On January 12, 2023, the US Environmental Protection Agency (“EPA”) published its proposed National Enforcement and Compliance Initiatives (“NECIs”), soliciting public comment on the Agency’s potential Initiatives for fiscal years 2024 through 2027. These NECIs will guide EPA’s Office of Enforcement and Compliance Assurance (“OECA”) in its enforcement efforts over the next four years by focusing resources on “serious and widespread environmental problems where federal enforcement can make a difference.” Unsurprisingly, the identified NECIs build off EPA’s FY2022 Enforcement Results (on which we recently reported) and reflect OECA’s overarching goal: “to protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance.”
EPA’s FY2022 Enforcement Results: Key Focus on Environmental Justice and Climate Change
The US Environmental Protection Agency (“EPA”) announced its enforcement and compliance results for Fiscal Year 2022 (“FY2022”) in late December. In the Annual Results report prepared by EPA’s Office of Enforcement and Compliance Assurance (“OECA”), OECA highlights EPA’s efforts to target the most serious violations of the country’s core environmental statutes and civil rights laws—effectuating the mission and principles set forth in its FY2022 to 2026 EPA Strategic Plan. According to OECA, EPA’s enforcement and compliance program used “a range of tools and best practices” to specifically target water, air, land and chemical violations that impacted communities the most. In so doing, EPA reportedly reduced, treated or eliminated approximately 95 million pounds of pollutants and compelled violators to pay over $300 million in fines, restitution or penalties. The enforcement and compliance trends highlighted below continue an overall decline seen in the last decade, yet provide evidence that EPA is succeeding in its enforcement and compliance efforts in areas that are the biggest priority for the Biden administration.
Jury Still Out On EJ-Focused Enforcement Results, Former EPA GC Says
In a wide-ranging interview on environmental justice (EJ) issues with Inside EPA, Hunton Andrews Kurth LLP partner Matt Leopold discussed the US Department of Justice (DOJ) and Environmental Protection Agency’s (EPA) new enforcement strategy.
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Five Questions Retailers Should Ask Themselves When Selling Pesticide Products and Devices
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.
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DOJ Environment Officials Emphasize Enforcement of Environmental and White Collar Crimes
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.
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Revocation of Trump Administration’s Migratory Bird Treaty Act Rule Takes Effect
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
FWS Revokes Trump Administration’s Migratory Bird Treaty Act Rule
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.
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EPA’s FY2020 Annual Enforcement Results Are In
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.
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New York to Commence Enforcement of Plastic Carryout Bag Ban
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.
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California Air Resources Board Offering Lower Penalties for Self-Disclosure of Mobile Source Software and Other Violations by End of 2020
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