On May 25, 2023, the U.S. Supreme Court issued a 9-0 decision ending a nearly 16-year battle over the Clean Water Act’s (CWA) applicability to certain wetlands. In a five-justice majority opinion, the Court found that the CWA applies only to wetlands that are “as a practical matter indistinguishable” from “relatively permanent, standing or continuously
Introduction
President Biden signed the Inflation Reduction Act of 2022 (the Act) into law on August 16, 2022. The Act represents an expansive investment in the energy industry, with many provisions targeting clean energy and climate change issues through funding and tax credits. However, several notable provisions from an environmental permitting and compliance standpoint are buried amongst the financial and tax provisions. These environmental provisions relate to permitting and compliance that the regulated industry, especially energy companies, should watch closely.
Funding for Permitting and Programmatic Development
The Act provided significant funding to regulatory authorities for a number of permitting-related activities.
For example, the National Oceanic and Atmospheric Administration (NOAA) received $20 million to assist with permitting and project review. The funds are meant to result in more efficient, accurate, and timely reviews for planning, permitting and approval processes through hiring and training personnel and obtaining new technical and scientific services and equipment.
The United States Environmental Protection Agency (U.S. EPA) received $40 million for its permitting and project review efforts. The funds will be utilized to develop efficient, accurate, and timely reviews for permitting and approval processes through hiring and training of personnel, development of U.S. EPA programmatic documents, procurement of technical or scientific services for reviews, development of environmental data and new information systems, purchase of new equipment, developing new guidance documents, and more.
The Act provided over $62.5 million to the Council on Environmental Quality to develop programmatic documents, tools, guidance, and improvement engagement. These funds will also support collection of data regarding environmental justice issues, climate change data, development of mapping/screening tools, and tracking and evaluation of cumulative impacts.
Several other federal agencies received millions in funding for review and planning of electricity generation infrastructure, like the Federal Energy Regulatory Commission, the Department of Energy, and the Department of the Interior. Funding will be used to facilitate timely and efficient reviews, as well as generate environmental programmatic documents, environmental data, and increase stakeholder and community involvement.
In sum, regulators involved in environmental and energy permitting received a substantial boost in funding targeting the permitting process, including supporting the development and build out of programmatic documents and capabilities. The funding could improve the timing of the permitting processes for these agencies, but it could also lead to additional administrative burdens in the form of new application and compliance materials and increased regulatory scrutiny where a regulator has more time and money to invest in the regulatory process.
Continue Reading Environmental aspects of the Inflation Reduction Act of 2022
As anticipated, on Friday the U.S. Environmental Protection Agency (EPA) issued a proposed Risk Management Program (RMP) Safer Communities by Chemical Accident Prevention rule pursuant to the Clean Air Act. The proposed rule would reinstate certain provisions newly introduced to the RMP rule (originally promulgated in 1991) late in the Obama administration and subsequently removed by the Trump administration in 2019. The EPA has additionally added significant new requirements not originally in the 2017 draft RMP rule, including provisions aimed to further current policies on environmental justice and climate change. The proposed RMP rule also appears to draw influence from recommendations made by the Chemical Safety Board (CSB) as well as state updates to process safety regulations in the past decade, most notably the California Accidental Release Prevention Program (CalARP) and the California Refinery Process Safety Management (PSM) Standard.
These changes, including the addition of requirements regarding employee participation, public availability of information, inherent safety, third party auditing, facility siting and natural hazards consideration, as well as emergency response planning, will result in covered RMP facilities having to significantly revisit and revise their RMP programs and plans. Certain requirements also appear to be directly aimed at limiting stationary sources’ ability to privately manage their internal risk management decisions. For example, covered facilities would now be required to document any revisions between draft and final compliance audits and provide justifications for rejected RMP program recommendations.
According to EPA Administrator Michael Regan, “protecting public health is central to EPA’s mission, particularly as we adapt to the challenges of climate change, and the proposal announced today advances this effort, especially for those in vulnerable communities. This rule will better protect communities from chemical accidents, and advance environmental justice for communities that have been disproportionately impacted by these facilities.” EPA estimates the rule will cost approximately $77 million a year.
Comments on the proposed rule are due to EPA within 60 days of its publication in the Federal Register and may be submitted online, via mail, or hand-delivery.
Continue Reading EPA Proposes Expansive Changes to EPA RMP Rule
The European Commission is currently seeking public comment as part of its review of the Restriction of Hazardous Substances in Electrical and Electronic Equipment Directive (Directive 2011/65/EU) (the RoHS Directive).
The aim of the RoHS Directive is to reduce the risk to human and environmental health by restricting the use of certain hazardous substances in
During 2021, the U.S. Environmental Protection Agency (EPA) collected discharge data for PFAS as part of its Multi-Industry PFAS Study. The purpose behind the study was to identify facilities producing or using PFAS, look at their wastewater characteristics, estimate PFAS in their discharges, and identify control practices and treatment options. As part of the study, EPA collected data from various EPA data sets and obtained information from other federal agencies (the U.S. Department of Transportation, Federal Aviation Administration (FAA), U.S. Department of Health and Human Services, and the Food and Drug Administration), states and EPA regions, as well as information from industrial users. After EPA collected its data, it categorically broke down the results of its study into the following groups:
The information collected by EPA during its study will be used to further identify companies and facilities that manufacture, import, or process PFAS.
Continue Reading EPA PFAS testing targeted industry and will now look to public water systems
The European Banking Authority (“EBA”) recently published final rules for lenders on how they must publish data on environmental, social and governance (“ESG”) risks, and how these risks may affect their balance sheets. The watchdog hopes that the proposed rules will help to “address shortcomings of institutions’ current ESG disclosures at EU level by setting
California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the public comment period for the proposed amendments to their “short-form” Proposition 65 “safe harbor” warning regulations in response to a request from the California Chamber of Commerce. OEHHA’s proposed amendments change existing provisions addressing label size, catalog and internet warnings, and other issues (see
In response to President Biden’s Executive Order entitled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” the Environmental Protection Agency (EPA) recently issued a proposed rule taking aim at greenhouse gases (GHG) and volatile organic compounds (VOC) emissions from new and existing oil and natural gas production, processing, transmission, and storage facilities. The proposal contains three basic components. In a break with precedent, EPA did not provide proposed regulatory language.
First, the proposed rule would revise the new source performance standards (NSPS) for GHGs and VOCs for new, modified, and reconstructed sources, including the production, processing, transmission, and storage segments. Specifically, EPA proposes to a new subpart OOOOb that would update and expand the current requirements under CAA Section 111(b) for methane and VOC emissions from sources constructed, modified, or reconstructed after November 15, 2021. NSPS OOOOb would include standards for emission sources not regulated previously under the 2016 NSPS OOOOa. Among other changes, EPA proposes to apply to VOC emissions thresholds to storage vessel tank batteries as opposed to individual storage tanks. EPA has also suggested a change to the definition of legal and practical enforceability which could impact the utilization of state-level permitting previously used to reduce the potential to emit to below the 6 ton per year VOC-threshold.
Second, the proposed rule would create a new subpart OOOOc that would contain the first nationwide emissions guidelines (EG). The EG would be a state model rule that states could use to develop, submit, and implement state plans that establish performance standards to limit GHGs from existing sources.
On November 4, 2021, the Army Corps of Engineers (ACOE) announced that it is pausing all requests for coverage under 12 nationwide permits (NWPs) issued earlier this year, including widely used permits for utility and oil and gas projects, among others. The announcement followed a California district court’s decision vacating the Section 401 Water Quality Certification Rule (2020 401 WQC Rule) adopted by the Trump Administration in 2020. Important questions remain about how ACOE intends to proceed while coverage is paused.
Section 404 of the Clean Water Act (CWA) authorizes the ACOE to regulate the discharge of dredged and/or fill material into waters of the U.S. The CWA also requires that any person applying for a Section 404 permit also obtain a Section 401 Water Quality Certification (401 WQC) from the state, confirming that the discharge of fill materials will be in compliance with applicable water quality standards. States must also issue 401 WQCs for all activities occurring in their state per a NWP.
On January 5, 2021 ACOE released the final version of a rule revamping certain NWPs issued pursuant to Section 404. NWP 12 (as it existed prior to January 2021) was a general permit covering a range of activities such as utility line installation, development projects, road crossings, etc. The January rule reissued and modified 12 NWPs and issued four new NWPs, following an April 2020 decision by the U.S. District Court for the District of Montana vacating a prior version of NWP 12. These permits include:
Continue Reading The U.S. Army Corps of Engineers pauses certain Section 404 nationwide permits
On October 21, 2021, we published an article called “Waiting for OSHA: pending vaccine ETS and increased enforcement.” In the article, we discussed the then-pending Emergency Temporary Standard (ETS) regarding vaccinating the workforce OSHA was tasked with developing by President Biden in his “Path Out of the Pandemic” memorandum. The ETS is scheduled