With the busy holiday shopping season underway, retailers should remain vigilant in their efforts to protect consumers and themselves from the risks of selling potentially unsafe, ineffective or misbranded products in violation of the U.S. Environmental Protection Agency (EPA’s) federal pesticide law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  As concerns with the spread of COVID-19 and new variants increase over the winter months, consumers are likely to stock up disinfectant products and devices like air purifiers and air filters marketed to reduce the transmission of COVID-19 and other microorganisms.  These products are tightly regulated under FIFRA, and retailers can unwittingly become entangled in regulatory enforcement actions for selling and distributing products that do not comply with EPA’s regulations.  FIFRA extends legal liability not only to the makers of violative products, but also retailers who sell them to consumers, whether or not the retailer was necessarily aware of the violation. In addition to EPA, state agencies also enforce state regulatory requirements applicable to these products.
Continue Reading Five Questions Retailers Should Ask Themselves When Selling Pesticide Products and Devices

This week, two senior U.S. Department of Justice (DOJ) Environment and Natural Resource Division (ENRD) officials used their remarks to the American Bar Association’s annual National Environmental Enforcement Conference to convey a clear message: environmental enforcement, and in particular criminal enforcement, is back. Companies and individuals should expect more robust investigations that draw on the expertise and jurisdiction of various federal agencies, while prosecutions will be driven by enhanced DOJ criminal enforcement policies.
Continue Reading DOJ Environment Officials Emphasize Enforcement of Environmental and White Collar Crimes

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

On October 4, 2021, the US Fish and Wildlife Service (FWS or the Service) published a final rule revoking its January 7, 2021, Migratory Bird Treaty Act (MBTA or Act) rule. 86 Fed. Reg. 54,642  (Oct. 4, 2021) (Rule or Revocation Rule). The January 7 rule was issued at the end of the Trump administration and established that the MBTA does not prohibit incidental (unintentional) take of migratory birds.  86 Fed. Reg. 1134 (Jan. 7, 2021). In the preamble to the Rule, which lists an effective date of December 3, 2021, the Service explained that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642.  On the same day it published the Revocation Rule, FWS also published an Advanced Notice of Proposed Rulemaking (ANPR), requesting public input that will be used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions, 86 Fed. Reg. 54,667 (Oct. 4, 2021), and issued a Director’s Order clarifying the Service’s current enforcement position.

Continue Reading FWS Revokes Trump Administration’s Migratory Bird Treaty Act Rule

Last week, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) released its annual enforcement report detailing the results of the past year’s civil and criminal enforcement and compliance efforts.  The report covers the 2020 fiscal year, which ran from October 1, 2019, through September 30, 2020, and thus provides some key insight into the effect of the COVID-19 pandemic on environmental enforcement.
Continue Reading EPA’s FY2020 Annual Enforcement Results Are In

On October 19, 2020, the New York State Department of Environmental Conservation (“NYSDEC”) will begin enforcing the state’s ban on single-use carryout plastic bags. Enforcement was delayed from earlier this year due to a legal challenge, which has since been resolved. Those persons found to be in violation of the ban face a range of consequences from a simple warning for a first offense and civil penalties thereafter. Grocery stores, retailers, and other establishments in New York that may be the target of enforcement will want to carefully review the provisions of this ban and their obligations going forward.

Continue Reading New York to Commence Enforcement of Plastic Carryout Bag Ban

On October 14, 2020, the California Air Resources Board (ARB) issued an enforcement alert entitled “Self-Disclosure of Non-Compliance Software and Other Violations by December 31, 2020.” The alert states that ARB will provide up to a 75% reduction in penalties for timely self-disclosed violations where the company “expeditiously” settles the matter.

Continue Reading California Air Resources Board Offering Lower Penalties for Self-Disclosure of Mobile Source Software and Other Violations by End of 2020

Today, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued its anticipated interim guidance on impacts to operations at cleanup sites due to the COVID-19 pandemic.  The guidance memorandum, issued jointly by the heads of EPA’s Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) and directed to Regional EPA Administrators, focuses on adjusting response activities at cleanup sites under a number of EPA administered programs and emergency responses due to the COVID-19 situation and the myriad of state and local shelter-in-place and business curtailment orders.
Continue Reading EPA Cleanup Site Guidance Recognizes COVID-19 Challenges for Response Activities

The US Environmental Protection Agency has continued to pursue an enforcement agenda against many of the same businesses believed to benefit the most from the Administration’s policies. Notably, this includes midstream oil and gas sources, as recently evidenced by EPA’s September 2019 Enforcement Alert titled, “EPA Observed Air Emissions from Natural Gas Gathering Operations in Violation of the Clean Air Act.”
Continue Reading Don’t Be a Pig: EPA Focuses Enforcement Alert Against Mid-Stream Gas Gathering Operations

EPA’s National Compliance Initiatives for fiscal years 2020 through 2023, recently released, replace the former National Enforcement Initiatives and aim to help regulated entities understand their compliance obligations. Additionally, the Agency plans to focus on returning to compliance through information actions, building state capacity, supporting state actions, bringing Federal civil administrative actions and bringing civil or criminal judicial enforcement actions.
Continue Reading EPA Sets New Enforcement Priorities