “criteria air pollutants”: ozone, particulate matter, lead, carbon monoxide, nitrogen dioxide, and sulfur dioxide. The CAA requires the US Environmental Protection Agency (EPA) to review and, as appropriate, revise the NAAQS at least every five years, and EPA has, since 1970, regularly adopted increasingly stringent standards. Whether those revisions have gone far enough or too far has become a predictably contentious issue, with each review involving debates over science, the role of EPA’s Clean Air Science Advisory Committee (CASAC), the discretion of the EPA Administrator, and the format of the review process itself, among many other issues.
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The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly referred to as the Superfund law, directed the United States Environmental Protection Agency (EPA) to create a list of the country’s most hazardous waste sites. Sites are proposed to be placed on this “National Priorities List” (or NPL as it is known to environmental law professionals) if they exceed a certain risk score, or Hazard Ranking, and added to the List if the ranking is confirmed after a formal notice-and-comment process. A detailed set of regulations called the National Contingency Plan (NCP) governs how sites placed on the NPL will be investigated, alternative remedies evaluated, and a final remedy selected and then implemented. The NPL, the NCP, and various EPA guidance memoranda have established what practitioners acknowledge is an imperfect but generally workable process in which EPA and states work with potentially liable parties to manage cleanups at NPL sites.
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Why do some states run their voluntary cleanup programs well while others flounder? A recent bad experience with a state’s program led the author to catalogue some reasons for this phenomenon.
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