US Congress Creates New Subcommittee to Focus on Challenges and Opportunities for Local Governments

Local governments have a new forum on Capitol Hill focusing on the many challenges and opportunities they face: the Intergovernmental Affairs Subcommittee in the US House of Representatives. The new Subcommittee was created in January at the start of the new Congress and is led by Chairman Gary J. Palmer (AL-6) and Ranking Member Val Butler Demings (FL-10). The Subcommittee has broad responsibility over “the relationship between the federal government and states and municipalities, including unfunded mandates, federal regulations, grants, and programs.”

Chairman Palmer is especially interested in addressing how environmental laws and regulations can be a “roadblock to states and local communities and infrastructure projects.” For example, testimony by one local official at the Subcommittee’s first hearing indicated that federal environmental regulations can double the cost of building a road per mile, increasing the cost from $80,000 to $160,000. The Chairman said at that hearing that he hopes his new Subcommittee will help “find ways to continue protecting our environment while simultaneously encouraging infrastructure development and economic growth” and also “play a role in beginning to streamline the regulatory process and devolve control back the States” and their local governments. Continue Reading

State Attorneys General Join Fight Over “1-in 2-out” Trump Executive Order

White House at NightAttorneys General from 14 states—led by West Virginia and Wisconsin—filed an amicus brief on April 17 in support of the “1-in 2-out” Executive Order (EO) issued by President Trump.  This EO, which we have covered previously, requires that:

  • For every new regulation promulgated, two regulations are eliminated;
  • Any new incremental costs associated with new regulations shall be offset by the elimination of existing costs associated with at least two prior regulations; and
  • For 2017, “the total incremental cost of all new regulations, including repealed regulations . . . shall be no greater than zero” unless otherwise required by law or consistent with advice from the Director of the Office of Management and Budget (OMB).

Plaintiffs, Public Citizen, Inc. (a nonprofit consumer advocacy organization), NRDC and the Communication Workers of America (AFL CIO), filed suit in the U.S. District Court for the District of Columbia challenging the “1-in 2-out” EO. They primarily attack the requirement that new rules can be promulgated only if the net impact does not impose greater costs. They argue that, by narrowly focusing on cost without considering benefits, the EO necessarily violates the Administrative Procedure Act and the statutes from which the agencies derive rulemaking authority.

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UK Regulator Growth Duty – A New Era in Decision Making?

The economic growth duty came into force on 29 March 2017 under the Deregulation Act 2015 (the “DA 2015”) and requires many regulators in England and Wales to have regard to the “desirability of promoting economic growth”, alongside the delivery of protections set out in relevant legislation. The regulators to which it applies are set out in the Economic Growth (Regulatory Functions) Order 2017, and include key bodies such as the Environment Agency (“EA”) and the Health & Safety Executive (“HSE”) but perhaps surprisingly, not local authorities.

The Department for Business, Energy & Industrial Strategy (“BEIS”) has produced statutory guidance to “assist regulators in fulfilling their new responsibilities… including the proper consideration that must be made before allocating resources, setting enforcement policies, and making sanctioning decisions“.

Under the new growth duty, regulators must have regard to the desirability of promoting economic growth, alongside their roles in protecting the environment or the public. In particular, they should consider the importance of ensuring that any regulatory action they take is necessary and proportionate (section 108, DA 2015). Continue Reading

D.C. Court Gives US EPA 3 Years to Update National Emission Standards for Hazardous Air Pollutants

On March 13, 2017, D.C. District Court Judge Tanya S. Chutkan granted summary judgment to an environmental advocacy group and ordered US EPA to update its National Emission Standards for Hazardous Air Pollutant (NESHAP) rulemakings for 20 listed major source categories in three years. The soon-to-be updated major source categories will affect several industries, including: boat manufacturing; municipal solid waste landfills; integrated iron & steel manufacturing; and surface coating of automobiles, light-duty trucks, plastic parts and products, and metal cans. Continue Reading

The UK HSE To Consult On Making the Fee For Intervention Process Fully Independent

The Health and Safety Executive (the “HSE”) operates a Fee for Intervention cost recovery scheme (“FFI”), which came into force on 1 October 2012. FFI was introduced to reduce the amount of public funding spent by the HSE, and to shift certain costs to dutyholders. If upon an inspection an HSE inspector identifies a material breach of health and safety legislation they are entitled to issue an FFI invoice to cover the costs of its investigation, which the dutyholder is liable to pay. There is no charge if the company is compliant with the law; the breach is not material; or the inspector simply issues verbal advice. If there is disagreement on the HSE’s decision, or the amount of the FFI invoices, the dutyholder can appeal by way of starting a ‘dispute’.

Disputes are currently considered by a panel consisting of two members from the HSE and one independent person. If the panel doesn’t approve the appeal, the dutyholder must pay the adjudication costs at £129 an hour. Following a recent application for a judicial review by the OCS Group UK (“OCS”), however, the HSE is now to consult on making the process fully independent. Continue Reading

OSHA Delays Effective Date of Controversial Rule Regulating Occupational Exposure to Beryllium

On March 16, 2017, the Occupational Safety and Health Administration (OSHA) adopted a 60 day effective-date delay for its controversial rule regulating occupational exposure to beryllium (the Final Beryllium Rule). The rule is now scheduled to be effective on May 20, 2017.

The delay in the rule reflects the agency’s compliance with a directive issued by the White House. The President directed federal agencies via a memorandum from Chief of Staff Reince Priebus issued just hours after the President’s inauguration to delay the effective date of any pending regulations for 60 days and to consider a longer delay when pending regulations pose serious issues of fact, law, or policy. Accordingly, OSHA initially delayed the effective date of the Final Beryllium Rule 60 days from the date of the Memorandum, changing the effective date from March 10, 2017 to March 21, 2017. Then, on March 2, 2017, OSHA proposed this second 60 day delay, due to the issues of fact, law, and policy raised by the rule. Continue Reading

Health and Safety Sentencing in the UK: A Border Divide?

The Definitive Guideline for Health and Safety Offences, which came into force on 1 February 2016 (2015 Guideline), must be applied when sentencing cases in England and Wales. Being separate and distinct legal jurisdictions, the courts of Scotland and Northern Ireland are not bound to follow the 2015 Guideline.

Historically, Scottish courts have still recognised the relevance of the Sentencing Council’s (England and Wales) guidelines, including the Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline 2010 (2010 Guideline). In the case of Scottish Sea Farms Ltd v HM Advocate 2012 HCJAC 11, it was held that although the “[2010] guidelines have statutory effect only for England and Wales [they] may be noticed for the purposes of sentencing similar cases in Scotland”, and both the aggravating and mitigating factors within the 2010 Guideline were considered. At the time it appeared that the 2010 Guideline had been adopted, at least in part, in Scotland. In the courts of Northern Ireland however, it is much more difficult to determine whether the 2015 Guideline has had an impact on the sentencing of health and safety cases. The Health and Safety Executive for Northern Ireland has published only four health and safety cases sentenced since April 2016, highlighting that the maximum a company has been fined since April 2016, in a Crown Court for a single health and safety offence under Northern Irish legislation, is £5,000. This appears extremely low, and indicates that there may be an emerging trend that while England, Wales and Scotland are following the Sentencing Council’s Definitive Guideline, Northern Ireland is not. Continue Reading

UK Government Issues Guidance on Minimum Energy Efficiency Standards for Leased Property

Energy and Electricity

Beginning 1 April 2018, under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (commonly referred to as the MEES Regulations), non-domestic landlords must ensure that any properties they rent out in England and Wales have an energy efficient rating of at least an E (using the A-G rating system from Energy Performance Certificates (EPCs)). This requirement will apply on the grant of a tenancy to new tenants, or a renewal with existing tenants after that date.  These requirements will extend to all such properties, even where there has been no change in the tenancy arrangements, from April 2023.

The UK government has recently issued Guidance for landlords on how the MEES Regulations are expected to operate and the implications for landlords who do not meet the requirements.

If you are a landlord of non-domestic properties, then it is important act now and consider how this will affect your leased properties. Key issues to consider are:

  • Which types of properties are affected. Most buildings in which energy is used to condition the indoor climate will be caught (ie those buildings for which an EPC is legally required when a property is sold or leased). Leases for less than 6 months or more than 99 years are not covered. There are a few exceptions for specific types of building, for example places of worship, but these are limited in application.
  • What improvements can be made if you have properties that are rated F or G. The Guidance provides further details of how to identify ‘relevant improvements’ and to work out if they are cost effective to install. There is a seven year pay-back test which is applied to assess if a measure is a ‘relevant improvement’.
  • If you have any properties which cannot be brought up to standard despite having ‘relevant improvements’, or where no cost effective measures can be identified, then you can register a 5 year exemption on the PRS Exemptions Register.
  • Implications of non-compliance. Compliance notices can be served requiring information to be supplied. Financial penalties can be imposed on landlords of non-compliant properties, with potentially very high fines for long-term breaches on high value properties (because the fines can be linked to rateable value). There is also a system for publishing details of non-compliant landlords.

An in-depth analysis of which properties are affected, the importance of reviewing your portfolio, the sanctions resulting from non-compliance, and the cost and letting implications of the MEES Regulations over the coming months is provided by our real estate colleagues here: “MEES – Landlords, It’s All About You

D.C. Circuit Declines Review of US EPA Practices on Blending and Mixing Zones

DrainOn February 28, the D.C. Circuit in Center for Regulatory Reasonableness v. US EPA dismissed a challenge to statements made by the US EPA regarding two wastewater treatment techniques – blending and the use of mixing zones. US EPA previously prohibited these techniques in specified circumstances, and in 2013, the Eighth Circuit vacated these prohibitions in Iowa League of Cities v. US EPA. US EPA elected to not appeal the Eighth Circuit’s decision. The challengers argued that US EPA also attempted to limit the precedential effect of the decision by issuing statements that the decision applied only in states under the Eighth Circuit’s jurisdiction and by refusing to follow the decision elsewhere. The D.C. Circuit’s decision arguably allows the prohibitions on blending and mixing zones to stand in states other than those in the Eighth Circuit.

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Are Changes on the Horizon to the Deference Historically Afforded to US Administrative Agencies?

As we have previously discussed on this blog, a cornerstone of US administrative law, Chevron deference, is in flux.  That fluctuation and its eventual resolution will impact US businesses, including in the promulgation of critical environmental regulations.  Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, Inc. v. NRDC.  The late Justice Scalia—a former administrative law professor and sometime defender of Chevron deference—articulated the doctrine in a 2015 decision as follows: “Chevron directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers.”  Justice Scalia also noted in a different 2015 decision that Chevron deference “provides a stable background rule against which Congress can legislate.”  Finally, though his views evolved over his career, Justice Scalia explained in a different context, that the deference is grounded in the notion that agencies, unlike courts possess “expertise,” an “intense familiarity with the history and purposes of the legislation at issue,” and a “practical knowledge of what will best effectuate those purposes.”

All that may not matter. Developments at the US Supreme Court or Congress (or both) could result in a fundamental change or wholesale elimination of the doctrine. Continue Reading