Enforcement and Litigation

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Environment, Health & Safety enforcement and litigation

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?…

Continue Reading ICYMI: June sees major U.S. Supreme Court environmental activity

On March 26, 2020, the Environmental Protection Agency (EPA) issued a memorandum about a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. Under the policy, the EPA stopped seeking penalties for certain missed environmental obligations. The policy received mixed reactions from states and environmental groups. On June 29, 2020, EPA…

In 2016, Congress enacted major reforms to the Toxic Substances Control Act (TSCA). These improvements included items such as: (1) a mandatory requirement for the U.S. Environmental Protection Agency to evaluate existing chemicals with clear and enforceable deadlines; (2) risk-based chemical assessments; (3) increased public transparency for chemical information; and (4) a consistent source of funding for the EPA to carry out its responsibilities under this statute.

Although the EPA has made progress toward these goals on demanding deadlines, it is still struggling to complete all of its required improvements on time. The agency has successfully promulgated a series of “framework rules” establishing the process for how the agency regulates chemicals; it has finalized guidelines detailing how companies may keep certain information confidential; and it continues to update the TSCA inventory.

All this headway aside, the EPA has announced that it will not meet the deadlines for three improvements: (1) amendments to the fee rule; (2) risk evaluations; and (3) scoping documents for future chemical evaluations. In the coming months, the EPA will push to finalize these updates. As a result, important developments in the TSCA program may take place this summer.…

Continue Reading TSCA Summer Watch List

On June 1, 2020, the U.S. Environmental Protection Agency (EPA) announced final action to reduce emissions of ethylene oxide (EO) from certain sources. EO is an intermediary chemical used to make plastics, textiles and antifreeze, and also is used to sterilize medical devices. Scrutiny of EO has increased in the past few years due to the chemical’s potential carcinogenic effects. EPA’s regulatory action is the first update to national hazardous air pollutant limits for the chemical manufacturing sector since 2006, and the agency expects the regulations to reduce EO emissions by 0.76 tons per year. The announcement caps off a flurry of recent activity by EPA and state agencies aimed at addressing EO emissions.
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Continue Reading U.S. regulatory developments: EPA issues first in a series of rules restricting ethylene oxide emissions

On May 18, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) protecting U.S. workers against COVID-19.  However, on June 11, the U.S. Court of Appeals…

This month’s notable U.S. Supreme Court (SCOTUS) actions involve what the Court declined to review rather than any actual decisions.

  • Declined to review: Fuel blenders exemption under the EPA’s RFS program

On May 18, 2020, SCOTUS declined to review the U.S. Environmental Protection Agency’s (EPA) policy that fuel blenders are not responsible for mixing biofuels into gasoline. This policy is part of the EPA’s renewable fuel standard (RFS) program, which requires an increasing amount of renewable fuels be blended into U.S. transportation fuels. This means the D.C. Circuit opinion (below) on the issue remains unchanged.…

Continue Reading ICYMI: Major May U.S. Supreme Court environmental decisions

On May 18, 2020, the American Federation of Labor and Congress of Industrial Organizations (the AFL-CIO) filed a petition against the U.S. Occupational Safety and Health Administration (OSHA) demanding that the agency issue an emergency temporary standard (ETS) to address the COVID-19 pandemic within 30 days. The case is In re: Am. Fed’n of Labor…

Following recent announcements by the UK government on how the UK economy will gradually re-open, we are pleased to share a short publication with you that highlights some of the key health, safety and workplace management topics that UK employers may need to consider as we get businesses up and running again.

In addition to…

The uncertainty surrounding the COVID-19 pandemic has rocked the global economy, and companies of all types and sizes are feeling the impacts. In recent weeks, certain high-profile retailers filed for Chapter 11 bankruptcy protection. Some airlines are expected to enter bankruptcy as well, and even farmers are feeling the pinch. Overall, data suggest that bankruptcies will increase almost 25 percent from last year.
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Continue Reading EPA’s self-guidance for participation in bankruptcy proceedings

With most states starting to reopen after the lockdown, attention is focused on the process for getting back to work safely, and when and how employers must record COVID-19 cases as a work related illness. In response to this, OSHA has issued a revised recordkeeping enforcement memorandum outlining the applicable requirements. This comes into effect…